Trump administration announces broad exemptions for HHS mandate

The HHS policy announced today adds broad religious and moral exemptions to the mandate.

The HHS contraceptive mandate originated in the Affordable Care Act, which ordered that “preventive services” be covered in health plans. In 2012, the Department of Health and Human Services mandated that cost-free coverage for contraceptives, sterilizations, and abortifacient drugs be included in employer health plans.

The original rule is still in place, but under policies announced today, non-profits and for-profit employers that are closely-held -- and even some publicly-traded for-profits -- will be exempt from the mandate, if they can demonstrate a religiously-based objection to the mandate’s demands.

Non-profit groups and for-profit businesses that are not publicly-traded can also apply for an exemption to the mandate based on moral, but not religious, objections to it. However, publicly-traded for-profit businesses cannot receive a moral exemption from the mandate.

An example of this could be the secular crisis pregnancy center Real Alternatives, Inc., which has no religious affiliation, but which objected to the mandate. Real Alternatives lost a suit against the mandate at the Third Circuit Court in August, which ruled that their pro-life mission did not merit a religious exemption from the mandate.

The 2012 mandate policies allowed only a narrow religious exemption for churches and their integrated auxiliaries, leaving many religious charities and universities to decide whether to comply with the mandate or face heavy fines.

It was later reported that the Obama administration used tax law to determine which groups would get a religious exemption from the mandate. Religious groups not directly affiliated with churches, required to file a 990 tax form because of their non-profit status, did not meet the religious exemption.

Employers began filing lawsuits against the administration over the mandate. In 2014, Hobby Lobby, a craft supply retailer, won a case against the mandate in a 5-4 Supreme Court decision. Hobby Lobby’s owners, the Green family, argued that providing coverage for drugs that could cause early abortions violated their Christian beliefs.

The Obama administration also offered an “accommodation” to  religious non-profits that objected to the mandate.

In the so-called “accommodation,” non-profits could send a letter or a form to the government outlining their objection to the mandate, which would trigger a government directive to an insurer or third party administrator to provide the cost-free contraceptive coverage in employee health plans.

Many non-profits, including the Little Sisters of the Poor and the Archdiocese of Washington, said this process still forced them, under threat of heavy fines, to cooperate in the provision of objectionable coverage to their employees in their own health plans.

Catholic theologians and ethicists argued in an amicus brief at the Supreme Court that the accommodation would be considered “either formal cooperation in wrongdoing, or impermissible material cooperation in serious wrongdoing, and would therefore be gravely wrongful.”

Under the accommodation process, experts argued, the act of notifying the government of their objection would still cause the provision of contraceptives, sterilizations, and some abortion-causing drugs through their health plans, which would violate religious principles.

The Little Sisters of the Poor, the Archdiocese of Washington, Bishop David Zubik of Pittsburgh, and other Christian colleges and universities filed lawsuits over the mandate and a bundle of cases made its way to the Supreme Court under Zubik v. Burwell, argued before the Court in 2016.

The Obama administration argued that the cost-free provision of the coverage was in the government’s  “compelling interest,” in the name of national health; the plaintiffs, on the other hand, pointed out that many health plans were already exempt from the mandate because they were grandfathered by the ACA. The “accommodation” offered to the non-profits still forced them to be complicit in acts they believed were immoral, they said.

After oral arguments in the case in March of 2016, the Supreme Court, in a rare move in the middle of a case, directed both the government and the plaintiffs to submit briefs explaining if, and how, a conclusion could be reached providing the contraceptive coverage while at the same time respecting the religious freedom of the non-profits.

Both parties submitted briefs, and in May of 2016, the Court voided the federal circuit court decisions involving the plaintiffs, and sent the cases back to their respective federal courts. The Court directed the lower courts to give all parties time to come to an agreement that satisfied their needs.

On the campaign trail, Trump had promised to grant relief from the mandate to the objecting parties. After his May 4 announcement, then-HHS Secretary Tom Price welcomed Trump’s promise, and said the agency “will be taking action in short order to follow the President’s instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees.”

A draft memo of the HHS final rule granting relief from the mandate was leaked to the press in May. It expanded religious and moral exemptions to the mandate for employers.

However, despite Trump’s statements against the mandate, the Justice Department continued to defend the mandate in litigation. In July, in proceedings for a lawsuit from the Catholic Benefits Association, the Justice Department asked for a delay in proceedings, rather than simply dropping the case, saying the government was crafting a final rule for exemptions to the mandate.

The “accommodation” offered to non-profits by the Obama administration is now voluntary. Non-profits can have their insurer or third party administrator offer the coverage for sterilizations, contraceptives, and drugs that can cause abortions, but they do not have to do so under law.