DOJ Asks Court for More Time to Consider Religious Exemption to Obamacare Contraception Coverage

Is the Trump administration reneging on Donald Trump's campaign promise to exempt religious organizations from having to provide birth control to employees?

The Justice Department on Monday asked a federal appeals court to extend a stay in a suit brought by religious groups seeking to overturn an Obama-era rule requiring employers cover birth control.

The department petitioned the Fifth-Circuit Court of Appeals for another 60 days to negotiate a solution with East Texas Baptist University and several other religious colleges, non-profits and churches that harbor religious objections to the birth control provisions of the Affordable Care Act.

The Justice Department’s continued participation in the case came as something of a surprise to religious groups since, during his run for office, Trump wrote a to the Catholic leadership Conference indicating he’d reverse the policy once in office.

Image: Nuns speak to each other before Zubik v. Burwell is heard by the U.S. Supreme Court in Washington
Nuns speak to each other before Zubik v. Burwell, an appeal brought by Christian groups demanding full exemption from the requirement to provide insurance covering contraception under the Affordable Care Act, is heard by the U.S. Supreme Court on March 23, 2016. Joshua Roberts / Reuters file

“I will defend your religious liberties and the right to fully and freely practice your religion, as individuals, business owners and academic institutions,” the letter read. “I will make absolutely certain religious orders like The Little Sisters of Poor are not bullied by the federal government because of their religious beliefs.”

But Brigitte Amiri, a staff attorney for the American Civil Liberties Union, cautioned against reading too deeply into the decision, suggesting the time-consuming nature of drafting new rules was a more likely behind the court move.

"To be honest, I think it's more of a 'kicking the can down the road' than anything else," Amiri said. "We're deeply concerned that, ultimately, the Trump administration is going to weaken or eliminate the contraception coverage requirement, but I don't see this particular court filing as indicating anything, really, one way or the other."

A Justice Department spokesperson declined to provide further comment, citing the pending nature of the litigation.

Related: Contraception Fell, Medicaid Births Rose When Texas Defunded Planned Parenthood

An accommodation for religious groups provides organizations with a religious objection to contraceptives can provide them through a third party, usually an insurer, which foots the bill to save on associated childcare costs down the line. The exemption was later expanded to include some corporations after a Supreme Court decision in Burwell v. Hobby Lobby.

Still, religious groups have long sought to overturn the contraception requirement. The case, then bundled with six others in Zubik v. Burwell, initially moved all the way to the U.S. Supreme Court before the eight-member high court bounced it back to the Circuit Courts of Appeals in May, 2016.

Since then, it has spent 11 months frozen, and the groups say they’ve waited long enough.

“It is now high time for the Department of Justice to admit defeat and dismiss this appeal. This Court should therefore allow the current stay to expire as scheduled on April 24,” Eric Rassbach, an attorney for religious liberty group the Becket Fund, wrote in the April 20 status report.

Related: SCOTUS Sends Obamacare Contraception Case Back to Lower Courts

Complicating matters further are conflicting statements that emerged from the Trump administration ahead of its participation in the suit.

The groups’ petition cites statements in an amicus brief filed by 207 members of congress – including Tom Price, now the Secretary of Health and Human Services.

“When an organization faces substantial penalties for refusing to engage in conduct it sincerely believes is wrong, its religious exercise is necessarily substantially burdened,” the friend-of-the-court brief said.

But perhaps of greater issue is the Trump administration’s staffing, which has left empty numerous senior-level positions in the Department of Labor, Department of the Treasury and the Department of Health and Human Services, which hold joint responsibility for administering the contraceptive regulations.

“The nominee to be Secretary of Labor has not yet been confirmed, and numerous subcabinet positions at the departments have not yet been filled,” the Justice Department’s petition said. “The issues presented by the Supreme Court’s remand order are complex.”