President Donald J. Trump in early May signed an executive order that hinted at future attacks on religious freedom (see “Out of Order” in the June issue of Church & State). Less than a month later, his administration was poised to follow through.
The news website Vox on May 31 published a leaked draft of proposed regulation changes that would allow employers and universities to use religion as an excuse to deny employees and students insurance coverage for contraceptives.
The Affordable Care Act (ACA, also known as Obamacare) includes a provision that requires most employers and universities to provide health-insurance plans that cover birth control with no co-pay. The policy was adopted to improve access to this vital component of women’s health and equality. Nonetheless, many religiously affiliated institutions – including some prominent universities – and owners of for-profit corporations argued that the policy violates their religious freedom.
In response, the Obama administration created an accommodation for non-profits with religious objections (and since expanded it to for-profit companies following the U.S. Supreme Court’s Hobby Lobby decision). Under this accommodation, objectors need only to complete a short form to opt out of providing contraception coverage, and the government will work with third-party insurance companies to provide the coverage at no cost to affected women. Yet attacks on contraception coverage persist as some non-profits argue that merely requesting the opt-out violates their religious freedom.
The Trump administration’s rule – which would go into effect immediately once finalized – would create a blanket exemption for any employer citing a “religious belief” or “moral conviction” at odds with contraception use. It also would allow universities to deny coverage to students.
“Anyone who wants to take advantage of the new exemption can do so without notifying the government of their intention. The government won’t know who is and who is not providing the full range of women’s health services, so it can’t step in to make the coverage available,” AU Legal Fellow Kelly Percival wrote for “The Shield,” AU’s Protect Thy Neighbor project blog. “And women won’t know that they will be denied coverage unless they ask their potential employer. Talk about an awkward job interview.”
AU Legal Director Richard B. Katskee called out the Trump proposal: “Using religion as an excuse to jeopardize women’s access to basic health care is discrimination, plain and simple. If the rule is made final, we will fight it at every turn.”
In fact, AU already has begun to fight against it. The organization filed objections to the proposed rule with the 7th U.S. Circuit Court of Appeals on June 1, describing how the proposal – or any rule change that doesn’t provide affordable, seamless access to necessary health care – will harm women.
AU represents students in the case University of Notre Dame v. Price. These are the only women at risk of losing birth control coverage who are parties to the ongoing lawsuits filed in response to the ACA’s contraceptive-coverage provision.
These cases have remained in limbo since the U.S. Supreme Court returned them to the lower courts in May 2016. AU and the other parties in the Notre Dame case were required to file status updates on June 1 with the 7th Circuit.
AU’s report told the court that the Trump administration’s proposed change “would modify the religious accommodation at issue here in just the way that the government previously reported could not be done without depriving women like (our clients) of access to essential health services.”
That result would violate the First Amendment’s church-state provisions, which forbid “religious exemptions or accommodations from generally applicable laws that would have a ‘detrimental effect on any third party.’”
Trump’s proposed rule had not been finalized at Church & State’s press time.