The Trump administration has settled with groups that filed more than a dozen lawsuits over the Obamacare rule that required employers to provide insurance coverage for contraception, agreeing with challengers who had argued the mandate violated federal law.
The settlements — confirmed by the Justice Department on Monday — are a part of a move to appease religious and anti–abortion rights organizations that began earlier in October, when the Trump administration adopted two Health and Human Services rules that allow employers with a moral or religious objection to stop covering contraception for their employees.
The settlements cover 78 organizations and individuals involved in 17 lawsuits filed in federal courts across the country. The list does not include the Catholic organization Little Sisters of the Poor, a group of nuns that Trump invited to the White House Rose Garden this year and has repeatedly been cited as the face of the fight against the contraception requirement.
The settlement agreements were reached over the past two weeks, according to a DOJ official. The Justice Department has not released copies of the signed agreements, but an official shared information about the contents with BuzzFeed News. There are still dozens of cases pending for the DOJ to potentially settle.
As the Trump administration rolled out the new birth control rules, the Justice Department told organizations with pending lawsuits that they would start negotiating settlements so that these groups would not be forced to cover contraception under a future administration that might want to reinstate the Obamacare mandate in its original form. The settlement agreements state that the plaintiffs are exempt from the Obamacare rules or any “materially similar” policy, according to a DOJ official.
“This brings to a close protracted litigation that never should have happened in the first place,” DOJ spokesperson Ian Prior told BuzzFeed News in a statement Monday. “As this President and this Attorney General have made clear, they will always seek to protect and defend religious liberty.”
Under Obamacare, religious institutions that opposed contraception could apply for an exemption from the law’s mandate, and the government would provide separate contraception coverage for employees. Groups and individuals opposed to the mandate went to court, arguing the law impinged on their ability to exercise their faith. Some federal appeals courts sided with the challengers, and some sided with the Obama administration.
The cases trickled up to the US Supreme Court. In May 2016, the court — contending with an eight-justice bench after the death of justice Antonin Scalia a few months earlier — sent the cases back to the lower courts without reaching the merits of arguments against the mandate. The justices ordered the parties to attempt to negotiate a solution.
Over the next year and a half, the cases remained on hold. The organizations that were part of these lawsuits maintained that choosing any sort of accommodation made them morally culpable for the use of contraception by their employees, and that it was a violation of their religious rights.
Becket, a law firm that has represented Little Sisters of the Poor, among other plaintiffs whose cases are still pending, told BuzzFeed News that they were not concerned about the delay in settling their client’s cases.
“There are a lot of cases, involving a lot of different religious groups, in a lot of different courts and in a lot of procedural postures. So it will take some time to get to final resolutions with the government,” Becket senior counsel Lori Windham said in a statement, adding that it was “a good sign that the government has admitted that it broke the law.”
According to a DOJ official, the settlement agreements state that the Obama administration broke the law by violating the Religious Freedom Restoration Act. The agreements cite recent guidance and executive orders from the Trump administration that say federal officials will “vigorously enforce” protections of religious freedom. Under the terms of the settlements, the government will not require the plaintiffs to pay for, or even communicate about paying for, contraception.
The Trump administration also agreed to pay for at least part of the challengers’ legal fees and costs. The Justice Department declined to specify how much money would be paid out.
“We are currently in the process of negotiating with additional plaintiffs and will not be providing further details until those negotiations are completed,” a DOJ official told BuzzFeed News in an email.
The law firm Jones Day stands to benefit, having represented plaintiffs in 15 of the 17 cases that settled. A Jones Day spokesman did not return requests for comment, nor did lawyers from other law firms that were involved in handling cases that settled. Thomas Aquinas College in Santa Paula, California, one of the 78 plaintiffs included in the settlements, released a statement last week confirming that the Trump administration agreed to pay Jones Day “a portion of the legal costs and fees incurred” by the firm.
Jones Day has deep ties to the Trump administration. US Solicitor General Noel Francisco worked on some of the contraception cases when he was a partner at the firm. One current Jones Day lawyer involved in some of the cases, Eric Dreiband, is Trump’s nominee to lead the Civil Rights Division at the US Department of Justice. Trump’s White House counsel, Don McGahn, is a Jones Day alumnus, and numerous lawyers left the firm this year to work in the administration.
Jones Day did extensive legal work for Trump’s presidential campaign and has continued to provide legal services for his 2020 reelection campaign. BuzzFeed News reported in October that Trump’s 2020 campaign paid Jones Day $802,184.96 for legal consulting between July and the end of September, according to Federal Election Commission filings.
The contraception rules published and immediately implemented by the Trump administration on Oct. 6 are already facing legal challenges by several state attorneys general and multiple advocacy organizations. Should these lawsuits stall or change the new rules, the 78 plaintiffs who settled with DOJ would remain protected against having to provide contraception coverage.