Americans Still Wait for Trump to Protect Health-Care Conscience Rights
By Elizabeth Slattery, Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies at The Heritage Foundation, and Melanie Israel, Research Associate at The Heritage Foundation.
The legislation creating Obamacare left lots of policy “details” to the discretion of the executive branch. And so the Department of Health and Human Services under President Obama decided to require insurance plans to cover abortion-inducing drugs, contraceptives, and sterilization. Commonly referred to as the “HHS mandate” or “contraception mandate,” that requirement conflicts with the beliefs of many employers, individuals, and religious organizations regarding the protection of unborn human life. They regard it as an intolerable burden.
The Supreme Court has provided relief to closely held businesses and to certain religious institutions. But as long as the mandate is in place, many individuals and organizations still face a disturbing choice: Either violate their sincerely held religious or moral beliefs or pay steep fines and, perhaps, forgo offering or obtaining health insurance altogether. When President Trump took office, these people and those who sympathize with them hoped that he would make religious liberty great again.
In May the president stood in the Rose Garden, surrounded by faith leaders, to unveil an executive order on religious liberty. In the order he outlined his administration’s intent to “vigorously enforce Federal law’s robust protections for religious freedom” and instructed the secretaries of Treasury, Labor, and Health and Human Services (HHS) to issue “amended regulations . . . to address conscience-based objections” to the HHS mandate. HHS Secretary Tom Price immediately responded with a statement committing his department to take “action in short order to follow the President’s instruction.”
Among those in attendance in the Rose Garden were the Little Sisters of the Poor, an order of Catholic nuns committed to serving the elderly poor across the world. They operate 30 homes in the United States. The Little Sisters have been involved in a years-long fight against the HHS mandate, and during the event President Trump assured them that their “long ordeal will soon be over.”
In May 2016, the Supreme Court unanimously vacated all lower-court decisions that would have required the Little Sisters and other religious nonprofits to violate their faith. The justices ordered lower courts to give the Little Sisters and the Obama administration time to “arrive at an approach . . . that accommodates” the Little Sisters’ desire not to be involved in the provision of employee health insurance that covers abortion-inducing drugs and devices.
In fact, the Little Sisters had already offered several ways the government could meet its goal with the contraception mandate while leaving them out of the process entirely. With Trump-administration lawyers replacing Obama-administration lawyers at the negotiating table, followed by Trump’s Rose Garden comments, a resolution seemed imminent.
In June, a draft of the interim final rule regarding exemptions to the contraception mandate leaked to media. It indicated that the Trump administration intended to provide a definitive exemption for individuals, employers, and insurers with religious or moral objections to all or some of the onerous mandate. Overall, it seemed to offer an effective defense of religious liberty.
But then . . . nothing happened.
The interim final rule was never published in the Federal Register. And the Trump administration has continued to defend the HHS mandate in court.
A summer that kicked off a robust conversation about religious liberty has given way to an autumn without a resolution in the courts and without regulatory relief from the HHS mandate.
Every day that the Little Sisters of the Poor have to go to court to defend their religious freedom is a day they could better spend caring for the sick, old, and poor. Every day that individuals, employers, and religious organizations are forced to choose between complying with the mandate or violating their sincere moral or religious beliefs is an affront to the religious liberty of all Americans.
You don’t have to share the Little Sisters’ beliefs to recognize that the government should not be able to force Americans to set aside their conscience when they step outside the four walls of a church to serve the poor, heal the sick, or educate the next generation.
In his executive order, President Trump promised to honor “the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue inference.” So how much longer will this administration allow the status quo to continue?
The Trump administration has had eight months to conclude the “long ordeal” that the mandate has brought to the Little Sisters and others. It’s past time for the president to make good on his promise.
*This piece originally appeared in National Review, to read click here.