Commentary Law and Policy

Despite Trump’s Claims of Victory, the Little Sisters’ Fight Against Birth Control Continues

Jessica Mason Pieklo

Lawyers for the Trump administration conceded Monday to a federal appeals court that the president's religious imposition executive order does not, in fact, mean victory for those fighting the Affordable Care Act's birth control benefit.

Two weeks ago, President Donald Trump brought a handful of nuns from the Little Sisters of the Poor up to the Rose Garden podium with him when he signed his religious imposition executive order. The president congratulated them, saying the order’s signing meant they’d “sort of just won a lawsuit” against the birth control benefit accommodation in the Affordable Care Act (ACA).

But in reality, no such thing happened.

The Little Sisters haven’t won their fight to turn the law’s accommodation process for religiously affiliated nonprofits into the outright exemption already available to churches and other houses of worship. On Monday, lawyers from the Trump administration confirmed this fact when they told the U.S. Court of Appeals for the Tenth Circuit in a court filing that they needed another 60 days before they could provide the court with a legal justification for abandoning the federal government’s defense of the benefit.

Apparently, the administration doesn’t believe enough in the legal effect of its religious imposition order to cite the order as a legal justification to the federal courts for why it would stop defending the benefit.

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Section 3 of Trump’s religious imposition order specifically targets the contraception mandate, in that it directs federal agencies to review the Obama administration’s previous position that the benefit sufficiently protected religious liberty interests. Almost immediately after the order was signed, Department of Health and Human Services Secretary (HHS) Tom Price issued a gleeful statement applauding Trump for the opportunity to help remove the benefit from thousands. In the statement, Price said the agency welcomed the executive order and “commend President Trump for taking a strong stand for religious liberty. We will be taking action in short order to follow the President’s instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees.”

But agency rule-making takes time, and it’s not just due to institutional inertia and the usual slow-moving nature of bureaucracies. It’s also because the Administrative Procedure Act (APA) specifically sets out a timeline for it, and there’s not a damn thing the Trump administration can do about that.

Congress is clearly targeting the benefit as well. The same day the administration signed its religious imposition order, the U.S. House of Representatives passed its version of repealing the ACA, complete with gutting from mandated insurance coverage essential health benefits like contraception. That repeal is, at least for now, stalled out in the Senate, with lawmakers indicating they want to write their own version.

All that means that the birth control benefit continues to be the law of the land and the administration continues to have no explanation for the federal courts on what it intends to do next in the litigation challenging it.

The administration can only kick the can so far down the road, though. The federal courts could soon demand the administration quit wasting the court’s time, take a position, and press forward. After all, the Trump administration has had since January to sort out how it intended to deal with these lawsuits, and the president clearly believes his executive order resolves them. But Monday’s filings show his own staff isn’t as convinced the litigation can now just go away, nor that the executive order provides the kind of legal cover religious conservatives hope it will.

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