Today, President Trump released his much-anticipated executive order regarding religious freedom. Since the leak of a draft of this order three months ago, it has been the subject of many hopes on the right and many fears on the left.
Is this executive order, in the words of President Trump “a big one … as big as it gets?” The reassuring, but boring, answer is that the executive order does not do much. In fact it is most remarkable for what it does not do.
According to the administration, the order has two goals.
First, President Trump has claimed that he would “destroy” the Johnson Amendment, a federal tax law that prohibits non-profit organizations from, among other things, endorsing or opposing political candidates. Religious-right activists have long criticized this law as infringing their speech.
{mosads}The executive order, however, is not about “candidates,” but about “political issues,” which the Johnson Amendment does not regulate. Pastors, rabbis and imams have always been able to talk about political issues (such as abortion, foreign policy in the Middle East, and homosexuality) without fear that their organization would lose its nonprofit status.
Even on this non-issue, the order is remarkably weak. The key sentence is a 97-word monstrosity written for maximum vagueness.
Boiled to its essence, that sentence provides that the Secretary of Treasury “shall ensure” the IRS does not punish religious organizations for their speech on political issues “where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign.” The order calls for business as usual, not a change.
Second, the administration has promised to “reexamine” the contraception mandate, a provision of the Affordable Care Act that requires health plans and insurers to provide contraception to women. This is a complex legal issue that takes a bit of explaining.
The order provides that that the government “shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate . . . “ That mandate, added by the Affordable Care Act, requires that health plans and insurers cover preventive health care and screenings for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.”
The Health Resources and Services Administration “is the primary Federal agency responsible for improving access to health care services for people who are uninsured, isolated, or medically vulnerable.” Their guidelines for women’s health provide for nine recommended services, including the screening for breast cancer and gestational diabetes. Under the Affordable Care Act, health plans and insurers need to provide the same services to their customers, as the HCRA requires for services to the uninsured.
Of those nine services, only contraceptive services are controversial. And the law already provides exclusions from the contraceptive mandate for religious employers.
So, to summarize, the executive order:
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Requires the government to “consider,” but not necessarily change the law.
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The contraception mandate will remain, though there may be a “conscience-based exception” for some.
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Such exceptions already exist.
The Department of Health and Human Services may make drastic changes to the conscience exception. If that happens, we can expect organizations like the Center for Reproductive Rights to resist. But no executive order was necessary to start that ball rolling.
Finally, here’s what the order doesn’t do:
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It does not provide a conscience exception for businesses to discriminate against LGBT persons.
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It does not alter the interpretation of the Religious Freedom Restoration Act
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It does not give individuals the right to purchase health care from a plan or insurer that refuses to provide abortions
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It does not require accommodations to government employees who refuse to do their job because of religious beliefs.
All of those provisions were in the original leaked executive order.
This executive order is many words creating little change.
William Fernholz is a lecturer-in-residence at the UC Berkeley School of Law and the director of its appellate and competitions programs.
The views expressed by contributors are their own and are not the views of The Hill.