By CAROL ZIMMERMANN, Catholic News Service | Published October 23, 2017 | En Español
WASHINGTON (CNS)—The Trump administration Oct. 6 issued interim rules expanding the exemption to the contraceptive mandate for religious employers, such as the Little Sisters of the Poor, who object on moral grounds to covering contraceptive and abortion-inducing drugs and devices in their employee health insurance.
Leaders of the U.S. Conference of Catholic Bishops praised the action as “a return to common sense, long-standing federal practice and peaceful coexistence between church and state.”
Dozens of Catholic groups that challenged the contraceptive mandate of the Affordable Care Act have reached a settlement with the U.S. Justice Department, they announced late Oct. 16.
The groups, including the Archdiocese of Washington and the Pennsylvania dioceses of Greensburg, Pittsburgh and Erie, were represented by the Cleveland-based law firm Jones Day.
Washington Cardinal Donald W. Wuerl wrote an Oct. 16 letter to archdiocesan priests saying the “binding agreement” ends the litigation challenging the Health and Human Services’ mandate and provides a “level of assurance as we move into the future.”
The Washington Archdiocese was one of dozens of groups challenging the mandate, which went to the Supreme Court last year in the consolidated case of Zubik v. Burwell. Although it was most often described as the Little Sisters of the Poor fighting against the federal government, the case before the court involved seven plaintiffs and each of these combined cases represented a group of schools, churches or church-sponsored organizations.
Pittsburgh Bishop David A. Zubik, whom the case is named for, said he was grateful for the settlement, which he described as an “agreement with the government that secures and reaffirms the constitutional right of religious freedom.”
In an Oct. 17 statement, the bishop said the diocese’s five-year-long challenge to the mandate “has been resolved successfully” allowing Catholic Charities in the diocese and other religious organizations of different denominations to be exempt from “insurance coverage or practices that are morally unacceptable.”
He said the settlement follows the recent release of new federal regulations that provide religious organizations with a full exemption from covering items that violate their core beliefs.
“Not just about contraceptives”
The contraceptive mandate, in place since 2012, required all employers to provide contraceptive coverage in their employer insurance. Last year when opposition to this mandate came to the Supreme Court, the justices unanimously returned the case to the lower courts with instructions to determine if contraceptive insurance coverage could be obtained by employees through their insurance companies without directly involving religious employers who object to paying for such coverage.
Erie Bishop Lawrence T. Persico, representing one of the groups that challenged the mandate, said in an Oct. 17 statement that it has been “difficult for people to understand that this lawsuit was not just about contraceptives.”
“The real issue,” he said, “was the government attempting to narrow the definition of freedom of religion, using the HHS mandate to exempt only a small subset of religious employers. Churches were declared exempt, but their hospitals, Catholic Charities agencies, schools, and universities were not.”
The bishop said he was pleased with the settlement particularly because the church continues to assert that all of its ministries “are inextricably tied to the practice of our faith.”
Mandate still exists for most employers
While providing an exemption for religious employers, the new rules maintain the existing federal contraceptive mandate for most employers.
President Donald Trump had pledged to lift the mandate burden placed on religious employers during a White House signing ceremony May 4 for an executive order promoting free speech and religious liberty, but Catholic leaders and the heads of a number of Catholic entities had criticized the administration for a lack of action on that pledge in the months that followed.
From the outset, churches were exempt from the mandate, but not religious employers. The Obama administration had put in place a religious accommodation for nonprofit religious entities such as church-run colleges and social service agencies morally opposed to contraceptive coverage that required them to file a form or notify HHS that they will not provide it. Many Catholic employers still objected to having to fill out the form.
The HHS mandate has undergone numerous legal challenges from religious organizations, including the Little Sisters of the Poor and Priests for Life.
An Oct. 6 statement by Cardinal Daniel N. DiNardo of Galveston-Houston, USCCB president, and Archbishop William E. Lori of Baltimore, chairman of the USCCB’s Ad Hoc Committee for Religious Liberty, said the new rule “corrects an anomalous failure by federal regulators that should never have occurred and should never be repeated.”
The church leaders also said the decision to provide the religious and moral exemption to the HHS mandate recognizes that faith-based and mission-driven organizations and those who run them “have deeply held religious and moral beliefs that the law must respect.”
Cardinal DiNardo and Archbishop Lori said the decision was “good news for all Americans,” noting that a “government mandate that coerces people to make an impossible choice between obeying their consciences and obeying the call to serve the poor is harmful not only to Catholics but to the common good.”
Mark Rienzi, senior counsel at Becket, told reporters in a telephone news conference an hour after the rule was released Oct. 6 that it is a “common sense and balanced rule and a great step forward for religious liberty.”
He said the rule “carves out a narrow exemption” and keeps the contraceptive mandate in place for those without moral or religious objections to it.
Rienzi noted that the HHS rule could have eliminated the contraceptive mandate completely but it did not do so. He also said the new rule is open for comments for a 90-day period and will likely face legal challenges, which already began in a lawsuit filed Oct. 6 by the American Civil Liberties Union on behalf of members of the ACLU and Service Employee International Union-United Health Care Workers West who say they are at risk of losing their contraception coverage because of where they work or attend school.
In the lawsuit, the ACLU said the interim rules violate the establishment clause regarding religion in the First Amendment and the equal protection clause of the 14th Amendment in the Constitution “by authorizing and promoting religiously motivated and other discrimination against women seeking reproductive health care.”