Written by Don Byrd
Former head of the White House Office of Faith-based and Neighborhood Partnerships under President Obama (and former BJC general counsel) Melissa Rogers has published a column for The Brookings Institution discussing new rules recently announced by the Trump Administration regarding exemptions from certain coverage requirements in the Affordable Care Act. As she explains, the new rules grant “virtually any nongovernmental employer” with a religious or moral objection an exemption from the requirement that health plans include contraception coverage. Unlike the previous policy, the rules also cease “any attempt to ensure that this coverage is provided” directly from an insurer or through a third-party administrator.
This approach, Rogers argues, moves us further away from a “win-win solution” that “respects religious bodies, women working for objecting employers and Supreme Court precedent.”
[W]e must seek a better way of protecting rights and interests on all sides. Religious freedom is a fundamental human right that must be defended, and exemptions sometimes must be upheld even when third parties believe they are harmed by those exemptions. For example, synagogues are permitted to hire rabbis, not Baptist preachers, no matter how upstanding those Baptists may be or how much they need a job.
In this case, however, cost-free contraception coverage is a federally mandated benefit for most women under the ACA, and it is possible to accommodate interests on both sides, even if it cannot be done to everyone’s complete satisfaction. Given Supreme Court precedent, seeking such accommodation is the prudent choice. It is also the right course, especially in a country whose future depends partially on our ability to continue to find ways to live together across our deepest differences.
The new rules she discusses were announced by the Trump Administration on the same day that the Justice Department issued an unrelated set of new guidelines interpreting religious liberty protections in federal law.