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Abstract

The Trump Administration’s efforts to undo the contraceptive mandate, a key component of the Affordable Care Act (ACA), threaten a major public health emergency, as well as the rule of law and separation of powers. The Trump Administration’s Rules greatly expand the grounds for exemption from the contraceptive mandate: they allow even publicly traded corporations to assert religious beliefs as a ground for exemption and exempt all employers except publicly traded corporations from compliance with the contraceptive mandate if they hold “moral convictions” in opposition to contraception. By denying women access to effective, affordable contraception, these Rules increase the odds that women who are at risk for Zika infection will become pregnant and thus increase the chances that children will be born with Zika-related injuries. Instead of responding to this public health challenge, the Trump Administration has erected major barriers to family planning, impeding women’s ability to make informed decisions about the risk of bringing a disabled child into the world. These Rules are unconstitutional and contravene several federal statutes; they are also extremely short-sighted health policy. Although two federal district courts issued injunctions against their enforcement, the Supreme Court has granted certiorari in one of them, Trump v. Pennsylvania, and a decision is expected by the summer of 2020. This article first explores Zika’s health risks, examining the harms suffered by children exposed to Zika in utero and the difficult choices faced by pregnant and potentially pregnant women and their families. A recent CDC study shows that one in seven (14%) of children born to mothers infected with Zika suffer from Zika-related birth defects, with some injuries not apparent until the child’s first birthday. Under these circumstances, access to certain contraceptive methods, especially long-acting reversible contraception, is essential for women to be able to prevent pregnancy. The article then turns to the legal and constitutional issues raised by the Rules’ expansion of employers’ ability to opt out of the contraceptive mandate. It argues that: 1) the Rules violate the Administrative Procedure Act, because they were promulgated without notice and the opportunity for public comment, without good cause, and because they are contrary to the statutory authority granted the executive by the Affordable Care Act, 2) the Religious Freedom Restoration Act (RFRA) does not justify the Rules, 3) the Rules violate the Establishment Clause by advancing a particular sectarian religious viewpoint as government policy, 4) the Rules violate the equal protection clause of the Fifth Amendment by carving out only women’s reproductive health care as a medical service an employer can choose not to provide, 5) the Rules conflict with Title VII of the Civil Rights Act of 1964, by authorizing employers to discriminate on the basis of sex in providing employee benefits, and 6) the Rules deny women their constitutional rights to privacy and procreative liberty, guaranteed by the due process clause of the Fifth Amendment...

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