President Trump has been in office for slightly over 100 days, but over that time has issued the most executive orders (EO) of any president since Truman. On May 4, 2017 he issued yet another executive order — Promoting Free Speech and Religious Liberty.

After stating the Trump administration’s support for religious freedom, the EO addresses two substantive issues. The first such provision directs the Internal Revenue Service not to take adverse action against a religious organization that speaks about a moral or political issue from a religious perspective where similar speech has “not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for political office.”

The second substantive provision addresses “Conscience Protections with Respect to Preventive Care Mandate.” It states:

The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.

The cite is to the subsection of the preventive services mandate section of the Affordable Care Act that refers specifically to preventive care and services for women and is obviously aimed at the contraceptive mandate. This has been the most controversial single issue presented by the ACA, other than the individual mandate. It has spawned about a hundred lawsuits, which tied up the Obama administration for half a decade. This post analyzes the background for the Trump EO provision and its potential impact.

Background

The ACA requires non-grandfathered group health plans and health insurers to offer to women without cost sharing coverage of preventive services including “such additional [women’s] preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” Based on an Institute of Medicine (now National Academy of Medicine) study, HRSA in 2011 identified as women’s preventive services “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Pursuant to this designation, the Department of Health and Human Services (HHS) listed contraceptives services and counseling as required preventive services.

Some religious groups, however, consider the use of contraceptives, or of certain contraceptives that they consider to cause abortions, to be sinful. The Departments of HHS, Labor, and Treasury attempted from the beginning to accommodate the objections of religious organizations. In 2011, the agencies published interim final rules exempting from the requirement religious employers, such as churches and other houses of worship. These rules were made final in 2012.

The 2012 rules, however, did not totally shield religious organizations other than houses of worship—such as hospitals, universities, and charities—-from the contraceptive coverage requirement. On June 28, 2013, the Departments issued final regulations exempting certain religious organizations and employers from having to themselves provide contraceptive services to their employees.

This final rule provided an accommodation under which contraceptives would instead be made available independently through insurers or third-party administrators to the employees of these organizations without requiring the organizations to have any involvement in the provision of or payment for contraceptives. This accommodation, however did not extend to for-profit organizations or to individuals and also required the covered religious organizations to provide a notice of their objection to their insurers and third-party administrators, effectively authorizing them to provide contraceptives.

Suits By For-Profit Employers

The accommodation resulted in four channels of litigation. First, for-profit employers owned and managed by individuals with deep religious beliefs against contraception filed lawsuits claiming that the accommodation should not be limited to non-profit entities. They sued, as did the other challengers, under the Religious Freedom Restoration Act. Congress adopted RFRA in 1993 in the wake of the Supreme Court’s decision in Employment Division v. Smith. Under Smith, Congress did not have to establish that it was promoting a compelling governmental interest when it adopted a “neutral law of general applicability” limiting religious practice in some way. RFRA prohibits any laws (including neutral laws of general applicability) that “substantially burden a person’s exercise of religion” unless the law is justified by a compelling governmental interest and is the least restrictive approach to furthering the governmental interest.

In July of 2014, in Hobby Lobby v. Sebelius, the Supreme Court, affirming a Tenth Circuit decision, held that RFRA protects not only non-profit religious organizations but also closely-held for-profit corporations, and that these latter entities must also be offered an accommodation that protects their RFRA rights. There were rumors that the Trump EO would broaden the protection of for-profit employers that object to coverage of contraceptives, but this issue is not specifically addressed by the EO.

Suits By Non-Profit Organizations

The second line of lawsuits was brought by religious organizations challenging the adequacy of the accommodation that they had been offered. As noted above, under this accommodation, religious entities that object to offering contraceptives to their employees or students must either notify their insurer or plan administrator of their objection, after which it becomes the responsibility of the insurer or plan administrator to provide contraceptive coverage without any further involvement or payment from the entity. Following the Supreme Court’s decision in Hobby Lobby v. Burwell, the administration extended this accommodation to allow religious entities to simply inform HHS of their objection, identifying their insurer or third party administrator. HHS would then take responsibility for ensuring the provision of contraceptive services by the insurer or administrator without involvement of the religious organization.

The accommodation offered by the administration was not, however, acceptable to a number of religious entities, which continued their RFRA lawsuits. Nine of the federal appellate courts that ruled on lawsuits brought by these organizations held that the accommodation did not substantially burden the exercise of religion and several held that it was the least restrictive means of accomplishing a compelling governmental interest; however, one appellate court held that the accommodation violated RFRA, creating a split among the circuits.

