DOJ Closes 70+ Contraceptive Mandate Lawsuits

by David Nussman  •  •  October 17, 2017   

Arranges settlement between HHS and 74 religious employers

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WASHINGTON ( - The years-long legal battle over the Obama-era contraceptive mandate is coming to a close, owing to a recent move by the Trump administration.

On Friday, the Department of Justice (DOJ) arranged a settlement between the Department of Health and Human Services (HHS) and Jones Day, the law firm representing 74 plaintiffs, challenging the HHS contraceptive mandate in the courts. The settlement states that the employers in question will not have to financially support things they deem "morally unacceptable."

The Obama administration's 2012 Health and Human Services (HHS) mandate required employers to pay for employees' contraception and abortifacients via medical insurance coverage. It allowed exemptions for churches and for some faith-based organizations but exemptions were often hard to obtain.

On October 6, the Trump administration greatly expanded the exemption policy, allowing for any employer with a religious or moral objection to decline contraception coverage for employees. Such employers no longer need to fill out federal paperwork or battle it out in court; they only need to inform employees that their health insurance plan will not cover contraceptives and abortifacients.

In the 2016 U.S. Supreme Court case Zubik v. Burwell, the Catholic archdiocese of Washington, D.C. and six other plaintiffs challenged the HHS contraceptive mandate. In a rare move, the Supreme Court sent the cases back to their respective lower courts.

According to Friday's DOJ settlement, the Washington, D.C. archdiocese and 73 other religious organizations are officially exempt from the contraception mandate. The prelate of the archdiocese, Cdl. Donald Wuerl, said, "While the Trump Administration's Executive Order on Religious Liberty and new guidelines and regulations are extremely helpful, the settlement of the Zubik litigation adds a leavening of certainty moving forward."

Also affected by the settlement is Thomas Aquinas College in Santa Paula, California. The college's president, Dr. Michael McLean, celebrated the decision:

While we welcomed the broadening of the exemption from the HHS mandate last week by the Trump administration, we have under our agreement today something even better: a permanent exemption from an onerous federal directive — and any similar future directive — that would require us to compromise our fundamental beliefs. This is an extraordinary outcome for Thomas Aquinas College and for the cause of religious freedom.

This is an extraordinary outcome for Thomas Aquinas College and for the cause of religious freedom.

After the Trump administration's October 6 rollback on the contraceptive mandate, progressives expressed anger and dismay on social media, using the hashtag "#handsoffmyBC" in reference to birth control.

In response to the liberal backlash, conservative blogger Matt Walsh humorously retorted on Twitter, "#handsoffmyBC is an interesting slogan, considering that they're angry precisely because we've taken our hands off their birth control."

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Though most voices in the secular media blasted the decision, Alexandra DeSanctis of conservative outlet National Review thinks that the backlash is absurd and overdramatic. In an op-ed on Friday, DeSanctis characterized liberals' complaints as "bogus," "dramatic" and "borderline-apocalyptic." The Notre Dame graduate points out, "Until the Obama administration enacted the contraceptive mandate in 2012, birth control had never been singled out for [legal] protection, let alone for protection so strong that Catholic nuns were forced to sue the federal government for relief."

She adds, "The Obama administration and the Left more broadly have failed to show that birth control, provided free of cost by one's employer, is a right crucial enough to merit forcing religious business owners to violate their consciences."

DeSanctis also clarifies that the Trump administration's expanded exemption policy only applies to certain employers. "For one thing," she writes, "publicly traded, for-profit companies are not permitted exemptions on moral grounds. The 'moral' category is intended to protect small groups such as the Susan B. Anthony List or Hobby Lobby, neither of which is religious but whose employers believe that some forms of contraception are immoral."


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