The FAQs: Trump Administration Expands Exemptions for the Contraceptive-Abortifacient Mandate

Note: Over the past few years TGC has produced a list of frequently asked questions about the Obama administration’s controversial contraception-abortifacient mandate. The newer updates are posted first with older information posted below.

What just happened?

On Friday the Trump administration announced that it was issuing an interim final rule, effectively immediately, that expands the moral and religious exemptions to the Affordable Care Act’s contraceptive-abortifacient mandate. The new rules expand the exemptions to include objections based both on religious beliefs and also “sincerely held moral convictions” that are not religious beliefs.

As Alexandra Desanctis notes, publicly traded for-profits will qualify for religious exemptions, while closely held for-profits and non-profits will also be allowed to apply for an exemption if they have moral objections to providing contraceptives.

Institutions of higher education and insurance companies will also be permitted to apply for religious exemptions as long as they provide at least one plan to entities or individuals who themselves have an exemption based on religious or moral objections.

Will this change completely address the religious liberty concerns?

Yes. With an interim rule now in place, Beckett Law says, the ongoing court battles between religious groups and the federal government may soon be resolved. The interim rule acknowledges that the earlier mandate violated the Little Sisters’ religious liberty and that there are many other ways to obtain contraceptives.

What exactly is this contraceptive-abortifacient mandate?

As part of the universal health insurance reform passed in 2010 (often referred to as “Obamacare”), all group health plans must now provide—at no cost to the recipient—certain “preventive services.” The list of services includes sterilization, contraceptives, and abortifacient drugs.

Why is the executive branch modifying a law made by Congress?

Regulations, like the contraceptive-abortifacient mandate, are rules that have the force of law and that are issued by various federal government departments and agencies to carry out the intent of legislation enacted by Congress. The executive branch, through the various regulatory agencies, carries out most interpretation of legislation. Regulatory agencies handle administrative law, primarily by codifying and enforcing rules and regulations. When Congress passes a new law it usually goes to a regulatory agency to determine how the law will be put in place.

Is this new rule change permanent?

Not yet. When Federal regulatory agencies translate Congressional directives into regulations they must follow provisions set out in the Federal Administrative Procedure Act (5 USC 551-702). This act establishes procedures for developing new regulations, including steps for soliciting and responding to public comment. Before establishing a new regulation, an agency must issue a draft regulation, obtain and consider public comment, and then issue the final regulation. Each step must be published in the Federal Register—the “official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents.” Objections raised during the public comment period must be addressed before the final regulation is adopted. After it is adopted, the final regulation is incorporated into the Code of Federal Regulations and becomes official government regulatory policy that must be followed.

When a regulatory agency believes it has good cause to issue a final rule without first publishing a proposed rule, says the Federal Register, it often characterizes the rule as an “interim final rule.” This type of rule becomes effective immediately upon publication, but may be altered if warranted by public comments.If the agency decides not to make changes to the interm rule, it generally will publish a brief final rule in the Federal Register confirming that decision.

In this situation, there has already been considerable public comment, and so the Trump administration is not likely to change the interim rule.

Was there previously a religious exemption from the mandate? If so, who qualifies for the exemption?

According to Becket Law, there was previously a “religious employer” exemption from the mandate, but it is extremely narrow and covers few religious employers. The exemption covered certain churches and religious orders that inculcate religious values “as [their] purpose” and which primarily employ and serve those who share their faith.

Many religious organizations—including hospitals, charitable service organizations, and schools—cannot meet this definition. They were forced to choose between covering drugs and services contrary to their were beliefs or cease to offer health plans to their employees and incur substantial fines.

“Not even Jesus’s ministry would qualify for this exemption,” Becket notes, “because he fed, healed, served, and taught non-Christians.”

Doesn’t the current mandate only apply to religious organizations that receive federal funding?

No. The mandate applies to religious employers even if they receive no federal funding.

When did the government begin requiring employer-insurance programs to pay for contraceptives?

According to Becket Law, the trend toward state-mandated contraceptive coverage in employee health insurance plans began in the mid-1990s and was accelerated by the decision of Congress in 1998 to guarantee contraceptive coverage to employees of the federal government through the Federal Employees Health Benefits Program (FEHBP).

After FEHBP—the largest employer-insurance benefits program in the country—set this precedent, the private sector followed suit, and state legislatures began to make such coverage mandatory.

Why is the federal government dictating that contraceptives should be covered by insurance?

In 2000, the EEOC issued an opinion stating that the refusal to cover contraceptives in an employee prescription health plan constituted gender discrimination in violation of the Pregnancy Discrimination Act (PDA). That law was added by Congress in 1978 in response to a Supreme Court decision holding that an employer's selective refusal to cover pregnancy-related disability was not sex discrimination within the meaning of Title VII, the primary federal law addressing employment discrimination.

As Becket Law notes, “Although this opinion is not binding on federal courts, it is influential, since the EEOC is the government body charged with enforcing Title VII. This opinion led to many lawsuits against non-religious employers who refused to cover prescription contraceptives.” The federal district courts have split over the issue of whether the PDA requires employers to provide contraception, the only federal court of appeals to reach the issue held that the PDA did not include a contraceptive mandate.