In the spring of 2016, the Supreme Court heard the appeal of the religious entities from the adverse rulings in Zubik v. Burwell. After oral arguments, the Supreme Court (which consisted of only eight justices following the death of Antonin Scalia and the refusal of the Senate to confirm his replacement) issued a supplemental order asking the parties to brief the question of whether contraceptive coverage could be provided through the insurers of religious entities without the entities having to submit the notices to which they objected.

In May of 2016, the Supreme Court, likely split four to four on the merits and hoping for compromise, remanded the cases to the lower courts for

an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’

On January 9, 2017, in one of its last official acts, the Obama administration stated that after receiving comments from all entities involved, it was unable to find a compromise that would both meet the religious organizations concerns and ensure the provision of contraceptives for their female employees. It announced its intention to maintain the existing accommodation. The cases remanded by the Supreme Court remain pending in the appellate courts. The Trump administration has recently requested additional time in several of these cases to determine its position going forward.

Suits Based On Moral Objections And Suits By Individuals

Two other channels of litigation have received much less attention. These are 1) lawsuits brought by entities that raise a moral rather than a religious objection to offering their employees contraceptive coverage and 2) cases brought by individuals rather than organizations claiming that their religious rights under RFRA are violated by having to purchase insurance that covers contraceptives.

In August of 2015 Judge Richard Leon of the United States District Court for the District of Columbia ruled in one such case that accommodating the objections of religious organizations to contraceptives, but not those of secular organizations, would violate the Equal Protection Clause of the Constitution. He further held that individuals as well as organizations have rights under RFRA and that individuals who object to purchasing insurance covering contraceptives should be able to purchase insurance that does not cover contraceptives if an insurer will sell it to them.

In December of 2015, however, Judge John Jones III of the federal district court of the Middle District of Pennsylvania rejected a similar case also brought by a secular organization and its individual employees. He held that given the special status of religion in American jurisprudence, the government had a rational basis for refusing to extend the contraception accommodation under RFRA to secular organizations. Judge Jones further held that the religious beliefs of the individuals were not substantially burdened by a requirement that their employee benefits plan cover contraceptives, and that an insurance system in which every individual could demand an insurance policy that conformed to his or her religious beliefs would be unworkable. The court also noted that insurance policies often cover families, and family members may not all share the same beliefs.

Both of these cases are now on appeal, as is the Wieland case, another lower court decision that upheld an individual’s right not to be prohibited from purchasing contraceptive-free coverage.

The Potential Effects Of The New Executive Order

The Trump administration’s executive order could potentially address all four strains of litigation although it seems to be focused primarily, if not exclusively, on religious rather than moral objections. Insofar as it applies, it would favor the plaintiffs in these cases and weaken protection for women who need access to contraceptive coverage.

The EO, however, requires that the rules promulgated be consistent with applicable law. This is obviously the case. Neither an executive order nor an administrative rule can excuse compliance with a law. Until Congress decides otherwise, the law of the land requires that health plans and insurers must cover women’s preventive services without cost sharing. The American Health Care Act does not address this issue, so even if it passes the Senate, the issues remain the same. HHS could, through notice and comment rulemaking, conclude that contraceptives are not a women’s preventive service that must be covered by insurers, but it has not done so, and to do so would be politically and legally risky.

The accommodations offered by the Obama administration were an attempt to reconcile the demands of two statutes—the preventive services requirement of the ACA and RFRA. But RFRA does not preempt the ACA preventive services requirement; it rather requires that the government offer the least restrictive means of accommodating religious belief while promoting the government’s interest, recognized as compelling by a majority of the Supreme Court’s justices in Hobby Lobby, in ensuring women access to contraceptive coverage.

The Trump EO does not indicate how the Trump administration intends to resolve this conflict other than that it intends to comply with the law and “address conscience based objections” to the mandate. Whatever approach it takes, however, it will likely provoke a whole new round of litigation brought by women claiming a legal right to contraceptives who will assert that their rights have been violated by the EO and the new rule.

It should be noted that the EO only applies to the application of the federal preventive services mandate. Twenty-eight states also require insurers to offer women contraceptive coverage. Twenty-one of these states provide an accommodation for entities that have religious objections to contraceptives, but the others do not. RFRA applies only to the federal government, not to the states. State law only regulates insurers and not self-insured employee plans, but in at least some instances women will continue to have access to contraceptives under state law that might not be afforded them under the EO or under federal law.

Finally, it is unlikely that the Trump administration will require insurers to offer coverage that does not include contraceptives. It may be that some employers and individuals will seek to purchase coverage that does not include contraceptives, but that no such coverage will be available for them to purchase. It is unlikely that a new rule will change this.