The Trump administration just widened conscience rights for all employers who don’t want to pay for abortifacients or birth control for employees. Abortion proponents think this is the end of the end; social conservatives see it as a tremendous victory that helps preserve First Amendment freedoms.
On Oct. 6, the U.S. Department of Health and Human Services (HHS) followed through on a campaign promise from President Donald Trump to enlarge the scope of exemptions to a 2011 agency rule requiring certain employer health plans to cover possible abortion-
causing drugs and devices, which came to be known as the “HHS mandate” or the “contraceptive mandate.”
“Our first freedoms are preserved and protected in this new and needed rule,” said Focus on the Family President Jim Daly. “No government may infringe on someone’s convictions and conscience.”
The mandate’s origins, the legal conflicts it generated, the social and cultural debates it spawned and its final demise as a government attempt to coerce religious conscience is a story of big-government politics, an unaccountable and partisan federal agency, pro-life advocacy, endless court proceedings, and an unlikely set of heroes in a David-vs.-Goliath drama—a group of nuns.
The Patient Protection and Affordable Care Act (aka “Obamacare”), signed into law by President Obama in March 2010, emerged from the U.S. House and Senate with no Republican votes whatsoever. The partisanship carried over to the actions of HHS, headed up by Obama’s abortion supporters and their allies.
The new law left many of the finer details of Obamacare up to HHS, including defining some of the key terms, such as “essential health benefits” and “preventive health services,” which would be required in most insurance policies. The agency issued “interim final” regulations in August 2011, including the contraceptive mandate requiring employers to provide in their health plans all U.S. Food and Drug Administration-
approved contraceptives and devices—several of which can cause early abortion.
The interim final rule became final in January 2012.
While major corporations employing tens of millions of workers received exemptions from the HHS mandate because their plans were “grandfathered” in, HHS stubbornly refused to acknowledge the need for a broad religious exemption for the family-owned companies and religious organizations it knew would be negatively impacted by the mandate.
According to Becket (formerly known as The Becket Fund), a religious-liberty law firm representing many of the employers in the HHS mandate litigation, more than one-third of Americans were not impacted by the mandate due to non-religious exemptions of varying kinds granted to their employers. This included those working for major corporations like Exxon, Nike, Pepsi, and even the U.S. military.
In contrast, the final rule offered only churches and seminaries exemptions for conscience reasons. Religious denominations, schools and universities, charitable groups and others did not qualify. Neither did any “for-profit” companies.
After a public outcry from the religious community, HHS added what it called an “accommodation”—not an exemption—for religious organizations other than churches and seminaries: Instead of having them purchase the contraceptives directly, the onus was put on their insurers.
It didn’t fool anyone, and still offered no relief to for-profit companies. It did, however, create grist for the courts to examine over the next several years in lawsuits by the objecting religious employers, resulting in contradictory conclusions across the country in cases with similar facts.
The still-unanswered question in all this was why HHS was content to leave tens of millions of workers at large companies without the benefit of free contraceptives, while it worked relentlessly to force religious entities employing a total of about 190,000 people to either provide the contraceptives, pay onerous fines or cease doing business or ministry. The administration’s insistence on standing firm over a very weak set of religious exemptions had every appearance of hostility toward religion. Such a regulation was bound to generate litigation, and it did.
Before it was all over (and there remain some finishing touches even now), more than 100 lawsuits involving some 300 employers would be filed in the federal courts, several of which made their way to the U.S. Supreme Court between 2014 and 2016.
First to the courts came dozens of family-owned businesses faced with the unacceptable choices offered by the mandate, which violated their First Amendment rights and federal laws guaranteeing religious freedom.
Hobby Lobby and Conestoga Wood Specialties arrived at the Supreme Court first. These companies are both owned by deeply religious families who apply faith-based principles in their business operations. They, like the rest, objected to being forced to provide coverage for possible abortion-causing drugs in their company health plans.
But the cost of opposition came at a steep price. Hobby Lobby would have been subjected to fines totaling $475 million per year (based on the number of workers it employs); Conestoga Wood Specialties would be liable for $35 million per year. In either case, the HHS mandate put them between a rock and a hard place. Acquiesce, and violate their conscience; resist, and the fines would quickly put them out of business.
HHS remained unsympathetic. The Obama administration argued that corporations cannot “exercise” religion and are therefore not entitled to religious exemptions. But in June 2014, the U.S. Supreme Court ruled 5-4 that “closely held” companies (i.e., few stockholders) that are run on faith-based principles by religious owners are indeed entitled to protection under federal law.
“Our family is overjoyed by the Supreme Court’s decision,” said Hobby Lobby co-founder Barbara Green when it was announced. “Today the nation’s highest court has re-affirmed the vital importance of religious liberty as one of our country’s founding principles. The Court’s decision is a victory, not just for our family business, but for all who seek to live out their faith.”
Little Sisters of the Poor
The Little Sisters of the Poor, one of dozens of faith-based entities fighting the mandate, became the public face of a legal challenge that pitted the full weight and authority of the federal government against a sympathetic group of elderly nuns. It became a highly contentious, public-relations nightmare of a lawsuit that played out in the courts and in the media. In hindsight, it was a fight that only served to highlight the government’s unfairness in examining valid religious claims.
