Trump, time to finally end ObamaCare’s contraception mandate

It has now been three months since President Trump, in the Rose Garden, promised the Little Sisters of the Poor – and the rest of us – that this “long ordeal” would “soon be over.”  

But on July 31, the Department of Justice (DOJ) — for the first time during the Trump administration — filed a court brief urging that the court maintain ObamaCare’s contraceptive and abortifacient mandate upon religious employers, specifically the 1,000 Catholic employers served by the Catholic Benefits Association (CBA), which I represent. The DOJ argued that court shouldn’t intervene to overturn the mandate, because regulatory relief would be forthcoming.

However, the bureaucracy has proven unable or unwilling to finalize and issue the excellent Health and Human Services (HHS) draft regulation that leaked on May 23. That draft regulation specifically acknowledges and protects religious liberty and conscience rights with regard to this mandate. What that new regulation will ultimately look like, and whether it will be sufficient, remains an open question.

This dispute is not academic. Until the 2014 injunction issued by the Federal District Court is affirmed and the new regulation is issued, CBA members are potentially subject to $6 billion in accumulated fines. Our members are understandably disappointed that an agency led by Secretary Tom Price, who, as a congressman, filed an amicus brief in support of the Little Sisters of the Poor, would permit the Department of Justice to oppose their religious liberty interest now.

This is why we are making a direct appeal to President Trump, Secretary Price, and other administration officials to honor their promises and to end HHS’s six-year assault on religious employers.

HHS first announced its contraceptive mandate August 1, 2011, when it ordered even conscientiously objecting religious employers to cover contraceptives, abortifacients, and sterilizations in their health plans. This attack on religious liberty led to an unprecedented backlash.  Religious groups filed over 100 lawsuits seeking protection from the mandate and its ruinous fines.

The Catholic Benefits Association filed two of these lawsuits. We won a preliminary injunction when in 2014 the Federal District Court found that the mandate is likely illegal as applied to objecting religious employers. This ruling was immediately appealed by the DOJ.

The injunction that temporarily exempts CBA members from providing the morally objectionable services has helped in the short term, but the ongoing defense of our injunction has been enormously expensive. It has now been over three years since the Obama administration filed its appeal. In that time, the government has filed and been granted 10 requests for delayed resolution of the case.

Religious employers have suffered several disappointments already this year. In February, a draft executive order that offered robust protections for religious liberty was leaked. It was, subsequently, substantially diluted. The resulting Rose Garden executive order, issued in May, while endorsing important principles, did not resolve the immediate problem of the ACA’s mandate.

Hopes were raised again later in May, when someone leaked copies of a draft regulation HHS had submitted to the Office of Management and Budget for review. In that document, HHS concluded that its mandate is illegal when applied to religious employers and that it is actually unnecessary to advance the government’s interest in contraceptive access. Since then, the new regulation has disappeared into a bureaucratic limbo.

Seeking to end this costly six year battle and frustrated by these delays and mixed signals, the CBA filed a motion in July, simply asking the administration to stop the endless judicial fighting and to acknowledge what it has admitted elsewhere — that federal law requires HHS to exempt objecting religious employers.

On July 31, DOJ filed its first brief on the merits during the Trump era. That brief opposed CBA’s request for affirmation of the court’s original finding, thereby indicating their intent to continue the fight. The Trump administration’s only justification for prolonging this battle was reference to unspecified efforts underway to find a mutual resolution. There was no mention of what this unknown “resolution” may be or when it might come to light.

Last September, candidate Trump promised the religious groups that they “will always have (their) religious liberty protected on my watch and will not have to face bullying from the government because of (their) religious beliefs.”

It seems that the Department of Justice is still not on board with keeping the president’s pledge. We have taken President Trump at his word, and we agree with him that enough is enough. The resolution to this is simple and easily implemented. It’s time for the administration to keep the president’s promises.

There is no political reason to delay. A strong majority of Americans (59 percent) want protections for organizations with religious objections to providing the sort of insurance coverage the HHS mandate requires according to a K of C-Marist poll released earlier this year.

America was built on the rights of conscience and religious freedom. Stated simply, our government must respect our God-given right to lead lives consistent with our faith and conscience which, particularly, is the impetus for our service to all regardless of faith, creed, color, or sex.

We are now asking the president and his appointees to end the six year attack on those American principles. These are regulations the government itself has already called illegal. DOJ can immediately drop its appeals in these cases, it can acknowledge that the plaintiffs have prevailed on their Religious Freedom Restoration Act claims, permanent injunctions can be issued, and HHS can be allowed to enact the excellent regulation that it has already drafted.

The time to act is now.

Douglas Wilson is the CEO of Catholic Benefits Association, which represents more than 1,000 Catholic health care providers.

The views expressed by contributors are their own and not the views of The Hill.