Little Sisters of the Poor attorneys still asking: Why hasn't Trump DoJ conceded on HHS contraception mandate?

It’s been nearly four months since Donald Trump issued his executive order to promote religious liberty. The same May 4th day, Tom Price pledged action to provide relief to religious organizations from enforcement of encroaching regulations. Nearly three months ago, HHS issued a draft memo that proposed exempting employers that objected to the contraception mandate in ObamaCare.


And then …. nothing. In fact, the Department of Justice continues to defend the HHS contraception mandate in court cases involving religious organizations, including the Little Sisters of the Poor, whom Trump told on May 4th, “Your long ordeal will soon be over.” Now their attorneys want to know just how long they’re supposed to wait for “soon” to arrive:

Lawyers for the Little Sisters of the Poor said it’s time for the Trump administration to admit that the Obama-era contraception mandate is unconstitutional and provide the sisters relief.

“I think we’re in a moment of truth and reconciliation here,” Becket executive director Montse Alvarado told CNA. Becket has represented for-profit and non-profit plaintiffs in cases against the HHS mandate, winning at the Supreme Court in 2014 in the Hobby Lobby case.

“The government’s lawyers need to admit that what they were doing is illegal. We need them to honestly admit,” Alvarado said, “that they were doing something unconstitutional.” The Department of Health and Human Services also needs to issue a “new rule” providing relief from the mandate from all parties that conscientiously object to it, she said, and the plaintiffs need “win their cases” in court.

The proximate cause of this angst is a little-noticed August 4th ruling by the Third Circuit Court of Appeals in Real Alternatives v HHS et al. Real Alternatives, Inc is a crisis pregnancy center that exists to deter women from seeking abortions by providing them free support for their pregnancies. They attempted to get an exemption from the mandate to provide abortifacient contraception on the basis of its mission, which HHS denied, and went to court to gain the exemption. The appellate decision agreed with the district court that the organization itself did not qualify for a religious exemption, and that furthermore the individual objections did not meet the RFRA threshold for objection.


While it’s a little off the point of the complaint from Becket, Judge Jordan’s dissent cuts to the heart of the faulty assumptions in play with the HHS contraception mandate:

Having been beaten back in earlier efforts to force the Contraceptive Mandate on the populace, the government has changed its tune a bit – it has come up with a new rationale for its erratically aggressive enforcement of that feature of the ACA – but the song it sings is essentially the same: individuals whose faith prompts sincere opposition to paying  for or facilitating the purchase of contraceptives cannot be heard to object; the only thing legitimately at issue is the regulation of insurance markets. According to the government, the Mandate has nothing to do with deep questions about the beginning of life, or the boundaries of moral culpability, or about faith and one’s obligations to God. Religious beliefs are not being burdened in any meaningful sense, so people should just stop complaining. That is the line pressed by the United States Department of Justice, and it is the line accepted by my colleagues in the Majority, but I reject it. …

After the federal government gave itself a vastly greater role in the health insurance market, there has no doubt been less room for decision making by individual purchasers. But that does not mean that people were not meaningfully participating in the market before. There were plans available that employers were free to sponsor, and employees were free to seek, that did not require payment for contraceptive coverage. And there are still, as this record demonstrates, insurers who are ready, willing, and able to provide such plans again, if the government did not forbid it. So, while it is true that individual choice has been drastically reduced by the federal government, that subtraction of freedom cannot be a reason to say that government coercion of payment for unwanted contraceptive products – indeed, to some people, morally abhorrent products – is no burden on individuals. The circularity of the government’s and the Majority’s reasoning is stark. …

In my view, the Individual Plaintiffs have adequately pled and provided sufficient evidence to demonstrate that the Contraceptive Mandate is a substantial burden on their free exercise of religion.

Having reached that conclusion, I confront the question that the Majority avoids: whether the Contraceptive Mandate is narrowly tailored to support a compelling government interest. The answer is no. Time and again courts have rejected the regulation because it is not the least restrictive means of achieving its objective. There are several other options the government could have chosen to enforce its regulation without impinging on the rights of religiously devout individuals.


Note the emphasis I added, and you’ll get why Alvarado is complaining. The DoJ argued this case in November of last year, and it’s not so simple for them to simply say “never mind” to an appellate court with a case under review, but it’s still a loss on a policy that they were promised would be ended by now. It’s been seven months since Trump took office and now almost four since he made that promise to the Little Sisters, and yet there is no sign that their long ordeal has changed a bit. The Trump administration is still defending the contraception mandate in all of these cases, and the Trump administration’s HHS has yet to concede even one.

As Matt Hadro points out in this Catholic News Agency report, Alvarado hasn’t seen any improvement in a case that the DoJ could easily drop either. Last year, the Supreme Court vacated rulings in Zubik v Burwell and directed the DoJ and Becket to negotiate a new rule on exemptions. The Trump administration could have just conceded at this point. Instead, they asked for an extension of the July 31st deadline, indicating that they still would pursue the case:

Furthermore, the Justice Department has not dropped its defense of the mandate cases currently in court, but rather asked for more time for the administration to issue a final rule on the anticipated exemptions to the mandate. …

The Supreme Court sent the cases back down to the lower court level, and directed both the government and the plaintiffs to come to a solution satisfying both parties.

“We were told to negotiate and come up with a win for the Sisters for the case, and also HHS was told to come up with a new rule that gives them the relief that was provided by the injunction by making it permanent,” Alvarado said.


Enough is enough. How long will it take for Trump, Price, Jeff Sessions, and the rest of the administration to make good on their promises to the Little Sisters and all religious employers?

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