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The Trump Administration Agreed To Pay More Than $3 Million In Legal Fees To Settle Contraception Mandate Lawsuits

Jones Day, a Trump-connected law firm that represented dozens of groups that sued the Obama administration over the contraception mandate, originally asked for $29 million in fees, according to an administration official.

Last updated on January 9, 2018, at 6:48 p.m. ET

Posted on January 9, 2018, at 6:48 p.m. ET

Anti–abortion rights demonstrators outside the US Supreme Court.
Jonathan Ernst / Reuters

Anti–abortion rights demonstrators outside the US Supreme Court.

The Trump administration agreed to pay $3 million in legal fees and costs to settle lawsuits filed by the law firm Jones Day against the Obama administration over the Affordable Care Act's contraception coverage mandate, according to documents obtained by BuzzFeed News.

The firm originally asked for more than $29 million, which was then negotiated down, according to an administration official.

The Trump administration separately agreed to pay $268,763 to First Liberty Institute, a conservative legal advocacy group that also represented groups that sued over the mandate, according to the documents.

The fee amounts were included in copies of settlement agreements that BuzzFeed News obtained through a Freedom of Information Act request. The Justice Department confirmed in October that the government settled with 78 organizations and individuals that filed 17 lawsuits over the contraception mandate, but declined to release information at the time about the monetary portion of those agreements.

The documents show that the Justice Department executed two settlement agreements in October — one with Jones Day, which represented the bulk of the plaintiffs that have settled so far, and one with First Liberty Institute, on behalf of its seven clients.

"As the President and the Attorney General have made clear, they will always seek to protect and defend religious liberty. The protracted litigation never should have happened in the first place and the government appropriately paid reasonable attorney’s fees and costs as is required by law to be paid to prevailing parties in cases brought under the Religious Freedom Restoration Act," a Justice Department spokesperson said in a statement to BuzzFeed News.

A Jones Day spokesperson did not immediately return a request for comment.

The settlement agreements are part of a larger effort by the Trump administration to undo the contraception mandate and to work with groups that challenged it while Obama was in office.

In October, the Department of Health and Human Services adopted two rules that would allow employers with "moral" or "religious" objections to stop providing coverage for contraception care. Several lawsuits challenging the new rules are pending in federal courts, and a judge in Philadelphia issued an order on Dec. 15 blocking the administration from enforcing the rules nationwide while the litigation goes forward. Lawyers for the Little Sisters of the Poor Home for the Aged, which intervened in the case, are appealing that order.

As part of the settlement agreements with the Jones Day and First Liberty Institute plaintiffs, the Trump administration agreed with their argument that the contraception coverage mandate under the Affordable Care Act posed a "substantial burden" on their exercise of religion and could not be legally enforced against them.

The settlement agreement with Jones Day doesn't explicitly state that the $3 million will be paid to the law firm. But one of the firm's clients, Thomas Aquinas College, previously said that the firm handled the litigation pro bono and would be receiving money from the agreement. The First Liberty Institute documents include a provision that the money will be paid to that organization.

According to the administration official, the agreement on fees in the Jones Day cases was in line with agreements that the government reached after the US Supreme Court ruled in 2014 in Burwell v. Hobby Lobby Stores that for-profit companies "closely held" by their owners could object on religious grounds to the Affordable Care Act's requirement that they provide insurance coverage for contraception care to employees.

Hiram Sasser, general counsel of First Liberty Institute, said in a statement provided to BuzzFeed News: "We reached an agreement that is similar to what we reached in the past with the Obama administration, though the Obama administration settlement was for a much higher percentage of our fees.”

Jones Day's ties to the Trump administration run deep. The firm represented the Trump campaign leading up to the 2016 election and has continued to provide legal services to his 2020 reelection campaign. Trump hired White House Counsel Donald McGahn from the firm, along with a number of other senior lawyers in the White House and at the Justice Department.

The First Liberty Institute agreement was signed by the group's deputy general counsel, Matthew Kacsmaryk, who has been nominated by Trump to serve as a federal district judge in Texas.

The administration hasn't reached agreements with all of the groups that sued over the mandate. In a Dec. 13 court filing in one of the remaining cases, lawyers from the Justice Department and the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor, wrote that they were still "discussing an appropriate resolution." The next update to the court in that case is due Jan. 12.

UPDATE

Updated with a comment from a Justice Department spokesperson.

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