Here We Go Again: Biden Takes Aim at Conscience Protections Against Abortion-Pill Mandate


Geoffrey Surtees

September 3, 2021

5 min read

Pro Life



Right on the heels of the Biden Administration dismissing its lawsuit against the University of Vermont Medical Center for violation of federal conscience laws—a move denounced by the ACLJ and roundly criticized by Senator James Lankford and others—it has now turned its sights to stripping conscience protections from those who object to the Obama-era Health and Human Services (HHS) abortion-pill mandate.

The HHS Mandate, you will recall, was imposed on the country ten years ago, not by Congress, but by pro-abortion bureaucrats in the Health Resources and Services Administration, an agency of HHS. The Mandate required employers to include free access to abortifacient drugs in health care plans for their employees, even if the employer had religious objections to doing so.

Not only did the ACLJ file numerous rounds of formal comments with HHS in opposition to the Mandate (described here), we filed lawsuits in federal courts across the country challenging it. Beginning with the first lawsuit to challenge the Mandate on behalf of a for-profit corporation, the ACLJ eventually brought suit on behalf of 32 individuals and for-profit corporations in seven separate legal actions. One of those cases made its way to the U.S. Supreme Court, which reversed the D.C. Circuit’s ruling against our clients.

In light of the Supreme Court’s decision in Hobby Lobby and the Court’s first decision involving the Little Sisters of the Poor, Zubik v. Burwell, the Trump Administration sought to put an end to years of litigation over the Mandate by adopting regulations that granted most employers moral and religious exemptions from having to comply. (The ACLJ filed formal comments in support of those regulations.) That did not settle the matter, however. Numerous lawsuits were soon filed by state attorneys-general arguing that those exemptions were illegal under the Administrative Procedure Act.

The Supreme Court granted review in one of those cases, and in its second decision involving the Little Sisters of the Poor—handed down just last year—the Court held that the Trump Administration “had the authority to provide [moral and religious] exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.” Justice Thomas wrote that, “[a]fter 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.”

After last year’s 7-2 ruling from the Supreme Court, one would think that pro-abortion ideologues and politicians would have finally called a truce and moved on.  Not so. Undaunted, the states challenging the Trump conscience rules continued to press their claims in various district courts on other grounds.

Last week, in one of those cases, the Department of Justice informed the court that the Biden Administration would soon seek to alter the exemption rules upheld by the Supreme Court. According to that filing, “[t]he Departments [of Health and Human Services, Treasury, and Labor] intend to initiate rulemaking within 6 months to amend the 2018 final regulations and obtaining public input will be included as part of the Departments’ rulemaking process.” (You can read more about that announcement here.)

In other words, the federal government, which just three years ago granted exemptions to employers who object to the Abortion-Pill Mandate, is now seeking to pull the rug out from under them. Yes, elections make a difference, and a new Administration is entitled to pursue its policies through regulatory rulemaking; but if there is one principle that should transcend party politics, it is respect for the rights of conscience. As the First Freedom protected in the First Amendment, religious liberty ought to be a constant and consistent commitment—no matter who lives at 1600 Pennsylvania Avenue.

What exactly the Biden Administration’s proposed rules will say remains unknown, but it doesn’t take a crystal ball to see that religious freedom will again get kicked to the curb. Xavier Becerra was one of the lead attorneys general fighting the exemptions in court before being appointed Secretary for HHS. While on the campaign trail, President Biden publicly criticized last year’s Supreme Court decision in favor of the Little Sisters and pledged to return to his former boss’s scheme of dealing with religious objectors. Under that plan, only houses of worship would be exempt from complying with the Mandate. Religious orders, such as the Little Sisters of the Poor, would not be exempt; religious charities, such as soup kitchens and pregnancy centers, would not be exempt. Pro-life organizations, like March for Life, or family-owned businesses, like our former clients, would have to once again kowtow to the Abortion-Pill Mandate.

The ACLJ stands ready to file formal comments in response to the Administration’s proposed rules, as we have done many times before. We also stand ready to challenge any rule in federal court, including seeking Supreme Court review—again—if necessary. Religious freedom is not a perk of American citizens that the federal government has the discretion to suppress at will; it is a constitutional right that we must be ever vigilant in protecting.