On Dec. 23, the Northern District of Texas ruled on a requested motion by the federal agencies that issued the federal contraceptive mandate of the Affordable Care Act to dismiss claims made by two religious objectors and one non-religious objector — who claimed the mandate violated the Appointments Clause and nondelegation doctrine. The court allowed only the Appointments Clause count to proceed to trial and dismissed the plaintiffs’ remaining counts with prejudice.
The Health Resources and Services Administration (HRSA) issued a requirement in 2011 that all FDA-approved contraceptives must be covered under health insurance plans as “preventive care”; thus, the Secretaries of Health and Human Services, Treasury, and Labor used notice-and-comment regulations for private insurance companies to implement the HRSA decision, commonly known as the “contraceptive mandate.”
In 2018, the three federal departments issued a final rule that would allow individuals to buy health insurance that excludes coverage of contraception from any “willing” issuer of health insurance, the court said. However, the rule was enjoined by a nationwide injunction on the day the rule was to take effect; as a result of the injunction, suit was filed in the Northern District of Texas that argued that the Religious Freedom Restoration Act (RFRA) required that religious objectors to contraception be allowed to buy health insurance plans that exclude birth control coverage. The litigation resulted in an overturning of the injunction enjoining implementation of the aforementioned final rule (DeOtte v. Azar).
On Aug. 1, Victor Leal, Patrick Von Dohlen, and Kim Armstrong filed a complaint against the federal government to challenge the legality of the “contraceptive mandate.” Leal and Von Dohlen specifically alleged violations of the RFRA, and Armstrong alleged violations of the Appointments Clause and the nondelegation doctrine.
Leal and Von Dohlen, devout Roman Catholics, oppose all forms of contraceptives and would like to buy health insurance that excludes birth control coverage “to avoid subsidizing other people’s contraception and becoming complicit in its use,” the court explained. Despite the court’s decision in DeOtte, Leal and Von Dohlen argued that it is not enough: There are allegedly few health insurance companies that provide options excluding coverage for birth control, as the number of individuals who sincerely oppose all forms of contraception because of religious reasons is small and companies are required under the federal contraceptive mandate to cover contraception as preventive care, as long as anyone under any given policy “lacks a sincere religious objection to contraception.”
Armstrong is not a religious objector, but she had a hysterectomy and thus claimed she should not have to pay higher premiums for health insurance that covers birth control since she does not need it because she cannot get pregnant.
The federal defendants moved to dismiss the case on the grounds that the plaintiffs lack standing given all plaintiffs failed to state claims for the violations they allege and —even if said claims should be properly pleaded— all claims are barred by the six-year statute of limitations that governs civil litigation against the federal government. The defendants further argued that the doctrine of res judicata provided another basis for dismissal of the plaintiffs claims, as the DeOtte case indisputably settled this legal matter using substantially similar facts.
Regarding Leal and Von Dohlen’s and Armstrong’s standings, the court disagreed with the federal defendants, saying all of the plaintiffs have properly alleged their injuries — for Leal and Von Dohlen, that the contraceptive mandate makes it “impossible” for them to find health insurance policies excluding birth control coverage, and for Armstrong, that she faces the economic burden of not being able to find an insurance policy that does not cover birth control. The court also found that the plaintiffs’ claims are not time barred by the statute of limitations given the continued enforcement of the contraceptive mandate after its initial implementation.
Additionally, the court ultimately ruled that all of Leal and Von Dohen’s claims are barred by res judicata. The court explained that, according to the Fifth Circuit, res judicata “has four elements: (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions.” Only the fourth elements is in dispute by the plaintiffs — they argue that their claims/causes of action differed from those in DeOtte because they, by their own terms, are challenging the constitutionality of the statute while the claims in DeOtte challenged “the behavior of executive-branch officials who enforced the Contraceptive Mandate in a manner that violated the (RFRA).” The court disagreed, stating that the distinctions made by the plaintiffs are based on differing legal theories, not the facts of the cases.
Finally, the court held Armstrong properly alleged a violation of the Appointments Clause by asserting that the agency leaders who promulgated the regulatory exception exercised significant authority on behalf of the United States, yet served in unelected positions of authority. However, the court also determined Armstrong did not properly allege a violation of the nondelegation doctrine, as the doctrine requires allegations that Congress —when delegating its constitutionally-provided legislative authority to an agency— must do so with intelligible principles that instruct the agency on how to utilize such a delegation of authority.
According to precedent, the court contended, “an intelligible principle is ‘constitutionally sufficient’ if Congress (1) clearly delineates its general policy (2) the public agency which is to apply it, and (3) the boundaries of that delegated authority.” Armstrong disputed the third element, but the court was unconvinced and maintained that Section 2713 of the Affordable Care Act clearly limits the HRSA to only “preventive care and screenings,” thus not violating the nondelegation doctrine.