Trump DOJ Will Not Fold On O’Care Contraceptive Mandate Just Yet

Attorney General Jeff Sessions makes a statement on issues related to visas and travel, Monday, March 6, 2017, from the U.S. Customs and Border Protection office in Washington. (AP Photo/Susan Walsh)
Susan Walsh/AP
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Given the opportunity to drop its defense of Obamacare’s contraceptive mandate in a case challenging its accommodation to religious employers, the Justice Department, under President Trump, asked the court for more time Monday to consider the “complex” issues within a Supreme Court directive handed down last year in a related lawsuit.

The move upset those challenging the accommodation, the Washington Post reported, who believe the Trump administration is violating his campaign promise to reverse the Justice Department’s defense of the waiver option the federal government offers organizations with religious objections to the contraceptive mandate.

“That just seems to be very contrary to what they’ve been saying publicly,” Eric Rassbach—a lawyer working for the religious freedom legal firm that is representing some of the challengers—told the Washington Post about Monday’s filing.

The case, East Texas Baptist University v. Price, is a consolidation of multiple lawsuits against the Health and Human Services Department and other federal agencies brought by employers who object to the accommodation granted to religious organizations that don’t want to cover birth control, as mandated by the Affordable Care Act. The groups say that even filling out the form asking to opt-out of covering the contraceptives—and thus triggering the process through which their employees receive the coverage elsewhere—is a form of complicity in forms of birth control to which they have religious objections.

One such legal challenge, Zubik v. Burwell, made it up to the Supreme Court last year.  The court, down to eight members after the death of Justice Antonin Scalia, essentially punted and asked the parties to figure out a compromise. Those negotiations are currently going on at the appeals court level, including at the U.S. Court of Appeals for the 5th Circuit, where the East Texas Baptist University case had been paused for the parties to hash out a potential agreement.

Last week, some of the religious groups had asked for the 5th Circuit to end its pause on the proceedings and for the Justice Department to drop its defense of the accommodation:

It has been more than eleven months since the Supreme Court vacated and remanded this appeal to this Court. During that interval, there has been a presidential election, a new President inaugurated, both a new Attorney General and a new Secretary of Health and Human Services sworn in, and a new Supreme Court Justice confirmed by the Senate. There have also been four orders issued by this Court continuing the stay of this appeal, No. 14- 20112. The government’s position in this case has also changed dramatically—both before and after the events described above—in ways that make any continuation of the government’s appeal untenable. It is now high time for the Department of Justice to admit defeat and dismiss this appeal. This Court should therefore allow the current stay to expire as scheduled on April 24.

The Trump administration, however, asked for the pause on the proceedings to continue in its filing Monday:

Plaintiffs emphasize that eleven months have elapsed since that remand order but, as they acknowledge, the new Administration has been in place for only a few months. The regulations at issue here are jointly administered by three Departments—the Department of Health & Human Services, the Department of Labor, and the Department of the Treasury—and are the subject of numerous other lawsuits being handled by the Department of Justice. The nominee to be Secretary of Labor has not yet been confirmed, and numerous subcabinet positions at the Departments have not yet been filled. The issues presented by the Supreme Court’s remand order are complex; for example, the original accommodation took more than a year to develop with input from interested parties.

Read the full Trump administration filing below:

ABOUT THE AUTHOR

Tierney Sneed is a reporter for Talking Points Memo. She previously worked for U.S. News and World Report. She grew up in Florida and attended Georgetown University.
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