Fixing the HHS Mandate: Analysts Weigh US Attorney General’s Options

Observers expect Jeff Sessions’ office to offer a stringent interpretation of the Religious Freedom Restoration Act and emphasize conscience rights.

Attorney General Jeff Sessions said last month, ‘Under this administration, religious Americans will be treated neither as an afterthought nor as a problem to be managed.’ He is shown speaking at the National Law Enforcement Training on Child Exploitation in Atlanta June 6.
Attorney General Jeff Sessions said last month, ‘Under this administration, religious Americans will be treated neither as an afterthought nor as a problem to be managed.’ He is shown speaking at the National Law Enforcement Training on Child Exploitation in Atlanta June 6. (photo:

WASHINGTON — Attorneys who specialize in religious-freedom cases and scholars who study the issue are trying to anticipate what the U.S. Department of Justice (DOJ) will do in its upcoming guidance for interpreting religious-liberty protections in federal law.

Observers expect the DOJ will offer a stringent interpretation of the Religious Freedom Restoration Act (RFRA) and also emphasize the need for the federal government to respect conscience rights. But as to what exactly the document may contain remains to be seen.

“It’s impossible to know with these people what they have in mind,” said Douglas Laycock, a University of Virginia School of Law professor who studies and writes on religious liberty. He told the Register that the U.S. attorney general cannot issue regulations for other federal agencies.

“He could issue guidelines that would be advisory, or he could lay out the positions the Justice Department would take in litigation,” Laycock said.

In a July 11 closed-door speech to Alliance Defending Freedom, Attorney General Jeff Sessions said the Department of Justice was finalizing its guidance and that he would “soon” be issuing it.

“Under this administration, religious Americans will be treated neither as an afterthought nor as a problem to be managed,” said Sessions, who added that the guidance will help federal agencies apply the Religious Freedom Restoration Act. Signed into law by President Bill Clinton in 1993, RFRA requires the federal government to use the least burdensome measure on religious practice when pursuing a compelling government interest.

“That is a demanding standard, and it’s the law of the land. We will follow it just as faithfully as we follow every other federal law,” Sessions said.

As of Aug. 1, the U.S. Department of Justice had not yet released its guidance. The department declined to answer questions from the Register seeking more information on the upcoming document.

Court documents filed July 31 in the U.S. 10th Circuit Court of Appeals — where at least three cases challenging the federal government’s contraceptive mandate are still pending — shed little light on what the DOJ or the Trump administration as a whole is planning on religious-freedom policy.

In Catholic Benefits Association v. Price, Justice Department lawyers filed an opposition to the plaintiffs’ motion for summary affirmance or dismiss the government’s appeal outright. The government’s lawyers wrote that the administration had “initiated” the rulemaking process to amend the U.S. Department of Health and Human Services’ (HHS) regulations on contraceptive coverage in employee health plans.

“That process has not, however, reached conclusion,” the government’s attorneys wrote.

Hillary Byrnes, assistant general counsel for the U.S. Conference of Catholic Bishops, told the Register that the bishops would like to see the Trump administration move toward resolving the contraceptive mandate.

“These cases continue to linger in the federal court. We’re hoping that HHS will finalize the interim final rule that was leaked to the press in late May, which included a broad exemption for those with religious and moral objections to the mandate,” said Byrnes, who referenced a May 31 Vox story that reported the administration was prepared to overhaul the mandate.

In their recent court filing, DOJ attorneys dismissed the account, writing that “an unverified, purportedly leaked draft” reported in the media is not an official statement of agency policy. Church leaders, including Archbishop William Lori of Baltimore, the chairman of the bishops’ Committee for Religious Liberty, had welcomed that leaked draft.

Tom Brejcha, the president and chief counsel of the Thomas More Society, a national public interest law firm that specializes in religious-liberty litigation, told the Register that he does not understand why the contraceptive mandate cases are still active.

“I’d say it’s pretty straightforward. You handle these cases by dropping the regulation and moving forward,” Brejcha said.

The interpretive guidance that Sessions will release cannot order the U.S. Department of Health and Human Services to drop or amend its contraceptive mandate, though the DOJ document could theoretically explain the stance that its lawyers will take on litigation that relates to the mandate or other matters pertaining to the free exercise of religion.

The attorney general’s comments appear to stem from the executive order “Promoting Free Speech and Religious Liberty,” which President Donald Trump signed on May 4. The executive order directs the attorney general to “issue guidance interpreting religious-liberty protections in federal law.”

Brejcha  said he is hoping to see the attorney general offer guidance that reflects a vigorous understanding that religious liberty is a constitutional right.

“We’re also looking for a robust interpretation and willingness to help enforce the Religious Freedom Restoration Act,” Brejcha said. “We’re looking for Attorney General Sessions and DOJ to come to bat for the classical understanding of religious freedom.”

But three months since the president signed his executive order, nothing — at least publicly — has come of it. Laycock said the most plausible expectation for the attorney general’s guidance would include guidelines about federal compliance with RFRA.

“But there aren’t that many issues with the federal government once you get past contraception,” said the University of Virginia law professor, who added that the attorney general has no statutory authority to do anything about wedding vendor cases who are sued under state law for refusing to serve same-sex couples.

“I suppose he could stake out an aggressive position on how the federal Constitution applies to those cases,” Laycock said.

Byrnes said the DOJ guidance could make it clear to federal agencies that they cannot discriminate against faith-based organizations that apply for government funding.

In 2011, during President Barack Obama’s administration, HHS declined to renew the USCCB’s contract to help human-trafficking victims reportedly because the bishops’ agency would not make referrals for abortion services.

“From our perspective, it would certainly be helpful for DOJ to issue guidance that strengthens the application of RFRA to federal agencies and that ensures faith-based nonprofits can compete for government funding on the same footing as secular organizations,” Byrnes said.

Another area where the federal government could act, Byrnes said, deals with conscience protections in abortion policy. She noted that complaints have been filed with HHS regarding California’s mandate that health insurance companies pay for elective abortions.

“We’re hoping the administration will find that California’s action is a clear violation of the Weldon Amendment,” said Byrnes, referencing a federal law that protects health care entities from being required to perform abortions.

Meanwhile, the American Civil Liberties Union has sued the Trump administration under the federal Freedom of Information Act for internal communications on how DOJ’s religious-liberty guidance might be implemented. The ACLU, joined by homosexual-rights groups, has voiced concerns that the upcoming guidance may “would enable discrimination against women and LGBT people” on religious grounds.

Commenting on the discrimination claims, Byrnes said people and agencies do not relinquish their religious freedom when entering into partnership with the federal government to provide needed humanitarian services.

Said Byrnes, “Faith-based organizations have served the public with distinction for centuries, and they should not just be excluded at the outset based on their religious beliefs or convictions. We should be able to serve others in accord with our deeply held beliefs.”


Register correspondent Brian Fraga writes from Fall River, Massachusetts.