President Trump is Eviscerating the Obama HHS Mandate. Here’s How

Opinion   |   Father Frank Pavone and Alveda King   |   Aug 14, 2017   |   4:05PM   |   Washington, DC

On May 4, Alveda King stood in the Rose Garden with pro-life President Trump as he took executive action to fulfill his promise to protect the religious freedom of groups like Priests for Life, which we both serve and lead, and which has for five years been fighting the Health and Human Services (HHS) mandate all the way up to the Supreme Court.

This mandate, imposed on us and all Americans by the Obama administration, would force virtually every employer to include coverage for abortion-inducing drugs and contraceptives in health insurance policies, despite the objecting employers’ sincerely held religious beliefs. We hold that the mandate is illegal, because believers should never be forced to choose between following their faith and following the law.

President Trump, his administration and his party all agree with us, and we are grateful to them for that.

Why then, some have asked, is it taking so long for the mandate to go away, despite the president’s words and actions?

The reasons are not hard to understand. (Alveda has particular insight into this as a former elected Georgia state legislator who witnessed the behind-the-scenes political skirmishes that determine how and when efforts proceed).

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First, in this case, the battle against the mandate involves not just the president, but all three branches of government. The president has already directed the Department of Health and Human Services to take administrative action, and that action is in fact underway (the Office of Management and Budget, for instance, has been reviewing proposed changes).

Congress also needs to take legislative action to make sure that the protections against the mandate are permanent, and not subject to change overnight by an Executive Order of a future president who may not share President Trump’s view in favor of religious freedom.

Law-making takes time.

Second, the court cases against the mandate are technically still open in numerous courts. If the reporting about the HHS mandate were not characterized by the reductionism that speaks about it as if it just involved one group —  the Little Sisters of the Poor — there might not be so much wonderment as to why it’s taking so long to resolve.

The reality is that it’s not just about the Little Sisters, as if just one petitioner brought one case in one court against the mandate. There are 37 different petitioners who are part of seven distinct cases arising out of four distinct courts of appeals (the Third, the Fifth, the Tenth, and the District of Columbia) that were all consolidated and heard by the Supreme Court, and those are just the ones the Supreme Court accepted.

Numerous other cases remain open in various district courts and courts of appeals, totaling some 50 cases and 140 petitioners. Moreover, the petitioners represent several distinct structures and types of tax plans that are impacted differently by the mandate. Some, for instance, use insurance companies, others are self-insured, with third party administrators in the mix.

The various petitioners also represent several different religious denominations that have differing theological and ethical analyses of the moral problems the mandate poses, and therefore these petitioners draw the lines in different places regarding what objections they have to the mandate in the first place, and what solutions would be acceptable.

So the solution here is not a “one size fits all” proposition. Moreover, the various courts involved need not agree with one another about how they eventually rule on the solution.

The Supreme Court instructed Priests for Life and the other 36 petitioners to sit down and work out with the Obama administration a mutually acceptable revision to the mandate. Those discussions, now being held with the Trump administration — which shares our commitment to religious freedom — are in progress. So we’re on the right track.

The discussions are being monitored by the courts, and both the government and we the petitioners periodically update the court and ask for more time to arrive at a final proposal. Our most recent request to the court is that we submit our next status report on September 11. So one of the reasons it takes time is that the petitioners themselves are requesting more time.

A third reason why this all takes time is that changing the mandate at the administrative level of HHS is subject to relevant laws, such as the Administrative Procedure Act.

As we’ve seen repeatedly, the left is ready and willing to sue the Trump administration for every step it takes, and has already threatened to sue if the HHS mandate is changed. The administration, therefore, is working hard to make sure that in changing this mandate, every “i” is dotted and every “t” is crossed so that when its actions are challenged in court, the administration will prevail and change can go into effect right away instead of being tied up in additional years of court battles.

And finally, all of this is taking longer than it needs to because the Democrats have been dragging their feet and obstructing the president’s nominees to various federal agencies, including HHS. As of last month, only three of 11 positions at HHS had been filled. With positions either vacant or occupied with holdovers from the Obama years, progress in the right direction will be slow.

To sum it up, then, the mandate is certainly on its way out and the Trump administration is fully committed to and actively advancing religious freedom. But things take time, and we not only need to exercise patience, but we need to lift up, in prayer and with affirmation, those we have elected to carry out these momentous tasks. Thank you, President Trump, for being a promise-keeper. Note:  Father Frank Pavone is the national director for Priests for Life. Alveda C. King, niece of Martin Luther King, Jr., serves as a Pastoral Associate of Priests for Life, directing its outreach to the African-American community