A federal appeals court this week ruled that Houston Baptist University can’t block birth control coverage for its employees just because the college’s religious leaders harbor a “moral objection” to certain forms of contraception.
This week’s ruling by the federal Fifth Circuit Court of appeals is particularly important for a couple of reasons. First, the legal challenge HBU and other religious schools brought against the Affordable Care Act’s birth control mandate is just one of many across the country targeting the accommodation in federal health law that provides a workaround for religious nonprofits opposed to contraception. And so far, every single federal appeals court that’s heard the issue has ruled that these religious nonprofits can’t block their workers from receiving insurance coverage for birth control.
Secondly, this is the Fifth Circuit we’re talking about here. This court, as we’ve written before, is perhaps the most conservative federal appeals court out there, packed with judges who love to approve executions and uphold abortion restrictions. That we can add the Fifth Circuit, of all courts, to the forming consensus that religious organizations can’t keep their employees from having birth control coverage is kind of a big deal.
Under the Affordable Care Act, religious employers who object to some or all forms of birth control can seek an exemption from the feds. What this means, usually, is that they just fill out a form naming the company that administers their employer health plan and let the feds know of their objection to birth control. From there, the government works separately with the insurance company to make sure workers can get birth control coverage on a separate health plan if they want it.
HBU and others, however, contend this is a difference without a distinction, and they argue that by simply completing the forms or telling the feds of their objections, they’re triggering or facilitating birth control coverage – which, they say, makes them complicit in a sinful act.
Religious organizations like HBU challenged the birth control coverage mandate under the federal Religious Freedom Restoration Act (RFRA), which says the federal government can’t, except in limited circumstances, “substantially burden a person’s exercise of religion.”
But speaking for the unanimous three-judge opinion this week, Fifth Circuit Judge Jerry Smith (who, it should be noted, once called feminists a “gaggle of outcasts, misfits and rejects” – that’s how conservative this court is) wrote that the federal health law doesn’t require religious organizations to do anything at all involving birth control. If they really hate birth control, all they have to do is let the feds know, either by filling out a form or writing a brief letter (hell, from the sounds of it, a phone call or smoke signal might even suffice). None of these things are the same as being forced to provide contraception, Smith wrote.
Even applying RFRA, Smith wrote that the schools in this case “must show that the challenged regulations substantially burden their religious exercise, but they have not done so.”
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“Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives,” the court wrote. The acts that violate their faith are the acts of the government, insurers, and third-party administrators, but RFRA (Religious Freedom Restoration Act) does not entitle them to block third parties from engaging in conduct with which they disagree.”
The law's challengers have already indicated that they plan to appeal. In which case, they could be facing a steep uphill battle. Because you'd have thought that if any court was gonna buck the consensus on an issue like birth control coverage, it's the Fifth Circuit. That didn't happen.
You can read the Fifth Circuit's entire ruling upholding the birth control mandate here: