The Mandate Takes a Hit. That’s Not Enough.

Crossposted from Leaven for the Loaf.

Nine months after taking office, five months after assuring the Little Sisters of the Poor that they could quit fearing fines, the Administration of President Donald Trump has announced a rollback of the HHS contraceptive mandate. (See here for my earlier coverage of the mandate.)

From Fox News:

The Trump administration on Friday announced a major rollback of the ObamaCare contraceptive mandate, granting what officials called “full protection” to a wide range of companies and organizations that claim a “religious or moral objection” to providing the coverage. 

The mandate, which has been the subject of multiple legal challenges, has required employers that provide health insurance to cover contraceptives. Under the existing policy, churches and houses of worship were exempt, while religious-affiliated groups that object had to allow a third-party administrator or insurer to handle birth control coverage. The 2014 Hobby Lobby decision expanded exemptions to for-profit “closely held” corporations.

But under the new policy unveiled Friday, the Trump administration is expanding the protections to any nonprofit group, non-publicly traded company, or higher education institution with religious or moral objections — and making the third-party provision optional for groups with “sincerely held” religious beliefs.

 (Full Fox News post here.)

I’m pleased that the President has followed through on a commitment he could have carried out his first day in office. Better late than never. Maybe he has no roots on this, and it took time for the people around him to put the ducks in a row. Notice the arm’s length language of the news report: Trump administration did thisofficials said that

I’m grateful. That’s simple courtesy and a measure of positive reinforcement. But I’m not going to grovel over the recognition of my rights of conscience and religious liberty that should never have been abrogated in the first place. It’s not as though the President is doing me a favor.

Actually, today’s action does sound like someone thinks there are favors to be dispensed. The news coverage speaks of exemptions, protection, and rollback. Selected entities are added to the list of exempt organizations. No mention of the First Amendment, at least in the initial breaking news update. It’s the First Amendment that’s at issue, which is something the mandate’s supporters have ferociously denied since 2012.

Why does the mandate stand at all? Why is there still anything to be exempted from?

The contraceptive mandate came out of Obamacare’s definition of birth control for women as “preventive care.” In a manner beyond anything the rankest sexist could have dreamed, Obamacare made it government policy that women are broken and need to be fixed. The normal functioning of a woman’s body was something to be “prevented.” Contraception was shifted from being a matter of choice to being a matter of public policy, forcing employers who chose to offer health insurance coverage to be involved in employees’ birth control decisions. Nothing ever put employers into employees’ bedrooms quite like the contraceptive mandate.

It’s to the everlasting credit of the American Catholic bishops that they recognized the mandate’s threat to religious liberty. Among other things, they knew that the Catholic health care system – which provides care to more women than any other provider in the nation – could be fined out of existence by the mandate.

The mandate originally came with exemptions for some politically-favored companies and organizations. Hobby Lobby and other plaintiffs later earned a Supreme Court victory that was extremely narrow, releasing closely-held companies from the mandate. President Trump told the Little Sisters of the Poor earlier this year that they could consider themselves free from fear of being fined for not wishing to pay for insurance coverage for employees’ birth control. At least fifty other lawsuits are pending against the mandate; I don’t know how many just became moot.

Today, the mandate took a serious hit. It’s still staggering around, though. The only way to kill it is to abandon the policy that gave rise to it in the first place. Stop treating the suppression of women’s fertility as “preventive care.” Stop expecting “free” contraception. When “free” means compelling financial support from people with religious objections to contraception, then “free” is too expensive.

Today’s action from the Trump Administration is long overdue. It’s the biggest hit on the mandate since Hobby Lobby. The mandate’s foundation remains in place, though. For religious resisters to the mandate, First Amendment rights are still at risk. May today be a spark to renewed assertion of those rights.