The Trump administration Friday has proposed a new rule that eliminates President Obama’s requirement that religious organizations pay for contraceptives for their employees in violation of their faith.
The rule is the culmination of numerous legal challenges to the Obamacare requirement brought by religious organizations ranging from Christian colleges to the most prominent case, the Little Sisters of the Poor.
The latter case has been in the U.S. Supreme Court five times. In 2016, the justices ordered the government to work out a solution, arguing the Constitution forbids the government from unnecessarily burdening religious faith.
The new rule establishes a pathway to a permanent exemption for faith groups.
Mark Rienzi, a lawyer for Becket, which defended the Little Sisters, reacted to the new rule.
In a telephone conference call he explained the rule doesn’t close the court cases. The various plaintiffs still will need to obtain a final order exempting them from the Obama requirement. But he said the Trump rule removes virtually all of the arguments the government could use to try to prevent a permanent exemption.
“This appears to be a common sense, balanced rule and a great step forward for religious liberty,” he said. “Given what the government is admitting we assume the government lawyers won’t stand in the way of parties getting that relief.”
Rienzi explained the new rule is actually about the ninth or 10th version of a requirement he said the Obama administration to engage in an “unnecessary and divisive culture war.”
“You don’t need nuns to give out contraceptives,” he said, noting that until the Obamacare’s rules was implemented, “nobody would have thought the right way to get contraceptives to people would have been to get nuns involved.”
The Little Sisters of the Poor, which cares for the poorest of the elderly, was faced with fines of $75 million annually for abiding by their religious beliefs and not paying for workers’ contraceptives, including abortion-inducing drugs.
Even Obama’s lawyers in 2016 admitted there were many other ways to distribute the drugs if the government decided it was a priority.
The new rule keeps the contraceptive mandate for employers generally but creates an exemption for religious organizations or organizations that submit they have a faith foundation.
The Trump administration, Rienzi said, “added a real and true religious exemption so that the religious plaintiffs like Little Sisters of the Poor who in the past were forced to go to court to get protection have that protection.”
The 163-page document, released by the government Friday, was attracting comments from both sides.
Michael Farris, CEO and president of Alliance Defending Freedom, said all Americans “should have the freedom to peacefully live and work consistent with their faith without fear of government punishment.”
“The guidance that the Trump administration issued today helps protect that First Amendment freedom,” he said. “As the memo states, ‘Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government,’ and ‘free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs,'” Farris said.
He said the Trump guidance “will help prevent families like the Vander Boons in Michigan who were threatened with the effective closure of their family-run business for simply expressing a religious point of view on marriage that differed from that of the federal government.”
“And it is another step toward fulfilling President Trump’s promise to protect a host of Christian colleges, the Little Sisters of the Poor, and others from having to choose between violating their consciences and paying crippling fines to the IRS. The guidance is on firm legal and constitutional ground,” said Farris.
He pointed out that the U.S. Supreme Court, in its recent 7-2 decision in Trinity Lutheran Church of Columbia v. Comer, said unequal treatment of religious Americans by the government “is odious to our Constitution … and cannot stand.”
“As CEO of the largest religious freedom legal organization in the world, I commend the president for taking another step to honor his campaign promise to make religious liberty his ‘first priority’ by directing the Department of Justice to issue this guidance, which simply directs the federal government to adhere to its legal and constitutional obligation to respect existing religious freedom protections,” he said.
On the other side was the Freedom From Religion Foundation, which described the new guidance as “religious liberty run amok.”
“Under the new rules, which take effect immediately, any employer, including publicly traded companies and even universities, can claim a religious objection to providing birth control to employees,” the group said. “Religious liberty does not mean the freedom to force your dogma upon unwilling employees who themselves do not share these scruples.”
The Supreme Court previously ruled in the Hobby Lobby case that closely held corporations could hold religious beliefs that exempted them from the mandate. The new rule expands that determination.
The Family Research Council, through its president, Tony Perkins, said, “After eight years of the federal government’s relentless assault on the First Amendment, the Trump administration has taken concrete steps today that will once again erect a bulwark of protection around American’s First Freedom – religious freedom.
Perkins said Trump “is demonstrating his commitment to undoing the anti-faith policies of the previous administration and restoring true religious freedom.”
“Last May, the president ordered the federal government to vigorously promote and protect religious liberty – and now the DOJ and HHS are moving to make that order a reality,” he said.
“Under the Obama administration, agencies lost the understanding that religious freedoms extend to the public square, not just one’s place of worship. As a result, our own government began threatening hardworking, patriotic Americans with crushing fines for simply seeking to live their lives according to their faith,” said Perkins.
“President Trump and the Department of Justice are putting federal government agencies on notice: you will not only respect the freedom of every American to believe but live according to those beliefs. This is a freedom that has been a fundamental part of our society since the beginning of our nation.
“To aid the Trump administration’s efforts in vigorously promoting and protecting religious liberty, Family Research Council today is launching a web hotline for those who believe that they have suffered discrimination at the hands of federal agencies based on their religious beliefs or practices. The ‘Free to Believe’ hotline will help ensure that no federal employee, contractor or citizen will be forced to choose between their faith and equal treatment by the federal government.
Perkins concluded that as Trump “continues to follow through on his promises on these core issues, he will continue to have the support of social conservatives on his policy initiatives.”
Marjorie Dannenfelser, president of the pro-life group Susan B. Anthony List, said Trump “delivered a huge victory for conscience rights and religious liberty in America.”
“No longer will Catholic nuns who care for the elderly poor be forced by the government to provide abortion-inducing drugs in their health care plans. Not only that, moral objectors such as the Susan B. Anthony List will also no longer have to pay for life-ending drugs that are antithetical to their mission and for which we have argued there is certainly no ‘compelling state interest,” she said.
“The Obama administration’s repeated violations of conscience were deeply contrary to the core of our nation, which was built on the foundation of respect for the individual freedoms of the people and deeply held religious beliefs. We thank President Trump for fulfilling a core promise to voters of faith and conscience who elected him.”
Penny Nance of Concerned Women for America said: “One of my fondest memories of working with President Trump so far is sitting in the Rose Garden as he stood strongly for religious liberty and asked the Little Sisters of the Poor to come on stage with him. The sisters had been so mistreated by the Obama Administration – dragged into court, all the way to the U.S. Supreme Court, for cheap political points – it brought tears to my eyes to see a president who respected and appreciated them.
“It was just a promise then, but today he has made it a reality. And that is the story to me. The story should be that this is a president who is truly committed to liberty. He is committed to America, and he is working to keep his word to the American people. That is incredibly honorable and noble.”
But the Secular Coalition for America argued for continuing to force employers to violate their faith.
“This rule from Health and Human Services frames the contraception mandate as imposing a ‘substantial burden’ on employers. The private medical decisions made by an employee are not the business of their employer,” the group said.
The government still is accepting comment on the rule.
When the interim rule was announced, Planned Parenthood, the nation’s largest abortion provider, which is under fire for its baby-body-parts trade, immediately objected, claiming it would endanger “a woman’s ability to make the most basic and personal of decisions – when and if to have a child.”
Spokeswoman Dana Singiser complained the rule “would mean women across the country could be denied insurance coverage for birth control on a whim from their employer or university.”
It also would mean that women may have to pay for their birth control themselves.