New rules issued Friday by the Trump administration—effective immediately—will allow conscientious objectors to opt out of Obamacare’s contraception and abortion-pill mandate for religious or moral reasons.
The new rules were applauded by the lead attorney for the Little Sisters of the Poor, an order of Catholic nuns who serve the elderly poor and have been challenging the Obama administration’s mandate in court. “This appears to be a common-sense, balanced rule and a great step forward for religious liberty,” said the Little Sisters’ lawyer Mark Rienzi, senior counsel at the Becket Fund. “The Little Sisters still need to get final relief in court, which should be easy now that the government admits it broke the law.”
“This was always a big, unnecessary, and divisive culture war fight,” Rienzi told reporters. “Simply put, you don’t need nuns to give out contraceptives. They’re widely available.”
“[The Little Sisters] were threatened with approximately $75 million in fines each year under the original contraceptive mandate,” Rienzi added. “The idea that the government was really willing to crush the Little Sisters with those fines over something that was so easily done by others was always outrageous. It should be obvious that we have room enough this country both for the Little Sisters to live according to their faith and do the good work that they do and for people who want contraceptives to still be able to have access to them.”
During the nearly six-year fight over the Obamacare contraception mandate, a lot of misinformation has been spread by progressive politicians and journalists, who claimed that those seeking an opt-out for conscientious objectors were trying to “ban” birth control.
While those same politicians and journalists suggest that a large number of people will be affected by the new rules, in reality there will be only a very small increase in the percentage of Americans who pay out of pocket for their contraception.
Prior to the implementation of the contraception mandate, 85 percent of large employer plans already covered contraception. The federal government already provided contraception to the poor through Medicaid and spent another $300 million on contraception for those who make too much money to qualify for Medicaid.
The new rules do not eliminate the Obamacare contraception mandate (which is what limited-government conservatives should prefer) but rather create exemptions for those who have sincerely-held religious or moral objections.
To opt out, an American business owner must have a sincerely held religious or moral objection to the mandate. According to Gallup, 89 percent of Americans think contraception is morally acceptable.
A significant percentage of Americans oppose abortion and will likely not want to cover pills or devices that they believe can kill a human embryo. But that doesn’t eliminate contraceptive coverage. For example, the evangelical Christian owners of Hobby Lobby were willing to cover 16 of the 20 FDA-approved contraceptives, but not four they believed could cause abortions early in pregnancy.
It’s very unlikely that a large number of employers will now try to opt out of the mandate because it’s widely believed that contraception saves employers money (fewer new human beings = fewer costs), and the new rules say that religious or moral objections must be “sincerely held.”
As lawyer Mark Rienzi explained, courts would determine whether beliefs are sincerely held “the same exact way they determine whether religious or moral objections are made in good faith under lots of different federal statutes and regulations.”
“Every day courts engage in analysis to figure out whether someone has a sincere religious belief or somebody’s just trying to dodge military service, or get out of doing something in their work, or if a prisoner is just trying to trick their way into better food rather than having a sincere religious exemption,” Rienzi said.
As Politico reported in October 2016: “Since the 2014 high court ruling in favor of Hobby Lobby, only 52 companies or nonprofit organizations, have told the government they plan to opt out of Obamacare’s requirement to cover birth control because it violates their religious beliefs, according to a POLITICO review of Obama administration records obtained under the Freedom of Information Act.”
The idea that a large number of conscientious objectors will now come out of the woodwork seems dubious.
The Trump administration’s rule fulfilled a campaign promise made by the president, but it was also a response to several defeats suffered by the Obama administration in court. As TWS reported in May:
The mandate was already in legal limbo before the Trump administration began drafting this rule. In 2014, the Supreme Court held in a 5-4 decision that the mandate violated the freedom of religion of Hobby Lobby. …
There remained some question about whether or not a so-called “accommodation” the Obama administration had come up with for religious objectors like the Little Sisters of the Poor would be upheld as legal and constitutional at the Supreme Court. The Little Sisters believed this accommodation still forced them to take an action that violated their religious and moral beliefs, and in 2016 the Supreme Court unanimously vacated a lower court ruling upholding the accommodation and told the government to come up with a better compromise.
But the new rules won’t end the fight started by the Obama administration. Liberal activists will file lawsuits challenging the Trump administration’s regulations, and Democratic candidates will likely run on reinstating something close to the Obama administration’s regulations.
Culture wars, even unnecessary ones, are hard to end.