Trump Takes Aim at Controversial Birth Control Mandate

Executive order aims to end legal challenges to contraceptive mandate in 2010 health care law

Nuns demonstrate outside of the Supreme Court as arguments were heard in a case which religious organizations are challenging the Affordable Care Act's provision that requires employers to cover birth control in health care plans, March 23, 2016. (Photo By Tom Williams/CQ Roll Call)

President Donald Trump sought Thursday to end years of legal challenges to the contraceptive mandate in the 2010 health care law, signing an executive order he said makes it easier for religious nonprofits to win an exemption because of their beliefs.

The change, part of an executive order on religious issues announced in a Rose Garden ceremony on the National Day of Prayer, strikes at one of the most contentious provisions of the health care law (PL 111-148, PL 111-152) that prompted several Supreme Court rulings. 

Those legal challenges pitted the Obama administration's aim to provide birth control coverage to all women against objections from corporations and religious nonprofits, such as the Little Sisters of the Poor, to their role in the process. The Little Sisters, a group of Roman Catholic nuns, were the most visible plaintiffs in the latest and ongoing legal challenge.

Trump invited two nuns from Little Sisters to the stage to stand next to him during the announcement, and he complimented the group’s work to help the sick as well as its attorneys for their legal fight.

“I want you to know that your long ordeal will soon be over, OK?” Trump told the nuns. “With this executive order, we are ending the attacks on your religious liberty and we are proudly reaffirming America’s leadership role as a nation that protects religious freedom for everyone.”

The Supreme Court, in a 2014 decision in Burwell v. Hobby Lobby, ruled 5-4 that closely held corporations did not need to comply with the mandate on contraceptives. The ruling sparked a flood of lawsuits on the issue from religiously affiliated groups, colleges and others.

The issue most recently returned to the Supreme Court last year with the Little Sisters and other nonprofits, in a case that basically comes down to a paperwork issue with moral reverberations. The legal challenge had stretched five years.

Religious nonprofits already could be exempt from the requirement that most employers offer birth control to their employees as part of health insurance coverage. But the organizations had to notify the government of their religious objections in writing to get such an accommodation, and then the government arranged the birth control coverage through the group’s existing insurance plan at no cost to the group.

Those nonprofits said that action makes them complicit in providing birth control against their beliefs and undermines religious freedom under the threat of millions of dollars of fines. The Obama administration declined to back down.

The Supreme Court heard arguments last year on the case, Zubik v. Burwell, but ultimately declined to rule with the goal of letting the nonprofits and the Obama administration come to an approach that satisfies both sides. The group representing the nonprofits in court said it had been negotiating with the Trump administration on the issue.

Lori Windham of the Becket Fund for Religious Liberty, which represents Little Sisters of the Poor, said the Justice Department has everything it needs to review health care rules and make sure religious nonprofits are protected.

“We hope they will move quickly to lift these burdens on religious freedom,” Windham said.

The ACLU said it plans to file a lawsuit over the executive order, and the Secular Coalition for America criticized the order as “the epitome of religious privilege.”

“It is deeply troubling that the White House would elevate religious employers further above the law by relaxing the enforcement of this already generous accommodation,” said Larry Decker, executive director of the Secular Coalition. “With the stroke of his pen, President Trump has proclaimed that a woman’s access to affordable contraception depends on the religious beliefs of her employer.”

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