Case 1:20-cv-01630-JEB Document 75-2 Filed 08/13/21 Page 18 of 74
The 2020 rule also sowed confusion regarding whether Sec. 1557 prohibits discrimination against individuals who are seeking or who have obtained reproductive health care other than abortion, such as fertility treatments, contraception, or maternity care. 81 Fed. Reg. at 37,192
This term will also provide additional clarity that Sec. 1557 prohibits discrimination against those who civil rights statutes. Title VII, for example, not only prohibits discrimination related to abortion, it also encompasses discrimination related contraception,7 and discrimination for undergoing fertility treatment.8 Thus, to ensure the broadest possible protection against discrimination related to RHC, and to align Sec. 1557 with existing civil rights protections explicit in the new rule and through guidance and enforcement. HHS has a compelling interest in including these terms in the definition HHS has a compelling interest in strengthening protections for those who face discrimination related to their receipt or pursuit of RHC. Such care, including abortion, is time-sensitive, essential health care needed across race, sexual orientation and gender identity reproductive life is a fundamental right enshrined in the U.S. Constitution that is critical to ensuring equal participation in the social and economic life of the country. 9 Nonetheless, RHC is under attack. States continue to pass medically unnecessary and harmful laws to restrict abortion access. Abortion providers, staff, and patients have experienced increased violence. The prior administration relentlessly attacked access to RHC, including contraception. The 2020 rule only worsened the situation by creating confusion about the protections against and remedies for discrimination related to RHC. By singling out RHC for adverse treatment, the 2020 rule stigmatized reproductive decision-making in a manner that perpetuates 10 sex stereotypes The 2020 rule thus simultaneously burdens individuals exercising a fundamental right and itself discriminates on the basis of sex. 11
OCR thus has a compelling inte robust protections against discrimination related to RHC. 7
Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001). See, e.g., Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008), Ciocca v. Heidrick & Struggles, Inc., No. CV 17-5222, 2018 WL 2298498 (E.D. Pa. May 21, 2018). 9 See Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992). 10 , 538 U.S. 721, 736 (2003). 11 See Skinner v. Okla. ex rel. Williamson, 316 U.S. 535, 541 (1942); United States v. Virginia, 518 U.S. 515, 532 (1996). 8
