‘Elections have consequences,” President Obama famously quipped while pushing Congress to adopt his stimulus plan in 2008. Fast-forward eleven years. Two recent federal district-court decisions blocking the Trump administration’s attempt to modify one of its predecessor’s regulations may send Americans a different message: “Elections have consequences, when Democrats win.” Neither of those decisions is legally sound, and the relevant appellate courts should swiftly and decisively reverse them, in order to avoid the appearance of a politicized judiciary.
Since its implementation in 2011, Obamacare’s abortifacient mandate, which requires employers to provide their employees with insurance that covers free access to contraceptives, sterilization procedures, and abortion-inducing drugs, has generated constant litigation. The regulation has drawn challenges from the owners of an arts-and-crafts chain, an order of nuns, the group that organizes the March for Life, and various Christian colleges, among others.
Because the regulation is so frequently described as a part of Obamacare, some people may be surprised to learn that it is not actually included in the Affordable Care Act. Obamacare merely required insurance plans to include cost-free access to preventive care “as provided for” in forthcoming guidelines. The statute delegated the drafting of those guidelines to a sub-agency within the Department of Health and Human Services (HHS). It was HHS that actually promulgated the regulations that came to be known as the contraceptive or abortifacient mandate. Litigation involving the mandate carried on throughout the second term of the Obama administration with no end in sight.
Then, following the unexpected election of Donald Trump, it seemed like religious objectors might finally get relief. After all, if an Obama-administration agency created the regulation, a Trump-administration agency should be able to modify it. That optimism was bolstered by the Supreme Court’s order requiring the Obama administration to negotiate with religious objectors to determine if it were possible to simultaneously satisfy both the administration’s goals and the objectors’ consciences.
Soon after inauguration, the Trump administration tried to comply with the Supreme Court’s order. It passed a regulation extending previously existing exemptions to all conscientious objectors, while describing various other free or low-cost ways that women who worked for exempted employers could obtain the contraceptives and abortifacients listed in the mandate.
At first, this seemed like the government of a republic working properly. One might have objected to the broad discretion that the Affordable Care Act initially vested in HHS, but that was a given going into the 2016 election. The fate of the mandate featured prominently in the presidential campaign. It was an element of the Democratic narrative that Republicans were waging a “war on women,” and of the Republican narrative that Democrats were hostile to religion. The Supreme Court had ordered the president to negotiate a new compromise with religious objectors, and the American people had an opportunity to choose whether they wanted Hillary Clinton or Donald Trump in charge of those negotiations.
In November 2016, Trump was elected president. Surely, he could now exercise the same powers as President Obama and modify the regulations put into place by his predecessor? Not so fast.
In early 2019, two district-court judges, one in Pennsylvania and one in California, issued opinions holding that the Trump administration lacked the power to expand the abortifacient mandate’s exemptions. (So much for elections having consequences.) The opinions maintained that the Affordable Care Act in effect created a one-way ratchet: It gave the Obama administration discretion to create regulations, but once those regulations were in place, it did not allow a future administration to reevaluate them.
Now, an astute reader might note that the Obama administration had created its own exemptions from the mandate. In August 2011, it adopted a limited exemption that protected certain churches and religious orders, and in February 2013 it expanded the scope of that exemption. It also created an accommodation whereby certain non-profits other than churches, while not exempted, would not have to comply with the strict terms of the mandate.
How did the district-court opinions differentiate between the Obama administration’s permissible exemptions and the Trump administration’s allegedly impermissible ones? Not very persuasively. Mostly, both opinions indicated the Obama exemptions were not relevant and then moved on to other issues.
Based on this dismissive reasoning, one might assume that no other court had addressed the Obama administration’s exemptions. But one would be wrong. In Hobby Lobby v. Burwell, the Supreme Court recognized that the mandate operated “subject to certain exceptions.” The Court explained that, from the start, the Obama administration had allowed “exemptions from the contraceptive mandate for religious employers.”
A short time later, Justice Sotomayor dissented from a Supreme Court order protecting Wheaton College from the strictures of the mandate. Sotomayor recognized that HHS had “categorically exempted” churches and provided other religious non-profits with a “further accommodation.” She even praised the non-profit accommodation, noting that “the Government has done a salutary thing” in providing it.
In Zubik v. Burwell (the nuns’ challenge to the mandate), the Supreme Court considered whether the non-profit accommodation cured the mandate’s legal infirmities. Rather than deciding the issue, the Court instructed the parties to negotiate “an approach going forward that accommodates petitioners’ religious exercise while at the same time” satisfying the Obama administration’s goals. Justice Sotomayor concurred. She explained that the Court was giving the parties an opportunity to reach a compromise in light of recent clarifications by the Obama administration “about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice.”
Clearly, the Supreme Court and the Obama administration believed that HHS had the power to amend the mandate and even to grant exemptions. Neither the California nor the Pennsylvania opinion offered any compelling reason why the Trump administration should not have similar abilities.
The Pennsylvania opinion presented a separate procedural objection to the Trump administration’s regulations that also seems not to have bound the Obama administration. The opinion deemed the regulations legally invalid because they went into effect on an interim basis before the public had a chance to comment on them as required by law. In fact, it held that the procedure had so “tainted” the rules that even passing them through the proper procedures could not rehabilitate them.
In order to merit such a harsh ruling, surely the Trump administration’s actions must have represented a dramatic break from the behavior of previous administrations? Well, no. The mandate itself was imposed by the same interim procedure, as were the initial exemptions put into place by the Obama administration. This is not surprising, as thousands of regulations — a full 35 percent of those subject to public-comment requirements — were passed similarly. None of the opinions discussed above even hinted that this might be a problem.
How did the Pennsylvania opinion justify rejecting amendments passed in the same manner as the underlying regulation? It ducked the issue by claiming that “obviously” the legality of the mandate is “not currently before this Court.” By this logic, President Trump could not change President Obama’s regulations precisely because he tried to do so in the same manner that President Obama passed the initial regulation. One could be excused for wondering if elections do, in fact, have consequences.
In her Wheaton College dissent, Justice Sotomayor explained that “the Executive is tasked with enforcing Congress’ mandate” regarding preventive care. She protested that “it is not the business of this Court to ensnare itself in the Government’s ministerial handling of its affairs” as she claimed it had done in that case. We would be better off if the district-court judges in California and Pennsylvania had paid more heed to her words.