Few people were surprised last week when the Trump administration issued a rule to make it easier for some religious employers to opt out of offering no-cost prescription birth control to their female employees under the Affordable Care Act.
But a separate regulation issued at the same time raised eyebrows. It creates a new exemption from the requirement that most employers offer contraceptive coverage. This one is for “non-religious organizations with sincerely held moral convictions inconsistent with providing coverage for some or all contraceptive services.”
So what’s the difference between religious beliefs and moral convictions?
“Theoretically, it would be someone who says ‘I don’t have a belief in God,’ but ‘I oppose contraception for reasons that have nothing to do with religion or God,’ ” said Mark Rienzi, a senior counsel for the Becket Fund for Religious Liberty, which represented many of the organizations that sued the Obama administration over the contraceptive mandate.
Nicholas Bagley, a law professor at the University of Michigan, said it would apply to “an organization that has strong moral convictions but does not associate itself with any particular religion.”
What kind of an organization would that be? It turns out not to be such a mystery, Rienzi and Bagley agreed.
Among the hundreds of organizations that sued over the mandate, two — the Washington, D.C.-based March for Life and the Pennsylvania-based Real Alternatives — are anti-abortion groups that do not qualify for religious exemptions. While their employees may be religious, the groups themselves are not.
March for Life argued that the ACA requirement to cover all contraceptives approved by the Food and Drug Administration includes methods that prevent a fertilized egg from implanting in a woman’s uterus and therefore are a type of abortion. Real Alternatives opposes the use of all contraceptives.
March for Life, which coordinates an annual abortion protest each year, won its suit before a federal district court judge in Washington, D.C.
But a federal appeals court ruled in August that Real Alternatives, which offers counseling services designed to help women choose not to have an abortion, does not qualify as a religious entity and thus cannot claim the exemption. That decision cited a lower-court ruling that “finding a singular moral objection to law on par with a religious objection could very well lead to a flood of similar objections.”
The departments of Treasury, Labor and Health and Human Services, however, suggest that, at least in this case, that will not happen. The regulation issued by those departments says officials “assume the exemption will be used by nine nonprofit entities” and “nine for-profit entities.” Among the latter, it said, “we estimate that 15 women may incur contraceptive costs due to for-profit entities using the expanded exemption provided” in the rules.
The regulation also seeks comments on whether the moral exemption should be extended to publicly traded firms.
Rienzi agrees that the universe for the moral exemption is likely to be small. “The odds that anyone new is going to come up and say ‘Aha, I finally have my way out,’ ” he said, “is crazy.”
Women’s health advocates, however, are not so sure.
“The parameters of what constitutes a moral objection is unclear,” said Mara Gandal-Powers, senior counsel at the National Women’s Law Center, which is preparing to sue to stop both rules. “There is nothing in the regulatory language itself that says what a moral belief is that would rise to the level of making an organization eligible for the exemption.”
Louise Melling, deputy legal director at the ACLU, which has already filed a lawsuit, agreed. “We don’t know how many other entities are out there that would assert a moral objection,” she said. “Not everybody wanted to file a suit,” particularly smaller organizations.
All of that, however, presupposes that the rule laying out the moral objection exemption will stand up in court.
Bagley said he’s doubtful. The legal arguments making the case for the exemption, he said, are “the kind of things that would be laughed out of a [first-year] class on statutory interpretation.”
Specifically, he said, the rule lays out all the times Congress has included provisions in laws for moral objections. But rather than justifying the case, “it suggests that Congress knew a lot about how to craft a moral objection if it wanted to,” and it did not in the health law, he noted.
Bagley said the fact that the moral exemption was laid out in a separate rule from the religious one demonstrates that the administration is concerned the former might not stand up to court proceedings. “The administration must sense this rule is on thin legal ice,” he said.
Which leads to the question of why Trump officials even bothered doing a separate rule. Bagley said he thinks the act was more political than substantive. “The administration is doing something that signals to religious employers … that they are on their sides, that they have their backs.”
–Julie Rovner, Kaiser Health News
cheryll murphy says
I refuse to read all this stuff. Quit whining because he took away something that was accessible to all. Not expensive. We are tired of paying for stuff that was not free until Obama jumped in and made all you people needy. Liberalism is not healthy. You people didn’t cry about when you didn’t have it before Obama, so now you want to whine that it is the most important deal. How on earth are we going to make women strong and not relying on the government to carry them through their years? Trump gives choices……..think about it.
@Pay for your boner pills yourself
Every Sperm is Sacred – Monty Python’s The Meaning of Life
USA Lover says
Abortion is genocide and unwelcome in this country.
I long for the day when women have as much rights as gun owners.
What happens when another religious nut come forward with his belief being that abortions are good and God wants everyone to have at five (5) of them to gain access to the real Heaven.
Stranger in a strange land says
Once again, pro birth but not pro LIFE. Life requires an education, so if you call yourself prolife, vote to pass school budgets. LIFE requires food so be in favor of food stamps. LIFE requires housing so be in favor of welfare. Some life requires special care so adopt a disabled or drug addiced baby (or at least be outraged when your Governor or other representatives reduce funding for programs to help these children). When you do these things, then you will be prolife. Otherwise you are a hypocrite.
So you want them to be required to have a license to be in public,to keep them out of schools,courthouse,post office.and you want us to have to keep women locked up unless they are in use….
Proud American says
That’s a great thing I think… For example I am more of a republican, but I am an atheist and pro abortion as long as it’s early… But that doesn’t mean I have no morals… And no others should not have to pay for your viagra or burth control…
AGAIN. . . the costs to insurance policyholders (US) is much lower for birth control than it is for maternity care and child delivery. So, if your only concern is your wallet. . . you should be in favor of birth control being covered by health insurance.
Stranger in a strange land is right on when it comes to those calling themselves “pro-life”. . . most of you are only “pro-fetus”, and hypocrites at that!
The old men who have no problem with us policyholders paying for their $10 a pop Viagra pills certainly should not be against birth control being covered. Or, are you hypocrites as well?
Requiring health insurance coverage for birth control certainly does NOT REQUIRE anyone to actually use that benefit. But, it certainly is beneficial to women’s health in several different ways.
Those who think that women should just abstain. . . should be abstaining themselves. . . Or, are you hypocrites, as well?