Why hasn't the Trump administration dropped the HHS mandate?

Washington D.C., Aug 24, 2017 / 15:23 pm

Lawyers for the Little Sisters of the Poor said it's time for the Trump administration to admit that the Obama-era contraception mandate is unconstitutional and provide the sisters relief.

"I think we're in a moment of truth and reconciliation here," Becket executive director Montse Alvarado told CNA. Becket has represented for-profit and non-profit plaintiffs in cases against the HHS mandate, winning at the Supreme Court in 2014 in the Hobby Lobby case.

"The government's lawyers need to admit that what they were doing is illegal. We need them to honestly admit," Alvarado said, "that they were doing something unconstitutional." The Department of Health and Human Services also needs to issue a "new rule" providing relief from the mandate from all parties that conscientiously object to it, she said, and the plaintiffs need "win their cases" in court.

It has now been nearly five months since the May 4 Rose Garden press conference in which President Donald Trump told the Little Sisters of Poor: "Your long ordeal will soon be over."

The sisters had filed a lawsuit in late 2013 over the federal contraception mandate, which was a regulation from the Obama administration requiring employers to fund coverage of contraceptives, sterilizations, and abortion-causing drugs in their employee health plans.

Lawsuits were filed against the mandate by hundreds of employers who objected to it. Among the plaintiffs was EWTN Global Catholic Network. CNA is part of the EWTN family. Following the wave of legal challenges, the Obama administration released subsequent revisions to the mandate. But the Little Sisters and many other employers said the revised rules 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.

On the day of the May 4 press conference – attended by U.S. bishops' conference president Cardinal Daniel DiNardo of Galveston-Houston, Cardinal Donald Wuerl of Washington, D.C., and members of the Little Sisters of the Poor – President Trump issued an executive order "promoting free speech and religious liberty." It directed the Secretaries of the Treasury, Labor, and Health and Human Services to "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate."

Secretary of Health and Human Services Tom Price that day "welcomed" the executive order and promised that "we will be taking action in short order to follow the President's instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees."

Later that month, a draft memo by the Department of Health and Human Services was leaked to the press. It would offer an exemption to employers who objected to the mandate. However, no final official rule was issued.

"It was a good draft," Alvarado said, but added that "I need to see something concrete."

Furthermore, the Justice Department has not dropped its defense of the mandate cases currently in court, but rather asked for more time for the administration to issue a final rule on the anticipated exemptions to the mandate.

In one case before the 10th Circuit Court of Appeals, the Catholic Benefits Association asked for an answer by the administration in the ongoing mandate case. The Justice Department was given by the court until July 31 to reply, but said it needed more time to craft a final rule.

In 2016, the Supreme Court vacated previous circuit court decisions in Zubik v. Burwell, the combined case of the Little Sisters and several other plaintiffs against the mandate. The Supreme Court sent the cases back down to the lower court level, and directed both the government and the plaintiffs to come to a solution satisfying both parties.

"We were told to negotiate and come up with a win for the Sisters for the case, and also HHS was told to come up with a new rule that gives them the relief that was provided by the injunction by making it permanent," Alvarado said.

Yet while President Trump promised relief from the mandate, the groups have seen no solution to their plight.

Cardinal DiNardo, writing an op-ed in The Hill on Aug. 3, noted that the HHS mandate "still stands" after the president promised in May that the "long ordeal" of the sisters "will soon be over." He added that "the onerous regulations that are still on the books have not been amended."

"The HHS mandate puts an unnecessary burden on religious freedom, a burden that the administration has the power to lift, a burden that the administration has promised to lift. And yet the burden has not been lifted," he wrote. "Mr. President, please lift this burden."

As the threat of heavy fines still looms over their heads, the Little Sisters of the Poor can't wait indefinitely for relief, Alvarado said.

"Every day that they are not participating is another day that their attention is divided," she said of the sisters and their mission of caring for the elderly and the sick.

Earlier in August, the Third Circuit Court of Appeals ruled against a secular crisis pregnancy center Real Alternatives, Inc. in an HHS mandate case, saying that its pro-life mission did not merit a religious exemption to the mandate.

"When a crisis pregnancy center that obviously has an opinion about abortion is being forced to provide these drugs and services, it's unusual for the government's lawyers to say that they're just standing by and not doing anything," Alvarado said of the claim that the Department of Justice is simply defending laws that are still on the books.

"Here, justice deferred really truly is justice denied," she said.

On Aug. 24, White House press secretary Sarah Huckabee Sanders was asked by John Gizzi of Newsmax if the president was "aware" of the complaints that the HHS mandate is "still being enforced in spite of the President's orders," and if he was taking any action on the matter.

"I'm not sure if he's aware of the complaints or any specific places where that's being ignored, so I'd have to look into that, probably talk to our friends at HHS, specific to the contraception thing, and get back to you," Sanders replied.

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Alvarado said Becket lawyers have been talking to lawyers from the Department of Justice on the mandate cases, so the answer that the president might not be "aware" of the complaints may be evidence that the administration is not necessarily looking to renege on its promises.

The answer "gives you insight into the disconnect between the DOJ and the White House," she told CNA. "It's heartening, because that tells me that there's actually a reason to why this isn't happening, why we've been waiting months for something to happen."