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Trump Administration Rolls Back Birth Control Mandate Trump Administration Rolls Back Birth Control Mandate
(about 7 hours later)
WASHINGTON — The Trump administration on Friday moved to roll back the federal requirement for employers to include birth control coverage in their health insurance plans, vastly expanding exemptions for those that cite moral or religious objections. WASHINGTON — The Trump administration on Friday moved to expand the rights of employers to deny women insurance coverage for contraception and issued sweeping guidance on religious freedom that critics said could also erode civil rights protections for lesbian, gay, bisexual and transgender people.
The new rules, which fulfill a campaign promise by President Trump, are sure to touch off a round of lawsuits on the issue. The twin actions, by the Department of Health and Human Services and the Justice Department, were meant to carry out a promise issued by President Trump five months ago, when he declared in the Rose Garden that “we will not allow people of faith to be targeted, bullied or silenced anymore.”
“President Trump promised that this administration would ‘lead by example on religious liberty,’ and he is delivering on that promise,” Attorney General Jeff Sessions said in a statement announcing guidance from the Justice Department that will help to justify the new policy. Attorney General Jeff Sessions quoted those words in issuing guidance to federal agencies and prosecutors, instructing them to take the position in court that workers, employers and organizations may claim broad exemptions from nondiscrimination laws on the basis of religious objections.
More than 55 million women have access to birth control without co-payments because of the contraceptive coverage mandate, according to a study commissioned by the Obama administration. Under the new regulations, hundreds of thousands of women could lose birth control benefits they now receive at no cost under the Affordable Care Act. At the same time, the Department of Health and Human Services issued two rules rolling back a federal requirement that employers must include birth control coverage in their health insurance plans. The rules offer an exemption to any employer that objects to covering contraception services on the basis of sincerely held religious beliefs or moral convictions.
Democrats assailed the new regulations. “The administration is now stooping to a new low by attempting to deny women the preventive health care coverage they need,” said Senator Ron Wyden of Oregon, the senior Democrat on the Finance Committee. More than 55 million women have access to birth control without co-payments because of the contraceptive coverage mandate, according to a study commissioned by the Obama administration. Under the new regulations, hundreds of thousands of women could lose those benefits.
Speaker Paul D. Ryan of Wisconsin said, “This is a landmark day for religious liberty.” The new rules, he said, ensure that people “can freely live out their religious convictions and moral beliefs.” The contraceptive coverage mandate, issued by the Obama administration under the Affordable Care Act, removed cost as a barrier to birth control, a longtime goal of advocates for women’s rights. But the mandate ensnarled the federal government in more than five years of litigation, which overshadowed many other aspects of the health care law.
Dr. Haywood L. Brown, the president of the American College of Obstetricians and Gynecologists, said the rules would turn back the clock on women’s health. The rules issued on Friday prompted more lawsuits and threats of lawsuits. The attorney general of Massachusetts, Maura Healey, and the attorney general of California, Xavier Becerra, filed lawsuits to block the new rules, which took effect immediately.
“Affordable contraception for women saves lives,” he said. “It prevents pregnancies. It improves maternal mortality. It prevents adolescent pregnancies.” Both said the rules violated the First Amendment, which bars government action “respecting an establishment of religion.”
One new rule offers an exemption to any employer or insurer that objects to covering contraceptive services “based on its sincerely held religious beliefs.” Another regulation offers a new exemption to employers that have “moral convictions” against covering contraceptives. But some conservatives and religious groups said the new rules would allow them to live out their religious beliefs. Speaker Paul D. Ryan of Wisconsin hailed the rules as “a landmark day for religious liberty.” The rules were also welcomed by groups like the Little Sisters of the Poor, an order of Roman Catholic nuns who had resisted the Obama administration’s mandate because, they said, it would make them “morally complicit in grave sin.”
