The Trump administration delivered a major victory for freedom of conscience Oct. 6 by issuing new rules to protect objectors to the abortion/contraception mandate instituted under President Barack Obama.
One of the two companion rules announced exempts entities from the requirement based on their religious beliefs, while the other regulation protects organizations and small businesses on the basis of a moral conviction apart from a specific religious belief, according to a news release from the Department of Health and Human Services (HHS).
The win for objectors comes after a six-year battle against an HHS mandate that requires employers to provide their workers with coverage for contraceptives, including those with mechanisms that can potentially induce abortions. The 2011 rule, which helped implement the controversial health-care law enacted the previous year, resulted in legal challenges from more than 90 religious nonprofits, including GuideStone Financial Resources of the Southern Baptist Convention (SBC) and four Baptist universities.
Southern Baptist and other religious freedom advocates praised the new rules.
Ethicist Russell Moore expressed his gratitude and described the action as “a crucial achievement in the preservation of religious liberty.”
“The government has no business whatsoever forcing citizens to subsidize the destruction of human life and the exploitation of families and communities,” said Moore, president of the Ethics & Religious Liberty Commission (ERLC), in a written release. “More still, the contraceptive mandate revealed the audacity of a state that believed it could annex the human conscience, which is why I have long opposed it as an unlawful overreach asking citizens to choose between obedience to God and compliance with the regulatory state. A government that can pave over the consciences of some can steamroll over dissent everywhere.”
Frank S. Page, president of the SBC Executive Committee, said in a written statement for Baptist Press he continues to be grateful to the president “for his stance regarding religious liberty. For a country which treasures freedom of speech and freedom of conscience, it is good to finally have a president who will actually stand up for these principles and do more than give lip service. Thank you, Mr. President!”
GuideStone welcomed the new rules, while acknowledging it awaits a final, positive judgment in court that hopefully will be supported by the government.
GuideStone President O.S. Hawkins said in a written release, “We are grateful to God, first and foremost, for this outcome. This has been a matter of continued prayer as we petitioned the throne of grace and the seat of government for redress of our grievances. Today is indeed a good day as we give thanks for the outcome we believe honors the Lord.”
Hawkins also described it as “good news for all Americans who value the important role of religious liberty in our nation.”
Harold Loftin, GuideStone’s general counsel, said the action “validates the claims asserted in our lawsuit. The interim final rule published today in essence acknowledges that the government violated the law in proposing the original [mandate].”
Mark Rienzi, general counsel with Becket, called it “a victory for common sense.”
“HHS has issued a balanced rule that respects all sides – it keeps the contraceptive mandate in place for most employers and now provides a religious exemption,” Rienzi said in written comments.
Gregory Baylor, senior counsel for Alliance Defending Freedom (ADF), said in a written release, “Although organizations that filed civil rights lawsuits will still need final relief from the courts, it is encouraging to see the Trump Administration affirm the principle that all Americans should be free to peacefully live and work according to their faith and conscience without threat of government punishment.”
Becket and ADF are both representing institutions that have challenged the HHS mandate’s failure to provide an adequate accommodation for their religious beliefs.
The issuance of what are described as “interim final” rules came five months after an executive order from President Trump directed the secretaries of three federal departments to consider revising rules to protect the religious freedom of the mandate’s objectors. Trump issued his executive order – which also addressed other religious freedom issues – on National Day of Prayer, May 4, in a ceremony at the White House Rose Garden.
In its release, HHS said the new rules will have no effect on government programs that offer free or subsidized contraceptive coverage to low-income women. The rules will not impact more than 99.9 percent of American women, it said.
In May 2016, the U.S. Supreme Court ified multiple federal appeals court decisions against the religious institutions and blocked the Obama administration from imposing fines on them. The justices told the appeals courts involved to give the parties an opportunity to reach a solution “that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.” No agreement was reached before Obama left office in January.
When it issued the controversial rule in August 2011, HHS provided an exemption for churches and their auxiliaries but did not extend it to non-church-related, nonprofit organizations that object. HHS proposed nearly 10 accommodations for the objecting institutions, but none proved satisfactory to their conscience concerns.
The federally approved contraceptives for which coverage is required by the mandate include the intrauterine device (IUD) and such drugs as Plan B, the “morning-after” pill. Both the IUD and “morning-after” pill possess post-fertilization mechanisms that potentially can cause abortions by preventing implantation of tiny embryos. The rule also covers “ella,” which – in a fashion similar to the abortion drug RU 486 – can act even after implantation to end the life of the child.
GuideStone, the SBC’s health and financial benefits entity, is exempt from the mandate, but it serves ministries that are required to obey the requirement. The Baptist universities that are parties in lawsuits challenging the mandate’s failure to provide an adequate accommodation are East Texas Baptist, Houston Baptist, Oklahoma Baptist and Truett McConnell.
The ERLC and two other SBC entities – the International Mission Board and The Southern Baptist Theological Seminary (SBTS), as well as SBTS’s president, R. Albert Mohler Jr. – filed a friend-of-the-court brief in 2016 that urged the Supreme Court to rule the HHS accommodation violates religious freedom.
In 2014, the Supreme Court ruled in favor of Hobby Lobby’s conscience-based challenge to the abortion/contraception mandate. In its 5-4 opinion in that case, the justices upheld objections to the requirement by “closely held,” for-profit companies, such as family owned businesses.
Messengers to the 2012 SBC meeting adopted a resolution calling for an exemption from the mandate for “all religious organizations and people of faith … who declare a religious objection to such coverage.”
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press, the Southern Baptist Convention’s news service.)