As new federal regulations reportedly are imminent that would gut the Affordable Care Act (ACA) requirement that most health insurance plans cover contraceptives, two Trump administration attorneys who fought for employers to be able to cite religious beliefs as justification to deny women access to vital health care have been in the news recently.
The first is Eric Dreiband, who was nominated in late June to serve as an assistant attorney general in the Department of Justice’s Civil Rights Division. Dreiband was a member of the legal team that represented the Roman Catholic Archdiocese of Washington, D.C., when it challenged the ACA’s accommodation for religiously affiliated organizations opposed to providing health insurance plans that included birth control.
The Obama administration allowed these groups to sign a waiver noting their religion-based opposition to contraceptive coverage, and the government then worked with a third-party provider to ensure their employees and students received birth control coverage at no cost. But some organizations – including Dreiband’s client, the D.C. diocese – objected even to the accommodation, claiming just signing the opt-out form violated their religious beliefs.
Americans United is very familiar with these legal cases, which remain in limbo after the U.S. Supreme Court last year passed them back to the lower courts for more deliberation. AU represents students of the University of Notre Dame – the only women at risk of losing birth control coverage who are parties in these lawsuits. We’ve continued to file status reports in our case, University of Notre Dame v. Price, with the 7th U.S. Circuit Court of Appeals. As recently as July 3 we described how the new Trump proposal – or any rule change that doesn’t provide affordable, seamless access to necessary health care – will harm women.
Just as religious freedom is a fundamental American value, so is being able to make your own choices about health care. Decisions about women’s health should be left to women – not to politicians, employers or universities.
Dreiband’s work to undermine women’s health care isn’t the only example of his skewed views on religious freedom. Dreiband represented Abercrombie & Fitch when the clothing store was sued by the U.S. Equal Employment Opportunity Commission (EEOC) in 2008 for refusing to hire a Muslim woman wearing a hijab. The case, EEOC v. Abercrombie & Fitch, made it to the U.S. Supreme Court, where AU joined a friend-of-the-court brief arguing the company’s “look policy” would allow discrimination of religious minorities. The high court ruled against the company in 2015.
The American Civil Liberties Union noted Dreiband also represented the University of North Carolina in support of notorious HB 2, the North Carolina law passed last year (and amended this year) that discriminated against transgender people by limiting what restrooms they could use. All in all, Dreiband doesn’t sound like the guy you want defending Americans’ civil rights.
Decisions about women’s health should be left to women – not to politicians, employers or universities.
But he is just one of many troubling Trump appointees – including Dreiband’s boss, Jeff Sessions, the attorney general who last week said he’s preparing to issue federal guidelines that would allow religion to be used as an excuse to discriminate, and Tom Price, secretary of the Department of Health and Human Services (HHS), who has supported restricting access to birth control and health care in the name of religion.
Joining Price’s department is the second Trump administration attorney making the news recently: Matthew Bowman, who worked as an attorney for the legal group Alliance Defending Freedom (ADF) until earlier this year, now has a senior legal position at HSS. He was profiled in The New York Times along with White House health policy adviser Katy Talento, whose appointment raised eyebrows due to her scientifically unsound views on birth control, HIV/AIDs funding and Zika virus prevention.
“Ms. Talento and Mr. Bowman have a clear path to prosecute their strong belief that birth control coverage should not be a mandate from Washington,” The Times wrote. “Both are using arguments they honed over years of battle to ensure that a new rule, expected to be issued this month, to roll back the requirement can withstand legal challenge.”
While at ADF, Bowman was on the legal team that represented Conestoga Wood Specialties Corp., a Pennsylvania cabinet maker that joined Hobby Lobby craft stores in arguing for-profit corporations also should be able to cite religious beliefs as justification to refuse to provide insurance with birth control coverage. A disappointing U.S. Supreme Court decision in 2014 paved the way for those corporations to take advantage of the ACA accommodation that originally was intended only for nonprofits.
Of course, Trump’s proposed regulations would do away with even the accommodation. Initiated by his May 4 executive order, the new rule would allow any employers to cite religious – or even “moral” – objections to opt out. There’s no backup plan. Under the Trump proposal, if the boss declines to cover contraceptives, the cost shifts to employees and students. (For more details on the Trump plan, read our analysis at our Protect Thy Neighbor project.)
No matter who joins Trump’s team to trample religious freedom, AU will continue to make it clear that religion cannot be used as an excuse to discriminate against women and their health care decisions.