As litigation began, however, it seemed the government Goliath would prevail, as the Little Sisters lost their legal claim for an exemption in the lower federal courts. In 2015, the Little Sisters (along with many other religious organizations in several related lawsuits) reached out to the U.S. Supreme Court, and the various lawsuits were consolidated under the case name Zubik v. Burwell. Oral arguments took place in March 2016, and events seemed headed for a blockbuster final decision that June.
But a funny thing happened on the way to the showdown. After hearing oral arguments, the Court, in a highly unusual move, ordered all the lower-court decisions vacated (as if they never existed) and sent the parties to the bargaining table. The fact that the Court had only eight members at the time (following Justice Antonin Scalia’s death) and might have ended up with a confusing 4–4 tie vote, probably explains at least one major reason behind the order.
However, no resolution surfaced and as the weeks dragged on, the Little Sisters’ case turned into an election-year issue in the presidential race.
The Trump Promise
Trump took up the cause of the Little Sisters of the Poor on the campaign trail, promising in an October 2016 letter to leaders of the American Catholic church, “I will make absolutely certain religious orders like the Little Sisters of the Poor are not bullied by the federal government because of their religious beliefs.” He also promised to appoint Supreme Court justices like Scalia.
On May 4, 2017, Trump held a Rose Garden ceremony for the signing of an executive order directing HHS to consider changing the Obamacare contraceptive mandate to address the conscience-based objections. Several nuns from the Little Sisters attended the ceremony; Trump invited them onto the platform and expressed his opinion that their lawsuit would soon end in their favor.
A month later, a revised HHS rule revising the mandate was leaked to the public. On Oct. 6, it was finalized—and included a broadly defined exemption from the contraceptive mandate for religious organizations, closely held for-profit companies, and other organizations with religious or moral objections. Indeed, it appears the only entities left out are large, publicly traded corporations—none of which had registered any complaints about the HHS mandate.
Religious groups nationwide celebrated the victory.
“We commend the president for his commitment to freedom and restoring the choice of religious and pro-life employers and their female employees to work at organizations consistent with their convictions,” said Alliance Defending Freedom attorney Gregory S. Baylor.
Opponents of such religious freedom, of course, are upset.
The American Civil Liberties Union filed a lawsuit on Oct. 6 challenging the new religious exemption language as unconstitutional. “The Trump administration is forcing women to pay for their boss’s religious beliefs,” said senior staff attorney Brigitte Amiri. “We’re filing this lawsuit because the federal government cannot authorize discrimination against women in the name of religion or otherwise.”
Washington State also filed suit a few days later. “President Trump’s contraception rules are unfair, unlawful and unconstitutional,” said Attorney General Bob Ferguson. “I refuse to let President Trump disregard our laws and our constitution in an effort to deny women access to contraception.”
As this issue of Citizen went to press, , the U.S. Department of Justice was working with the original religious litigants to settle the remaining HHS mandate lawsuits, now moot because of the new rule. In fact, 70 such claimants announced a settlement in October; the rest are presumably being negotiated and will be announced as they are finalized.
Jane Doe’s Baby
Should the government intervene to prevent abortions for minors who emigrate illegally?
On Sept. 11 last year, a 17-year-old girl from Central America, traveling alone, was apprehended by government agents after illegally crossing the border from Mexico into Texas—setting off a firestorm of controversy.
When a doctor performing a routine physical discovered she was 15 weeks pregnant, the girl asked for an abortion—which the Trump administration denied. That set off a week-long court battle between American abortion activists and the Trump administration, with the girl as a political football. But after a federal appellate court ruled on the pro-abortion side, the girl aborted her child on Oct. 25.
The case of “Jane Doe” (as she was called in court documents) may be over, but lingering questions remain about how the government should respond to nonresident pregnant minors who request abortions.
The care and custody of undocumented minors who are not accompanied by their parents falls to the Office of Refugee Resettlement (ORR), part of the U.S. Department of Health and Human Services. The ORR is tasked by law to provide physical and mental health screenings, basic academic classes and access to legal representation for these children being held in U.S. detention centers.
ORR Director Scott Lloyd, who took over the agency earlier this year, has his staff reviewing the way the policy was implemented during the Obama and other previous administrations.
“Requests for abortion have been part of the heightened medical procedures policy since 2008,” he tells Citizen. “But we found that during the Obama administration, some significant departures from the policy developed concerning abortion. It was not apparent that ORR or the director were being informed of abortion requests, (that) parents were being involved in their children’s care, or that American taxpayer funds were being protected from paying for abortions.
“We examined the 2008 policy and immediately took steps to clarify the application of these elements, and to undertake a broader review of the program.”
That review prompted the court case involving Jane Doe and her baby, who were both in ORR custody. Serving as the temporary custodian of vulnerable minors—both sentient and preborn—is a responsibility Lloyd takes seriously.
“My personal philosophy is simple and comes from my Christian faith,” he explains. “Each individual, born and unborn, is made in the image of God and is loved by God, has human dignity, and is worthy of honor, respect, care and safety.”
Originally published in the January/February 2018 issue of Citizen magazine.