Explainer: HHS final rules ensure exemptions to the contraceptive mandate

November 9, 2018

When the Affordable Care Act (ACA) was enacted in 2010, there was much discussion about what this new law would mean in regards to the health care coverage requirements. Beginning in 2011, the Departments of Health and Human Services (HHS), Treasury, and Labor established mandated coverage of contraceptives, including those with abortifacient properties, in health care plans. The Obama Administration offered a narrow exemption for churches, religious orders, and integrated auxiliaries (organizations with financial support primarily from churches).

This new contraceptive mandate prompted numerous legal challenges from religious organizations and small businesses nationwide. The historic Burwell v. Hobby Lobby Stores, Inc. decision was made in 2014, in which the Supreme Court ruled that closely held for-profit organizations can constitutionally object and be exempted from the mandate on the basis of sincerely held religious beliefs. In the majority opinion, Justice Alito argued: “HHS’s contraceptive mandate substantially burdens the exercise of religion.” Though religious freedom advocates welcomed the success, dozens of other organizations continued the fight by filing lawsuits against the HHS on the basis of moral conviction.

In follow up to both the Supreme Court’s opinion and the moral concerns raised thereafter, the Trump Administration proposed two interim rules in October 2017. On Wednesday of this week, HHS, Treasury, and Labor issued both rules as final.

The first would provide an exemption on the basis of sincerely held religious beliefs, and the second on the basis of nonreligious moral convictions. Nonprofit organizations, closely held for-profit entities, education institutions, insurance providers, and individuals are eligible for exemption under both rules. Protections only extend to publicly-traded businesses if their opposition to the mandate is because of their sincerely held religious beliefs, but not if the opposition is because of their nonreligious moral convictions. Government entities do not qualify for either exemption. The exemptions specifically extend to certain contraceptives many view as abortifacients, and/or sterilization procedures.

In support of the interim rules, ERLC President Russell Moore commented,

The government has no business whatsoever forcing citizens to subsidize the destruction of human life and the exploitation of families and communities. 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.

After the announcement of the final rules this week, Moore added, “These exemptions are the long awaited conclusion to the crucial achievement of preserving religious liberty from an unlawful government overreach. I am thankful that this effort finally ends with religious and moral exemptions issued by the Administration.”

Between the interim rule release in October 2017 and the final rules issued in November 2018, the Administration accepted over 100,000 comments from the public, including comments drafted by the ERLC policy team affirming the proposed rules. The three federal departments considered these comments before institutionalizing the rules.

The new final rules will go into effect 60 days after their publication in the Federal Register.