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JANUARY 2018 - Amicus
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Amicus Committee Round-up: WLALA Supporting Change

Since President Trump’s election, women’s rights have been increasingly challenged and at the forefront of the news.  In recent months, the WLALA Board of Governors voted in favor of WLALA’s participation in three amicus briefs, each filed in a lawsuit challenging women’s reproductive rights or anti-discrimination laws intended to safeguard the rights of women and other protected classes.  We are happy to report that, as of this publication, two of these amicus briefs have already contributed to a successful outcome and the defense of women’s rights.

All of the amicus briefs joined by WLALA this year were organized by the National Women’s Law Center (“NWLC”), a non-profit organization with a mission “to protect and promote equality and opportunity for women and families.” 

In October, the Trump administration created an exemption to the Affordable Care Act’s (“ACA”) requirement that employers provide employees with no-cost birth control coverage in their health insurance plans.  The new rules exempt all entities from the contraceptive coverage requirement if the employer invokes either a religious or an undefined “moral” objection to birth control. 

While the Trump administration contends employers should be permitted to circumvent the ACA’s requirements based on religious freedom, opponents argue the exemption permits discrimination against women seeking contraceptive coverage and will divest thousands of women and their dependents from access to reproductive healthcare.  Shortly after the new rules were issued, several states and civil rights groups challenged the constitutionality of the new exemptions on these and other grounds.

WLALA joined the NWLC’s amicus briefs in support of the lawsuits brought to enjoin the new ACA contraception rules by (1) the Commonwealth of Pennsylvania and (2) the State of California.  Both amicus briefs argued the exemptions would sanction discrimination against women, increase gender disparities, and ultimately deprive an enormous population of women from access to health care services and family planning.    

The first ruling came in Pennsylvania v. Trump, in the Eastern District of Pennsylvania, on December 15.  The District Court granted the injunction, finding Pennsylvania was likely to succeed on the merits of its arguments against the discriminatory rules, and had demonstrated irreparable harm, twice referencing analysis provided by amici illustrating “[t]he real life consequences” and the significant number of women who would lose contraceptive coverage.  The court then stated: 

“A simple hypothetical illustrates the insidious effect of the Moral Exemption Rule. It would allow an employer with a sincerely held moral conviction that women do not have a place in the workplace to simply stop providing contraceptive coverage. And, it may do so in an effort to impose its normative construct regarding a woman’s place in the world on its workforce, confident that it would find solid support for that decision in the Moral Exemption Rule. It is difficult to comprehend a rule that does more to undermine the Contraceptive Mandate or that intrudes more into the lives of women.”  


On December 21, less than a week after the Pennsylvania ruling, the Northern District of California granted a similar preliminary injunction in the pending suit brought by California.  The District Court noted California was likely to succeed on the merits of the lawsuit, and stated women in California could “face potentially dire public health and fiscal consequences as a result of a process as to which they had no input.”  As in the Pennsylvania case, the District Court noted the contributions of amici (including WLALA) by citing detailed data on the breadth and depth of the potential impact on women and their families.

Finally, WLALA joined an NWLC amicus brief in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, pending before the U.S. Supreme Court.  This case involves a cake-shop owner who categorically refused to sell a wedding cake to a same-sex couple because of his religious beliefs, and because Colorado did not recognize same-sex marriages at the time.  The couple filed discrimination charges with the Colorado Civil Rights Division, which found for the couple, and the case worked its way through the Colorado court system and up to the U.S. Supreme Court.  


The cake shop argued its actions were due to religious opposition to same sex marriage, and not to sexual orientation in general.  The Colorado courts disagreed, finding that but for the couple’s membership in an enumerated class, they would not have been denied full privileges in a public place—a violation of Colorado’s anti-discrimination statutes.  Because making a cake does not require espousing a particular belief, the Colorado courts ruled that the cake shop could continue to state opposition to same-sex marriage, but to operate a public venue, it had to serve customers equally, regardless of sexual orientation.

Over 50 organizations filed amicus briefs, many by religious organizations supporting the cake shop.  WLALA joined the NWLC’s amicus brief in support of the gay couple.  The brief argued allowing a business to disregard anti-discrimination laws in the name of religion and free speech would negatively impact all people’s civil rights, including women, to be free from sex discrimination.  The brief also cited the critical role of anti-discrimination laws in women’s rights to equal participation in society, and argued accepting religious or free speech justifications would weaken discrimination protections for all marginalized groups.  

The U.S. Supreme Court heard oral argument in Masterpiece Cakeshop on December 5, and has not yet issued a ruling, but WLALA is hopeful for another successful outcome.

The cases are: Commonwealth of Pennsylvania v. Donald J. Trump et al., case no. 2:17-cv-04540-WB (E.D. Penn.); State of California et al. v. Department of Health and Human Services et al., case no. 4:17-cv-05783, (N.D. Cal.); and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, case no. 16-111, (U. S. Supreme Court).