Last Friday, the Trump administration revised rules implementing the Affordable Care Act in a way that expands protections for religious and moral objectors to the contraception mandate — achieving the common-sense balance that religious organizations have sought for the past six years. These revisions allow religious nonprofits — like the Little Sisters of the Poor — to avoid millions of dollars in fines because their employee health insurance plans exclude coverage for contraception, a practice contrary to Catholic doctrine on respecting human life.
Judging by some media hyperbole, however, you would think that the federal government had just abolished the ACA’s birth control mandate altogether. Headlines that claim the federal government’s move “reverses” or “scraps” or “ends” the mandate are all wrong.
While the Dept. of Health and Human Services could have simply revoked the Obama-era mandate, it instead chose a moderate course: keep the mandate in place for most employers, but revise existing rules by expanding exemptions for religious and moral objectors. The practical result? The vast majority of women in America will continue to receive free birth control, and religious objectors will not be forced into providing services that violate their conscience.
This move should bring peace to an unnecessary fight picked by the Obama administration and an unprecedented escalation of the culture wars against religious organizations. Six years ago, Health and Human Services tried to force religious organizations to violate their conscience by requiring them to provide cost-free contraception coverage in their health insurance plans. Now, after scores of lawsuits nationwide opposing the mandate, nine failed iterations of the mandate, and five defeats at the Supreme Court, the federal health department has finally seen the light. Its effort to force nuns and other objectors to pay for contraception and abortifacients was both unlawful and unnecessary, even to achieve its stated policy goal.
The case for forcing religious employers to provide contraception coverage was always thin. Affordable contraception is already available to the vast majority of Americans. In fact, the federal government spends hundreds of millions of dollars a year to provide free (or nearly free) family planning services under its Title X program. When the Little Sisters’ case reached the Supreme Court in 2015, the government’s lawyers admitted that Health and Human Services could still achieve its stated policy goal without forcing religious objectors to provide contraception coverage; yet the government still insisted that religious organizations execute documents authorizing the co-opting of their health plans in ways that would violate their faith. That begs the question: once the government's stated goal was popped and dropped two years ago, what other, unstated goal motivated the previous administration to keep trying to subdue the nuns?34 comments on this story
The revised rules are a major, immediate victory for religious freedom, but the Little Sisters’ long ordeal is not yet over. Now that Health and Human Services admits that its prior actions were unlawful, the Little Sisters should be able to receive a final court ruling that shields it in the future. This is important because the revised rules, which take effect immediately, may still change: a public comment period could result in modifications; various (but weak) lawsuits around the country are already challenging them; and the next administration could easily reverse course. The Department of Justice should act swiftly in court to cement an enduring victory for the Little Sisters — and for all people of conscience.
Hannah C. Smith is senior counsel at Becket — Religious Liberty for All, a public interest law firm that defends religious liberty for people of all faiths. Becket represents the Little Sisters of the Poor in its challenge to the Health and Human Services contraception mandate. Follow Hannah on Twitter @hclaysonsmith.