Here We Go Again: Biden Administration To Remove Moral Exemption From HHS Mandate

This week, and for the fifth time in 12 years, the ACLJ has filed a formal comment with federal agencies regarding the HHS Mandate. The Mandate, you will recall, imposed on employers, under pain of ruinous financial penalties, a requirement that they pay for and provide certain drugs and services (including abortion-inducing drugs) through their health insurance plans, even if it went against their firmly held religious beliefs. It was never voted on by Congress but was first concocted by federal agencies under the direction of President Obama and then-HHS Secretary Kathleen Sebelius.

Not long after the Mandate was issued in early 2012, a groundswell of litigation commenced. The ACLJ filed the first lawsuit on behalf of a for-profit employer against the Mandate, O’Brien Industrial Holdings v. Sebelius, which was followed by ACLJ litigation in six other cases. We also filed a certiorari petition with the Supreme Court on behalf of Frank and Phil Gilardi, who own and operate Freshway Foods in Ohio. The Court granted that petition, and we prevailed at the Supreme Court. In total, the ACLJ represented 32 individuals and corporations in seven separate legal challenges against the Mandate.

Though the Supreme Court ruled in the Hobby Lobby decision that the Mandate violated the rights of objecting employers under the Religious Freedom Restoration Act (“RFRA”), the Obama Administration did not back down. Instead of granting employers such as Hobby Lobby, the Little Sisters of the Poor, our clients, and other objecting employers a complete exemption from having to comply with the Mandate—something that, as we have always argued, was required by the RFRA—the Administration came up with a so-called “accommodation.” It was a shell game that amounted to nothing more than accounting gimmicks and euphemisms—an alternative means to force these employers to violate their conscience.

That “accommodation” became the subject of the Supreme Court’s decision in Zubik v. Burwell, a case in which the ACLJ filed an amicus brief. In that case, the Court did not specifically rule on the Mandate’s legality but instructed the parties to try and work out their differences. The Supreme Court did rule, however, that “the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice” while those cases remained pending.

Following the Supreme Court’s decisions in Hobby Lobby and Zubik, and with a new Administration in place that took conscience rights seriously, the ACLJ submitted comments to HHS urging new rule changes that would provide key conscience exemptions, arguing that no one should be forced to violate their faith.

In 2018, the Trump Administration finalized rules that allowed employers with either a religious or non-religious moral objection to the Mandate to be exempt from compliance. As the ACLJ said in support of those rules:

The ACLJ welcomes and commends the Departments for, at long last, truly accommodating objecting entities and individuals from having to comply with the Mandate. The exemptions afforded by the [rules] will allow these persons to fulfill their respective roles in society without having to abandon their religious convictions or moral conscience. A Catholic order of nuns will now be able to serve the poor and needy without having to be complicit in the provision of drugs to which they object. An evangelical, family-owned business will not have to choose between shutting its doors or staying true to its beliefs. A pro-life organization will be able to continue its pro-life advocacy without having to participate in a governmental scheme that undermines its very mission and identity.

Sure enough, pro-abortion attorneys general (including the current secretary of HHS, Xavier Becerra) filed lawsuits challenging the religious and moral exemptions. That litigation culminated in yet another Supreme Court case involving the Mandate: Little Sisters of the Poor v. Pennsylvania. Writing for the Court, which upheld both exemptions under the Administrative Procedure Act, Justice Thomas said:

For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother. . . . But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision—have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs. After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate.

One would think that after three Supreme Court decisions involving religious and moral objections to the Mandate, the matter would finally—at long last—be resolved. Not so. The Biden Administration is now proposing to revoke the non-religious moral exemption for employers who object to complying with the Mandate.

One reason the Administration gives for removing the moral exemption is because of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health. The proposed rule argues: “Given that decision [in Dobbs] and the consequent threat to women’s access to abortion and their ability to exercise control over their reproductive health care decisions, it is now all the more critical that women have access to contraceptive coverage.” Nonsense.

As explained in our objection to the revocation of the moral exemption (submitted on behalf of over 500,000 ACLJ supporters):

Abortion remains a controversial subject to this day, perhaps even more so since the Supreme Court’s decision in Dobbs. The Departments are fully aware of this but nonetheless want to compel employers to comply with the Mandate, even if doing so violates their non-religious moral beliefs. Compelling persons to violate their conscience regarding the facilitation of abortion is akin to—if not worse than—compelling them to speak a message contrary to their beliefs on that same controversial subject. Just as “[g]overnments must not be allowed to force persons to express a message contrary to their deepest convictions,” they should not be allowed to force persons to facilitate abortion contrary to their moral convictions.

Cardinal Timothy Dolan was undeniably correct when he stated that the government cannot “leave well enough alone” in this matter. Instead, the Administration wants to fight tooth and nail to drag any remaining conscientious objectors into compliance by revoking the non-religious moral exemption. As our comment explains, such compulsion of conscience is anathema under any truly ordered system of liberty:

[O]ur country’s historic concern for respecting conscience rights has included protecting both religious and moral commitments. There is no principled reason for the government to protect one and not the other. As the Supreme Court has observed, “[i]f an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content . . . those beliefs certainly occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.”

Respect for conscience rights is fundamental to our country’s long-standing respect for conscience rights. So long as the government aims to coerce pro-life persons of conscience into facilitating abortion, the ACLJ stands ready to defend what James Madison described as “the most sacred of all property.”