Religious-Liberty-Annual-Report

IV – Religious Liberty and the Executive Branch 19

the elderly poor. 8 The Supreme Court in Zubik v. Burwell did not resolve the question of whether the so-called ac commodation for religiously objecting employers violated the Religious Freedom Restoration Act, a federal law that protects religious freedom. Instead, the Court sent the challengers’ cases to the circuit courts with instructions to give the federal govern ment and the challengers time to find a compro mise. 9 No compromise was found. The Trump Administration inherited the reg ulations and revised them to add outright exemp tions for employers with religious or moral objec tions. Those revisions were also litigated up to the Supreme Court, which upheld them as valid exer cises of HHS’s regulatory authority but declined to rule on whether they are required by law. It is those revisions — the religious and moral exemptions to the requirement to cover contraceptives in em ployer health plans — that HHS has now proposed to revise once again. 10 The new proposed contraceptive mandate regulations from HHS appear to finally relieve religious employers of any requirement to be in volved in the provision of contraceptives, steril ization procedures, and abortion-inducing drugs. The proposal identifies a way for employees of re ligious employers to obtain those things without the employers’ involvement. It is notable that, in defending the original contraceptive mandate over the course of nearly a decade, HHS argued that no such way was possible. There are nonetheless concerns about the pro posal. First, for no coherent reason, it eliminates the Trump Administration’s regulations’ exemp tion for employers with nonreligious, moral ob jections to the mandate. Second, the preamble to the proposed rule suggests that HHS might still change its position and require any third party as sisting a religious employer with administration of its health plan to ensure that the religious employ er’s employees can receive contraception through the plan — effectively rendering the employers’ ex emption meaningless.

2. EEOC Pregnant Workers Fairness Act Reg ulations In December of 2022, with the support of the USCCB, Congress passed the Pregnant Workers Fairness Act (PWFA) as part of the Consolidated Appropriations Act of 2023. 11 The law became ef fective in June 2023. PWFA has the commendable goal of advanc ing the well-being of pregnant women and their preborn children, and ameliorating challenges as sociated with having children. Specifically, PWFA requires employers to grant pregnant women rea sonable workplace accommodations for “preg nancy, childbirth, or related medical conditions.” It delegates authority to the Equal Employment Opportunity Commission (EEOC) to issue regu lations to enforce this requirement. PWFA says nothing about abortion and im poses no requirements with respect to abortion. In order to assuage concerns that the EEOC would nonetheless misinterpret the law to require accom modations for abortion — and in order to garner

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