On October 6, the Trump administration rolled back an Obama-era regulation which mandated all but a handful of employers and organizations to provide “preventive services” in their health insurance plans.
The services were defined by regulation and courts to include birth control pills, the “morning after” pill, and other forms of contraception roundly condemned by the Catholic Church.
As we reported in the spring of 2016 the Little Sisters of the Poor, a congregation of Catholic nuns who provide care for the elderly, are the de facto face of this battle. They argued that as a Catholic employer, they should not be forced to materially support the distribution of these products to their employees.
However, in a strategy that is all too familiar to Catholics today, the original Affordable Care Act (“Obamacare”) legislation passed by Congress and upheld by the Supreme Court was written so ambiguously, that the religious exemptions contained within it were left to various governmental agencies to interpret. The Department of Health and Human Services (HHS) in turn, agreed that exemptions should be made available, but they defined the religious exemption so narrowly as to preclude non-profit organizations and many charities. The sisters, in an almost laughable irony, were left to prove to the HHS that they were, in fact, “religious enough” to qualify for this exemption.
Ultimately, the sisters won a small victory, when the Supreme Court punted the issue to the lower courts, which eventually allowed them to claim religious exemption through a loophole - not on their own merits. While this was a success for the Little Sisters of the Poor, the unjust regulations in question remained in force for thousands of other charities and organizations.
Given that the specific exemptions and mandates discussed above are simply regulatory, not legislative (that is, not laws passed by Congress) Catholic organizations of good conscience had been waiting out the Obama administration, hoping that the next occupant of the White House would have the will to reverse the regulations, a reasonable use of Executive power.
On Friday, the Trump administration announced a regulation which is not as forceful as many had hoped, but did open the door to exempt those organizations who had filed for relief from the Obama-era regulations. In a statement released on the HHS website, the department defined the products in question, and the entities the statement applies to:
Under the existing regulatory requirements created by the previous administration, employers, unless they qualify for an exemption, must offer health insurance that covers all FDA-approved contraception, which includes medications and devices that may act as abortifacients as well sterilization procedures.
Under the first of two companion rules released today, entities that have sincerely held religious beliefs against providing such services would no longer be required to do so. The second rule applies the same protections to organizations and small businesses that have objections on the basis of moral conviction which is not based in any particular religious belief.”
A key fact which makes this ruling a sort of Pyrrhic victory, is that it only affects those organizations that have previously filed cases on this matter in the courts - a staggering total of… 200. The HHS website takes pains to mention that this will “not affect over 99.9% of the 165 million women” living in the United States:
…meaning that out of millions of employers in the U.S., these exemptions may impact only about 200 entities, the number that that filed lawsuits based on religious or moral objections."
Undoubtedly, it is a blessing for these few, but hopes for a more sweeping exemption which would have simply been a matter of justice under the American practice of religious freedom are not, at this point, realized.
This ruling, while on paper a move towards regaining religious freedom (understood in the American, liberal sense), can only be fully understood as an administration which is willing to give a small taste of victory to some, while protecting itself politically from the fury that a fully-conscionable retraction would provoke. While however hollow Friday’s move may be, it is at the least a positive step. One can hope this inspires further action, spurred by Catholic Action and prayer.