There is no way to satisfy all of the religious objections to the contraceptive coverage mandate, so “it is necessary and appropriate to provide the expanded exemptions,” the Trump administration says in the new rules. “The new administration isn’t going to force Catholic nuns to provide contraceptives,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, who represents the Little Sisters of the Poor. “We’ve been on a long, divisive culture war because the last administration decided nuns needed to give out contraceptives.”
“Application of the mandate to entities with sincerely held religious objections to it does not serve a compelling governmental interest,” it says. The new initiatives came a day after Mr. Sessions changed the Justice Department’s position on a related issue: whether a ban on workplace discrimination on the basis of “sex” in the Civil Rights Act of 1964 encompasses discrimination on the basis of gender identity. The Obama administration had adopted the view that it does cover transgender people, but Mr. Sessions said the department should take the position in court that it does not.
The Trump administration acknowledges that this is a reversal of President Barack Obama’s conclusion that the mandate was needed because the government had a compelling interest in protecting women’s health. Mr. Sessions’s guidance issued on Friday directs federal agencies to review their regulations with an eye to expanding their protections for religious believers. Conservative religious individuals and organizations have objected for years to nondiscrimination laws that have affected whom they can hire and fire, whom they can serve and how they can operate. The new directive affords them far broader latitude.
In the new rules, the Trump administration says the Affordable Care Act does not explicitly require coverage of contraceptives. In issuing the new directive, Mr. Sessions reinterpreted the Religious Freedom Restoration Act, which was adopted by Congress in 1993 with broad support from across the religious spectrum. It says the government could limit the free exercise of religion only if there was a “compelling” reason, and must do so in the least restrictive way possible.
The administration lists health risks that it says may be associated with the use of certain contraceptives, and it says the mandate could promote “risky sexual behavior” among some teenagers and young adults. Among the possible results of the guidance, legal directors at liberal advocacy groups said, religious charities or schools that receive government funding could fire an unmarried employee who becomes pregnant, or an employee who marries a same-sex partner. Religious contractors that administer foster care programs could refuse to place foster children with gay couples, even in states that have nondiscrimination laws.
By contrast, many doctors, including obstetricians and gynecologists, say contraceptives have generally been a boon to women’s health. Houses of worship that have been damaged in hurricanes could receive grants from the Federal Emergency Management Agency to rebuild — even if they are using the taxpayer funds to hire only staff members who share their religious beliefs, rather than making the positions open to all.
The mandate also, the administration says, imposes a “substantial burden” on the free exercise of religion by certain employers who object to it. In addition, David Stacy, government affairs director for the Human Rights Campaign, said that clerks with the Social Security Administration or the Department of Veterans Affairs who do not agree with same-sex marriage could refuse, under this guidance, to process paperwork to provide benefits to a widow in a same-sex marriage.
The Trump administration says the new rules are motivated by “our desire to bring to a close the more than five years of litigation” over the contraceptive coverage mandate. “This is a very sweeping expansion of religious discrimination by the federal government, and we think it goes beyond where federal law is,” he said.
The Obama-era policy generated dozens of lawsuits by employers, including religious schools, colleges, hospitals and charitable organizations, priests and nuns and even some owners of private for-profit companies who objected to some forms of birth control. Vanita Gupta, a top civil rights lawyer at the Justice Department during the Obama administration, said: “The freedom of religion is a fundamental right, but it is not an absolute right. It cannot be used as a shield to permit discrimination against L.G.B.T.Q. Americans, just as federal courts a half century ago denied the ability of businesses and employers to use their religious beliefs as a basis to discriminate against African-Americans.” She also called the new contraception policy “a direct attack on women’s rights.”
However, the rules are likely to generate more litigation, this time by advocates for women and public health groups. But Representative Diane Black, Republican of Tennessee, said the new rules on contraception were “a resounding victory for true-believing Americans.” They will, she said, end the “persecution of ordinary Americans who for years have been seeking only the freedom to live in accordance with their faith, free from government interference.”
In expanding the exemption for employers, the Trump administration says there are many other sources of birth control. Justice Department officials said Friday that Mr. Sessions had simply pointed to existing law and was not making a policy change.
