Trumping the HHS Contraceptive Mandate

By   •   July 17, 2017

Lawyer Mark Rienzi, representing Little Sisters of the Poor, speaks to members of the media after attending a hearing in the 10th U.S. Circuit Court of Appeals, in Denver, Colo.

The controversial Obamacare contraceptive mandate that attempted to force hundreds of Christian ministries and some Christian businesses to provide coverage for contraceptives, including abortion-causing drugs, in their insurance plans appears likely to end soon.

Obamacare is the common name for the U.S. health care reform law enacted in 2010. According to a revised draft of the Obamacare rule leaked to the press in late May, any organization with a sincere religious objection would be exempt from providing coverage for birth control, say attorneys with Washington, D.C.-based Becket, which represents numerous plaintiffs in suits against the government over the law.

The mandate, which calls for free contraceptives to the insured, would have punished non-compliant organizations with daily fines. Some entities were looking at potentially millions of dollars in government fines annually.

If the White House adopts the so-called “interim final rule” as drafted, it would take immediate effect.

However, organizations and businesses with no religious objections would remain subject to the mandate as long as Obamacare remains intact, says Eric Rassbach, senior counsel at Becket.

Response to the potential new rule was predictably welcomed by conservative leaders and pro-life organizations, while abortion-rights supporters continued to accuse the Trump White House of waging a war on women.

The Family Research Council’s Tony Perkins wrote on the group’s website, “While Congress tries to pull out Obamacare by the roots, the White House is busy ensuring that whatever time the law has left won’t be spent punishing religious organizations, colleges and charities.”

The Susan B. Anthony List, a leading pro-life advocacy group, stated in a news release:

“This interim rule, if issued as written, is an important step in acknowledging the importance of conscience rights for all Americans. The taking of human life is the antithesis of health care. 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. … We thank President Trump for taking the necessary steps to follow through on one of his core promises to voters of faith and conscience.”

The president on several occasions has cited the case of the Roman Catholic charity Little Sisters of the Poor as an example of government treading on constitutionally guaranteed religious protections. Trump made the preservation of religious liberties a theme of his campaign in courting evangelicals and conservative Catholics.

During a May 4 ceremony in which Trump signed an executive order aimed at protecting religious freedoms, the president told several Little Sisters who were attending, “your long ordeal will soon be over.”

“With this executive order, we are ending the attacks on your religious liberty, and we are proudly re-affirming America’s leadership role as a nation that protects religious freedom for everyone,” Trump said.

The executive order directed the departments of Treasury, Labor, and Health and Human Services (HHS) to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.”

The leaked interim final rule appears to be a measurable next step to the executive order. Following Trump’s order, Health and Human Services Secretary Tom Price issued a statement signaling changes were coming while acknowledging religious liberty as “our country’s first freedom.”

VICTORY BY THE PIECES

In May 2016, opponents of the mandate got a partial victory when the Supreme Court ruled against the government in its effort to levy fines against the Little Sisters of the Poor. Their victory also brought protection against the costly fines for dozens of other entities in the same predicament as the Little Sisters.

But even without threat of penalties, Christian organizations have struggled to find relief on other troubling aspects of the mandate. For example, the Obama administration devised an “opt-out” for religious nonprofits with objections to the mandate. Yet hundreds of Christian nonprofits complained that the opt-out, in reality, still required that employees receive coverage for free contraceptives and abortifacients through their insurance plan.

A further complication was that some Christian denominations and large parachurch groups are self-insured, which made any “opt-out” scenario unworkable.

That was the situation for GuideStone Financial Resources, a Southern Baptist Convention agency, Rassbach says. GuideStone provides retirement and insurance services for thousands of churches and denominational entities, including colleges and mission boards.

“They fell under a church classification for their own employees, but they couldn’t issue insurance, and of course, they are in the business of offering insurance to Southern Baptist organizations,” Rassbach explained. “On behalf of all the entities that get coverage through them, they wanted to be able to provide abortion-free coverage.”

GuideStone’s president, O.S. Hawkins, in a statement, voiced cautious optimism on news that the mandate would be lifted for religious organizations. “While we won’t know what the interim final rule will be until its release, we are grateful for an administration that recognizes the importance of protecting religious liberty and look forward to a rule that protects the varied … Christian schools and mission ministries we serve from the threat of crippling fines.”

Becket also represented Hobby Lobby, the family-owned crafts retailer, in its notable 2014 victory at the Supreme Court over the mandate.

But while Hobby Lobby’s case involved a closely held, for-profit corporation, the Obama administration’s only true exemption applied to “houses of worship.” The exemption was strictly applied, leaving church-owned ministries, including colleges like Houston Baptist University and Southern Nazarene University, in difficult straits.

Rassbach says if the new HHS rule is issued as drafted, the existing litigation will still need settling, and the abortion lobby will be filing lawsuits of their own to oppose it.

Furthermore, Rassbach says, “just getting a rule change means a future administration could change the rules back. So getting a court result that says the Obama HHS mandate is actually against the law would provide protection against an arbitrary rule change in the future.”

As Decision went to press, the revisions were reportedly being reviewed by the White House Office of Management and Budget and were not yet officially issued.  ©2017 BGEA

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