How the Trump administration wins on life and religious liberty
This article first appeared in the Washington Examiner on July 22, 2020.
Last week's Supreme Court decision in Little Sisters of the Poor v. Pennsylvania was a major victory for freedom of religion and conscience in the United States. It affirms that the Trump administration properly crafted an exemption that allows the Little Sisters, an order of nuns, to carry out its work caring for the elderly poor without being forced to violate the nuns' consciences.
It was just the latest example of aggressive work by President Trump's Department of Health and Human Services to protect First Amendment freedoms and then win on those issues in court.
From day one of the Trump administration, HHS has made it a priority to protect life and protect the rights of faith and conscience — and we are delivering. The dispute in the Little Sisters case arose out of the Obama administration's regulation under the Affordable Care Act, which mandated that most employer-provided health insurance include all Food and Drug Administration-approved methods of contraception. The contraceptive mandate exempted a subset of religious groups, such as churches, but required compliance from most other religious organizations.
Nonexempt religious groups, such as the Little Sisters of the Poor, were required to comply with the mandate by a so-called "accommodation," requiring them to sign a document authorizing their insurer to provide contraceptive coverage. In other words, they still had to violate their conscience.
When Trump took office the following January, HHS began working on a way to ensure the contraceptive mandate did not unlawfully burden religious exercise. Our solution was straightforward: We broadened the original religious exemption and created a new exemption for employers with moral-based objections — still a tiny fraction of America's employers.
Last week, in a 7–2 decision, the Supreme Court upheld the Trump administration's actions. The court recognized that HHS followed the right procedures and had the legal authority to do what we did. It is remarkable that activists and activist judges forced this simple issue all the way up to our highest court.
Fighting to ensure nuns can carry out their work without having to cover contraception isn't the only place in which the Trump administration's efforts have stoked needlessly fierce legal battles. We are fighting similar battles over the implementation of Title X, which provides government funding for family planning services.
Last year, HHS implemented a new rule that no longer permitted Title X family planning services, funded with taxpayer dollars, to occur at the same location where abortions are provided as a method of family planning. That's a commonsense step to enforce Congress's existing requirement that no Title X funds be used in programs in which abortion is a method of family planning.
The Title X rule also attracted a torrent of lawsuits but not particularly successful ones. Our Title X rule has now won victories twice at the 9th U.S. Circuit Court of Appeals, notoriously no friend to the Trump administration, first before a three-judge panel and then before a larger, en banc panel. The 9th Circuit actually had to lift several orders put in place by lower courts that attempted to block the implementation of the Title X rule nationwide.
The opposition to the commonsense implementation of the law Congress enacted is dizzying. A number of grantees dropped out of the Title X program altogether in protest (and their funds swiftly awarded to other providers) even as we have added new and important protections to the program for serving vulnerable women and children, such as strengthened requirements around reporting sexual abuse, molestation, and human trafficking.
One of the most important steps Trump has taken to protect religious freedom and the right to life is appointing hundreds of judges — more than 200 at the latest count — who faithfully interpret the Constitution as written. But the Little Sisters decision won support even from Justices Elena Kagan and Stephen Breyer.
Every day at HHS, we work to protect the life and conscience rights of all people who need or provide healthcare and social services. It is a department-wide mission, and it's just as important during health emergencies, such as the one we're experiencing now.
During the coronavirus pandemic, HHS's Office for Civil Rights has been taking action to ensure that states and healthcare providers do not discriminate on the basis of disability in the allocation of medical care. We've already had five states remove such discriminatory policies from their triage guidelines as a result of our work.
Efforts to protect life at all stages for all people don't always grab headlines in the way Supreme Court decisions do. But behind every court victory and every successful administrative reform are dedicated people working to protect our lives and freedoms as promised by the Constitution and protected by our laws.
That dedicated work is why we can say Trump is the most pro-life, pro-religious liberty president in American history.
Alex M. Azar II is the U.S. Secretary of Health and Human Services.