//  6/2/17  //  In-Depth Analysis

Earlier this week, it was reported that the Trump Administration was working on a plan to weaken the “contraception mandate”—the Obamacare rule that requires all employers who provide health insurance to include seamless coverage for women’s contraception. Now the plan has been leaked. At root, the Trump proposal would create a broad new exemption for any employer who objects to including contraception in their health plans for employees—and it would not replace that coverage. Women would be deprived of contraception coverage altogether. That change would weaken civil rights for women. Unwanted pregnancies and other irreversible health consequences would result. And the plan could violate the Establishment Clause by providing a religious accommodation for some private citizens only by shifting costs to others who may not share their beliefs.

Here is the background. When Congress passed the Affordable Care Act, or Obamacare, it included a provision that required all employers who provided health insurance for their employees to include coverage for “preventive care,” at no increased cost to employees. Subsequently, the Obama Administration wrote regulations to implement that rule. Following extensive consultation with medical experts, it determined that the term “preventative care” includes all methods of female contraception that have been approved by the FDA. Those forms of contraception would have to be included in all employer plans, without any additional cost to employees.

From the very beginning, the Obama Administration exempted houses of worship from the “contraception mandate,” as it came to be known. After some debate, the Administration also exempted religious nonprofits such as hospitals, schools, and social service providers. But in those settings, where employees may not share their employers’ beliefs, the government wanted to make sure that women would still be covered. So it required the accommodated nonprofits’ health insurance administrators to provide the coverage to women without cost sharing.

After the contraception mandate went into effect, the first employers to object were businesses, because many of them were not provided with any exemption. In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court ruled that closely-held corporations were protected from the contraception mandate by the Religious Freedom Restoration Act. That ruling was wrongheaded in several respects, as we have previously argued. But the Obama Administration accepted it and set about crafting a rule that would extend the nonprofit accommodation to for-profits, so that health insurance administrators would be required to provide coverage for contraception in situations where a business claimed a religious exemption.

Next, religious nonprofits challenged the contraception mandate. Their challenge was notable, because they were already exempted from the rule. Yet they argued that the accommodation still violated their religious beliefs, because it required them to notify the government or their health insurance administrator, which would then provide the coverage. Religious nonprofits argued that filing this piece of paper somehow made them complicit in providing coverage. Yet the overwhelming majority of courts rejected the religious organizations’ implausible claim that merely notifying someone made them complicit in their employees’ contraception coverage, let alone their contraception use. Every lower court but one held that it was the government that required the nonprofits’ health administrators to provide the coverage, not the organizations themselves.

Challenges from nonprofits like the Little Sisters of the Poor and Notre Dame University were heard by the Supreme Court under the name Zubik v. Burwell. After oral argument, the Justices returned the case to the lower courts, asking the parties to try to find a solution that satisfied everyone. That seemed difficult while the case remained in the hands of the Obama Administration, whose lawyers insisted that seamless contraception coverage must be provided by their “regular doctor” under the “same plan” in order to be effective.

But once President Trump was elected, government agreement with the religious nonprofits seemed certain, even in the face of serious harm to women. The leak this week confirms that suspicion.

In brief, the Trump Administration’s rules would completely exempt any employer who objects to providing contraception coverage for employees. The Administration would not require anyone to replace the lost coverage—women would be deprived of coverage altogether. In fact, that deprivation is crucial to the exemption, because only by depriving women of contraception coverage could the government satisfy religious employers that the exemption did not somehow make them complicit, according to theological reasoning that the Trump Administration appears to accept.

Yet depriving women of coverage without cost-sharing would result in serious, irreparable harm. Judge Posner, whom no one would mistake for a liberal, carefully described the damage in his opinion for the Seventh Circuit Court of Appeals in the case concerning Notre Dame University. He wrote that “[b]ecause out-of-pocket expenditures on female contraceptives can be substantial for many women, the provision of such contraceptives without cost to the user can be expected to increase contraceptive use and so reduce the number both of unintended pregnancies and of abortions.” Judge Pillard, writing for the D.C. Circuit, made similar detailed findings. Notably, the Administration cites scholarship that tries to deny the science that establishes the health benefits of contraception coverage. Part of what makes the leaked document so troubling is that its reasoning could support eliminating the contraception mandate altogether, not only for religious objectors. But regardless of that scholarship’s merit, there is no doubt that withdrawing contraception coverage will result in harm to women.

The Trump Administration’s contemplated exemption from the contraception mandate is strikingly broad in several respects. First, it applies not only to nonprofits, but to business corporations and indeed to employers of every type. Although the Supreme Court tried to limit its exemption in Hobby Lobby to closely-held corporations, the Trump Administration calls the Court’s bluff and reasons (convincingly) that there is no principled difference between Hobby Lobby and even the largest publicly-traded, multi-national corporations. They all are eligible for the exemption.

Moreover, the new exemption would apply not only to those with religious objections to the contraception mandate, but to all those with “moral” objections as well. Here, the Administration is picking up on an interesting case in the lower courts called March for Life v. Burwell. A secular nonprofit that works to oppose abortion sued, saying that its nonreligious objection to abortion prevented it from providing coverage for certain contraceptives that it considers to be abortifacients. March for Life did not merely oppose filing a form—it sued because it was not eligible for the existing accommodation at all, since it was not a religious organization. In the leaked regulations, the Trump Administration agrees and extends its new exemption to organizations that object on secular, moral grounds. That expansion only increases the harm to women.

Interestingly, the Administration here seems to support the argument made by many progressives and egalitarians that religion ought not to enjoy special legal status, as compared to similarly deep and meaningful nonreligious convictions. Citing cases and statutes across a range of issues, including the Vietnam conscientious objector case Welsh v. United States, the Trump Administration recognizes “a consistent history of protecting moral convictions alongside religious beliefs.” This might have been considered a notable and welcome development, if it didn’t arise in a setting where the health consequences to women were so serious.

Some may question whether depriving women of contraception coverage should count as harm at all—that argument has been made before, especially in the context of Hobby Lobby. But if there was ever a question about that, there is none here. After all, the Trump Administration leaves the contraception mandate in place for the vast majority of employers and therefore for the vast majority of women—it lifts the mandate only where employers object on religious and moral grounds. It even leaves in place the religious accommodation, by which organizations may free themselves of the contraception mandate but still ensure that their employees receive the coverage from health insurance administrators. Implicitly, then, the Administration is conceding that contraception coverage counts as “preventative care” that is important to women. Depriving them of it, where the employer objects on moral or religious grounds, therefore definitely counts as harm.

We believe it also violates the Constitution, and in particular the Establishment Clause. As we have shown in numerous writings, and as one of us has argued in a recent book, the Constitution prevents government from accommodating religious citizens where that results in harm to other private citizens. That principle has been recognized by the Supreme Court in numerous cases, and it prevents the Trump Administration from wholly exempting employers from the contraception mandate. Most recently, the Supreme Court in Hobby Lobby predicated its exemption for the company on the fact that the impact on women would be “precisely zero,” after the government required health administrators to provide the coverage. But that is not true here—women will be harmed, thousands of them, and irreparably. Though some may object that the third-party harm rule does not apply to exemptions that include secular objectors, we believe that is not true—it disallows government from favoring any conscience claims over conflicting convictions of conscience held by other citizens.

In sum, Trump’s new assault on the contraception mandate should and will be swiftly challenged in court, and it should be overturned both because it eviscerates an important civil right for women and because it violates a central tenet of religious freedom protected by the Constitution.

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