Contraceptive mandate in limbo
April 18, 2019
On May 4, President Donald Trump told the Little Sisters of the Poor: "We are ending the attacks on your religious liberty," and "… your long ordeal will soon be over."
The religious order is one of many groups fighting for their religious freedom as they oppose in court the U.S. Department of Health and Human Services (HHS) contraceptive mandate associated with the Affordable Care Act (ACA).
Despite his promise – offered during the Rose Garden signing of his executive order, "Promoting Free Speech and Religious Liberty" – five months later, definitive action on the mandate remains to be seen.
"Everybody is waiting to see what will happen," said Andrew Bath, executive vice president and general counsel for the Thomas More Society, a nonprofit, special interest law firm with offices in Omaha and Chicago that supports life, family and religious freedom.
Bath said there is growing frustration among people and organizations affected by the mandate. "People are eager for a rule that would give them relief from this HHS mandate."
Enacted by HHS more than a year after passage of the ACA, the mandate requires most employer-provided insurance plans to provide coverage for contraceptives, sterilization and abortifacient drugs and devices. It allows only narrow exemptions for churches.
Under the mandate, other faith-based organizations such as religious orders, charities, hospitals and schools are forced to violate their consciences or face heavy fines for failing to meet the mandate.
An earlier accommodation offered by the Obama administration required an organization to file a form with its insurer, who would fund the contraceptive coverage independently.
"The Little Sisters objected to being compelled to amend their plan and name someone they knew was going to give the objectionable mandated items to their employees at no charge, so it was their complicity they were objecting to," Bath said.
"The HHS mandate was a sneak attack … negotiated with the people who voted in favor of the act in advance," he said. "I think it’s fair to say the health care reform act wouldn’t have passed if they’d been candid about their intentions with regard to the requirement that everybody’s health care plan include drugs that cause abortions."
In an Aug. 3 letter in the political publication "The Hill," Cardinal Daniel N. DiNardo, archbishop of Galveston-Houston and president of the U.S. Conference of Catholic Bishops, appealed for action.
"The HHS mandate puts an unnecessary burden on religious freedom, a burden the administration has the power to lift, a burden that the administration has promised to lift. And yet the burden has not been lifted," the cardinal wrote. "Mr. President, please lift this burden."
A draft of a proposed regulation that would broaden existing exemptions was leaked to the media May 31, but no official action has been announced.
"There are rumors that the Office of Management and Budget is scoring it or that they’re trying to rewrite it to make it less controversial," Bath said.
"We’re all wondering if it was a trial balloon that was floated, or whether it was leaked with malicious intent in an attempt to try to kill it," he said. "It’s not official and no one can even confirm that it was really ‘the’ draft."
In a June 1 statement, Archbishop William E. Lori, chairman of the U.S. Bishops’ Ad Hoc Committee for Religious Liberty, said: "… the leaked regulations provide encouraging news. If issued, these regulations would appropriately broaden the existing exemption to a wider range of stakeholders with religious or moral objections to the mandated coverage – not just houses of worship."
The mandate must be changed, Bath said. "It’s a tremendous injustice to force religious believers to violate their religious beliefs just to participate in their charitable endeavors."