Trump Administration Rolls Back Birth Control Mandate
October 07, 2017, 11:30am

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 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.”

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.

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.

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.

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.

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.

Both said the rules violated the First Amendment, which bars government action “respecting an establishment of religion.”

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.”

Trump Administration Rolls Back Birth Control Mandate
Nuns from the Little Sisters of the Poor last year after arguments at the Supreme Court. A lawyer representing the group said the administration wasn’t “going to force Catholic nuns to provide contraceptives.” Saul Loeb/Agence France-Presse — Getty Images

“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.”

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.

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 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.

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.

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.

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.

“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.

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.”

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.”

Justice Department officials said Friday that Mr. Sessions had simply pointed to existing law and was not making a policy change.

Still, officials at the Department of Health and Human Services said Mr. Sessions’s memos provided support for the new contraception rules.

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.

“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.

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.

“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.”

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.

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 Trump administration said that some people would, as a result of the new rules, not receive “coverage or payments for contraceptive services.”

“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.