- The Washington Times - Monday, October 23, 2017

The Trump administration announced Monday it has settled dozens of lawsuits that Catholic universities, charities and others filed over President Obama’s “contraception mandate,” as it defuses a years-long legal saga that had reached the Supreme Court.

President Trump recently issued rules that vastly expanded the universe of employers who can claim an exemption from the mandate, an outgrowth of Obamacare that required employers to insure an array of birth-control drugs and devices as part of their health plans or else pay crippling fines.

The action cleared the way for the Justice Department to announce settlements with 78 organizations that were still battling the rules in court.

“This brings to a close protracted litigation that never should have happened in the first place. As this president and this attorney general have made clear, they will always seek to protect and defend religious liberty,” said Justice Department spokesman Ian Prior.

Under Mr. Obama, only houses of worship and certain grandfathered employers were exempted from the mandate, so devout business owners and religious colleges, hospitals and charities cried foul and sought a similar carve-out from the courts.

Mr. Trump’s new rule says religious nonprofits and for-profit companies can now avoid the mandate by claiming a religious or moral objection, so long as they notify their employees of the change. Publicly traded companies must pinpoint a religious objection to claim an exemption.

The Justice Department said most, though not all, of the plaintiffs who’ve settled so far were represented by Jones Day law firm, which resolved its cases earlier this month.

Many of the groups who’ve settled are Catholic dioceses, schools or colleges — including the University of Notre Dame.

The Little Sisters of the Poor, a group of nuns who care for the elderly, has not settled its case yet. That group became the public face of the long-running fight over the mandate. Champions of religious liberty accused the Obama administration of picking on nuns, and Mr. Trump pledged to protect them.

“There are a lot of cases, involving a lot of different religious groups, in a lot of different courts and in a lot of procedural postures. So it will take some time to get to final resolutions with the government,” said Lori Windham, senior counsel for Becket, a religious liberty group that’s representing the Little Sisters.

“We certainly think it is a good sign that the government has admitted that it broke the law, and are looking forward to getting to final resolution for the Little Sisters and our other clients.”

The Little Sisters were among religious nonprofits that objected to an opt-out form that allowed them to avoid covering birth control, yet cleared the way for a third party to insure the drugs and devices. They said Mr. Obama’s “accommodation” left them complicit in sin.

The Justice Department hasn’t released individual settlement agreements, which may differ from plaintiff to plaintiff.

However, there is a template that lists out terms that apply to the settlements struck so far.

It explicitly says plaintiffs can offer coverage without insuring the contraceptives they objected to, and that “no procedure for providing any of the objectionable coverage may require any action by plaintiffs.”

The terms say no insurance or health plan card issued by one of the plaintiffs can be used to obtain the contested contraceptives, and that if the government seeks to provide the birth control, it must do so through a “separate and distinct enrollments” by individuals in a “separate and distinct health plan.”

It also says the government will not penalize any of the plaintiffs for failing to comply with the mandate between August 2011 and now.

Plaintiffs will retain “their full legal rights” to challenge any new law or regulation that mandates them to insure contraceptives.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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