President Trump had promised religious groups that he would reverse the Obama administration’s requirement that employers provide birth control to their employees under the Affordable Care Act.
But his Justice Department indicated Monday that it’s not yet giving up a fight with religious schools and nonprofits that are suing over the contraception mandate.
The department has asked the U.S. Court of Appeals for the 5th Circuit for an additional 60 days to negotiate with East Texas Baptist University and several other religious groups objecting to a requirement to which they are morally opposed.
The request doesn’t necessarily mean that Justice plans to continue defending the mandate; the agency could be buying extra time as the new administration figures out its next move. A department spokeswoman said Tuesday that she had no comment on the request to the 5th Circuit.
But the lack of clarity from the Trump administration is dismaying to several religious organizations, including the Little Sisters of the Poor, a group of nuns that fought the mandate for several years but expected an immediate reprieve under the Republican president. They believed that either the Justice Department would halt its appeal in the case or the administration would seek a rule change from the Department of Health and Human Services.
Trump pledged during the campaign that as president he’d side with the mandate’s opponents, indicating to Catholic leaders that he would ensure the requirement was lifted.
“I will make absolutely certain religious orders like The Little Sisters of the Poor are not bullied by the federal government because of their religious beliefs,” Trump wrote in a letter last fall to the Catholic Leadership Conference.
The fight over whether employers with religious objections to birth control should have to pay for it was one of several high-profile battles over President Barack Obama’s 2010 health-care law. The law requires employer-sponsored health coverage to include certain preventive services — the Obama administration interpreted that to include all Food and Drug Administration-approved contraception.
The Obama administration gave religious colleges, schools and charities a way out of providing contraception coverage by allowing them to delegate that job to a third party. Under a Supreme Court ruling, certain corporations can take that route, too.
But some religious nonprofits say that doesn’t go far enough and that they want to be fully exempted from the mandate in the same way churches are. Last May, the Supreme Court tossed those cases back to appeals courts, directing them to guide the Obama administration and the nonprofits toward a compromise.
East Texas Baptist University and other plaintiffs represented by the nonprofit law firm Becket are now asking the Justice Department to drop its appeal of a district court ruling in their favor, allowing them permanent relief from the mandate.
“This litigation has gone on long enough,” the plaintiffs wrote in a petition last week to the 5th Circuit. “It is time for the Department of Justice to move on, and to allow the court, the universities and other religious ministries to move on as well.”
But Justice argued in its petition to the 5th Circuit that it needs more time to litigate the case because numerous Cabinet and subcabinet positions in several federal agencies involved remain unfilled several months into the new administration.
“The issues presented by the Supreme Court’s remand order are complex,” the Justice Department wrote.