Trump admin ponders new religious freedom rule for HHS mandate

Washington D.C., May 31, 2017 / 14:51 pm

A leaked draft of a federal rule that would protect religious organizations from the controversial federal contraception mandate has won the support of religious liberty advocates, who say that it is sorely needed. 

"What the rule ultimately says, is that, given how widely available these products already are, there is simply no need for the government to force unwilling religious groups who serve the poor to provide them or to pay massive fines that would shut down these types of ministries," said Mark L. Rienzi, an attorney at the Becket Fund for Religious Liberty, the legal group that represents the Little Sisters of the Poor.

"As I understand it, this rule shows the United States government finally acknowledging that people can get contraceptives without forcing nuns to provide them," he said May 31.

Rienzi spoke to reporters in a Wednesday conference call about a 125-page draft memo of a religious liberty rule reportedly under consideration at the Department of Health and Human Services.

The rule would add to, not replace, an Obama-era HHS rule, announced in late 2011, that required employers' health plans to include coverage of sterilization and contraception, including some drugs that can cause abortion. The initial rule's religious exemption was so narrow it only exempted houses of worship, drawing widespread objections and lawsuits from more than 300 plaintiffs. Among those suing over the mandate is EWTN Global Catholic Network. CNA is part of the EWTN family.

Subsequent revisions allowed some changes to the mandate for some religious entities. However, groups like the Little Sisters of the Poor objected that the rule still required their complicity in providing such coverage, which violates their religious and moral standards. Refusal to comply with the rule would result in heavy – potentially crippling – fines. 

The draft religious liberty rule would allow any employer to request an exemption based on moral or religious objections.

"Expanding the exemption removes religious and moral obstacles that entities and certain individuals may face who otherwise wish to participate in the healthcare market," said the May 23 draft posted to the news site Vox.

Employers seeking an exemption would have to have a clear statement in their health plan documents that they do not cover contraception or related products. The rule would also allow health insurers to decline to cover contraception and allow individuals to object to participation in a health plan that covers birth control.

During his presidential run, Donald Trump had pledged to aid the Little Sisters of the Poor in an October letter to Catholic leaders.

And in a May 4 executive order, he asked three cabinet departments to consider amended rules that would "address conscience-based objections to the preventive-care mandate."

The same day, he hosted the Little Sisters of the Poor in the Rose Garden of the White House.

"With this executive order," he said, "we are ending the attacks on religious liberty."

However, their legal fight continues. Rienzi said the Little Sisters will still seek a court order to bar the government from imposing similar requirements in the future.

While a new federal rule protecting religious liberty would be "a very good thing," he said, the Little Sisters have always wanted a court to definitively say that "the government cannot force them to provide abortion-inducing drugs, sterilization and contraception."

"The alternative would be a world where the Little Sisters of the Poor and other groups, every four to eight years, have to be staring at the Federal Register, waiting and worrying to see whether the government is going to try to re-impose this."

The Burwell v. Hobby Lobby Supreme Court decision of 2014 ruled that the mandate violated the religious freedom of closely-held private companies, but this did not apply to the Little Sisters' case, as their organization is a non-profit. In May 2016, the Supreme Court ordered a lower court to re-hear the nuns' case, a decision considered a technical win for the Little Sisters.

One backer of the Obama-era rule, National Women's Law Center vice president Gretchen Borchelt, told the New York Times she did not know the details of the new rule. Nonetheless, she charged that whatever the rule is, her group thinks it will "allow an employer's religious beliefs to keep birth control away from women."

She said her organization was preparing a lawsuit to challenge the proposed rule. Possible grounds for the lawsuit could be inadequate explanation or justification for the rule, which makes it "arbitrary and capricious." She thought the lawsuit could argue that the 2010 Affordable Health Care Act bars discrimination in health programs that receive federal funds. The act also bars the health secretary from issuing any rule that "impedes timely access to health care services" or creates "unreasonable barriers" for individuals seeking "appropriate medical care."

Rienzi said such lawsuits would not succeed, given that these groups did not challenge the Obama administration's other non-religious exemptions from mandatory contraception in health plans.

"There's nothing at all unreasonable about the federal government respecting religious liberty. Congress didn't impose this requirement in the first place, the agency did," he said.

The Kaiser Family Foundation said that before the mandate, more than 20 percent of U.S. women of childbearing age paid out-of-pocket for oral contraceptives. After the mandate, that number is now 4 percent.  

According to Rienzi, figures on contraception coverage and contraceptive use ignore that the Obama administration had already exempted about one in three Americans, either on grandfathered plans or other government plans like military families. Big companies like Chevron and Pepsi were exempted by Congress for reasons of finance and convenience.

"About 100 million Americans did not have plans subject to this mandate," he said.

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"Some of the criticisms of the rule, at least that we're seeing so far, suggest that it will take contraceptives away from many people," he added. "That is quite inaccurate."

Rienzi estimated only 120,000 to 130,000 people were employed by religious employers that would qualify for exemptions.

"Obviously this country has a lot of ways to get contraception to people without forcing Catholic nuns to get involved. It's certainly a big enough country that we have room both for religious Catholic nuns and for people who want access to contraception," Rienzi said.

Other backers of the draft religious freedom rule included the Susan B. Anthony List.

"The taking of human life is the antithesis of health care," the group said. "No one, including religious orders like the Little Sisters of the Poor, or groups like Susan B. Anthony List should be forced to be complicit in the provision of abortion inducing drugs and devices."