Last year, the U.S. Supreme Court was presented with the opportunity to resolve the seemingly never-ending litigation surrounding the process for granting religiously affiliated nonprofits an accommodation from complying with the birth control benefit in the Affordable Care Act (ACA). And it punted.
Rather than rule whether notifying the federal government of a religious objection to contraception substantially burdens religious rights under the Religious Freedom Restoration Act, the Roberts Court sent the issue back down to the appellate courts with a stern directive to the parties to work it out. In other words, those involved with cases like Zubik v. Burwell, Little Sisters of the Poor v. Burwell, and others were supposed to come to some kind of resolution on how to ensure health insurance plans offer comprehensive and non-discriminatory benefits, as mandated by the ACA, while accommodating religious objections. That never happened. In a matter of weeks, however, those cases could come back to life.
The Trump administration has until March 15 to update the federal appeals courts that are hearing the lawsuits challenging the accommodation process on what, if any, progress has been made in resolving the disputes. The short answer is: none.
Religious objectors continuously made it clear that their only solution to the litigation would be for the administration to drop the benefit altogether, or to grant a full exemption to any institution that asks—in other words, not a solution at all. In early January, the Obama administration finally stopped trying to appease those objectors. It issued its final position: that “after consideration of comments submitted by a broad array of stakeholders … the Departments are not modifying the accommodation regulations at this time.”
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By contrast, it’s apparent the Trump administration will reverse course on the birth control benefit. U.S. Department of Health and Human Services (HHS) Secretary Tom Price doesn’t believe it is necessary, and Trump’s cabinet is packed tip to tail with contraception foes opposed to the ACA generally and health insurance coverage for birth control specifically. The problem for the Trump administration is just how they can execute a 180-degree change in policy and upend the benefit, because as Trump himself conceded, health-care reform is pretty complicated.
The birth control benefit—along with its accompanying exemptions and accommodations—was enacted via the administrative agency rule-making process, which in turn is governed by a federal law called the Administrative Procedures Act (APA). Any changes to the birth control benefit, including its rollback, will also have to go through this process.
The process under the APA is very clear. First, the agency—in this case, HHS—issues a notice of proposed rule making in draft form. This notice officially starts the clock on the rule-making process. Generally, the public has 60 days from the notice of rule making to comment, but that time can be extended by the executive branch if needed. Once the comment period has closed, the agency reviews the comments, does some analysis, and then decides whether to proceed with issuing its original draft or modify the proposed rule based on those comments.
Needless to say, agency rule making is not a swift process. It can take months, if not years. This inherent institutional inertia is going to be a problem for the Trump administration in these pending cases. The ACA is not getting repealed anytime soon—certainly not before the March 15 deadline in the nonprofit cases. That means the administration can’t rely on a change in the health-care law to justify its probable pivot in position from arguing the benefit is necessary and the accommodation process fair. Given the process required for either making or revoking an administrative rule, the Trump administration won’t have a new one in place by March 15 either, which means it can’t cite a new rule as a basis for siding with those challenging the benefit.
So do all those factors mean the Trump administration will continue the Obama administration’s policy of vigorously defending legal challenges to the birth control benefit? Don’t count on it.
This week, the Huffington Post reported that according to members of Trump’s transition team, a religious imposition executive order is in the works. A draft of the proposed order was leaked weeks ago; Sarah Posner detailed that proposed order for the Nation here. That draft executive order, as reported, is broad enough to cover the current challenges to the birth control benefit. It’s also the only likely way the Trump administration can change course in the ongoing litigation without relying on Congress to repeal the ACA or HHS to issue formal rules rolling back the benefit.
As Posner notes, the executive order, as drafted, is written broadly enough to cover any organization—including closely held for-profit corporations like Hobby Lobby, which successfully got the Roberts Court to recognize corporate religious rights in the first challenges to the birth control benefit. The draft order also protects “religious freedom” in just about every other context, including “when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.” This means that far beyond the birth control benefit rollback, the executive order can be used to interfere with individual rights in a number of avenues.
So will the Trump administration drop its religious imposition executive order before the March 15 litigation deadline? It’s impossible to know for certain—especially with an administration that appears maliciously incompetent, as witnessed with its disastrous Muslim ban. Who really knows if they think these executive orders through or not? But if the administration plans to reverse course in the birth control accommodation lawsuits, a poorly planned and drafted executive order purporting to create broad religious exemptions to government laws and regulations writ large may be the only immediate way it can.