Subsequent revisions allowed some changes to the mandate for some religious entities. However, groups like the Little Sisters of the Poor objected that the rule still required their complicity in providing such coverage, which violates their religious and moral standards. Refusal to comply with the rule would result in heavy – potentially crippling – fines.
The draft religious liberty rule would allow any employer to request an exemption based on moral or religious objections.
“Expanding the exemption removes religious and moral obstacles that entities and certain individuals may face who otherwise wish to participate in the healthcare market,” said the May 23 draft posted to the news site Vox.
Employers seeking an exemption would have to have a clear statement in their health plan documents that they do not cover contraception or related products. The rule would also allow health insurers to decline to cover contraception and allow individuals to object to participation in a health plan that covers birth control.
During his presidential run, Donald Trump had pledged to aid the Little Sisters of the Poor in an October letter to Catholic leaders.
And in a May 4 executive order, he asked three cabinet departments to consider amended rules that would “address conscience-based objections to the preventive-care mandate.”
The same day, he hosted the Little Sisters of the Poor in the Rose Garden of the White House.
“With this executive order,” he said, “we are ending the attacks on religious liberty.”
However, their legal fight continues. Rienzi said the Little Sisters will still seek a court order to bar the government from imposing similar requirements in the future.
While a new federal rule protecting religious liberty would be “a very good thing,” he said, the Little Sisters have always wanted a court to definitively say that “the government cannot force them to provide abortion-inducing drugs, sterilization and contraception.”
“The alternative would be a world where the Little Sisters of the Poor and other groups, every four to eight years, have to be staring at the Federal Register, waiting and worrying to see whether the government is going to try to re-impose this.”
The Burwell v. Hobby Lobby Supreme Court decision of 2014 ruled that the mandate violated the religious freedom of closely-held private companies, but this did not apply to the Little Sisters’ case, as their organization is a non-profit. In May 2016, the Supreme Court ordered a lower court to re-hear the nuns’ case, a decision considered a technical win for the Little Sisters.
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One backer of the Obama-era rule, National Women’s Law Center vice president Gretchen Borchelt, told the New York Times she did not know the details of the new rule. Nonetheless, she charged that whatever the rule is, her group thinks it will “allow an employer’s religious beliefs to keep birth control away from women.”
She said her organization was preparing a lawsuit to challenge the proposed rule. Possible grounds for the lawsuit could be inadequate explanation or justification for the rule, which makes it “arbitrary and capricious.” She thought the lawsuit could argue that the 2010 Affordable Health Care Act bars discrimination in health programs that receive federal funds. The act also bars the health secretary from issuing any rule that “impedes timely access to health care services” or creates “unreasonable barriers” for individuals seeking “appropriate medical care.”
Rienzi said such lawsuits would not succeed, given that these groups did not challenge the Obama administration's other non-religious exemptions from mandatory contraception in health plans.
“There’s nothing at all unreasonable about the federal government respecting religious liberty. Congress didn’t impose this requirement in the first place, the agency did,” he said.
The Kaiser Family Foundation said that before the mandate, more than 20 percent of U.S. women of childbearing age paid out-of-pocket for oral contraceptives. After the mandate, that number is now 4 percent.
According to Rienzi, figures on contraception coverage and contraceptive use ignore that the Obama administration had already exempted about one in three Americans, either on grandfathered plans or other government plans like military families. Big companies like Chevron and Pepsi were exempted by Congress for reasons of finance and convenience.