The Trump administration’s draft contraception rule would not only allow employers to drop contraception coverage for religious reasons. It would also allow employers who have moral objections to do the same.

That gives rise to a puzzle. The lawsuits over the contraception mandate have focused on the Religious Freedom Restoration Act (RFRA), which requires the federal government to avoid placing burden on the exercise of religion. It’s RFRA that gives HHS the power to craft a religious exemption for contraception coverage.

RFRA, however, does not extend to moral objections without a basis religious exercise. As such, RFRA can’t supply authority for HHS to exempt employers with moral objections to the contraception mandate.

So where does the agency find that authority? HHS points to section 2713(a)(4) of the Public Health Service Act, which is codified here:

A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for ...

(4) with respect to women, such additional preventive care and screenings [beyond those rated “A” or “B”] as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.

Does that look to you like it allows HHS to craft exemptions due to moral objections? Me neither.

The agency sees things differently. Employer and insurer obligations, HHS says, are confined to what’s “provided for in comprehensive guidelines,” and the statute doesn’t say what those guidelines should cover. “Unlike other provisions in section 2713, section 2713(a)(4) does not require that the guidelines be ‘evidence-based’ or ‘evidence-informed.’” As such, “to the extent the [guidelines] do not provide for or support the application of such coverage to exempt entities, the ACA does not require the coverage.”

In other words, HHS can exempt whoever it wants, for whatever evidence-free reason it wants. Just write the exemption into the guidelines.

I don’t think this is a reasonable interpretation of the statute. The guidelines are supposed to elucidate the “additional preventive care and screenings” that must be covered. That’s why Congress enlisted the help of the Health Resources and Services Administration. It’s a health agency, one that “work[s] to improve the health of needy people.” HRSA knows a lot about preventive services and screenings. HRSA isn’t equipped to decide when moral concerns are sufficiently grave as to require an exemption from a generally applicable law.

To sharpen the point, consider the following statute: “All cars must have seatbelts that meet certain specifications, including any additional specifications as provided for in guidelines drafted by the Seatbelt Safety Administration.” If the agency exempted red cars from its guidelines, that wouldn’t be an exercise of its delegated authority to write safety guidelines. It would be revising Congress’s judgment that “[a]ll cars”—red and blue and gray alike—must have safe seatbelts.

That’s what’s happening here. HHS isn’t specifying the services that employers and insurers are obliged to cover. It’s saying that everyone who objects on moral grounds—all those red cars—are exempted. That’s not a plausible interpretation of the statute. Fairly read, it allows HHS to say what gets covered, not who has to cover it.

Yes, it’s true that Congress didn’t prohibit the guidelines from including moral exemptions. But so what? As the D.C. Circuit has said, “the notion that an agency interpretation is permissible just because the statute in question does not expressly negate the existence of a claimed administrative power (i.e. when the statute is not written in ‘thou shalt not’ terms), is both flatly unfaithful to the principles of administrative law. . . and refuted by precedent.”

The right question, instead, is whether the statute can reasonably be read to have delegated to a health agency the freewheeling power to relieve entities of their responsibility to follow the law. And I just don’t see it.

Now, I don’t know how much of a practical difference the moral exemption will make. HHS thinks that “very few moral nonreligious objectors will adopt a view opposing coverage.” Maybe that’s right, maybe it’s not—HHS has no real way of knowing.

Either way, though, what sense does it make to push a weak legal theory that potentially imperils the whole rule? Once again, it looks like HHS is begging for a lawsuit.

@nicholas_bagley

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