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Interim Rule for Contraceptive Mandate Honors Religious Liberties, Displays Common Sense
   Monday, June 19, 2017   at   8:36 PM

We've told you about the Trump Administration's plans to follow up on a May executive order to protect religious liberties. Initial reports were that a new rule was in the works that would exempt all religious employers, not just houses of worship, from the requirement to cover up to 20 forms of birth control for their employees and other covered persons, at no out–of–pocket cost. The previous rule, implemented under the Obama Administration, showed blatant disregard for the employers' religious liberties.

The interim final rule, however, is even better than we had hoped. It allows all employers to choose to opt out of the coverage of contraceptives. If you're a fan of the Constitution, this is great news.

Robert Pear of The New York Times has reported that under the new rule even for–profit, publicly traded companies will have the choice to cover contraception for covered persons or, if its moral values dictate, decline to cover them under the new rule. Pear notes that the new rule could go into effect as soon as it is published in the Federal Register.

The rule in question was established following the passage of the Affordable Care Act in 2010. While it exempted houses of worship, religious organizations such as church–founded schools, hospitals and social–service agencies inexplicably were required to provide cost–free coverage for all types of birth control.

Closely held businesses that objected to the mandate won an important victory at the U.S. Supreme Court in 2014, when a 5–4 majority held that the mandate violated the federal Religious Freedom Restoration Act. A subsequent case suggested that the Supreme Court was prepared to rule that religious employers shouldn't be required to offer birth control to its covered persons either. A case involving the Little Sisters of the Poor order of Catholic nuns was remanded back to an appeals court with orders for the parties to forge a compromise suitable to the order.

The interim final rule would go beyond exempting religious employers and essentially return the situation to what it was before Obamacare – giving each employer the latitude to cover contraception if they wish, and opt out of the coverage if they desire. This is as it should be.

We suspect that most employers will retain contraception coverage, either free of cost to covered persons or with some degree of cost sharing, and that's fine with us. This is a religious liberties issue, though it should apply to other medical services as well. An employer that is convinced some or all forms of birth control are morally unacceptable shouldn't be forced to pay for them. Arguments about the utility of contraception are entirely beside the point.

We don't expect the Left to take kindly to this common–sense rule. An early online version of Pear's story on the Times' website proclaimed, "Trump Rule Could Deny Birth Control Coverage to Hundreds of Thousands of Women," and that tells you all you need to know about how liberals will attempt to frame the issue.

But as we've noted, access to contraception is not at issue here. The issue is who pays. Our conviction is that the federal Religious Freedom Restoration Act, applied in the 2014 Supreme Court case to benefit closely held businesses with a moral objection to some or all types of birth control, should apply to all employers.

We're hopeful for the swift implementation of a new rule to that effect. Congress would do well to make the new rule a matter of statute so that a future president could not reverse the new rule.


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