New religious freedom protections draw praise from experts

Washington D.C., Oct 6, 2017 / 15:38 pm

After the Trump administration announced new exemptions to the contraceptive mandate and a religious freedom guidance, experts said both actions offered concrete protections of religious freedom.

"Today the Trump administration made two commendable decisions in support of the bedrock American principle of religious liberty," Dr. Matthew Franck, director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute, told CNA, calling the actions "cause for much celebration."

On Friday morning the administration followed through on two promises made in President Donald Trump's May 4 executive order on religious liberty – relief from the HHS mandate for religious and conscientious objectors, and a Department of Justice guidance to federal agencies on implementing religious freedom protections found in existing federal law.

The administration first announced on Friday an expansion of religious and moral exemptions to the HHS contraceptive mandate, over which many non-profit groups and some for-profit businesses had sued the federal government.

"Groups like the Little Sisters of the Poor, who dedicate their lives to the indigent elderly, can finally expect the restitution of their conscience-rights in court," Dr. Grazie Pozo Christie, policy advisor with The Catholic Association, stated on Friday.

The HHS had interpreted the Affordable Care Act to include a mandate on cost-free coverage for sterilizations, contraceptives, and drugs that can cause early abortions in health plans.

Although many religious groups were opposed to contraceptives, sterilizations, and abortion-causing drugs, the religious exemptions from the mandate were so narrow that only churches and their integrated auxiliaries were safe from having to comply.

This meant that many religious charities and universities had to comply with the mandate's demands. The Obama administration offered an "accommodation" to objecting non-profits to comply with the mandate, but charities like the Little Sisters of the Poor said this still forced them to be complicit in the provision of objectionable coverage.

Under the interim final rules released Friday, non-profits, small businesses, and even some publicly-traded companies can apply for a religious exemption to the mandate, if they establish that complying with the mandate would violate their religious beliefs.

The new rules "substantially expand the scope of that religious exemption," Greg Baylor, senior counsel with Alliance Defending Freedom, said.

Large "publicly-traded" companies wouldn't be eligible to claim a "moral" exemption from the mandate, but secular non-profits and small businesses would be – which benefits groups like the March for Life, which is a pro-life organization opposed to the mandate on conscience grounds, but a group that is "not inherently religious."

In establishing such broad new exemptions, the new rule "practically amounts to a revocation of the mandate," Franck told CNA.

And the "accommodation" offered to non-profits, where their insurer or third party administrator provided the objectionable coverage, is now voluntary, the Department of Health and Human Services announced.

Prominent U.S. bishops praised the HHS announcement on Friday as a "return to common sense."

Cardinal Daniel DiNardo of Galveston-Houston, president of the U.S. Conference of Catholic Bishops, and Archbishop William Lori of Baltimore, chair of the U.S. bishops' religious liberty committee, said in a statement that the new rule "recognizes that the full range of faith-based and mission-driven organizations, as well as the people who run them, have deeply held religious and moral beliefs that the law must respect."

"We welcome the news that this particular threat to religious freedom has been lifted," they stated.

The Becket Fund, a religious freedom law firm that defended the Little Sisters of the Poor in court against the mandate, praised the "common sense, balanced rule," but added that the litigation is ongoing in mandate cases.

In the case of the Little Sisters of the Poor against the mandate at the Supreme Court, the Supreme Court in a rare move in the middle of the case ordered both the plaintiffs and the government to submit briefs detailing if, and how a solution could be crafted that provided for cost-free coverage outlined in the HHS mandate, while at the same time maintaining the religious freedom of the non-profits that sued the government.

In May of 2016, the Court vacated the federal circuit court decisions on the mandate, ordered the federal government not to fine the plaintiffs, and instructed all parties to come to a solution that provided the contraception coverage while respecting the religious freedom of the plaintiffs. The cases are currently still at the federal circuit court level.

"14 or 15 months later" after the Supreme Court asked for a solution, "what we see today is really the resolution of that process," Rienzi said.

With the HHS announcement, the government now "admits the prior version of the mandate broke the law," Rienzi said, referring to the Religious Freedom Restoration Act.

Under the 1993 law, the federal government must not substantially burden one's deeply-held religious beliefs unless it establishes that to do so is in its "compelling interest" and is the "least-restrictive means" of fulfilling that interest.

The government essentially admitted on Friday that there were indeed less-restrictive means of ensuring cost-free coverage for contraceptives, sterilizations, and abortion-causing drugs than forcing the non-profits to comply with the mandate through the "accommodation," Rienzi said.

"I assume those lawyers at DOJ will cooperate and go into the courtrooms and admit that the federal government broke the law, and that the Little Sisters and other groups are entitled to a final injunction to give them lasting protection against this kind of treatment," he said.

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Also on Friday, the Department of Justice announced a religious freedom guidance that was ordered by President Trump in his May 4 executive order on religious freedom.

The 25-page guidance outlines religious freedom protections in existing federal law that federal departments and agencies are to incorporate into their functions. It states that "Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. It also encompasses religious observance and practice."

The guidance is significant and establishes solid protections for religious freedom at the federal level, Professor Robert Destro of the Catholic University of America's Columbus School of Law told CNA.

"We've never had anything this far-reaching before," he said, noting that the guidance puts religious freedom on the level of freedom of speech.

It also takes principles of religious freedom and applies them to many federal levels, Destro said.

For instance, U.S. attorneys at the Department of Justice in litigation must "conform all the arguments that the government is making across the country" to the religious freedom principles outlined in the guidance, he said.

This would apply to ongoing court cases, including the DOJ's position on the current religious freedom case before the Supreme Court of Masterpiece Cakeshop. It would also apply to "other cases where the arguments were already written," Destro said.

The guidance also informs regulations, grants, contracts, and diversity training. Agencies like the State Department, where many employees have historically been reticent to talk about the role religion in international problems, could be affected by this, Destro said.

Regarding its application to federal contracts, the guidance could influence cases where religious charities are in danger of losing federal contracts due to their employment practices or their religious mission.

"It really gives faith-based organizations and others with religious objections an argument to make when they're in discussions with a federal agency about accepting a grant or a contract," Baylor told CNA.

The guidance also reiterates the Religious Freedom Restoration Act, in that it "does not permit the federal government to second-guess the reasonableness of religious beliefs," Joshua Mercer, co-founder of CatholicVote.org, told CNA.

This is significant because certain Catholic colleges did not receive religious exemptions from the contraceptive mandate, Mercer said, yet the government should have honored their religious objections. "It's up to our bishops to decide a university is sufficiently Catholic or not, not our federal government," he said.

It could apply to conscience protections for health care professionals, Baylor noted. The Obama administration, under Section 1557 of the Affordable Care Act mandated that doctors had to provide gender-transition procedures even if they conscientiously objected to doing so.

"There has been a nationwide injunction against that rule, and the federal government has indicated that it plans to reconsider the rule," Baylor noted.

However, he added, "this guidance strengthens the hand of those who would argue that this sort of thing violates the Religious Freedom Restoration Act and the First Amendment."

Ultimately, the guidance is "pretty far-reaching, and it's going to take a good deal of time for the agencies to conform their practice to what's being required," Destro said.

"This may have an impact that we don't see" in informing federal agencies how they should operate, Baylor said.