A judge has temporarily blocked the Biden administration from removing an Obamacare regulation that required coverage for natural family planning counseling, allegedly without going through the proper administrative procedure.
U.S. District Judge Jeremy Kernodle of the Eastern District of Texas issued a memorandum opinion and order last Friday in the case of Tice-Harouff v. Johnson.
At issue in the case is a decision by the Health Resources and Services Administration of the Department of Health and Human Services last December to scrap regulatory language requiring coverage for natural family planning.
Kernodle granted the plaintiff, family nurse practitioner Dr. Cami Jo Tice-Harouff, a preliminary injunction against the regulation change, arguing that she had "adequately alleged standing."
The judge believes that Tice-Harouff's claim that the coverage requirement removal violated the Administrative Procedure Act and that she would be "irreparably harmed by the change" held merit.
"Defendants argue that deleting the [Fertility awareness-based methods counseling] sentence did not remove the obligation to provide cost-free coverage for FABM counseling — and thus the notice-and-comment requirement did not apply, and the deletion was not arbitrary and capricious," Kernodle wrote.
"This argument is specious. When language is removed from a statute or rule, courts presume that the omission changed the text's meaning."
The Health Resources and Services Administration added the natural-family-planning coverage requirement to Affordable Care Act guidelines in 2016. Fertility-awareness methods serve as an alternate form of family planning for those who have medical, moral or religious reasons why they don't want to use contraception.
"Birth control, for instance, sometimes creates harmful side effects, like blood clots, weight gain, or increased anxiety and depression in some women," the lawsuit states. "That makes fertility awareness-based methods of family planning some women's only option without serious endangerment to their health."
Kernodle found that Tice-Harouff was "likely to succeed on the merits of Claim Two, which alleges that Defendants' adoption of the 2021 Guidelines was arbitrary, capricious, and an abuse of discretion."
"Here, the only explanation identified by Defendants for the 2021 Guidelines is the January 2022 Notice in which HRSA provided a summary and hyperlink to view the full Guidelines on its website," he continued.
"This Notice, however, did not even mention FABM counseling. It thus failed to acknowledge a change in coverage, a reason for the change, an acknowledgment of reliance interests in the 2016 Guidelines, or an explanation of why complete elimination of coverage for FABM counseling was preferable to a more incremental approach."
Julie Marie Blake of the legal advocacy organization Alliance Defending Freedom, which represents Tice-Harouff, expressed support for the preliminary injunction in a statement Monday.
"Countless women rely on the expertise of medical professionals like Dr. Tice-Harouff to help them raise families in a manner consistent with their needs," stated Blake.
"We're pleased the court allowed insurance coverage to continue for the many women who choose fertility-awareness family planning and stopped the Biden administration from imposing its own, preferred contraceptive methods on all women without even allowing the public to weigh in on that decision."
Also called fertility awareness, natural family planning involves women avoiding pregnancy by monitoring fertility signals during their menstrual cycles to determine when they may be more likely to get pregnant.
According to the United Kingdom's National Health Service, natural family planning can be "up to 99% effective" unless "the instructions are not carefully followed."
"You have to keep a daily record of your fertility signals, such as your temperature and the fluids coming from your cervix – it takes 3 to 6 menstrual (monthly) cycles to learn the method," stated the NHS.
"If you want to have sex during the time when you might get pregnant, you'll need to use contraception, such as a condom, diaphragm or cap."