WASHINGTON — The Trump administration announced broad new exemptions to the Health and Human Services’ contraceptive mandate on Friday, that aim to give relief to religious nonprofits and others with deeply held religious or moral convictions regarding contraception.
A senior HHS official told reporters on Thursday that the exemptions are intended to provide full protection for those with religious beliefs and moral convictions. Religious-liberty protections are central to American values, the official explained.
The HHS official told reporters that, on issues of grave moral concern to Americans, where the issue of human life is at stake, policy needs to ensure that religious believers are not “punished” by the federal government. Such policy reflects authentic “tolerance” of divergent viewpoints, he said.
In a May 4 executive order “promoting free speech and religious liberty,” President Donald Trump promised relief from the HHS mandate to the Little Sisters of the Poor, who were present at his May announcement in the White House Rose Garden. Cardinal Daniel DiNardo of Galveston-Houston, president of the U.S. Conference of Catholic Bishops, and Cardinal Donald Wuerl of Washington, D.C., were also present for the announcement, which came during a National Day of Prayer ceremony.
“I want you to know that your long ordeal will soon be over,” Trump told the Little Sisters present at the White House. Their lawsuit against the mandate dates back to 2013.
The HHS policy announced today adds broad religious and moral exemptions to the mandate.
The HHS contraceptive mandate originated in the Affordable Care Act (ACA), which ordered that “preventive services,” be covered in health plans. In 2012, the Department of Health and Human Services mandated that cost-free coverage for contraceptives, sterilizations and abortifacient drugs be included in health plans.
The original rule is still in place, but under policies announced today, nonprofits and for-profit employers that are closely held — and even some publicly traded for-profits — will be exempt from the mandate if they can demonstrate a religiously based objection to the mandate’s demands.
Nonprofit groups and for-profit businesses that are not publicly traded can also apply for an exemption to the mandate based on moral, but not religious, objections to it. However, publicly traded for-profit businesses cannot receive a moral exemption from the mandate.
An example of this could be the secular crisis-pregnancy center Real Alternatives, Inc., which has no religious affiliation, but which objected to the mandate. Real Alternatives lost a suit against the mandate at the 3rd Circuit Court in August, which ruled that its pro-life mission did not merit a religious exemption from the mandate.
The 2012 mandate policies allowed only a narrow religious exemption for churches and their integrated auxiliaries, leaving many religious charities and universities to decide whether to comply with the mandate or face heavy fines.
It was later reported that the Obama administration used tax law to determine which groups would get a religious exemption from the mandate. Religious groups not directly affiliated with churches, required to file a 990 tax form because of their nonprofit status, did not meet the religious exemption.
Employers began filing lawsuits against the administration over the mandate. In 2014, Hobby Lobby, a craft-supply retailer, won a case against the mandate in a 5-4 Supreme Court. Hobby Lobby’s owners, the Green family, argued that providing coverage for drugs that could cause early abortions violated their Christian beliefs.
The Obama administration also offered an “accommodation” to religious nonprofits that objected to the mandate.
In the so-called “accommodation,” nonprofits could send a letter or a form to the government outlining their objection to the mandate, which would trigger a government directive to an insurer or third-party administrator to provide the cost-free contraceptive coverage in employee health plans.
Many nonprofits, including the Little Sisters of the Poor and the Archdiocese of Washington, said this process still forced them, under threat of heavy fines, to cooperate in the provision of objectionable coverage to their employees in their own health plans.
Catholic theologians and ethicists argued in an amicus brief at the Supreme Court that the accommodation would be considered “either formal cooperation in wrongdoing, or impermissible material cooperation in serious wrongdoing, and would therefore be gravely wrongful.”
Under the accommodation process, experts argued, the act of notifying the government of their objection would still cause the provision of contraceptives, sterilizations and some abortion-causing drugs through their health plans, which would violate religious principles.
The Little Sisters of the Poor, the Archdiocese of Washington, Bishop David Zubik of Pittsburgh, and other Christian colleges and universities filed lawsuits over the mandate, and a bundle of cases made its way to the Supreme Court under Zubik v. Burwell, argued before the Supreme Court in 2016.
The Obama administration argued that the cost-free provision of the coverage was in the government’s “compelling interest” in the name of national health; the plaintiffs, on the other hand, pointed out that many health plans were already exempt from the mandate because they were grandfathered by the ACA. The “accommodation” offered to the nonprofits still forced them to be complicit in acts they believed were immoral, they said.
After oral arguments in the case in March 2016, the Supreme Court, in a rare move in the middle of a case, directed both the government and the plaintiffs to submit briefs explaining if, and how, a conclusion could be reached providing the contraceptive coverage while at the same time respecting the religious freedom of the nonprofits.
Both parties submitted briefs, and in May 2016, the court voided the federal circuit court decisions involving the plaintiffs and sent the cases back to their respective federal courts. The court directed the lower courts to give all parties time to come to an agreement that satisfied their needs.
On the campaign trail, Trump had promised to grant relief from the mandate to the objecting parties. After his May 4 announcement, former HHS Secretary Tom Price welcomed Trump’s promise and said the agency “will be taking action in short order to follow the president’s instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees.”
A draft memo of the HHS final rule granting relief from the mandate was leaked to the press in May. It expanded religious and moral exemptions to the mandate for employers.
However, despite Trump’s statements against the mandate, the Justice Department continued to defend the mandate in litigation. In July, in proceedings for a lawsuit from the Catholic Benefits Association, the Justice Department asked for a delay in proceedings, rather than simply dropping the case, saying the government was crafting a final rule for exemptions to the mandate.
The “accommodation” offered to nonprofits by the Obama administration is now voluntary. Nonprofits can direct to have their insurers or third-party administrators offer the coverage for sterilizations, contraceptives and drugs that can cause abortions, but they do not have to do so under law.
In response to the announcement on the revised rules, EWTN CEO Michael Warsaw said, “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. EWTN filed a lawsuit against the government in February 2012, just days after the mandate rules were first published, and we have continued to fight for justice alongside many courageous believers. We are encouraged by today’s 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, but we are optimistic that this news will prove to be a step toward victory for the fundamental freedoms of many Americans.
“I invite Catholics, and all people of faith, to join me in continued prayer for our nation, for its leaders, and for the protection of liberty in the United States and around the world.”