White House advisor reiterates Trump's commitment to religious freedom

Washington D.C., Apr 28, 2017 / 11:10 am

A White House advisor rejected recent concerns that the Trump administration supports the controversial HHS mandate, saying it is simply a matter of timing in finding a "litigation-proof" alternative.

"The administration is not stepping back. It's doing precisely what it should be doing here... because of the way people are attacking Trump executive orders, it's very important that this thing gets done right and be as litigation-proof as possible, knowing full well they're going to get sued anyway," said White House advisor Leonard Leo, according to Axios.

His comments came amid concerns by religious groups after the Washington Post on Tuesday 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 controversial HHS mandate. The Supreme Court last year had instructed the Obama administration to negotiate with the plaintiffs as the next step in the litigation process.

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 had indicated earlier this week that it intends to take the next step in the litigation process.

According to Axios, "The Trump administration is considering a range of options, from providing blanket exemptions to allowing schemes that would let insurance companies deal directly with employees."

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 non-profits 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 non-profits – 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 non-profits and other plaintiffs filed lawsuits over the mandate, even with the accommodation. Among these plaintiffs is EWTN Global Catholic Network. CNA is 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 non-profits.

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 on which they could agree.