January 31, 2018
For years under the Obama administration, the Little Sisters of the Poor and other faith-based organizations had to fight to continue to occupy the role they had always occupied in serving the public good. While some large for-profit companies like Exxon and Pepsi were exempt from the HHS contraceptive mandate requiring employers to cover free drugs and services that can destroy human embryos, the previous administration refused to honor the request of faith-based nonprofits which objected both to the mandate and the accounting gimmicks imposed through regulations supposedly granting an “accommodation.” It was a simple request; the organizations just didn’t want to be forced into something that violated their consciences. Why should Catholic nuns be forced to cover contraceptive or embryo destroying drugs in their health plans? The Obama administration shrugged, however, and insisted on forcing them to take part—which led to years of ongoing litigation after the Little Sisters and others stood their ground over the accounting gimmicks. This needless harassment of elderly nuns, whose mission is to take care of the poor, became an election issue, and then-candidate Trump promised to protect them if elected.
After entering office, President Trump did follow through, and last May issued an executive order protecting religious freedom and specifically mentioning the need to protect these faith-based groups from the unfair HHS mandate. And this past October, his administration followed through on the executive order, with HHS issuing new rules exempting the Little Sisters and others from the mandate and the accounting gimmicks to which they were subject. These rules finally offer a proper exemption which the Obama-era rules never did, and consequently should end the years of litigation which the nuns and others have been caught up in.
Alas, it was not to be so. Enter a number of liberal, anti-faith state officials intent on political grandstanding. These folks are not happy with the nice solution provided by HHS, and have sued the Trump administration over these new rules. Whether it is an inability to live and be happy with anything President Trump does, or a desire to continue steamrolling the Little Sisters at the behest of “women's’ rights” (I suppose the “women's’ rights” of the Little Sisters don’t matter much), these state politicians from liberal-leaning states have chosen to prolong needless litigation and use state resources to force those with moral and conscience objections to violate their deeply held beliefs. So far, this group includes California (whose suit was joined by Delaware, Maryland, New York, and Virginia), Washington, Pennsylvania, and Massachusetts – where just yesterday, a judge rejected an attempt by a religious school affected by the mandate to intervene in the lawsuit, asserting the DOJ can defend the case fine. Let us hope so. The DOJ should vigorously defend this common-sense rule issued by HHS, which is an effort to bring to an end, years of litigation.
Beyond the political grandstanding there is little justification for the suits against the Trump administration. The states have the legal power and authority to set contraception policy in their states, and can “issue” contraceptives to those they wish to—while leaving other states free to do differently. And they can do all this while leaving the Little Sisters out of it. So why not? The issue apparently is not a provision of contraceptives but rather preempting the choice of religious organizations like the Little Sisters from being able to choose healthcare plans and policies that reflect their religious beliefs.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.