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WASHINGTON — With President Donald Trump’s administration signaling that it is not dropping the HHS mandate cases against religious nonprofits, plaintiffs are concerned that the action does not reflect promises made during the presidential campaign.
“The government has a chance to do the right thing here. It got it wrong for five years in these cases, almost six years,” said Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty, which represents many nonprofits in HHS mandate cases.
“And they can do the right thing by dropping their appeals that are in favor of the mandate and admitting that they were wrong on the issue of the contraceptive mandate, as applied to religious nonprofits,” Rassbach told CNA Tuesday.
During his presidential campaign, Trump had promised Catholics relief from the HHS mandate, which requires employers to offer health insurance plans covering contraception, sterilization and some early abortion drugs. In a letter to the Catholic Leadership Conference last October, he pointed to his opponent Hillary Clinton’s support for the mandate, and said “that is a hostility to religious liberty you will never see in a Trump administration.”
After Trump’s election, the plaintiffs challenging the mandate widely expected that the new administration would drop the government’s appeal of the lawsuits, which federal circuit courts may re-examine in the coming months.
Instead of dropping the cases, however, the administration indicated that it intends to take the next step in the litigation process. On Tuesday, The Washington Post reported that the Justice Department had asked a federal appeals court for 60 extra days to negotiate an agreement with East Texas Baptist University and several other plaintiffs challenging the mandate. The Supreme Court last year had instructed the Obama administration to negotiate with the plaintiffs as the next step in the litigation process.
The Becket Fund said that the same lawyers who litigated the cases on behalf of the Obama administration are still on the mandate cases now under the Trump administration.
The HHS mandate was formed under the Affordable Care Act, which required preventive coverage in employer health plans. Obama’s Department of Health and Human Services interpreted this to include coverage for contraceptives, sterilizations and drugs that can cause abortions.
After a wave of criticism from religious employers to the original mandate, the Obama administration announced an “accommodation” whereby objecting nonprofits would tell the government of their opposition, and their insurer or the third-party administrator for the plans would be notified separately to include the coverage.
Many nonprofits — including Catholic dioceses and the Little Sisters of the Poor — said that the process still forced them to cooperate in immoral behavior against their consciences. Some critics voiced concern that the cost of coverage would still end up getting passed along to the objecting employers in the form of higher premiums.
Hundreds of nonprofits and other plaintiffs filed lawsuits over the mandate, even with the accommodation. Among these plaintiffs is EWTN Global Catholic Network. CNA and the Register are part of the EWTN family.
A number of those cases made their way to the Supreme Court in Zubik v. Burwell. Plaintiffs in the case include East Texas Baptist University, the Little Sisters of the Poor, the Archdiocese of Washington and other dioceses, schools and charities.
In March of 2016, the court asked both the plaintiffs and the government to submit briefs explaining whether a compromise could be reached that provided for cost-free contraceptive coverage for employees and yet still respected the religious freedom of the objecting nonprofits.
That request, which came after oral arguments and in the middle of the case, was almost unprecedented in its timing.
After both parties outlined ways where they believed both goals could be achieved, the Supreme Court last May sent the cases back to the federal circuit-court level, vacated the previous decisions of those courts, ordered the government not to enforce the fines against plaintiffs for not complying with their demands, and instructed the courts to give the parties time to find a solution they could agree on.
“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage,’” the court stated.
“We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.”
Bishop David Zubik of Pittsburgh, one of the plaintiffs in the cases, said in August that the federal government had “an extremely aggressive interpretation” of the Supreme Court’s instructions and was “apparently trying to take over” the diocese’s health plans.