Trump administration expands exemptions on HHS mandate

It took longer than many hoped … but the moment finally arrived. The Trump administration Oct. 6 issued interim rules expanding an exemption to allow religious employers and others with moral objections to opt out of the federal government’s mandate for employee health insurance coverage of contraceptives, sterilizations and abortion-inducing drugs under the Patient Protection and Affordable Care Act.

And on Oct. 13, the U.S. Department of Justice settled the cases of more than 70 plaintiffs who have been challenging the mandate in court since its implementation in 2011.

Cardinal Donald W. Wuerl of the Archdiocese of Washington, D.C., which was one of the plaintiffs, said the settlement "… adds a leavening of certainty …," and assurances "… that we will not be subject to enforcement or imposition of similar regulations imposing such morally unacceptable mandates moving forward."

A broader exemption had been sought for six years by religious groups objecting to the Obama administration initiative. And though the rules could still change, the move marked a "return to common sense, long-standing federal practice, and peaceful coexistence between church and state," leaders of the U.S. Conference of Catholic Bishops (USCCB) said.

The new rules correct "… an anomalous failure by federal regulators that should never have occurred and should never be repeated," Cardinal Daniel N. DiNardo of Galveston-Houston, USCCB president, and Archbishop William E. Lori of Baltimore, chairman of the conference’s Ad Hoc Committee for Religious Liberty, said in their Oct. 6 statement.

The U.S. Department of Health and Human Services (HHS) created the mandate under the Affordable Care Act. It included a narrow exemption for churches, but left other religious organizations such as faith-based hospitals, universities and charities in a quandary – to either violate their consciences or face steep financial penalties.

The interim rules expand the exemption to those faith-based organizations, going beyond the Obama administration’s later accommodation that nonprofit religious entities file a form or notify HHS if they did not want to provide such insurance. Many Catholic employers had objected to filling out the form, arguing it made them complicit in an act they believed to be immoral.

Andrew Bath, executive vice president and general counsel of the Omaha- and Chicago-based Thomas More Society, said the new rules are welcome, but somewhat limited and not yet final.

The Trump administration published two rules, one providing an exemption for employers with moral objections to the mandate, the other for religious objections, Bath said.

"But they are targeted, very narrow exemptions," he said. "If the administration had intended to act more broadly, it would have rescinded the HHS mandate."

The battle is not entirely over, Bath said. After a 90-day comment period, the rules can be revised before becoming final. In addition, the American Civil Liberties Union and the state of Washington filed lawsuits challenging the rules the same day they were announced.

But the new rules and the settlement were good news to organizations such as the Little Sisters of the Poor, which has been battling the mandate since the beginning. They were part of a combined lawsuit, along with the Archdiocese of Washington, D.C., Priests for Life, and several Christian universities, pursuing their case to the U.S. Supreme Court.

"It’s been reported that, as part of the settlement, the government admitted the mandate was an illegal violation of the rights of Catholics to the free exercise of their religion," Bath said.

"This was a really important fight to fight," he said. "The bishops who took up this fight stood tall when it mattered. We owe them a debt of gratitude."