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ERLC brief: mandate harms religious freedom

WASHINGTON (BP) — The Obama administration’s abortion/contraception mandate still fails to safeguard religious freedom, the Southern Baptist Convention’s church-state entity and other evangelical Christian organizations have told a federal appeals court.

The Ethics & Religious Liberty Commission (ERLC) signed onto a friend-of the-court brief filed with the Seventh Circuit Court of Appeals Feb. 4, only three days after the administration announced a proposed rule change it seemed to hope would satisfy the objections of religious organizations. The brief, drafted by the Christian Legal Society (CLS), echoed the response of many faith and religious freedom groups, who described the revision as insufficient.

“The new definition continues to violate the [First Amendment clauses protecting religious free exercise and barring government establishment of religion] — and now the equal protection clause — because the government continues to squeeze religious institutions into an impoverished, one-size-fits-all misconception of ‘religious employer,'” the brief said.

The abortion/contraception mandate “has unilaterally re-defined most religious employers to be non-religious employers,” according to the brief.

The mandate — issued as a rule by the Department of Health and Human Services (HHS) to implement the 2010 health-care law — requires employers to pay for coverage of drugs defined by the Food and Drug Administration as contraceptives, even if they can cause abortions.

Religious institutions and business owners with conscience objections to paying for contraceptives or abortion-causing drugs have challenged the mandate in more than 40 lawsuits against HHS.

The ERLC-endorsed brief filed with the Chicago-based Seventh Circuit focused on protections for religious organizations but came in a case involving a for-profit business and its owners, who refuse to comply with the HHS mandate. So far, for-profits that have challenged the rule have won injunctions blocking enforcement of the mandate 11 of 14 times.

In the brief, the ERLC and its allies joined CLS in saying the mandate’s definition of “religious employer” is narrower than a standing definition under federal law and violates not only the First Amendment but the Religious Freedom Restoration Act. That 1993 law bars the federal government from burdening religious free exercise unless it has a “compelling interest” and uses “the least restrictive means” in advancing that interest.

“Forcing religious employers to fund contraceptives and abortion-inducing drugs is hardly the least restrictive means of achieving the government’s purported interests,” according to the brief. “This is a solution in search of a problem. No one seriously disputes that contraceptives are widely available.”

The brief also questioned how the government would avoid “excessive entanglement” with religion under the mandate. The definition of “religious employer” fails to say how much agreement on religious beliefs a worker must have with an employer for the organization to qualify as a “religious employer.”

“The Supreme Court has repeatedly warned that government officials are not competent to make religious determinations,” it said.

“Religious liberty requires the government to give religious organizations breathing space to define what their mission will be, whom they will employ, and whom they will serve.”

The definition of “‘religious employer’ remains an unacceptably narrow religious exemption that fails to protect most religious employers, including colleges, schools, hospitals, homeless shelters, and food pantries,” according to the brief.

In a Feb. 1 announcement, HHS said its revised rule permits employees to receive contraceptives and abortion-causing drugs without their religious employer participating in the process.

Religious liberty advocates, however, said objecting employers would still be unwilling participants despite the change. Such employers would still have to be affiliated with an insurance plan connected to coverage of contraceptives, including abortion-causing pills, and may end up absorbing increased costs for the drugs if the insurance companies pay for them and consequently increase rates.

Kim Colby, CLS’ senior counsel and the brief’s author, said HHS’ “amended definition would still fail to protect religious liberty. The proposed amendment would protect only religious ministries that are integral parts of a church; however, many religious educational institutions and religious ministries are independent of any specific church. For example, a religious school that is controlled by a church may now be considered a religious employer, while an independent religious school is still not a ‘religious employer,’ even though its purpose, curriculum, and faculty are just as religious as the church-controlled school.”

In addition to the ERLC, others signing onto the CLS brief were the National Association of Evangelicals, Prison Fellowship, Patrick Henry College, Association of Gospel Rescue Missions, Association of Christian Schools International and Institutional Religious Freedom Alliance.

In the case, Cyril and Jane Korte and their construction firm, Korte and Luitjohan Contractors, oppose the abortion/contraception mandate because it conflicts with their beliefs as Roman Catholics regarding abortion, contraception and sterilization. They estimate the penalty for refusing to comply with the requirement could reach $730,000 a year.

In Korte v. HHS, they asked the Seventh Circuit to overturn a federal judge’s denial of their request for a preliminary injunction blocking enforcement of the mandate.

The ERLC and the other organizations also endorsed a CLS brief opposing the mandate in the District of Columbia Circuit Court in October. That brief supported challenges by Wheaton College, an evangelical Christian school in suburban Chicago, and Belmont Abbey College, a Roman Catholic institution in North Carolina.

Drugs considered contraceptives under the mandate include Plan B and other “morning-after” pills, which can prevent implantation of tiny embryos. That secondary, post-fertilization mechanism of the pill causes an abortion. The mandate also covers “ella,” which — in a fashion similar to the abortion drug RU 486 — can even act after implantation to end the life of the child.
Tom Strode is Washington bureau chief for Baptist Press. With reporting by Michael Foust, associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).