Aborted mandate?

After years of litigation, religious liberty lawyers are tentatively celebrating over the leak of a new version of the Department of Health and Human Services (HHS) contraceptive and abortifacient mandate. The new proposal, obtained by the website Vox, would grant broad exemptions to religious and nonreligious moral objectors to the mandate, whether nonprofits, for-profits, or individuals.

“This is a sensible, fair resolution from the government if they actually implement it,” said Mark Rienzi, the lead attorney at Becket Law, which has represented the Little Sisters of the Poor and many other plaintiffs against the mandate.

The 125-page “interim final rule" would fulfill a major promise from the Trump administration to religious groups. At the beginning of May President Donald Trump held an event in the Rose Garden with the Little Sisters, the order of nuns at the center of the litigation, announcing a new executive order that touched on the mandate. The order ended up being toothless, merely asking HHS to consider changing the regulation.

But now the nuns might have a regulation with teeth—HHS only has to publish it. It gives exemptions to every type of conscience objector: to objecting religious nonprofits, to for-profits objecting on religious grounds (even those that are not, like Hobby Lobby, closely held), to nonreligious groups like March for Life that have moral objections to the mandate, to objecting individuals, and to objecting colleges that provide student health plans.

Women at objecting employers would be able to obtain separate plans for contraceptives. One important detail that remains unclear is how objecting organizations note their objections. It appears that groups would simply notify their insurers about objections.

The American Civil Liberties Union, the National Women’s Law Center, and Planned Parenthood decried the measure, saying it would threaten access to contraceptives for millions of women. But only a tiny sliver of groups nationwide, nonprofit or for-profit, have objected to the mandate.

“The story back with Hobby Lobby was, oh, every big business is going to claim an objection,” said Rienzi. “Everyone can check the calendar, it’s 2017 now, none of that has happened.”

The ACLU has threatened to file a lawsuit against the new regulation—but winning such a suit would be an uphill battle in multiple courts. The Obama administration’s victories in mandate cases rested on the government’s claim of a “compelling interest” in providing contraceptives to women over religious objections. Under this new regulation, the government no longer considers such provision a “compelling interest.”

Lawyers who challenged the mandate on behalf of religious organizations are now working in the Trump administration. Jones Day represented many Catholic plaintiffs in the HHS lawsuits across the country. Jones Day’s Don McGahn serves as the White House counsel, and at least a dozen other lawyers from Jones Day are also working in the administration. Matt Bowman, formerly a lead attorney at the Alliance Defending Freedom who worked on several of these cases, is now an attorney with HHS.

Some of the framing for the new regulations sounds like briefs that some of these lawyers wrote in these cases.

"Protecting conscience from government mandates runs to the heart of America’s founding,” reads one part of the draft regulation.

Even if HHS follows through with implementing this draft regulation, some religious groups will continue their cases in federal courts. Because this is an executive regulation, not a statute, it could change under a different president.

“The end would be a court saying, ‘The government has no legal basis to force this on the religious groups,'” said Rienzi. “The alternative would be a world in which the Little Sisters of the Poor, and other groups, every four or eight years, have to be staring at the Federal Register waiting and worrying whether the federal government is going to try to reimpose this.”