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Two States Challenge Trump’s Birth-Control Mandate

The Little Sisters of the Poor aren’t out of legal trouble yet! Attorneys General in the states of California and Pennsylvania are challenging the Trump administration’s new rules that permit exemptions for employers with religious and moral objections.

According to the National Catholic Register, the challenges, led by Josh Shapiro of Pennsylvania and Xavier Becerra of California, are asserting that the administration is illegally limiting women’s access to birth control. They are calling for a nationwide injunction on the new rules that protect religious groups like the Little Sisters from having to cover abortifacients and other forms of contraception in their employee health insurance plans.

Attorneys representing the Little Sisters of the Poor say the challenges lack merit and are designed to score political points.

“No one needs nuns in order to get contraceptives, and no one needs these guys reigniting the last administration’s divisive and unnecessary culture war,” said Mark Rienzi, senior counsel at Becket, the public interest law firm that represents the Little Sisters of the Poor and several other religious nonprofits who filed suit against the Obama-era mandate.

“Sadly Josh Shapiro and Xavier Becerra think attacking nuns is a way to score political points. These men may think their campaign donors want them to sue nuns, but our guess is most taxpayers disagree.”

Hillary Byrnes, assistant general counsel for the U.S. Conference of Catholic Bishops, told the Register, the suits are making “very aggressive legal arguments that would undermine basically any religious exemptions contained in law. The states’ arguments go against our country’s long tradition of religious liberty and pluralism,” Byrnes said.

In a prepared statement, Becerra defended the filing, arguing that the new rules are unconstitutional because they harm women and violate their Fifth Amendment right to equal protection under the law.

“A woman’s birth control and health decisions should be made by a woman in consultation with her doctor — not by her employer and not by politicians,” Becerra said, adding that he would not stand by while the Trump administration “continues to disregard the rule of law.”

Shapiro issued his own statement, saying that the “federal government — under the direction of the Trump administration — broke the law and undermined the health and economic independence of American women.”

Melanie Israel, a research associate at the DeVos Center for Religion and Civil Society at The Heritage Foundation told the Register that she questions why these states didn’t sue the Obama administration when large corporations like Exxon and Visa were originally exempted from the HHS mandate. Why are they only bothered by entities that are exempt due to their religious beliefs?

“I think it’s pretty disingenuous for them to not have had a problem when tens of millions of women were exempt from this mandate back when it came about, but now, all of a sudden, after all these years of litigation with the Little Sisters winning their cases, they suddenly think it’s a horrible thing that nuns are exempt from the mandate. It’s just a very disingenuous argument,” Israel said.

She believes the state officials are “just trying to throw everything at the wall and see what sticks.”

Joining California’s lawsuit as co-plaintiffs are the states of Delaware, Maryland, New York and Virginia. Other states have filed similar challenges in the federal courts.

However, Douglas Laycock, a professor at the University of Virginia School of Law told the Register that he does not believe the lawsuits’ constitutional and discrimination claims are going anywhere.

The only problem he sees for the administration is a possible violation of the Administrative Procedure Rule for imposing the new rules without notice or comment.

“That could be fixed, but it would entail a significant delay,” he said.

Otherwise, the Supreme Court has repeatedly, and unanimously, rejected constitutional challenges to religious exemptions.

“And I think it would reject this one,” Laycock said.

Hearings are scheduled in the California lawsuit on December 12, the Feast of Our Lady of Guadalupe, and on December 14 in Pennsylvania.

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