EDITOR’S NOTE: This story updates the July 7 Baptist Press story titled “Baptist universities weigh next step on HHS mandate.”
WASHINGTON (BP) — Houston Baptist University and East Texas Baptist University are appealing to the Supreme Court in challenging the Obamacare mandate to provide insurance coverage encompassing abortion-inducing drugs.
HBU and ETBU in conjunction with the Becket Fund for Religious Liberty along with Westminster Theological Seminary filed a petition today (July 8) with the high court in response to a June 22 ruling by a three-judge panel of the Fifth Circuit Court of Appeals that the mandate did not and, likely, would not “substantially burden their religious exercise.”
In all, 56 cases involving 140 nonprofit plaintiffs have been filed against the mandate, according to the Becket Fund. Among various cases in the news is a last-minute temporary injunction granted to Little Sisters of the Poor from facing enforcement of the mandate in January 2014.
Two other Baptist entities — GuideStone Financial Resources of the Southern Baptist Convention and Truett-McConnell College in Georgia — are involved in a separate challenge (GuideStone v. Sebelius), joined by Reaching Souls International, an Oklahoma-based missions organization. A federal district judge’s injunction blocking enforcement of the mandate against the three plaintiffs is in force.
HBU, ETBU, Westminster and four other plaintiffs contended in an October 2012 lawsuit against the mandate (also called the HHS mandate and Affordable Care Act mandate) that they should receive the same consideration as churches under the Affordable Care Act (ACA) and the federal Religious Freedom and Restoration Act (RFRA).
A federal district judge ruled in the seven plaintiffs’ favor in December 2013. The three-judge appeals panel of the Fifth Circuit in New Orleans, however, referenced challenges to the mandate in
federal district courts and acknowledged that the lower courts had cited RFRA in ruling against abortifacient coverage mandated for faith-based institutions. But the panel disagreed, writing, “Because
the plaintiffs have not shown and are not likely to show that the requirement substantially burdens their religious exercise under established law, we reverse.”
Robert Sloan, HBU president, said in a Becket Fund news release July 8, “We didn’t go looking for this fight. But here we stand and can do no other. We cannot help the government or anyone else provide potentially life-threatening drugs and devices. The government has many other ways to achieve its goals without involving us. It ought to pick one of those and let us go back to educating our students.”
Diana Verm, legal counsel with the Becket Fund, also said July 8, “The Supreme Court should step in and tell the federal government that separation of church and state is a two-way street. The state should not be able to take over parts of the church — including these religious ministries — just so it has an easier way of distributing life-terminating drugs.”
Sloan has noted that faith-based schools and organizations have been recognized by the government historically as parachurch institutions and afforded the same consideration as churches in matters of conscience and law. But only houses of worship can opt out of compliance with the ACA mandate requiring all employer insurance policies provide contraceptive and abortifacient coverage — an untenable proposition, the plaintiffs argued.
The plaintiffs, in their lawsuit now appealed to the Supreme Court, are arguing that though their institutions serve a different purpose than churches, their underlying convictions and subordination to
scriptural authority — as is often declared in their governing documents — is no less binding on how they conduct business. Therefore, the government’s distinction between entities, they argued, is arbitrary and an affront to people of conscience.
One hopeful development in the challenges to the mandate, Sloan has said, is the Hobby Lobby case in which the U.S. Supreme Court ruled the family-owned arts and craft retain chain could opt out of the contraceptive mandate because of the owners’ religiously held convictions. At the same time, however, Sloan has acknowledged that precedent is not in favor of the HBU, ETBU, Westminster appeal as the Fifth Circuit decision concurs with rulings in similar cases from appellate courts across the nation.
The Supreme Court is likely to consider all of the petitions in late September or early October, the Becket Fund said in its July 8 release. If any of the petitions are granted, the case would be argued and decided before the end of the court’s term in June 2016.
For HBU, ETBU and the other religious institutions, failure to win their cases would force them to violate their conscience and provide the offending coverage; defy the mandate and pay “onerous” penalties; or partner with a third party insurance provider to offer the contraceptive coverage.
All three, Sloan has said, are unacceptable.
Disregarding their Christian convictions is not an option.
Paying the fine also is out of the question as the non-compliance penalty of $100 per employee per day would total $12 million and $8 million a year, respectively, for HBU and ETBU.
“If we exercise our religious freedom, the penalties could put us out of business,” Sloan said.
And asking a third party to provide the coverage still makes the school culpable for the objectionable coverage, Sloan said, noting that the university’s insurance provider is Guidestone Financial Resources, the Southern Baptist insurance provider also fighting the legal battle with the Obama administration over the mandate.
Currently, as in other cases, a temporary injunction is shielding HBU, EBTU and the other five plaintiffs from enforcement of the mandate.
Also in June, the Affordable Care Act prevailed a second time at the Supreme Court after its landmark 5-4 win three years ago. On June 25 in a 6-3 ruling, the court affirmed tax subsidies for insurance purchased in 34 states where the federal government operates healthcare exchanges under Obamacare.
The case concerned four words in the ACA regarding tax subsidies for insurance purchased on exchanges “established by the state.” Under that language, challengers argued that people in those 34 states were not eligible for tax subsidies. Only 16 states have established their own exchanges.