Category Religious Freedom and Rights
Title Victory for Religious Freedom!
Preview Victory for Religious Freedom - 2017

Victory for Religious Freedom!

The History

The Patient Protection and Affordable Care Act was signed into law by President Barack Obama on March 23, 2010. The Act requires "group health plans" to provide "preventative care and screening" for women, which includes contraceptive services that some religious organizations object to for religious reasons.

The mandate by the U.S. Department of Health and Human Services (HHS) was a requirement that, with a few exceptions, all employee health plans must include no-cost coverage of "all FDA approved contraceptive services"—birth control pills, emergency contraceptives and IUDs (including abortifacients), sterilization, and education about these matters.

In 2011, the interim regulations came out and narrowly defined the religious exemption. It basically included only churches and their integrated auxiliaries. It was seen as the narrowest definition of a religious organization in American history. However, there would be an accommodation to those religious nonprofits that objected to the contraceptive mandate.

In 2012, the final regulations from HHS on the contraceptive mandate were issued. These regulations still only exempted churches and their integrated auxiliaries from the mandate. Integrated auxiliary was defined in that  the auxiliary received 50 percent of its income or support from the sponsoring church. Therefore, this would not have included most Christian schools. These religious nonprofits were given the accommodation. Which basically meant if the organization objected to providing the contraceptives, it could notify their health insurance providers of its objection. Then the health insurance provider was to contact the organization's employees and offer to pay for their contraceptives. Of course, for many religious nonprofits this was still unacceptable. The for-profit companies who held to religious beliefs has no exemption at all.

By 2013, there were 48 lawsuits with 140 organizations filed against the federal government over the HHS Mandate. This included religious nonprofits and fhose for-profit companies that were governed by religious principles. Some courts had begun to provide injunctions protecting those companies for the time being from offering the objectionable contraceptives.

By the beginning of 2014, when full implementation of the health care law was to begin, there were over 65 lawsuits with 200 organizations suing the federal government. In October of 2014, ACSI along with others filed a lawsuit in objection  to the HHS Mandate. THere was also no relief for nonprofits that were not religious to have moral objections. One of the for-profits that sued was Hobby Lobby, owned by a devoutly religious family, the Greens. That case made it to the U.S. Supreme Court, and in June 2014 the court ruled in favor or Hobby Lobby. It said that closely held religious for-profits should be provided an accommodation.

One other case was a group of nuns that served the poor, called "Little Sisters of the Poor". However, a lower court and then the appeals court ruled against them, and their case proceeded to the U.S. Supreme Court in the fall of 2015. ACSI also lost its case at the Tenth Circuit, but a stay was kept in place until the Little Sisters of the Poor's case was decided at the U.S. Supreme Court. In March of 2016, the nuns got their day in court and presented their objections to the HHS Contraceptive Mandate.

Then in May, ruling unanimously in favor of the "Little Sisters of the Poor," the U.S. Supreme Court sent the case back to the lower court to review it again in light of the facts that both parties believed that some kind of better accommodation could be worked out for those who objected to the mandate.

Then came the election of Donald Trump as president of the United States. President Trump promised to provide relief from the Mandate. On his first day in office, the president signed an executive order on the Affordable Care Act that directed the executive branch to "exercise all authority and discretion available to them to waive, defer, grant exemptions from or delay implementation of any provision or requirement of the Act" that would impose a cost or regulatory burden on individuals, families, patients, insurers, doctors, and more.

In addition, the president issues an executive order on religious freedom on May 4, 2017, requiring the executive branch to issue guidance on religious liberty generally and requiring the appropriate departments to consider amended regulations "to address conscience-based objections to the preventative-care mandate".

Then Came Victory!

On October 6, 2017, after years of battling, the Trump administration broadened the exemption to the HHS Contraceptive Mandate. The religious organizations exemption previously afforded only to churches and their integrated auxiliaries was expanded to include all religious organization with an objection to the abortion-inducing contraceptives. It even extended to an employer's moral objections.

The Department of Labor and the Department of Health and Human Services jointly issued the new regulations. These interim final regulations became effective on October 6 but are available for public comment through December 5.

The agencies offered this context to describe the purpose of these clarified regulations: "The United States has a long history of providing conscience protections in the regulation of health care for entities and individuals with objections based on religious beliefs and moral convictions. These interim final rules expand exemptions to protect religious beliefs for certain entities and individuals whose health plans are subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act."

The Department of Justice also issued guidance on religious liberty "to guide all administrative agencies and executive departments in the execution of federal law." The guidance is based on 20 foundational principles, including, for example, that "government may not favor or disfavor particular religious groups"; that it "may not interfere with the autonomy of a religious organization"; and "Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government."

The Departments of Health and Human Services (HHS), Treasury, and Labor also announced two companion interim final rules that provide conscience protections to Americans who have a religious or moral objection to paying for health insurance that covers contraceptive/abortifacient services. Notice that this is far more expansive than a solely religious objection. In short, the religious exemption applies to any objecting employer or issuer. THe moral exemption applies to nonprofit organizations and for-profit employers and issuers that are not publicly traded.

The Bottom Line for Christian Schools

All Christian schools are no longer required to provide health insurance coverage for any form of contraceptive, including those that are abortion-inducing. The school may simply let its health insurance provider know that it has a religious or moral objection to contraceptive coverage and does not want it provided to its employees.

ACSI rejoices and praises te Lord for this small victory for religious freedom. On that day, House Speaker Paul D. Ryan (R-Wisconsin) stated, "This is a landmark day for religious liberty."

LLU 28.2

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

Association of Christian Schools International
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Phone: 719.528.6906

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