On Wednesday morning, Vox published a leaked draft of a proposed federal regulation that would allow business owners to opt out of Obamacare’s contraceptive mandate for religious or moral reasons. “Employers seeking an exemption would not be required to notify the government, under the drafted rule, though they would have to make clear in their health plan documents that they do not cover contraception and would be required to notify their employees of any change in benefits,” Vox’s Dylan Scott and Sarah Kliff report.
The mandate was already in legal limbo before the Trump administration began drafting this rule. In 2014, the Supreme Court held in a 5-4 decision that the mandate violated the freedom of religion of Hobby Lobby, an arts and crafts chain whose evangelical Christian owners objected to covering four of the 20 types of contraception mandated by the federal government. (Hobby Lobby’s owners objected to covering drugs they believed could induce abortions early in pregnancy, but not drugs they believed merely prevent conception).
There remained some question about whether or not a so-called “accommodation” the Obama administration had come up with for religious objectors like the Little Sisters of the Poor, an order of nuns who serve the elderly poor, would be upheld as legal and constitutional at the Supreme Court. The Little Sisters believed this accommodation still forced them to take an action that violated their religious and moral beliefs, and in 2016 the Supreme Court unanimously vacated a lower court ruling upholding the accommodation and told the government to come up with a better compromise.
Mark Rienzi, a lawyer at the Becket Fund who represents the Little Sisters of the Poor, welcomed the news of the rule being drafted by the Trump administration.
“The draft rule seems to recognize the obvious—there are enough ways for people to get contraceptives that we shouldn’t be forcing nuns to provide them,” Rienzi told THE WEEKLY STANDARD in an email. “This was the logical result of the Obama administration’s long string of Supreme Court losses on this issue, and it is a welcome sign that the Trump Administration is serious about working toward a final resolution in court. We have enough real problems to deal with in this country without our government picking silly culture war fights against nuns who care for the elderly poor.”
Vox claims the proposed change could affect “many American women who currently receive no-cost contraception having to pay out of pocket for their medication,” but in reality only a small percentage of Americans will likely be affected. Before the Obamacare mandate began to take effect in the fall of 2012, most employers already covered contraception, so the change obviously wouldn’t significantly affect people on those plans or those who get “free” birth control from the federal government. As THE WEEKLY STANDARD noted in the spring of 2012:
Of course, the proposed rule change by the Trump administration doesn’t even quite turn the clock back to 2012. It does not repeal the federal mandate outright (which would be the preference of limited-government conservatives), but rather provides rules for conscientious objectors to opt out.
What percentage of American employers might be conscientious objectors? According to a June 2016 Gallup poll, 89 percent of Americans believe birth control is morally acceptable, so it won’t be many. The federal rule change won’t affect any state-level contraception mandates. And corporations are unlikely to state false moral or religious objections in order to save money because it is widely believed that birth control subsidies save insurers and employers money (fewer new human beings=lower costs), and because the exemption only applies to Americans who have good-faith moral or religious objections.
Mark Rienzi of the Becket Fund says that under the proposed regulation the government would determine whether the objections were made in good faith “the same exact way they determine whether religious or moral objections are made in good faith under lots of different federal statutes and regulations.”
“Every day courts engage in analysis to figure out whether someone has a sincere religious belief or somebody’s just trying to dodge military service, or get out of doing something in their work, or if a prisoner is just trying to trick their way into better food rather than having a sincere religious exemption,” Rienzi says.
As Politico reported in October 2016: “Since the 2014 high court ruling in favor of Hobby Lobby, only 52 companies or nonprofit organizations, have told the government they plan to opt out of Obamacare’s requirement to cover birth control because it violates their religious beliefs, according to a POLITICO review of Obama administration records obtained under the Freedom of Information Act.”
