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New health care rules will allow more employers to sidestep contraception mandate

Posted 10:47 a.m. Thursday

The Trump administration on Friday announced a long-awaited change to the Affordable Care Act's contraception mandate, expanding exemptions and accommodations to employers with religious and moral objections to birth control.

Now, exemptions to the mandate are available to any nongovernmental employer, including owners of publicly traded companies.

"At a very high level, this appears to be a common sense, balanced rule. (It's) a great step forward for religious liberty," said Mark Rienzi, senior counsel at Becket, a law firm that's been fighting to expand religious exemptions for more than five years.

The new interim final rules — one regarding religious objections to birth control and the other, moral qualms — seek to end years of legal wrangling, which pitted the federal government against religious business owners, faith-based schools and charities, Catholic nuns and a number of other conscientious objectors to contraception.

"Even if (federal religious freedom law) does not compel the religious exemptions provided in these interim final rules, the departments believe they are the most appropriate administrative response to the religious objections that have been raised," conclude officials from the Department of the Treasury, the Department of Labor and the Department of Health and Human Services.

However, the rules will likely lead to lawsuits of a different nature, as advocates for women's health care fight for contraception coverage.

"The National Women's Law Center, a nonprofit advocacy group, has been preparing a lawsuit since last spring, when it learned that the Trump administration intended to rewrite the contraception mandate," The New York Times reported.

The American Civil Liberties Union also announced its intentions to sue on Twitter, arguing that employers don't have a right to make health decisions for their employees.

“The Trump administration is forcing women to pay for their boss’s religious beliefs,” said ACLU senior staff attorney Brigitte Amiri in a statement. “We’re filing this lawsuit because the federal government cannot authorize discrimination against women in the name of religion or otherwise.”

The new interim final rules fulfill a promise President Donald Trump made in May, when he signed his religious freedom executive order.

"No Americans should be forced to choose between the dictates of the federal government and the tenets of their faith," he said, announcing the administration's plan to revisit birth control-related regulations and expand who was eligible for an exemption.

The rules closely mirror a leaked draft of contraception-related policy changes that came out in late May, although religious and moral exceptions are now addressed separately. Additionally, these new rules include an apparent admission of past wrongdoing by government officials, who say that the initial accommodations process violated the Religious Freedom Restoration Act.

"Upon further examination of the relevant provisions of the Affordable Care Act and the administrative record on which the mandate was based, the departments have concluded that the application of the mandate to entities with sincerely held religious objections to it does not serve a compelling government interest," officials write.

The Affordable Care Act's contraception mandate has been updated about 10 times over the last six years, as the Obama administration sought to address religious concerns related to birth control. Religiously affiliated nonprofits have already been able to avoid directly providing contraceptive coverage, but they objected to employees still having access to birth control through their insurance companies.

Legal disputes over the mandate reached the Supreme Court. In June 2014, justices ruled in favor of Hobby Lobby and other closely held corporations whose owners objected to contraception for religious reasons. Last year, in a case involving the Little Sisters of the Poor, a Catholic order of nuns, the court ordered the government to work out an accommodation that would satisfy religiously affiliated nonprofits. That case and others related to the exemption and accommodation process are ongoing.

"This was always a big, unnecessary and divisive culture war fight. Simply put, you don't need nuns to give out contraceptives," Rienzi said, referencing Becket's clients, the Little Sisters of the Poor.

Now, employers with religious or moral objections to birth control will have the same exemption that was initially only available to houses of worship. They can also choose to participate in an existing accommodation, which enables employees to receive birth control coverage directly through their employer's insurer.

Becket and other law firms representing employers with religious objections to birth control say they will continue to await a final injunction from the courts, since even the new rules aren't set in stone.

The new policy "could change, and it's subject to challenge," Rienzi said. The Little Sisters of the Poor and other religious nonprofits "need final relief in court."

Email: kdallas@deseretnews.com Twitter: @kelsey_dallas

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