Anvay Tewari

The Department of Health and Human Services took unilateral measures this month to restrict access for women to contraceptives provided under the Affordable Care Act, prompting a response from the Yale Law School’s Reproductive Rights and Justice Project.

On Oct. 6, the departments of Health and Human Services, Labor and the Treasury issued two interim rules, the Moral Exemptions Rule and the Religious Exemptions Rule. These rules allow businesses, nonprofits and universities to claim religious or moral objections to providing access to contraceptives for their employees. On Oct. 10, the Center for Reproductive Rights and the law firm O’Melveny & Myers, filed a lawsuit to challenge the rules before a federal court. Days later, the Law School’s Reproductive Rights and Justice Project joined the suit in a reseach capacity.

“It’s no secret that this administration is hostile to reproductive freedom,” said Laura McCready LAW ’18, a clinic member involved in the case.

According to the official complaint filed, the interim rules introduced on Oct. 6 violate the Administrative Procedure Act, the Equal Protection Clause and the Fifth Amendment.

Under the ACA, there existed a narrow exemption for religious entities, such as churches and places of worship, from providing health care that included “preventative services.” Following the Supreme Court’s landmark decision in the 2014 case Burwell v. Hobby Lobby Stores, the subset of exempted entities was expanded to include closely held for-profit entities.

These entities were required to request special accommodations if they had religious objections to providing coverage for contraceptives. The accommodation mechanism made it so that employees would receive cost-free access to contraceptives without the company footing the bill, according to clinic member Faren Tang LAW ’18.

Tang, who previously worked at Planned Parenthood, said this system also favored health insurance companies because it is cheaper to provide “preventative services” than covering the costs associated with unintended pregnancies.

Under the new rules, all business, nonprofits and universities will be able to request the same accommodations.

In addition, the rules make the accommodations voluntary, meaning entities can now opt out, leaving their employees without access to free contraception.

McCready told the News that the precedent set by the 2014 Hobby Lobby decision and the expectation that the Trump administration would mount challenges to reproductive rights played a major role in the founding of the Reproductive Rights and Justice Project last spring. She added that the clinic anticipated some shift in policy after Trump was elected and started preparing for this case last November.

McCready said the case is about “sex equality,” adding that for women to be equal players in the educational, economic and political realms, they must have complete control over their reproductive lives.

Laura Portuondo ’14 LAW ’18, another clinic member, stressed that the lawsuit is as much a moral struggle as a legal one.

“What we see, both in the Hobby Lobby case and the current administration’s actions, is an increasing encroachment on women’s rights in the name of an increasingly broad and amorphous religious and now moral set of rights,” Portuondo said. “And these are all coming at the expense of women’s health care and women’s health care alone.”

Daniel Dager | daniel.dager@yale.edu