Trump’s HHS Mandate Exemptions Plot New Course for Church and State

U.S. bishops applaud regulations protecting religious employers.

(photo: Shutterstock)

WASHINGTON — The Trump administration finalized robust religious and moral exemptions to the Health and Human Services’ contraceptive mandate, a move that offered a long-awaited reprieve to Catholic and other religious employers who fought the 2012 law all the way to the U.S. Supreme Court.

“We are grateful for the administration’s decision to finalize commonsense regulations that allow those with sincerely held religious or moral convictions opposing abortion-inducing drugs, sterilization and contraception to exclude such drugs and devices from their health plans,” said Cardinal Daniel DiNardo of Galveston-Houston, the president of the U.S. Conference of Catholic Bishops, and Archbishop Joseph Kurtz of Louisville, Kentucky, the bishops’ new point man on religious freedom, in a joint response to the administration’s Nov. 7 announcement.

“These final regulations restore free-exercise rights in accordance with the First Amendment and long-standing statutory protections for religious freedom. The regulations allow people like the Little Sisters of the Poor, faith-based schools and others to live out their faith in daily life and to continue to serve others, without fear of punishing fines from the federal government.”

The new rules issued by the Departments of Health and Human Services, Treasury and Labor “provide an exemption from the contraceptive-coverage mandate to entities and individuals that object to services covered by the mandate on the basis of sincerely held religious beliefs,” read the Nov. 7 HHS press release that confirmed the policy shift.

HHS’ announcement singled out the objections of some employers to contraceptive services that are considered “to be abortifacients” and said they would no longer be forced to provide that service or risk heavy financial penalties.

Mark Rienzi, president of Becket, the public interest group that represented Hobby Lobby, the craft-store chain, the Little Sisters of the Poor and the EWTN Global Catholic Network (EWTN), the Register’s parent company, in their legal challenges to the contraceptive mandate, said the news marked a new, more-promising chapter in church-state relations after a “long, unnecessary culture war.”

Indeed, while the Obama White House long asserted that a broad religious exemption would sever access to “no-cost” birth control for hundreds of thousands of female employees and their families, the Trump administration disputed this assertion.

The “accompanying fact sheet states that only about 200 employers of 6,400 women will be affected,” noted Wesley Smith, author of Culture of Death: The Age of “Do Harm” Medicine, in a Nov. 8 column for National Review. “Granting those companies a conscience exemption in the first place would have saved Obama and the Democrats a lot of grief,” added Smith, in a reference to the slew of lawsuits filed by family-held businesses and religious institutions that challenged the federal law in court.

The most significant of those cases, Burwell v. Hobby Lobby, resulted in a landmark Supreme Court victory for the craft-store chain that challenged the initial Obama-era regulations.

The Mandate’s History

The contraceptive mandate was part of the Affordable Care Act (ACA), which obligated employer-provided health insurance plans to cover certain “preventative services.”

After the ACA’s passage, guidance issued by the government said these services must include all contraception methods approved by the Food and Drug Administration, including abortifacient birth control pills, intrauterine devices (IUDs) and sterilization procedures.

Under pressure from the U.S. bishops, Obama added a narrow exemption to the mandate for church employers, like parishes, while excluding religious nonprofits, such as Catholic nursing homes or universities.

The government resisted calls for additional exemptions, and the U.S. bishops backed a number of legal challenges to the mandate in courts across the country.

That fateful decision prompted a flood of partisan outrage during the 2012 election year, as Democrats framed the bishops’ campaign as a “war on women.”

The controversy quickly exposed fissures within the Catholic community, as some critics argued that the bishops’ fight would provoke a backlash against Catholics.

Daughter of Charity Sister Carol Keehan, who then led the Catholic Health Association, the influential industry lobby for Church-affiliated hospitals and nursing homes that helped pass the ACA, said she was satisfied with the limited exemption. Georgetown University and the University of Notre Dame, among other self-identified “Catholic” institutions of higher education, decided to provide the disputed coverage in their health plans.

Still, the bishops managed to forge a powerful coalition of Catholic and Christian advocates for religious freedom, and they used the legal battle as an opportunity for celebrating the “first freedom” in liturgies and school curricula.


Court Rulings

In 2014, their hard work began to pay off, when the U.S. Supreme Court took up Hobby Lobby’s legal challenge to the mandate.

Writing for the majority, Justice Samuel Alito found that the federal law had forced the family-run business to provide contraceptive services against its religious objections — a violation of The Religious Freedom Restoration Act.

The Religious Freedom Restoration Act requires the government to enact laws that do not “substantially burden” religious freedom without a compelling state interest. Once that threshold has been met, the state must choose the “least restrictive means” of advancing its interest.

“HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion,” stated Justice Alito.

Meanwhile, the Little Sisters of the Poor, Priests for Life and other religious nonprofits focused on the problems with the mandate’s limited exemption, including an updated rule that allowed religious employers to transfer their obligation to a third-party administrator. They argued that the government’s insistence they they sign a form confirmed their objection to the mandate would “trigger” the disputed coverage, and thus make them complicit in the provision of contraceptive services.

In May 2016, the Supreme Court sent the Little Sisters’ consolidated case back to a lower court, instructing both parties to secure a resolution that eliminated any faith-based concerns “while still ensuring that the affected women receive contraceptive coverage seamlessly.” It was a critical development, but did not fully resolve the impasse.


Trump Changes Course

After Donald Trump was elected president, his administration signaled a sea change in the accommodation of conscience protections for religious institutions and believers.

In October 2017, the White House announced an expanded exemption to the mandate and directed federal agencies to review their own regulations, with the goal of broadening protections for religious freedom.

Though some partisan groups attacked Trump’s stance as an unconstitutional rollback of a critical federal benefit, and an ominous sign that the White House would give religious employers a “license to discriminate” against employees who violated Church teaching on same-sex relations and other teachings, the U.S. bishops said the policy shift corrected “an anomalous failure by federal regulators that should never have occurred.”

Now, the final rule approved Nov. 7 has secured an expansive moral and religious exemption to the federal law.

Employers can still arrange for a third-party administrator to provide coverage either through independent action by their insurers or insurance administrators. Publicly traded companies cannot receive the exemption.

But the battle over the mandate continues to be a major point of contention for Democrats on Capitol Hill and in a number of blue states.

In September, Senate Democrats asserted that Trump’s second Supreme Court nominee, then-D.C. Circuit Judge Brett Kavanaugh, would threaten women’s access to birth control, basing this claim, in part, on his dissent in the D.C. Circuit’s 2014 judgment against Priests for Life’s legal challenge to the mandate.

“He was nominated for the purpose of taking away a woman’s constitutionally protected right to make her own health care decisions,” charged Sen. Kamala Harris, D-Calif., in a Sept. 7 tweet.


More Litigation

The Trump administration’s 2017 rule change has also prompted a fresh round of litigation in California and Pennsylvania, where federal district courts have blocked the expanded exemption. The administration has appealed the rulings, and that means the Little Sisters of the Poor will likely be back in court soon.

“All that is left is for state governments to admit that there are many ways to deliver these services without nuns,” said Rienzi, “and the Little Sisters can return to serving the elderly poor in peace.”

Joan Frawley Desmond is a Register senior editor.

Catholic News Agency contributed to this report.