WASHINGTON — After six years of legal fights that included hundreds of lawsuits and five trips to the U.S. Supreme Court, a positive conclusion is finally in sight for the religious nonprofits and private employers with moral objections to providing contraceptives and abortifacients in their employee health insurance plans.
The Trump administration’s decision to expand the religious exemption under the U.S. Department of Health and Human Services’ contraceptive mandate, announced Oct. 6, was welcomed by Church leaders, representatives from religious nonprofits and the attorneys who have been litigating on their behalf since the Obama administration unveiled the first version of the mandate in 2011.
“We’re very grateful for this new interim final rule, which I think is a return to common sense that respects the fundamental religious liberties of individuals, and certainly of churches and church ministries,” Archbishop William Lori of Baltimore told the Register in a phone interview.
Archbishop Lori, who serves as the chairman of the U.S. Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty, also described the new interim rules as a “restoration of the balance” between religious liberty and government interests that existed prior to the mandate.
Said Archbishop Lori, “We would be very hopeful that there might be a settlement on the part of the Department of Justice, with all variety of litigants that would have the effect of giving us a more permanent form of relief.”
In two separate conference calls with reporters shortly after two companion interim final rules on the mandate were released, attorneys for Alliance Defending Freedom and Becket — two legal groups that represented dozens of litigants who challenged the mandate — said they expect the Department of Justice will be willing to settle lawsuits that are still pending in the federal courts.
“I assume the government’s lawyers won’t step in the way of the parties getting that relief,” said Mark Rienzi, senior counsel for Becket, which represented the Little Sisters of the Poor and other groups that fought the mandate.
Becket also represents the EWTN Global Catholic Network. The Register is a service of EWTN.
Michael Warsaw, EWTN’s chairman of the board and CEO, said Oct. 6, “For more than five years, the HHS contraception mandate has forced Americans to violate their deeply held moral and ethical principles, without regard for the Constitution's guarantee of religious liberty.”
Warsaw, who is also the publisher of the Register, added that he was encouraged by the announcement.
“Together with our legal team, we are carefully considering the exemptions announced today and the impact this may have on our legal challenge to the mandate,” he said, “but we are optimistic that this news will prove to be a step toward victory for the fundamental freedoms of many Americans.”
Rienzi described the new rules as “common sense and balanced” measures that represent “a great step forward for religious liberty.”
“This was always a big, unnecessary and divisive culture-war fight,” Rienzi said. “Simply put, you don’t need nuns to give out contraceptives. They’re widely available, and until 2011, nobody, I would suggest, ever thought of the idea that the right way to get contraceptives to people was to force nuns to be involved.”
The Affordable Care Act of 2010 — popularly known as “Obamacare” — authorized HHS to issue regulations such as the mandate that employers provide, without copays or deductibles, all forms of birth control approved by the U.S. Food and Drug Administration, including sterilization and abortifacient so-called emergency contraceptives.
The first version of the mandate had a narrow religious exemption that only applied to churches. Religious nonprofits such as Catholic hospitals and universities, as well as private employers with conscientious and moral objections, were faced with the choice of either complying with the mandate or paying millions of dollars in crippling fines.
Over the last six years, hundreds of lawsuits challenging the mandate were filed in the federal courts, many of which sided with the litigants, though those rulings were usually stayed as the appeals worked their way to the U.S. Supreme Court. Along the way, the federal government amended the mandate several times, in 2015 finalizing a so-called accommodation for religious employers that many found unacceptable because it still forced them to cooperate with the government to provide contraceptives.
In May 2016, in Zubik v. Burwell — a consolidated case that included the Little Sisters of the Poor as plaintiffs — the U.S. Supreme Court remanded dozens of religious nonprofit cases to the appellate courts, with instructions for the attorneys on both sides to work out a solution for contraceptives to be delivered in a manner that respected the plaintiffs’ religious liberty.
Meanwhile, Donald Trump promised on the 2016 presidential campaign trail that religious orders like the Little Sisters of the Poor would not be bullied by the federal government if he were elected president. On May 4, Trump signed an executive order on religious liberty, where he instructed the secretaries of the Departments of Treasury, Labor and Health and Human Services to issue “amended regulations … to address conscience-based objections” to the HHS mandate.
“If you want an example of elections having consequences, this would be one of those,” said Robert Destro, a law professor and founding director of the Interdisciplinary Program in Law & Religion at The Catholic University of America’s Columbus School of Law.
Under the first of two companion interim final rules released Oct. 6, entities that have sincerely held religious beliefs against providing contraceptives will no longer be required to do so. The second rule applies the same protections to organizations and small businesses that have objections based on moral convictions instead of religious beliefs.
“I have not had a chance to study it in detail, but it appears to exempt anybody with a sincere objection,” said Douglas Laycock, a law professor at the University of Virginia School of Law who studies and writes on religious-liberty cases.
Meanwhile, the HHS contraceptive mandate remains in place for the vast majority of employers in the United States. Government officials and attorneys who represent the religious nonprofits said the new exemptions may only impact about 200 entities, which is about the number that filed lawsuits based on religious or moral objections.
“Virtually everybody who is already receiving contraceptives through their employer under this mandate will keep receiving them,” said Rienzi, who added that the religious nonprofits already weren’t providing birth control since they were protected by injunctions in the courts.
In the interim final rules, attorneys for the religious nonprofits said the federal government also admitted that it previously broke the law by not providing for a wider religious exemption in the contraceptive mandate. Given that admittance, attorneys expect the federal government to move toward settling the still-pending lawsuits.
“It is necessary for the Department of Justice to resolve these cases in a manner that protects [the religious nonprofits’] freedom of conscience moving forward. They need serious protection, either through settlement agreements, permanent injunctions or both,” said Gregory Baylor, a senior counsel with Alliance Defending Freedom.
The interim final rules are still open to public comment and can be amended before they are finalized. Legal analysts also told the Register that they expected lawsuits would be filed challenging the constitutionality of the new religious exemption. Hours after the new rules were issued, Massachusetts Attorney General Maura Healey announced that she had filed a complaint in U.S. district court in Boston to block them. Healey said the rules violate both the Establishment and the Equal Protection Clauses of the U.S. Constitution.
“The Trump administration’s actions today are a direct attack on women’s health and the right to access affordable and reliable contraception,” Healey said.
In a conference call with reporters, Michael Farris, the president, CEO and general counsel for Alliance Defending Freedom, argued that the new rules will help to protect the broad religious-liberty principles that the United States was founded on.
“You’re entitled to full religious protection, no matter who you are in this country,” said Farris, who helped lobby for the 1993 passage of the Religious Freedom Restoration Act (RFRA). Farris suggested that the new interim rules would have been “welcomed with open arms” by a bipartisan majority when RFRA was passed into law.
Said Farris, “If you can’t act on your faith, then your faith is pretty worthless.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.