It’s déjà vu all over again. The Biden administration has revived the Obama-era fight over whether the federal government should be able to “hijack” employers’ insurance plans and force owners with moral objections to furnish their employees with contraception, sterilization, and potentially abortifacient drugs.

The Biden administration seeks to repeal a Trump administration protection for those with conscientious objections to the controversial HHS mandate. In a 46-page proposed rule, published in the Federal Register on Thursday, the Biden administration would retain President Trump’s protections for those with religious objections but eliminate employers’ ability to cite a moral objection.

“While it is encouraging to see that HHS says it intends to leave the 2018 rule’s religious exemption in place, HHS has time and time again placed expanding access to contraceptives and abortifacients above following the law, telling the truth, and keeping its word,” Eric Kniffin, a fellow with the Ethics and Public Policy Center’s HHS Accountability Project and an attorney for religious organizations, told The Washington Stand.

The HHS mandate made national headlines as it stood at the heart of a yearslong legal battle between secular bureaucrats and the Little Sisters of the Poor, an order of Roman Catholic nuns who care for the elderly poor.

Nothing in the congressionally authorized wording of the Patient Protection and Affordable Care Act (ACA), conventionally known as Obamacare, demanded the stand-off. The ACA, which took effect in March 2010, required only that insurance plans cover “preventative services.” But the Obama administration’s Department of Health and Human Services (HHS) enacted a rule in August 2011 decreeing that the “preventative services” health plans must cover include contraception, sterilization, and potentially abortifacient drugs with no co-pay. Those who refused would face a fine of $100 a day for each affected employee.

The Obama administration exempted churches and ministries dedicated primarily to religious education but conferred no protections on most religious nonprofits, nor Christian individuals in the free market. The Obama-Biden administration’s posture forced the Little Sisters of the Poor to engage in multiple lawsuits, before and after President Donald Trump took office. Rather than rescind the HHS mandate, a bureaucratic rule, Trump allowed employers to claim either a moral or a religious exemption. The Supreme Court ruled 7-2 in July 2020 that the Trump administration had “the statutory authority to craft that [religious] exemption, as well as the contemporaneously issued moral exemption.” 

The nuns had also objected to the mechanism the Obama administration crafted in order for the sisters to opt out: The religious order had to sign a paper that would then be used to give their employees contraception and potentially abortion-inducing pills, which Roman Catholicism formally condemns as immoral in the 1968 papal encyclical Humanae Vitae. The nuns argued that process amounted to their participation with evil.

The Biden administration rule allows employees who work at organizations that have a religious objection to gain “free” contraceptives and sterilization without their employers’ participation. The employees would receive contraceptives from “a provider or facility that furnishes contraceptive services in accordance with the individual contraceptive arrangement for eligible individuals,” such as Planned Parenthood, which “would be able to be reimbursed for its costs by entering into an arrangement with an issuer on a Federally-facilitated Exchange or State Exchange on the Federal platform, which in turn may seek a user fee adjustment.”

The new rule decimates the Obama-Biden administration’s claims that it had to force nuns to participate in the process, which they believed amounted to cooperation with evil. “Since 2010, HHS has claimed that it needed to hijack the plans of religious employers, including the Little Sisters of the Poor, in order to advance its interest in increasing access to contraceptives and abortifacients. Yet this new rule now says what religious liberty advocates have said all along: the federal government has ways of advancing its interests while respecting the convictions of those who oppose” the mandate, Knippen told TWS.

Yet, he says, “HHS then contradicts itself again in the very next paragraph, claiming it is ‘necessary’ for HHS to hijack the plans of employers with non-religious objections to their mandate.”

Secular organizations hailed the Biden administration’s actions. “The Trump-era rules undermined church-state separation and weaponized religious freedom to justify hurting people who depend on contraception for their health and equality,” said Americans United for the Separation of Church and State. The left-wing group claimed that President Trump “sought to transform religious freedom from a shield that protects people into a sword to harm others.”

AU, together with the abortion lobbying group the Center for Reproductive Rights and the National Women’s Law Center, sued to force the University of Notre Dame to furnish contraception to students in the 2018 lawsuit Irish 4 Reproductive Health v. HHS.

Planned Parenthood, a close White House ally, lobbied the administration to take further, sweeping, top-down executive actions. “We look forward to the administration using all levers of government to expand access to” the “fundamental freedom” of no-cost birth control, said Planned Parenthood CEO Alexis McGill Johnson.

Citizens may comment on the rule for 60 days after its promulgation, a period that ends on April 3.