10/11/2017 Trump Administration Rolls Back Birth Control Mandate - The New York Times

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POLITICS

Trump Administration Rolls Back Birth

Control Mandate
By ROBERT PEAR, REBECCA R. RUIZ and LAURIE GOODSTEIN OCT. 6, 2017
WASHINGTON The Trump administration on Friday moved to expand the rights
of employers to deny women insurance coverage for contraception and issued
sweeping guidance on religious freedom that critics said could also erode civil rights
protections for lesbian, gay, bisexual and transgender people.

The twin actions, by the Department of Health and Human Services and the
Justice Department, were meant to carry out a promise issued by President Trump
five months ago, when he declared in the Rose Garden that we will not allow people
of faith to be targeted, bullied or silenced anymore.

Attorney General Jeff Sessions quoted those words in issuing guidance to

federal agencies and prosecutors, instructing them to take the position in court that
workers, employers and organizations may claim broad exemptions from
nondiscrimination laws on the basis of religious objections.

At the same time, the Department of Health and Human Services issued two
rules rolling back a federal requirement that employers must include birth control
coverage in their health insurance plans. The rules offer an exemption to any
employer that objects to covering contraception services on the basis of sincerely
held religious beliefs or moral convictions.

More than 55 million women have access to birth control without co-payments
because of the contraceptive coverage mandate, according to a study commissioned

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by the Obama administration. Under the new regulations, hundreds of thousands of

women could lose those benefits.

The contraceptive coverage mandate, issued by the Obama administration under the
Affordable Care Act, removed cost as a barrier to birth control, a longtime goal of
advocates for womens rights. But the mandate ensnarled the federal government in
more than five years of litigation, which overshadowed many other aspects of the
health care law.

The rules issued on Friday prompted more lawsuits and threats of lawsuits. The
attorney general of Massachusetts, Maura Healey, and the attorney general of
California, Xavier Becerra, filed lawsuits to block the new rules, which took effect
immediately.

Both said the rules violated the First Amendment, which bars government
action respecting an establishment of religion.

But some conservatives and religious groups said the new rules would allow
them to live out their religious beliefs. Speaker Paul D. Ryan of Wisconsin hailed the
rules as a landmark day for religious liberty. The rules were also welcomed by
groups like the Little Sisters of the Poor, an order of Roman Catholic nuns who had
resisted the Obama administrations mandate because, they said, it would make
them morally complicit in grave sin.

The new administration isnt going to force Catholic nuns to provide

contraceptives, said Mark Rienzi, senior counsel at the Becket Fund for Religious
Liberty, who represents the Little Sisters of the Poor. Weve been on a long, divisive
culture war because the last administration decided nuns needed to give out
contraceptives.

The new initiatives came a day after Mr. Sessions changed the Justice
Departments position on a related issue: whether a ban on workplace discrimination
on the basis of sex in the Civil Rights Act of 1964 encompasses discrimination on
the basis of gender identity. The Obama administration had adopted the view that it
does cover transgender people, but Mr. Sessions said the department should take the
position in court that it does not.

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Mr. Sessionss guidance issued on Friday directs federal agencies to review their
regulations with an eye to expanding their protections for religious believers.
Conservative religious individuals and organizations have objected for years to
nondiscrimination laws that have affected whom they can hire and fire, whom they
can serve and how they can operate. The new directive affords them far broader
latitude.

In issuing the new directive, Mr. Sessions reinterpreted the Religious Freedom
Restoration Act, which was adopted by Congress in 1993 with broad support from
across the religious spectrum. It says the government could limit the free exercise of
religion only if there was a compelling reason, and must do so in the least
restrictive way possible.

Among the possible results of the guidance, legal directors at liberal advocacy
groups said, religious charities or schools that receive government funding could fire
an unmarried employee who becomes pregnant, or an employee who marries a
same-sex partner. Religious contractors that administer foster care programs could
refuse to place foster children with gay couples, even in states that have
nondiscrimination laws.

Houses of worship that have been damaged in hurricanes could receive grants
from the Federal Emergency Management Agency to rebuild even if they are using
the taxpayer funds to hire only staff members who share their religious beliefs,
rather than making the positions open to all.

In addition, David Stacy, government affairs director for the Human Rights
Campaign, said that clerks with the Social Security Administration or the
Department of Veterans Affairs who do not agree with same-sex marriage could
refuse, under this guidance, to process paperwork to provide benefits to a widow in a
same-sex marriage.

This is a very sweeping expansion of religious discrimination by the federal

government, and we think it goes beyond where federal law is, he said.

Vanita Gupta, a top civil rights lawyer at the Justice Department during the
Obama administration, said: The freedom of religion is a fundamental right, but it

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is not an absolute right. It cannot be used as a shield to permit discrimination

against L.G.B.T.Q. Americans, just as federal courts a half century ago denied the
ability of businesses and employers to use their religious beliefs as a basis to
discriminate against African-Americans. She also called the new contraception
policy a direct attack on womens rights.

But Representative Diane Black, Republican of Tennessee, said the new rules on
contraception were a resounding victory for true-believing Americans. They will,
she said, end the persecution of ordinary Americans who for years have been
seeking only the freedom to live in accordance with their faith, free from government
interference.

Justice Department officials said Friday that Mr. Sessions had simply pointed to
existing law and was not making a policy change.

Still, officials at the Department of Health and Human Services said Mr.
Sessionss memos provided support for the new contraception rules.

The Obama administration generally required employers to cover all forms of

birth control approved by the Food and Drug Administration, including pills that
critics say may cause fertilized eggs to be aborted.

No American should be forced to violate his or her own conscience in order to

abide by the laws and regulations governing our health care system, said Caitlin
Oakley, a spokeswoman for the Department of Health and Human Services.

But Richard B. Katskee, the legal director of Americans United for Separation of
Church and State, an advocacy group that plans to challenge the rules in court, said
they imposed an impermissible burden on female employees who want cost-free
contraceptive coverage and may be unable to get it.

Religious freedom is the right to believe and worship as you see fit, Mr.
Katskee said. Its never the right to use government to impose costs, burdens or
harms on other people. You cant use the government to make other people pay the
price for your religious beliefs or practices.

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The Trump administration on Friday also notified health insurance companies

that it would vigorously enforce provisions of the Affordable Care Act regulating
coverage of abortion services. The health department reminded insurers that if they
cover abortion, they generally cannot use federal funds for that purpose, but must
collect separate payments from consumers and must deposit the money in special
accounts used exclusively for coverage of abortion services.

Under the new rules, exemptions to the contraceptive coverage mandate would
be available to many kinds of employers, including publicly traded companies that
said they had religious objections to covering some or all types of contraception.

The Trump administration said that some people would, as a result of the new
rules, not receive coverage or payments for contraceptive services.

The governments legitimate interests in providing for contraceptive coverage

do not require us to violate sincerely held religious beliefs or moral convictions, the
administration said. But, it said, officials do not have sufficient data to determine
the actual effect of these rules, the extra costs that women might incur for
contraceptives or the number of unintended pregnancies that might occur.

Robert Pear and Rebecca R. Ruiz reported from Washington, and Laurie Goodstein
from Boston.

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