Last month the U.S. Fifth Circuit Court of Appeals ruled that Houston Baptist University couldn’t block birth control coverage for its employees just because the college’s religious leaders have a “moral” objection to certain types of contraception. With the backing of two conservative legal big shots, HBU appealed its case to the U.S. Supreme Court on Wednesday.
HBU’s is just one of many cases challenging the Affordable Care Act’s birth control mandate. Under the law, religious employers who object to some or all forms of birth control (HBU, for example, takes issue with some emergency contraception that it wrongly likens to abortion) can seek an exemption from the feds. Typically this just means filling out a form letting the feds know of your objection to birth control and naming the company that administers your employee health plan. The government then works separately with the insurance company to make sure workers can get birth control coverage on another health plan if they want it.
East Texas Baptist University and Westminster Theological Seminary joined HBU in challenging the mandate. The schools have argued that by simply informing the feds of their objection – either by filling out a form or by some other means – they’re triggering or facilitating birth control coverage in violation of their religious beliefs. In their challenge, they’ve cited 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.”
That the Fifth Circuit didn’t buy that argument is notable for a couple of reasons. First, every single federal appeals court that’s so far considered the issue has ruled that religious nonprofits can’t block their workers from getting coverage for birth control. Secondly, the Fifth Circuit, as we’ve written before, is perhaps the most conservative federal appeals court in the country. If anyone was going to buck the trend in favor of religious institutions, you’d have thought it would be the Fifth.
But in last month’s ruling, none other than Judge Jerry Smith – who is, it should be noted, so conservative that in the past he’s referred to feminists as a “gaggle of outcasts, misfits and rejects” – wrote that the ACA’s exemption process for religious groups doesn’t force them to do anything. The law only asks that employers like HBU let the feds know they have an objection so the government can work to provide birth control coverage in their place. That, Smith wrote, is not the same thing as being forced to provide contraception.
As Smith put it:
“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.”
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Now some legal big guns are helping HBU appeal its case to the U.S. Supreme Court. The school announced yesterday that it would be represented by the Becket Fund for Religious Liberty, which won the Hobby Lobby case against the ACA’s birth control mandate last year. In that case, the court ruled 5-to-4 that “closely held” for-profit companies run on “religious principles’ could effectively deny their employees access to birth control coverage.
Paul Clement, a former solicitor general who’s been mentioned by GOP candidates as a possible Supreme Court nominee in the past two presidential elections, has also taken HBU’s case. Clement led the unsuccessful effort on behalf of 26 Obamacare-hatin’ states to kill the Affordable Care Act; the Supreme Court ultimately upheld the law’s individual mandate but ruled that states like Texas don’t have to expand Medicaid.
HBU president Robert Sloan issued this statement Wednesday:
“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.”