For advocates of religious freedom and separation of church and state, Oct. 6, 2017, will be remembered as the day the Donald Trump administration delivered a one-two punch.
In early October, rumors began circulating that administration officials were poised to issue new regulations regarding access to contraceptives. The regulations did indeed come – and they were troubling. But that was just a start. Less than an hour later, the administration also issued a sweeping guidance intended to cover religious freedom issues, a directive critics at Americans United said is really just a cover for discrimination.
AU was quick to respond to both developments. The organization promptly announced it will challenge the birth control regulations in court, and blasted the religious freedom guidance as a reckless move likely to foster discrimination.
Here is more information about both developments:
Birth Control: The Affordable Care Act (ACA), sometimes called “Obamacare,” contains a provision designed to ensure that women will have access to affordable and effective contraception. Since the vast majority of American women at some point in their lives use artificial forms of contraception, the guarantee was seen as an important step forward for women’s health.
The ACA requires that most health insurance plans cover birth control, but there are some exceptions. Houses of worship, for example, are exempt from the mandate. In addition, the law contains a provision stating that nonprofits, certain corporations and universities that have religious objections to birth control may refuse to cover it in their employees’ and students’ health insurance plans if they put their objection in writing by filling out a short form. At that point, the government would arrange for a third party to pay for and provide the coverage.
This was seen as a reasonable accommodation by many, but, remarkably, some religious groups have challenged the opt-out in court, insisting that the mere act of requesting an exemption violates their religious freedom.
Those cases are ongoing, but thanks to the new Trump directives, the number of organizations that don’t have to provide birth control could expand dramatically.
Under the new regulations, virtually any for-profit corporation, university or nonprofit institution can cite religious objections to deny insurance coverage for contraception to its employees and students.
In material accompanying the new regulations, the Trump administration admitted that some women will likely lose birth control coverage, but it blithely dismissed this concern.
“The government’s legitimate interests in providing for contraceptive coverage do not require us to violate sincerely held religious beliefs,” an administration official, speaking anonymously, told The New York Times. The source conceded that the administration does “not have sufficient data to determine the actual effect of these rules,” including how many unintended pregnancies they might spark.
Americans United criticized the regulations as a step backward for women’s rights and religious liberty.
“Religious freedom is about fairness – it does not give anyone the right to deny women access to birth control,” said Maggie Garrett, Americans United’s legislative director. “The Trump administration’s regulations violate the First Amendment and are a huge step backward for women’s health and equality.”
Richard B. Katskee, AU’s legal director, added, “Religion is no excuse for employers or universities to dictate their employees’ or students’ health care choices. Taking away access to contraception – a core part of women’s health care – is discrimination, plain and simple.”
Katskee said AU will join forces with the National Women’s Law Center to challenge the Trump rules in court.
As Katskee told The Times, “Religious freedom is the right to believe and worship as you see fit. It’s never the right to use government to impose costs, burdens or harms on other people. You can’t use the government to make other people pay the price for your religious beliefs or practices.”
Americans United was one of several organizations that announced plans to sue over the regulations. In addition, states are taking action. Officials in California, Massachusetts, Washington and Pennsylvania are also suing over the matter.
California Attorney General Xavier Becerra asserted, “Everyone has the right to practice their religion, but they don’t have the right to practice it on someone else.”
On Oct. 13, AU co-sponsored a rally outside the White House to protest the Trump regulations. Among the speakers was Kelly Percival, a fellow in AU’s Legal Department.
While civil liberties organizations, women’s rights groups and medical organizations blasted the new regulations as a step backward, the change was welcomed by Religious Right groups.
Tony Perkins, president of the Family Research Council, issued a statement lauding Trump and calling the move “a huge victory for religious liberty.” Perkins conceded that some women will likely lose access to birth control, but insisted it’s not a big deal because unnamed “experts” believe the number will be fewer than 200,000. (In fact, the number is likely to be much higher. The National Women’s Law Center estimates that at least 62 million women in America use this benefit.)
Other far-right groups hailed the action, even as they continued to distort the facts surrounding it. Mark Rienzi, senior counsel for the Becket Fund, a conservative Catholic-oriented legal group, insisted, “There are other ways to get contraceptives. You don’t need to force nuns to give people contraception.”
The reference to nuns was to Little Sisters of the Poor, an order of nuns who run a nationwide chain of nursing homes. Under the accommodation forged by the Obama administration, the women who work in those homes would have continued to receive access to birth control through their health care plan. The nuns didn’t have to pay for the birth control; they merely had to tolerate the fact that some of their employees might be using it. They refused.
Religious Right groups had good reason to be pleased with the new regulations: They helped write them. The Times reported that Matt Bowman, formerly senior legal counsel for Alliance Defending Freedom, the largest Religious Right group in the country, served as “principal author” of the contraceptive regulations.
Bowman currently serves as senior legal adviser at the Department of Health and Human Services (HHS). Women’s rights advocates say that department is stacked with extreme anti-abortion advocates who are now targeting contraceptive access.
