Nearly 100 days into the Trump administration, the official position of the federal government is still that Uncle Sam can force private employers, against their conscience and their religious beliefs, to provide insurance coverage for all forms of contraception, including sterilization and morning-after drugs that can act as abortifacients.
On Monday, the Department of Justice — under the control of Attorney General Jeff Sessions — effectively asked federal courts to keep alive its defense of the Obama position that Christian colleges must provide such coverage. This is irreconcilable with President Trump's professed opposition to the mandate and its trampling of religious liberty.
Conservative lawyers disagree on how quickly or easily the new administration can undo Obama's assault on religious liberty. But this is clear: the Trump administration is not where it should be in rolling back its predecessor's contraceptive offensive.
Here's the background: Under the Affordable Care Act, Obama's Department of Health and Human Services issued a rule (it's not actually in the Obamacare law) requiring employer-sponsored health plans to cover the entire cost of all forms of contraception for women.
Steadily, the administration tweaked its narrow religious exemption and eventually Obama's HHS settled on this: Actual churches aren't covered by the mandate, but other religious institutions are. Famously, the Little Sisters of the Poor, an order of Catholic nuns, sued. The nuns argued that HHS's accommodation (in effect requiring the nuns to command their insurer to cover all contraception for employees) still violated the Religious Freedom Restoration Act.
More than 100 related cases sprang up. Two Baptist colleges in Texas — represented by the pro-bono religious liberty firm Becket — sued and won at the federal district court. The Obama administration appealed, and the Fifth Circuit Court of Appeals reversed the lower court ruling. So the Baptist colleges, in turn, appealed to the U.S. Supreme Court.
This case was combined with others into the case Zubik v. Burwell. Last May, likely because of a 4-4 deadlock, the Supreme Court vacated the earlier pro-Obama rulings by the various circuit courts and sent the case back to the circuit. Seeking a more peaceful resolution, the Supreme Court also ordered the circuit courts to issue a stay on the case.
Trump's electoral victory should have resolved the case.
Tom Price is now Secretary of Health and Human Services. His department implements the mandate, and so he is a named defendant in the case. But Price opposes applying the mandate to religious employers. As a Republican congressman, Price actually filed a brief with the court on behalf of such employers. Donald Trump has called the mandate an "onerous mandate" embodying "hostility to religious liberty."
So why does the contraception mandate still stand? That is the questions conservative lawyers are asking.
Although the initial contraceptive mandate was made through an executive action, the Trump administration cannot simply undo the mandate with a stroke of the pen. Federal law spells out a process HHS must follow to make, unmake, or revise any regulation. Roughly, the amount of work that went into making a regulation is what is needed to significantly alter it.
But the contraception mandate, and its lack of an acceptable accommodation for religious groups is currently in litigation, so it should be relatively easy for the Trump administration to broaden the religious accommodation.
In Becket's case of East Texas Baptist University and Houston Baptist University v. Price, there's an easy path: Trump's DOJ should simply drop its appeal. Thanks to the Supreme Court's 2016 ruling, the district court's judgment—in the colleges' favor—is the operative ruling. The stay expired Monday, and the Trump DOJ should have simply dropped its appeal. This course of action would solve the problem in every case where the religious plaintiffs had won and the Obama administration was appealing that judgment.
That didn't happen, though. On Tuesday, the Justice Department asked the Fifth Circuit to extend the stay for 60 days, and thus keep alive DOJ's appeal. Why? It's a mystery.
One explanation is that the DOJ attorneys who filed the motion Monday are liberal Democratic lawyers who have spent years in the legal war against the religious employers seeking relief from Obama's mandate.
Mark Stern and Alisa Klein are the DOJ attorneys still representing the federal government. Klein argued on behalf of HHS in the Hobby Lobby case and in other similar cases at the appellate level. Exempting some employers from the mandate could count as "establishing religion," Klein argued, bizarrely.
Klein is a former clerk for Supreme Court Justice Ruth Bader Ginsburg and a regular Democratic donor. She donated $4,600 to Obama's 2008 election, $5,000 to his reelection, according to Federal Election Commission records. She has given more than $4,000 to Hillary Clinton over the years and gave John Kerry $2,000 in 2004.
Obama-Clinton liberal lawyers are the Trump administration's lawyers.
Meanwhile, there's no adult supervision. Trump has nominated a Solicitor General, Noel Francisco, but he hasn't been confirmed. Trump hasn't nominated an assistant attorney general to head the civil division. Also, he hasn't installed the rank-and-file DOJ lawyers who could take the case out of the hands of the liberal lawyers currently handling it.
With new attorneys in place, Trump's DOJ could end the assault on religious liberty, dropping the appeals in the cases the Obama administration lost, and possibly drafting a consent decree to disarm the cases where the Obama administration had won.
The new administration has a lot of things on its plate, but that doesn't excuse letting DOJ lawyers continue, in our government's name, the persecution of nuns.
Timothy P. Carney, the Washington Examiner's senior political columnist, can be contacted at email@example.com. His column appears Tuesday and Thursday nights on washingtonexaminer.com.