(CN) – A Trump administration proposal to allow employers to opt out of providing contraceptive coverage in the health insurance plans on moral or religious grounds could be finalized at any time, and the uncertainty over when that rule will be finalized is causing concern among civil libertarians.
On Thursday, Louise Melling, deputy legal director for the American Civil Liberties Union said while the definitive effective date for the final rule remains unclear, filings at the Office of Management and Budget – which analyze rules before they’re completed – signal that the Department of Health and Human Services is gearing up to enforce the Trump administration’s new directive.
“The rule is nothing short of radical,” Melling said on a conference call Thursday. “[It’s] dramatically expanded from what was true before and who could claim an exemption.”
Before the Trump administration proposed the religious exemption rule last year, provisions under the Patient Protection and Affordable Healthcare Act said that different entities - like for profit corporations or religiously-affiliated nonprofits – could seek an accommodation if an employer had a religious objection to providing a worker with contraceptive healthcare.
“But the terms were this,” Melling said. “You could register that you had an objection, and that you opposed to coverage but then, the insurance company would provide the coverage to the employee instead.”
What is fundamentally different in this administration’s proposed rule now, Melling explained, is that there is no “backstop to ensure coverage for employees” while the rights of those who claim a moral or religious objection are expanded.
Under the previous administration, Melling said the accommodation seemed “uncontroversial” and a “very long overdue advance for women’s equality.”
It balanced the needs of employers, respected religious liberty and provided coverage to those who otherwise might not be able to access or afford contraceptive healthcare, she explained.
Once the final rule is enforced however, any entity, including any for profit or non-profit [organization] could invoke religious belief or moral conviction to block an employer or student to contraception.
What makes the rule radical, she emphasized, is because it applies to “anyone” who wants to claim the exemption - there are also no provisions in the final rule which ask the person objecting to establish a basis for their religious exemption claim.
To establish that basis is not something a court is prone to do anyway, Melling said.
While it happens more often in prisons – where a person’s diet is used to verify claims of religious objection – under this rule and in the traditional court setting, judges will likely remain reluctant to probe the basis of a person’s faith or moral objection.
Melling emphasized that the ACLU will “continue to defend religious liberty,” but noted that that liberty does not “give individuals the right to undermine [U.S.] laws on discrimination.”
A year ago, when the Health Department proposed the rule, it was met with backlash by human and women’s rights groups.
In Pennsylvania, a federal judge issued an injunction on the rule, saying that it was unconstitutional and would cause “irreparable harm.”
Attorneys General in California, New York, Virginia, Maryland and Delaware also requested injunctive relief to stop the proposed rule from going into effect.
In December 2017, a federal judge in California granted the preliminary injunction and prohibited the department from enforcing the rule.
The Health Department and the Department of Justice pushed back on the injunction and filed an appeal.
A hearing on the matter is expected in the Northern District of California on Friday.
Pennsylvania has not yet set a date for oral arguments there.
But what happens next, Melling said, if the rule ends up being enforced is complicated.
“In Pennsylvania, the court found the rule conflicted with statute and the court found the agency had no authority to issue or grant these kinds of religious exemptions,” Melling noted, adding that it’s possible Pennsylvania’s nationwide injunction “should still stay in effect.”
There are also a number of state laws that would protect employees, especially women, who are most directly impacted by the contraception rule, Melling said.
“There’s a reason why there was a push for the original federal measure and that it was celebrated – it covered everyone in the country and provided coverage at no cost. That is incredibly meaningful to people in need of contraception. With that, they could actually make a choice. They had the opportunity,” Melling said.
When reached for comment Thursday, a spokesperson for the Department of Health and Human Services said the department has no comment on the rule at this time.
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