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Leaked draft shows Trump aims to exempt religious objectors from birth-control mandate

POSTED: June 2, 2017 5:30 a.m.
Kelsey Dallas/

President Donald Trump delivers a speech during the Arab-Islamic-American Summit on May 21, 2017, in Riyadh, Saudi Arabia.

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The Trump administration may soon give religious objectors to the Affordable Care Act what they've wanted for years: an exemption to the law's birth-control mandate, according to a leaked draft of a proposed regulation change obtained by Vox.

The policy shift would help resolve religious freedom concerns aired since the health care bill was signed into law in 2010 and fulfill one of President Donald Trump's key promises to conservative, religious supporters.

"No Americans should be forced to choose between the dictates of the federal government and the tenets of their faith," Trump said while signing his religious freedom executive order on May 4. The order instructed federal agencies not to penalize employers for refusing to offer birth control in their health plans for religious or moral reasons.

If the leaked version of the new regulation, dated May 23, becomes law, any employer would be free to work with their insurer to craft a coverage plan that doesn't include birth control. "They would have to make clear in their health plan documents that they do not cover contraception and would be required to notify their employees of any change in benefits," Vox reported.

The contraception mandate led to dozens of lawsuits over the last seven years because religiously affiliated schools, faith-based charities and other employers argued that it violated their religious freedom rights. Trump's proposed rule change may satisfy these objectors, but spark more lawsuits, nonetheless.

Women's health advocates say the policy shift could jeopardize the health of millions of women, and groups like the American Civil Liberties Union have already threatened legal action.

"Any rule that allows employers to deny contraceptive coverage to their employees is an attempt at allowing religion to be used as a license to discriminate. We'll see the Trump administration in court if they try to follow through on these plans," said Louise Melling, ACLU's deputy legal director, in a statement.

Mark Rienzi, senior counsel for Becket, the law firm that supported the best-known religious objectors to the birth-control mandate, Hobby Lobby and the Little Sisters of the Poor, said the concerns seem overblown since several large corporations have been exempt from the mandate from the beginning.

Becket estimates that around 1 in 3 Americans are on health plans that don't have to comply with all of the ACA.

"It's a little bit rich that people seem to be OK with Pepsi (getting an exemption), but not with the nuns," Rienzi said.

Religiously affiliated nonprofits and closely held for-profit corporations have already had the ability to sidestep the ACA's birth contraception mandate, but the process is more onerous than what's proposed in the leaked draft. Under the current accommodation, employers with religious objections to the mandate notify the government of their concerns, and then the government works directly through their insurer to offer contraceptive coverage to employees.

The Little Sisters and other faith-based nonprofits claimed that accommodation still made them complicit in providing contraceptives and they argued before the Supreme Court last year for the same exemption given to houses of worship. Justices voted unanimously to send their case back to the lower courts, noting a compromise between the government and the nuns seemed possible.

The Little Sisters' lawsuit will continue no matter what happens with this leaked draft, Rienzi said.

"The end will come when there's an order from the court saying what I think the rule writers acknowledge: the government has no legal basis to force this on religious groups," he said.

An official at the Office of Management and Budget confirmed to The New York Times on May 29 that proposed changes to the contraception mandate were under review. Once finalized, these interim final rules would be published to the Federal Register and opened for public comment.

Two-thirds of U.S. adults (67 percent) support requiring employers to provide free birth-control coverage, according to Public Religion Research Institute.

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