WASHINGTON — It has been about two months since President Donald Trump took his oath of office, and the federal government’s contraceptive mandate is still on the books.
Several factors could account for why the mandate has not been repealed. The Trump administration has been slow to fill in several key government positions. Tom Price, the secretary of the U.S. Department of Health and Human Services, has been on the job for less than six weeks. On March 6, congressional Republicans unveiled their comprehensive health care bill to replace the Affordable Care Act.
Still, attorneys who represent some of the 92 nonprofits challenging the HHS contraceptive mandate say they would have liked to have already seen some action taken by the administration. The mandate requires employers to offer health-insurance plans covering contraception, sterilization and some drugs that can cause early abortions.
“We had been hopeful that the new administration would implement at least some preliminary measures pretty early in the new president’s term, but that hasn’t happened. It is a little surprising,” said Greg Baylor, senior counsel for Alliance Defending Freedom.
Baylor told the Register that the Trump administration could have created a temporary safe harbor to shield religious nonprofits from punitive fines while they challenge the contraceptive mandate in court. The administration “also could have expanded the religious exemption that, in our judgment, is too narrow, because it only includes churches and religious orders,” Baylor said.
“The mandate is still on the books, and it needs to come off the books,” said Mark Rienzi, senior counsel with the Becket Fund, who noted that Price has indicated he believes the mandate is “trampling on religious liberty.”
Trump also promised on the campaign trail that religious orders like the Little Sisters of the Poor would not be bullied by the federal government.
“It’s not acceptable to simply leave it in place. It has to be taken care of,” Rienzi told the Register.
The U.S. Department of Health and Human Services did not respond to Register emails seeking comment. The department told The Hill newspaper that it would not be speculating on future policy. A spokesman for the U.S. Department of Justice — which was tasked with defending the mandate under President Barack Obama — did not immediately provide comment.
Supreme Court Order
For now, the mandate — as it applies to religious nonprofits — is in a holding pattern in the federal courts. Last May, the U.S. Supreme Court ordered the federal government and the nonprofits to work out an arrangement where the nonprofits’ employees could receive contraception in their health insurance plans without compromising the nonprofits’ religious freedom.
Attorneys report that there were some initial talks with the government, but those negotiations stalled.
“There were discussions along those lines that started. Obviously, the election changed the people we were negotiating with, pretty substantially,” Rienzi said.
On March 14, government attorneys filed a status report requesting a 60-day continuance “to allow incoming leadership personnel adequate time to consider the issues.”
“That is consistent with other status reports the government has filed since the transition in administrations,” Baylor said.
In Zubik v. Burwell — a consolidated case that included the Diocese of Pittsburgh, the Little Sisters of the Poor and Priests for Life as plaintiffs — the U.S. Supreme Court remanded dozens of religious nonprofit cases to the appellate courts. The justices said they expected the individual courts of appeal to grant the parties enough time to resolve the outstanding issues.
“Eventually the courts are going to say, ‘We need a solution,’” Rienzi said.
Baylor said the appellate courts have been willing to follow the Supreme Court’s suggestion that they allow the parties enough time to reach an agreement.
“But it’s not inconceivable to think that at some point the courts may become impatient with the stays,” Baylor said. “Theoretically, they could order further briefings from the parties. That hasn’t happened yet. My suspicion is the appellate courts will be pretty lenient in terms of granting more time, because they’d rather have this resolved without their intervention; but at some point, they might ask the parties to move ahead.”
Said Baylor, “I think a move like that would place more pressure on the administration to deal with this issue.”
‘Nothing Has Changed’
Attorney John B. Manos, general counsel for EWTN Global Catholic Network, told the Register that the appellate courts have been granting continuances for both sides. In February 2016, the 11th Circuit ruled against EWTN’s challenge against the mandate, but that decision was set aside after the U.S. Supreme Court issued its order last May.
EWTN is the largest religious media network in the world, reaching more than 230 million television households in more than 140 countries and territories.
The network includes television, radio and a publishing arm, of which the Register is part.
“Nothing has changed yet,” said Manos, who added that one factor for the delay is that an office in HHS tasked with writing exceptions for its regulations has not yet been staffed.
Manos also noted that the White House has not issued an executive order to directly delete the mandate, and no legislation has been introduced in Congress to repeal the measure by law. The Republican health care bill — known as the American Health Care Act — does not touch the birth-control provision.
Some observers say the president could sign an executive order to do away with the mandate. A draft version of a religious-freedom executive order was leaked in early February. The draft document would seemingly expand the ability of organizations with religious or moral objections to be exempt from the mandate.
More than 150 conservative leaders also signed an open letter to President Trump in early March urging him to issue an executive order to protect the “practical exercise of religious freedom” in the United States.
Regulation or Legislation?
Observers also say Price could repeal the mandate with the stroke of a pen through the regulatory process, but other legal analysts say the repeal would not be so simple.
Legal analyst Lyle Denniston, who writes for the National Constitution Center, wrote last November that a presidential order would not be able to repeal the mandate because binding regulations are in place that determine when a religious employer is exempt from having to provide contraceptives to employees. The same regulations pertain to religious colleges being exempt from providing birth control to students. Denniston wrote that new regulations would have to be drawn up in draft form and then submitted to the public for comment for 60 days or more.
Rienzi said Congress could address the issue with new legislation, which he suggested would be preferable because then nonprofits like the Little Sisters of Poor would have the federal law on their side, and not risk being dragged back into court if another administration were to later take power and rewrite the regulations.
“For now, the litigation remains alive, the law remains alive, and it’s still on the books,” Rienzi said. “Something has to be done to resolve the thing. The courts will give the government some time, but, ultimately, they need to take steps to get rid of it.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.