“The government,” it says, “already engages in dozens of programs that subsidize contraception for the low-income women” who are most at risk for unintended pregnancy. Still, officials at the Department of Health and Human Services said Mr. Sessions’s memos provided support for the new contraception rules.
Employers claiming an exemption from the contraceptive coverage mandate “do not need to file notices or certifications” with the government, although they would need to inform employees of changes in coverage. The Obama administration generally required employers to cover all forms of birth control approved by the Food and Drug Administration, including pills that critics say may cause fertilized eggs to be aborted.
The exemption will be available to for-profit companies, whether they are owned by one family or thousands of shareholders. “No American should be forced to violate his or her own conscience in order to abide by the laws and regulations governing our health care system,” said Caitlin Oakley, a spokeswoman for the Department of Health and Human Services.
The Trump administration said the new rules would take effect immediately because “it would be impracticable and contrary to the public interest to engage in full notice and comment rule-making.” Still, it said, it will accept comments from the public. But Richard B. Katskee, the legal director of Americans United for Separation of Church and State, an advocacy group that plans to challenge the rules in court, said they imposed an impermissible burden on female employees who want cost-free contraceptive coverage and may be unable to get it.
The new rules, drafted mainly by political appointees at the White House and the Department of Health and Human Services, seek “to better balance the interests” of women with those of employers and insurers that have conscientious objections to contraceptive coverage. “Religious freedom is the right to believe and worship as you see fit,” Mr. Katskee said. “It’s never the right to use government to impose costs, burdens or harms on other people. You can’t use the government to make other people pay the price for your religious beliefs or practices.”
Among those who have resisted the mandate are the Little Sisters of the Poor, an order of Roman Catholic nuns who said that compliance with the mandate would make them “morally complicit in grave sin.” The Trump administration on Friday also notified health insurance companies that it would vigorously enforce provisions of the Affordable Care Act regulating coverage of abortion services. The health department reminded insurers that if they cover abortion, they generally cannot use federal funds for that purpose, but must collect separate payments from consumers and must deposit the money in special accounts used exclusively for coverage of abortion services.
As a candidate, Mr. Trump promised that he would “make absolutely certain religious orders like the Little Sisters of the Poor are not bullied by the federal government because of their religious beliefs.” Under the new rules, exemptions to the contraceptive coverage mandate would be available to all sorts of employers, including publicly traded companies that said they had religious or moral objections to covering some or all types of contraception.
The National Women’s Law Center, a nonprofit advocacy group, has been preparing a lawsuit since last spring, when it learned that the Trump administration intended to rewrite the contraception coverage mandate. The Trump administration said that some people would, as a result of the new rules, not receive “coverage or payments for contraceptive services.”
The Trump administration has legal reasons for issuing two rules, one for religious objections and one for moral objections. Most lawsuits attacking the mandate assert that it violates a 1993 law protecting religious liberty. The administration acknowledges that the law, the Religious Freedom Restoration Act, “does not provide protection for nonreligious, moral conscientious objections.” “The government’s legitimate interests in providing for contraceptive coverage do not require us to violate sincerely held religious beliefs” or moral convictions, the administration said. But, it said, officials “do not have sufficient data to determine the actual effect of these rules,” the extra costs that women might incur for contraceptives or the number of unintended pregnancies that might occur.
But, the administration says, “Congress has a consistent history of supporting conscience protections for moral convictions alongside protections for religious beliefs.”
In one of the new rules, the Trump administration says that exemptions should be available to “nonreligious nonprofit organizations” like March for Life, which holds an annual march opposing abortion.
A principal author of the rules, Matthew Bowman, a top lawyer at the Department of Health and Human Services, represented March for Life in 2014 when he was a lawyer at the Alliance Defending Freedom, a Christian legal advocacy group.
The new exemptions will be available to colleges and universities that provide health insurance to students as well as employees. A number of religiously affiliated schools have filed lawsuits challenging the mandate.