The attempted imposition of the notorious Obama-era “HHS mandate” on religious organizations, especially Catholic institutions, reflected an attitude that has been pervasive during Obama’s presidency, which is one of barely concealed hostility toward persons or organizations holding on to traditional religious beliefs. It should be the first order of business of the incoming Trump administration to rid the federal government of this attitude and the associated policies that flow from it.
The place to begin that process is with the HHS mandate itself. The mandate is a rule, finalized initially in 2013, that requires nearly all employers in the United States to provide all manner of free contraception in their health-plan offerings. The Obama administration went out of its way to impose this requirement even on many Catholic institutions, such as universities and hospitals, knowing full well that the requirement violated fundamental teachings of the church. It then provided only the narrowest of exemptions to the general requirement and fought every legal challenge trying to provide greater latitude to religious organizations or employers with religious sensibilities.
The Obama administration seemed to have two motives for waging this entirely unnecessary fight. First, for ideological reasons, it seemed to want to take the position than any objection to the provision of free contraceptives was illegitimate and therefore not worthy of being accommodated. Second, for political reasons, the Obama administration found it useful to be in a fight over the provision of free contraception. During the 2012 presidential campaign, as the proposed rule was rolled out, supporters of exemptions from it were accused of waging a “war on women.”
Not surprisingly, this non-accommodation was seen by Catholic employers as woefully inadequate and a shell game. They pressed on with their legal challenges to it on a number of fronts based on religious-liberty arguments. The Little Sisters of the Poor, who own and run nursing homes for the poor elderly, took their case to the Supreme Court, resulting in a decision that called on the Obama administration to work with the organizations objecting to the mandate to come up with a mutually agreeable solution.
The incoming Trump administration is under no obligation to continue with any of the many misguided decisions of the Obama administration with respect to the rule and the legal challenges to it. To begin with, the new administration could issue a regulation that provides a blanket exemption to the mandate to any organization that can reasonably claim to have religious objections to compliance. That would immediately provide relief to all of the organizations affiliated with the Catholic Church that have been battling the Obama administration in court over this issue for several years.
The new administration could issue a regulation that provides a blanket exemption to the mandate to any organization that can reasonably claim to have religious objections
The Trump administration could also reconsider the merits of the underlying rule itself. The Obama administration argued that the rule was made necessary by the Affordable Care Act’s provision calling for inclusion of preventive health services in all insurance plans. The new administration wants to roll back the ACA and replace it with an alternative program, but even before new legislation is enacted, the Trump team could reconsider the merits of the underlying regulatory requirement. The law does not specify clearly that every insurance plan must provide all manner of contraceptive products and services free of charge to everyone in the country. Moreover, even before the enactment of the ACA, low-cost contraception was already the norm in most employer offerings. There is clearly room for the Trump administration to have a very different interpretation of current law.
The legal battles over the HHS mandate could have been avoided by the Obama administration if it had provided a reasonable and simple exemption from the rule to all organizations that have legitimate religious objections. No harm would have come from making this concession; contraceptive access would have remained well within reach of everyone in the United States, including those working for the exempt institutions. But making that concession would have required the administration to retreat from its crusade against traditional religious belief. It wasn’t willing to do that.
The plaintiffs trying to get relief from the HHS mandate did the country a tremendous service. They fought effectively for their religious-liberty rights and made it impossible for the Obama administration to claim a final victory before leaving office. The stage is therefore set for the Trump administration to reverse direction quickly and provide immediate relief from the mandate to the many religious organizations who should never have been in the government’s crosshairs in the first place.
— James C. Capretta is a resident fellow and holds the Milton Friedman chair at the American Enterprise Institute.