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Baptist universities weigh next step on HHS mandate

NEW ORLEANS (BP) — Houston Baptist University and East Texas Baptist University are among seven faith-based institutions weighing their options in challenging the Obamacare mandate to provide insurance coverage encompassing abortion-inducing drugs.

HBU, ETBU and the other institutions in conjunction with the Becket Fund for Religious Liberty are weighing an appeal to the full U.S. Fifth Circuit Court of Appeals in New Orleans or to the Supreme Court following a ruling by a three-judge panel of the Fifth Circuit Court that the mandate did not and, likely, would not “substantially burden their religious exercise.”

In addition to Houston Baptist University and East Texas Baptist University, other plaintiffs in the case (ETBU et al v. Burwell) are Westminster Theological Seminary, University of Dallas, Catholic Diocese of Beaumont, Catholic Charities of Southeast Texas and Catholic Charities Fort Worth.

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.

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.

HBU, ETBU and the five plaintiffs contended in their 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, but on June 22 of this year, the three-judge appeals panel of the Fifth Circuit ruled against the seven institutions.

The panel, referencing challenges to the mandate in federal district courts, 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 HBU’s case would go forward, but precedent is not in their favor as the Fifth Circuit decision concurs with rulings in similar cases from appellate courts across the nation.

Sloan said 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.

“This is the Obama administration taking a very aggressive and oppressive approach,” Sloan said.

The plaintiffs argued 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.

“We think the panel got the law and the facts wrong today,” Eric Rassbach, deputy general counsel at the Becket Fund, said in a June 22 news release. “We are examining the decision with a view to next steps, which may include an appeal to the full Fifth Circuit or to the Supreme Court.” Rassbach serves as counsel to East Texas Baptist University and Houston Baptist University in the case.

One hopeful development in the challenges to the mandate, Sloan 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.

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 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.

Bonnie Pritchett is a correspondent for the Southern Baptist TEXAN; Art Toalston is editor of Baptist Press.