Executive order signals contraception mandate’s days numbered

On his first day in office, President Trump signed an executive order signaling his administration’s commitment to repealing and replacing the Affordable Care Act, also known as Obamacare. The order directs the Secretary of Health and Human Services (HHS) and the heads of all other agencies with authority under Obamacare to “waive, defer, grant exemptions from, or delay” implementation of any provision that imposes a financial or regulatory burden on states, individuals, health care providers or insurers. The administration describes the directive as one to “ease the burden” of Obamacare and to prepare for states to have more flexibility and control over the health care system.

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Many Catholics and other religious believers — individuals, charities and businesses of all forms — are wondering what the executive order means for the controversial HHS contraception mandate. The mandate was never part of the Obamacare statute, but is rather an HHS regulation interpreting the section of the law requiring employee health plans to cover preventive care services.

Many hundreds of plaintiffs joined cases challenging the mandate, arguing that the provision violated free-exercise and religious establishment principles by requiring employers to act against their deeply held religious beliefs. The Supreme Court heard two of the challenges: one involving Hobby Lobby and the other the Little Sisters of the Poor. The Supreme Court ruled 5-4 in favor of Hobby Lobby, but appellate courts are still wrestling with the mandate after the Supreme Court declined to answer the question in the Little Sisters of the Poor case. Instead, the Court directed the parties to work out a compromise, which hasn’t happened. 

Most analysts agree that, while important, by its nature the executive order is more symbolic than substantive.

Traditionally, there’s only so much an executive order regarding duly enacted legislation can do. It can lay out for the entire executive branch the President’s enforcement priorities with regard to the law, but it must operate within the existing law at issue. That is why it was so controversial when President Obama used executive orders to change various aspects of Obamacare that Obamacare itself did not authorize. Most notably, President Obama took political heat for unilaterally delaying implementation of the employer mandate provisions where the law didn’t provide for such a delay. There are numerous other examples of executive overreach in this regard.

As Jonathan Adler explained in a recent Washington Post article, Obama’s “particularly elastic view of what the executive branch could do” may have changed the rules of the game, making “it easier for the Trump administration to take equivalent actions of questionable legality.”

But since the contraception mandate came about through HHS’s rulemaking process, most likely it will be undone through the rulemaking process, a multi-step route governed by the Administrative Procedures Act and involving notice and comment periods. To put things in perspective, HHS Secretary-designee Tom Price has yet to be confirmed and, under normal operations, the process to roll back individual regulations implementing Obamacare wouldn’t start before he is.

The Administrative Procedures Act does allow agencies to skip notice and comment periods when repealing a regulation for certain “good cause.” Given the administration’s fast-paced tenor we are coming to understand, along with the prior administration’s aggressive use of executive authority, perhaps it isn’t out of the question that the administration will invoke this good cause exception. Of course, a full-scale repeal of Obamacare will also repeal the regulations implementing it.

The executive order may have a more immediate impact on the legal challenges still pending against the contraception mandate. Almost by the executive order’s express terms, defending the mandate in court is no longer a White House priority — unless the administration wants to put a permanent, final nail in the mandate’s coffin. A Supreme Court decision against the contraception mandate would mean it is dead not only at the moment, but also that no future administration could revive it in its current form.

While the executive order’s present effect on the contraception mandate is limited, the message is clear: the mandate’s days are numbered. One way or another, the HHS contraception mandate is likely to go.

Annie MacLean writes from Kentucky.