The Trump administration launched a broad attack in the culture wars this week, announcing an expanded policy to protect religious liberty and rolling back Obama-era rules that shielded transgender employees and promised American working women access to free birth control.
Under the rule announced Friday, employers who have religious or moral objections to contraception may refuse to provide the coverage for their female employees.
Where President Obama’s aides said the government should protect the tens of millions of women who use birth control, President Trump’s advisors said they were concerned by the government imposing itself on the small number of employers — perhaps no more than 200 nationwide, they said — who have moral qualms over certain contraceptives.
“No one should be forced to choose between living out his or her faith and complying with the law,” said Atty. Gen. Jeff Sessions. “Therefore, to the greatest extent practicable and permitted by law, religious observance should be reasonably accommodated in all government activity, including employment, contracting and programming.”
That policy was on display last month when Trump administration lawyers joined a Supreme Court case on the side of a Colorado baker who cited his Christian beliefs in refusing to make a wedding cake for a same-sex couple.
The state’s civil rights law requires businesses to serve customers without regard to their sexual orientation, but administration lawyers said the baker deserves an exemption based on the Constitution’s protection for free speech and religious freedom. That case will be heard on Dec. 5, the court said Friday.
Last year, the Obama administration said federal anti-discrimination laws protected transgender workers and students, but both rules have now been revoked under Trump. At issue is the meaning of the word “sex” in the Civil Rights Act of 1964 and the Title IX amendment from 1972.
By taking away women’s access to no-cost birth control coverage, the rules give employers a license to discriminate.
Obama administration lawyers said these laws should be understood to forbid discrimination based on sexual orientation or gender identity. They cited, among others, an opinion by the late Supreme Court Justice Antonin Scalia that said an oil rig worker could sue his male co-workers for abuse and harassment under the law against sex discrimination.
Returning to the older view of the law, Trump’s lawyers said the Justice Department would not use the anti-discrimination law to protect gays, lesbians or transgender people.
“‘Sex’ is ordinarily defined to mean biologically male or female,” Sessions said.
But Sessions and the administration will not have the final word.
The Supreme Court has not ruled on whether the civil rights law forbids discrimination based on sexual orientation, but is likely to do so in the year ahead. Lower courts have split on the question, and a Georgia woman who said she was fired as a hospital security guard because she is a lesbian has appealed her case.
Like Obama, Trump is finding it easier to bring about change through federal rules and regulations rather than passing laws in Congress.
After Obama won passage of the Affordable Care Act in 2010, his health regulators gave a broad interpretation to the provision that called for providing preventive care at no cost as part of health insurance. They decided this should include the full range of approved contraceptives.
That rule, the so-called contraceptive mandate, has been under frequent attack from conservative religious groups, including Catholic bishops, even though churches and houses of worship were exempted.
The Obama administration also gave a partial exemption to religious nonprofit groups, including schools and charities, so they did not have to directly pay for the contraceptives. Instead, their insurers paid for the coverage.
In the 2014 Hobby Lobby case, the Supreme Court extended the exemption to those corporate employers who said they had a sincere religious objection to certain forms of birth control. The decision rested on the federal law that protects religious freedom, but the court’s majority opinion assumed female employees would still receive contraceptive coverage through an insurer.
Government lawyers argued in that case that providing free contraceptives saved insurers money over the long term because it reduced costs associated with pregnancies.
But objections continued from religious liberty advocates who argued that faith-based employers would be “complicit in sin” if their insurance policies paid for “morning after” pills and certain other contraceptives that they believe are a form of abortion.
In early May, Trump issued an executive order calling on then-Health and Human Services Secretary Tom Price to revise the contraceptive regulation “to address conscience-based objections.”
On Friday, the Department of Health and Human Services said it was putting into effect a rule that would “provide conscience protections to Americans who have a religious or moral objection to paying for health insurance that covers contraceptive/abortifacient services.”
However, officials also downplayed the impact, arguing that the contraceptive rule remains in effect. “These rules will not affect over 99.9% of the 165 million women in the United States,” the department said.
The rule change was applauded by the National Right to Life Committee and by social conservatives.
“President Trump is demonstrating his commitment to undoing the anti-faith policies of the previous administration and restoring true religious freedom,” said Tony Perkins, president of the Family Research Council.
The new rules was slammed by women’s rights advocates, the Planned Parenthood Federation and several Democratic state attorneys general who said they would sue to block the change.
Fatima Goss Graves, president of the National Women’s Law Center, said the rules “show callous disregard for women’s rights, health and autonomy. By taking away women’s access to no-cost birth control coverage, the rules give employers a license to discriminate against women.”
California Atty. Gen. Xavier Becerra said the new rule “is another example of the Trump administration trampling on fundamental rights. They would prefer to move us backward rather than forward.”
The contraceptive mandate has broad popular support, according to the Kaiser Family Foundation. It cited a 2015 poll that found respondents said, by 71% to 25%, that they supported requiring health insurance plans “to cover the full cost of birth control.”
Since the Obama-era rule took effect, the rate of unintended pregnancies has fallen to a 40-year low, according to women’s rights advocates.
A change in the federal rules may have less impact in states such as California, Illinois and Maryland, which all recently strengthened their laws requiring health insurers to cover the cost of contraceptives.