Last Tuesday, this story appeared in the Wall Street Journal and caused some consternation among conservatives. One of the most unconscionable acts of the Obama administration in its bloody-minded monomaniacal drive to destroy health insurance in the United States was to make contraception a mandatory item in all health plans. Religious organizations, most famously the Catholic religious order Little Sisters of the Poor, were forced to have a health insurance plan that covered contraception even though the tenets of their religion made that unnecessary. The case in question is East Texas Baptist University v. Burwell:
For now, the White House is stalling. On Monday, government lawyers told a federal court considering one flashpoint issue, a requirement for employee health plans to include contraception, that the administration needed more time to decide its position.
“The new Administration has been in place for only a few months,” the Justice Department wrote in a filing to the U.S. Court of Appeals for the Fifth Circuit, based in New Orleans.
The issues are “complex” and there were “numerous” vacancies at the Departments of Labor, Health and Human Services, and Treasury, the agencies responsible for the contraception requirement established during the Obama administration, the lawyers said in the filling.
The government admission in the Fifth Circuit was forced by Becket, a legal group representing dozens of religious charities suing over the requirement, which raises sweeping questions about how far the government must go to accommodate religious beliefs. Becket attorneys have now told two different circuit courts that they are expecting Mr. Trump to quickly void the contraception coverage requirement, citing his pledges to do so and to side with religious groups more broadly.
Other activists are seeking a sweeping order that would extend the ability of business owners, health providers and religious school leaders to hew to their beliefs that abortion, homosexuality or same-sex marriage are wrong as they carry out their work.
Liberal groups would likely campaign hard against such a move, arguing that gay rights or women’s rights to access contraception outweigh religiously affiliated employers’ rights to apply their beliefs in the workplace.< A White House spokesman said Mr. Trump “continues to support religious liberty, and this issue is an absolute priority for his administration.”
This request for more time has been portrayed by some as the Trump administration defending the Obamacare contraception mandate.
The truth is a lot different than the “administration-in-disarray” story or the dire warnings of bad intentions on the part of the Trump administration. Axios.com interviewed Leonard Leo on Thursday. Leo is a rock solid conservative, Roman Catholic, an experienced litigator on religious freedom issues and an adviser to the administration on implementing Trump’s religious freedom executive order.
Leonard Leo, an influential social conservative who advises the White House on judicial matters, tells me speculation that President Trump has abandoned a core campaign promise on religious rights — based on delays over an executive order — is misguided.
But Leo tells me the delay has nothing to do with that. He says senior officials at the Justice Department and the White House are working through complicated negotiations over how to structure health insurance transactions.
Behind-the-scenes: The Trump administration is considering a range of options, from providing blanket exemptions to allowing schemes that would let insurance companies deal directly with employees.
Leo’s quote: “The administration is not stepping back. It’s doing precisely what it should be doing here… because of the way people are attacking Trump executive orders, it’s very important that this thing gets done right and be as litigation-proof as possible, knowing full well they’re going to get sued anyway.”
Erick Erickson has more information at The Resurgent:
In fact, what I am being told is the administration is keeping the lawsuit alive to see if they can structure a settlement that would be beneficial to the groups being sued and prevent other adminstrations from trodding on their religious liberty in the future.
According to Leo and Erickson what is happening is a much more significant play that can prevent a future administration from reviving this idiocy. By structuring a settlement the Trump administration can lock in case law on the issue. This is simply taking a page out of the EPA’s “sue and settle” collusion with radical environmental groups to lock in legal interpretations that would not be defensible otherwise.