But what about the First Amendment protections? Isn't such a requirement inherently unconstitutional?

In Employment Division v. Smith, the Supreme Court announced that the First Amendment's free exercise clause “does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability,'” simply because “the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” According to Becket Law this means that the fact that an act infringes on the religious beliefs or regulates the religiously motivated policies of a religious institution does not necessarily make the law unconstitutional.

Isn't this just a Catholic issue?

No. Although the Catholic Church has often been the most vocal opponent of the mandate, many Protestant, Jewish, and Muslims also oppose the mandate. In fact, several evangelical leaders have called on evangelicals to stand with Catholics in civil disobedience to this law. Additionally, 300 academics and religious leaders—including TGC's Don Carson and Justin Taylor—signed a statement by Becket Law explaining why the mandate is “unacceptable.” 

Why should evangelicals care about the HHS Mandate?

In a 2013 interview with TGC, Daniel Blomberg, the legal counsel for Becket Law provided this answer:

On one level, simply because other evangelicals are being harmed by the HHS Mandate. Wheaton College, Colorado Christian University, and Hobby Lobby (which is owned by David Green, a devout evangelical)—among others—have gone to court so that they won’t have to do what the Mandate says they must do:  provide insurance coverage for abortion-inducing drugs like ella and Plan B. As institutions, they share the evangelical commitment to cherishing the God-given worth of human beings from the earliest stages of their lives. But the Mandate coerces them to provide life-taking drugs, on pain of crushing fines—fines that would shut them down. Thus, evangelicals should care about the HHS Mandate because it coerces fellow evangelicals to violate their duty to obey God and protect human life.

On another level, evangelicals should care because of the unprecedented nature of the HHS Mandate’s threat. Our nation’s Founders made religious liberty our first political liberty because they recognized that it was the foundational political liberty. As recently as last January, in the Hosanna-Tabor Evangelical Lutheran Church case, members of the U.S. Supreme Court affirmed that religious groups are the critical shields between the individual and the power of the State, between liberty and tyranny. If the State can broadly force individuals and private institutions to directly violate core religious beliefs, then liberty itself—not just religious liberty—is threatened. For that reason, evangelicals should support the conscience claims of, for instance, Catholic institutions who oppose the Mandate both on sanctity-of-life grounds and because of the Mandate’s contraception-coverage requirement. Even though most evangelicals do not agree with Catholic doctrine on contraception, they can and should support the claims of Catholic individuals and institutions to freedom of conscience. Anything less signals a weak commitment to both religious liberty and personal liberty.

Becket Law says the leaked proposal would protect these religious organizations from the mandate.

I don't oppose contraceptives, so why should I care about this issue?

There are two reasons that all Christians, regardless of their view on contraceptives, should be concerned about this mandate.

The first is because it forces Christians to pay for abortion-inducing drugs. The policy currently requires coverage of Ulipristal (“Ella”), which is chemically similar to the abortion drug RU-486 (mifepristone) and has the same effect (to prevent embryos from being implanted or, if already implanted, to die from lack of nutrition). Additionally, RU-486 is also being tested for possible use as an “emergency contraceptive.” If the FDA approves it for that purpose, it will automatically be included under the mandate.

The second is that it restricts religious liberty by forcing religious institutions to pay for contraceptives and abortifacients even if the employer has a religious or moral objection to such practices.

Okay, while it may be a pro-life concern, it isn't a religious liberty issue for me since I support the use of contraception, right?

If the mandate is allowed to stand it sets a precedent that the government can not only force citizens to violate their most deeply held beliefs but that we can be sanctioned for refusing to do so.

As John Leo noted, today it is contraceptives and abortifacients, but “down the road it will be about suicide pills, genetic engineering, abortion and mandatory abortion training, transgender operations, and a whole new series of morally problematic procedures about to come over the horizon.”

Indeed, as Leo points out in his column, a Catholic-run California hospital was sued because it refused to perform breast-enlargement surgery on a transgendered patient. The state court ruled the hospital had violated the state's anti-discrimination laws. (Caving under litigation, the hospital paid $200,000 to the transgendered man.)

Didn't the Obama administration offer a compromise? What was that about?

In response to the concerns of religious organizations, Obama offered a “compromise” in which he proposed that insurance companies, instead of religious institutions, be required to cover procedures and products that they find objectionable at no cost in their insurance policies. In other words, the insurer would be required to provide the services “free of charge” and pay for them out of their own pocket.

What was wrong with that compromise plan?

As economist Steve Landsburg explains, the proposed compromise did not really change the fact that the religious employers were still being forced to pay for the contraceptives-abortifacients:

[A]ll economists (and I hope everyone who's successfully completed a Principles course) understands that transferring the responsibility from employers to insurers amounts to transferring the cost from insurance buyers to insurance buyers, which is to say that it's not a change in policy. One of the first and most important lessons we teach our students is well summarized by a slogan: “The economic burden of a tax is independent of the legal burden”. Ditto for a mandated insurance purchase. It is not the law, but the underlying price-sensitivities of buyers and sellers, that determines where the burden ultimately falls. Your president knows this. He's banking that you don't.