The Trump regime announced this morning that more employers will be permitted to deny birth control coverage to their employees under new rules drafted by the Department of Health and Human Services (HHS), but the American Civil Liberties Union (ACLU) has already filed a lawsuit against it.
Among other things, the ACLU will argue that the new rules violate our freedom from religion under the Establishment Clause of the First Amendment.
In the lawsuit, the ACLU argues that the interim rules violate the Establishment Clause and the Equal Protection Clause of the Constitution by authorizing and promoting religiously motivated and other discrimination against women seeking reproductive health care. The ACLU is joined by co-counsel Simpson Thacher & Bartlett LLP as well as the ACLU of Northern California, Southern California, and San Diego in bringing forward the lawsuit.
“The Trump Administration is forcing women to pay for their boss’s religious beliefs,” said ACLU senior staff attorney Brigitte Amiri. “We’re filing this lawsuit because the federal government cannot authorize discrimination against women in the name of religion or otherwise.”
There's another angle from which the ACLU and other parties could challenge these new rules.
Federal agencies are required by law to undergo a standard review and period of public comment before new regulations are finalized, but HHS is skipping right over that part.
Regulators may skip the review and comment period under extraordinary circumstances, but there are no such circumstances in this case. There is no emergency.
I expect the first federal court that hears this case will block the new rules and this will be in front of the Supreme Court next year.