WASHINGTON (BP) — The seven-year battle by objectors to the abortion/contraception mandate has come to a regulatory close with a victory for freedom of conscience.
The Trump administration issued two final rules Nov. 7 that supply conscience protections to Americans with a religious or moral objection to the 2011 mandate instituted under President Obama. Announcement of the regulations came a day after an election that resulted in the Republican president’s party losing control of the U.S. House of Representatives while maintaining its Senate majority.
The controversial regulation, which helped implement the 2010 health care reform law, required employers to provide their workers with coverage for contraceptives, including those with mechanisms that can potentially induce abortions, or face potentially devastating fines. It elicited legal challenges from more than 90 religious nonprofits, including GuideStone Financial Resources of the Southern Baptist Convention and at least seven Baptist universities.
One of the new regulations issued Nov. 7 — which finalized “interim final” rules issued in October 2017 — exempts entities and individuals from the requirement based on their religious beliefs, while the other rule protects individuals, nonprofit organizations and small businesses on the basis of a moral conviction apart from a specific religious belief.
The final rules came more than two years after the U.S. Supreme Court nullified multiple federal appeals court decisions against GuideStone and other religious institutions and more than four years following the justices’ decision in favor of Hobby Lobby’s conscience-based challenge to the mandate.
Southern Baptist advocates for conscience protections applauded the final rules.
“These exemptions are the long-awaited conclusion to the crucial achievement of preserving religious liberty from an unlawful government overreach,” said Russell Moore, president of the Ethics & Religious Liberty Commission (ERLC).
“The contraceptive mandate, and subsequent four-year delay after the Supreme Court’s ruling, revealed the audacity of a state that believed it could annex the human conscience by asking citizens to choose between obedience to God and compliance with the regulatory state,” Moore told Baptist Press in written comments. “I am thankful this effort finally ends with religious and moral exemptions issued by the administration.”
GuideStone welcomes “the new rules and appreciates this administration’s desire to protect religious organizations from having to choose between their deeply held convictions or crippling penalties,” said Timothy Head, the SBC entity’s executive officer for denominational and public relations services, in a written statement for BP.
GuideStone and two of the ministries it represents already had gained a final, favorable verdict in court. In July, a federal judge in Oklahoma issued a judgment in favor of GuideStone and its plaintiffs — Truett McConnell University, a Georgia Baptist institution, and Reaching Souls International, an Oklahoma mission-sending entity.
Cases out of California and Pennsylvania involving the Little Sisters of the Poor, however, are still under appeal. The Little Sisters of the Poor is a Roman Catholic order that serves the poverty-stricken elderly and became the face of the institutions objecting to the mandate.
Mark Rienzi — president of Becket, a nonprofit religious freedom law firm representing the Little Sisters of the Poor — said in a written release, “This long unnecessary culture war is now almost over — all that is left is for state governments to admit that there are many ways to deliver these services without nuns, and the Little Sisters can return to serving the elderly poor in peace.”
On the same day as the release of the final mandate regulations, the Department of Health and Human Services (HHS) issued a proposed rule also affecting abortion coverage. The rule requires health plan issuers in the exchanges created by the 2010 Affordable Care Act to collect separately funds for elective abortion and thereby prevent taxpayers from subsidizing plans that cover abortion, according to the National Right to Life Committee (NRLC).
The proposed rule “sends a strong message that the federal government ought to get out of the business of paying for abortion until Obamacare can be replaced,” said Jennifer Popik, NRLC’s legislative director, in a written release.
The Planned Parenthood Federation of America (PPFA), the country’s No. 1 abortion provider, decried all the rules.
Dawn Laguens, PPFA’s executive vice president, said the regulations “are dangerous, and not what the vast majority of the American people want. Women will remember this attack on their basic health care.”
In a news release on the final rules regarding the abortion/contraception mandate, the Department of Health and Human Services (HHS) said they will affect only a “small fraction” of the 165 million women living in the United States and will have no impact on government programs that offer free or subsidized contraceptive coverage to low-income women. HHS and the departments of Labor and Treasury announced the final rules.
In May 2016, the Supreme Court invalidated multiple federal appeals court decisions against the religious institutions and blocked the Obama administration from imposing fines on them. The justices told the appeals courts involved to give the parties an opportunity to reach a solution “that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.” No agreement was reached before Obama left office in January 2017.
When it issued the controversial rule in 2011, HHS provided an exemption for churches and their auxiliaries but did not extend it to non-church-related nonprofit organizations that object. HHS proposed nearly 10 accommodations for the objecting institutions, but none proved satisfactory to their conscience concerns.
The federally approved contraceptives for which coverage is required by the mandate include the intrauterine device (IUD) and such drugs as Plan B, the “morning-after” pill. Both the IUD and “morning-after” pill possess post-fertilization mechanisms that potentially can cause abortions by preventing implantation of tiny embryos. The rule also covers “ella,” which — in a fashion similar to the abortion drug RU 486 — can act even after implantation to end the life of the child.
GuideStone, the SBC’s health and financial benefits entity, was exempt from the mandate, but it serves ministries that are required to obey it.
The ERLC and two other SBC entities — the International Mission Board and Southern Baptist Theological Seminary, as well as Southern’s president, R. Albert Mohler Jr. — filed a friend-of-the-court brief in 2016 that urged the Supreme Court to rule that the HHS accommodation violates religious freedom.
In 2014, the Supreme Court ruled in favor of Hobby Lobby’s challenge to the abortion/contraception mandate. In its 5-4 opinion in that case, the justices upheld objections to the requirement by “closely held” for-profit companies such as family owned businesses.
Messengers to the 2012 SBC meeting adopted a resolution calling for an exemption from the mandate for “all religious organizations and people of faith … who declare a religious objection to such coverage.”