Trump administration keeps Obama mandate that requires religious nonprofits to fund contraceptives

The Department of Justice (DOJ) has indicated that it will continue to defend a court case regarding an HHS mandate that forces religious non-profits such as the Little Sisters of the Poor to pay for contraceptives.

During the campaign period, then-candidate Donald Trump had promised to drop the HHS provision that requires employers to offer health insurance plans that cover contraception, sterilization and some early abortion drugs, according to Catholic News Agency. However, on Tuesday, the DOJ asked the Fifth Circuit Court of Appeals for a 60-day extension to negotiate with the religious institutions that filed a lawsuit to challenge the mandate.

Last year, the Supreme Court had ordered the Obama administration to work with the plaintiffs of the Zubik v. Burwell case to find a solution to their concerns about religious liberty. Plaintiffs in the case include East Texas Baptist University, Little Sisters of the Poor, the Archdiocese of Washington, as well as other schools, dioceses and charities.

Following Trump's election, the plaintiffs expected the new administration to drop the appeal of the lawsuits. However, the DOJ's decision to ask for an extension on the case had puzzled conservatives.

"The government has a chance to do the right thing here. It got it wrong for five years in these cases, almost six years," said Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty, which represents many of the plaintiffs.

"And they can do the right thing by dropping their appeals that are in favor of the mandate, and admitting that they were wrong on the issue of the contraceptive mandate, as applied to religious non-profits," he continued.

The Becket Fund noted that the same lawyers that litigated the case under the Obama administration are still in the mandate cases under the new administration.

In their filing, the DOJ noted that the new administration has only been in place for a few months and added that the three departments that are jointly responsible for administering the mandate have not been fully staffed yet.

"The issues presented by the Supreme Court's remand order are complex; for example, the original accommodation took more than a year to develop with input from interested parties," the DOJ added.

In March 2016, the Supreme Court asked the plaintiffs and the government to submit briefs explaining whether a compromise could be reached to provide free contraceptive coverage while still respecting religious freedom.

After both parties outlined ways how a compromise could be achieved, the Court sent the cases back to the federal circuit level and ordered the government not to impose the fines against the plaintiffs for their refusal to comply with the HHS mandate. The Supreme Court also instructed the lower courts to give both parties more time to find a solution they could agree on.

Bishop David Zubik of Pittsburgh, one of the plaintiffs in the cases, complained in August that the federal government had "an extremely aggressive interpretation" of the Supreme Court's instructions. He asserted that the government was trying to "take over" the diocese's health plans.