Rewire, a site that reports on reproductive rights, women’s rights issues and cultural matters, reported, “HHS remains stacked with even more officials who tout failed abstinence-only education and distort or deny the scientifically proven efficacy of birth control. Former Americans United for Life CEO Charmaine Yoest, a top official, falsely claims that intrauterine devices (IUDs) have ‘life-ending properties.’ Teresa Manning, the notorious birth control foe nevertheless charged with administering Title X funds to ensure people with low incomes can access family planning services, claims that ‘family planning is something that occurs between a husband and a wife and God’ and isn’t a matter for the federal government.”
Tom Price, the former director of HHS until he was recently forced to step down after a scandal involving his use of expensive chartered flights, once remarked that “there’s not one” woman who can’t afford birth control.
In fact, Planned Parenthood and other groups have pointed out that the most effective forms of birth control can be expensive. An IUD, for example, can cost $1,000 to implant. The cost could be out of reach for many low-income women.
Americans United is intervening on behalf of women like this, but also for the larger principles at stake. AU believes that religious freedom is an important right, but that it does not give bosses the right to make health care decisions for their employees. The decision to use birth control, to decide how many children to have or whether to have any at all, AU says, are private matters that are best left in the hands of individuals, free from dogmatic interference.
AU is no stranger to this battle. In the 1950s and early ’60s, Americans United opposed state laws that barred the sale of contraceptive devices and that, in some cases, gagged doctors by making it illegal for them to discuss contraceptive options even with married couples.
Anti-birth control laws aimed at married couples were struck down by the Supreme Court in the 1965 case Griswold v. Connecticut, and in 1972’s Eisenstadt v. Baird the high court extended the ruling to unmarried couples.
Culturally, the country was in a much different place at that time, and the new Trump regulations are evidence of significant backsliding. During the 1970s, the federal government openly talked about the use of contraceptives, albeit under the euphemism of “family planning,” as a positive value in response to the rising world population.
In 1972, a Commission on Population Growth and the American Future, which had been established by President Richard M. Nixon, recommended that birth control be made available to all Americans. The commission’s report stated openly that “women should be free to determine their own fertility.” While a federal program of no-cost birth control never happened, most health care plans began to include contraceptive coverage, seeing it as a vital component of women’s health (and less expensive than unintended pregnancies).
The backlash to birth control access came on strong during the Obama years, led chiefly by ultra-orthodox Catholic groups and Religious Right organizations. These groups may be gloating now, but AU notes that this fight is far from over. The first round of litigation, including the challenge that AU plans to bring, which was pending as this issue of Church & State went to press, will hit the courts soon.
Religious freedom guidance: The administration’s religious freedom guidance was in response to a May executive order signed by Trump. At that time, Trump ordered the U.S. Department of Justice to formulate guidelines for federal agencies to deal with religious freedom issues.
The guidance consists of a list of 20 principles. While many are vaguely worded and shrouded in legalese, experts at Americans United’s Legal and Legislative Departments have concluded that the overwhelming thrust of the document is clear: It’s designed to allow religious freedom to be used as an instrument of discrimination, primarily against members of the LGBTQ community.
“Religious freedom is a fundamental American value,” AU’s Garrett told Politico. “It doesn’t mean you can use religion as an excuse to discriminate or harm others. That’s exactly what these guidelines set up.”
Americans United criticized the guidance for insisting that religious organizations have a right to take taxpayer money and use it to discriminate against employees and the people they serve. AU attorneys noted that it could also give federal government workers the right to cite their religious beliefs as justification to discriminate against, and deny services to, other Americans.
The guidance, AU asserted, is yet another sop to the Religious Right, increasingly the only segment of Trump’s shrinking base that remains enamored of him. These groups have been arguing that the concept of religious freedom (as they define it) should trump any laws that protect the LGBTQ community from discrimination. Consequently, they argue that bakers, caterers, B&B owners and others who work in the wedding industry should be free to deny services to members of the LGBTQ community and others if a business owner decides those people offend his or her religious beliefs.
Under Trump, the Justice Department has adopted this view as well. In a case pending before the Supreme Court, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Justice Department is siding with a Colorado baker, Jack Phillips, who has refused to make wedding cakes for same-sex couples, even though LGBTQ people are protected in Colorado by a state anti-discrimination law.
Like the birth control regulations, the guidance was apparently heavily influenced by Religious Right legal groups. ABC News reported that during the drafting of the document, Attorney General Jeff Sessions consulted with ADF. (Since taking office, Trump has salted the Justice Department with former staff lawyers from ADF, Becket Fund and similar groups.)
ABC reported that Michael Farris, chief executive officer of ADF, confirmed that Sessions met with the group during what were described as several “listening sessions.” The meetings were convened by Sessions, who, Farris told ABC, was “seeking suggestions regarding the areas of federal protection for religious liberty most in need of clarification or guidance.”
But AU isn’t about to let these extremists determine health care and religious freedom policies for all Americans. AU notes that these Trump overtures lack public support. Polls show that Americans support birth control access and do not believe that the owners of for-profit businesses should be able to use religious freedom as an excuse to discriminate.
The fight to protect Americans from being forced to live under someone else’s dogma is well under way, and Americans United intends to remain in the thick of it.