The political optics were some of President Trump’s best — as he prepared on May 4 to sign an executive order defending freedom of conscience.
“With this executive order,” Trump told the crowd in the Rose Garden, “we also make clear that the federal government will never, ever penalize any person for their protected religious beliefs.”
He did not say most of the time or almost always. He said “never, ever.” Nor did he say any group or religious order. He said “any person.”
This was a categorical promise.
Having made it, Trump framed his argument for it by making specific reference to the Little Sisters of the Poor, noting that members of this Catholic order were in the Rose Garden at that very moment.
“We know all too well the attacks against the Little Sisters of the Poor,” said Trump. “Incredible nuns who care for the sick, the elderly, and the forgotten.”
Then he called them up for a photo-op. “Where are they, by the way? Where are they?” he asked.
“Could you stand, sisters? Stand,” he said. “Come on up here, sister. Come on up. Right. Come on up.”
When they were beside him, Trump spoke of the court battle in which the Obama administration pursued the Little Sisters and other religious groups all the way to the Supreme Court in an attempt to force them to cooperate in the distribution of contraceptives, sterilizations and abortion-inducing drugs. Then as now, this issue had not been finally settled — as it ought to be — against Obamacare’s euphemistically named “preventive care” regulation and in favor of the freedom of conscience.
“Well, I want you to know that your long ordeal will soon be over,” Trump vowed.
“With this executive order, we are ending the attacks on your religious liberty, and we are proudly reaffirming America’s leadership role as a nation that protects religious freedom for everyone,” he said.
But the actual executive order was not as categorical as Trump’s declarations.
One part imposed a duty on the attorney general to “issue guidance interpreting religious liberty protections in federal law.”
Another suggested: “The secretary of the Treasury, the secretary of Labor, and the secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.”
Trump’s order assumed that Congress would neither repeal nor replace the purposefully vague language in the Obamacare law that had authorized HHS to issue its contraception-sterilization-abortifacient mandate.
Thus, the question was and remains: How close will the Trump administration’s new regulation come to fulfilling Trump’s categorical promise? Will it “never, ever penalize any person” for exercising their religion? Or will it penalize some people some of the time — or all of the time?
On May 31, Vox published the 125-page draft of a new version of the regulation produced by Treasury, Labor and HHS. The draft was dated May 23. “The Office of Management and Budget is currently reviewing this proposal, the final step before a new regulation is made official,” Vox reported.
This leaked draft fulfills Trump’s promise. It permits exemptions to the contraception-sterilization-abortifacient mandate not only to “entities” but also to individual Americans who have “religious beliefs or moral convictions objecting to contraceptive or sterilization coverage.”
Yet, more than three months have passed since this draft regulation was leaked and HHS has not released it — or any other version of it.
On July 31, Trump’s Justice Department told the U.S. Court of Appeals for the Tenth Circuit that it wants to continue its court battle against the Catholic Benefits Association. The CBA — whose members include Catholic colleges, hospitals, religious orders and dioceses — has been fighting the contraception-sterilization-abortifacient mandate in court for more than three years.
A few days before Trump’s DOJ told the court it wants to continue its legal battle against a Catholic organization fighting for religious liberty, CBA’s CEO Doug Wilson issued a statement. “Eighty-three days have passed since the president’s promise, and yet HHS and the Justice Department have not yet acted to end our long ordeal of costly litigation and the threat of ministry-killing fines,” said Wilson.
“The CBA also calls on these departments to issue their new rule without change and without further delay,” he said.
On Sept. 5 — 124 days after Trump issued his promise and his religious-freedom order — this writer asked DOJ: “Given this executive order by President Donald Trump, why is the Justice Department persisting in the court battle — initially engaged by the Obama Administration — to force the Catholic Benefits Association to comply with Obamacare’s contraceptives mandate?”
“As a matter of policy,” a department spokesperson responded, “the Department of Justice does not comment on ongoing cases.”