Appeals court to weigh religious exemptions in Baptist-based contraception case

The New Orleans-based 5th U.S. Circuit Court of Appeals this week will take up a Texas case centering on how - or if - employees of religious colleges and nonprofits will be given free access to "morning after" pills and related forms of birth control as mandated by the U.S. Department of Health and Human Services.

The case stems from a 2013 complaint filed by Houston Baptist University and Marshall's East Texas Baptist University asserting the agency failed to provide an adequate process to exempt religious institutions morally opposed to such contraception from the rule. The U.S. District Court for the Southern District of Texas has ruled in favor of the universities - essentially blocking school employees from accessing free post-fertilization contraception under the schools' health plans.

The case is the latest in a series court challenges to a Health and Human Services regulation, promulgated in conjunction with the Affordable Care Act, requiring employers to provide health coverage for 20 methods of contraception approved by the Food and Drug Administration. In its landmark 2014 Burwell vs. Hobby Lobby decision, the U.S. Supreme Court exempted closely held for-profit corporations from the rule if their owners religiously object.

In lawsuits similar to the Texas case, U.S. Courts of Appeal in Washington, D.C., Philadelphia and Cincinnati have ruled in the government's favor.

"This is a case important not only to universities, but to anyone who interacts with federal government - which means all of us," said Eric Rassbach, a Becket Fund for Religious Liberty attorney representing the universities. "What (the complaint) says is that the government has to meet higher standards when it comes to religious liberty. If people have a sincerely held religious belief, the government should not trample on it."

Egg's fertilization

Rassbach said his clients object to four of the contraceptive forms - "morning after" and "week after" pills and two intrauterine devices. The pills and devices interfere with the implantation of a fertilized ovum in the uterine wall. Leaders of the Texas colleges, he said, believe life begins with an egg's fertilization and that these contraceptive forms essentially are abortion.

The Health and Human Services policies, Rassbach said in the filing that set the case in motion, violate the universities' rights under the 1993 U.S. Religious Freedom Restoration Act, which provides that the government shall not "substantially burden" an individual's exercise of religion. If the 5th Circuit upholds the injunction granted by Houston federal Judge Lee Rosenthal, his clients' employees would have to pay for post-fertilization contraception. "You need to remember that some of these can be purchased over the counter or through the Internet," Rassbach said.

Boss vs. employees?

"We oppose taking life of the unborn from the womb," said Houston Baptist University President Robert Sloan. "Having to provide these kinds of drugs or protocols that destroy the life of a fertilized egg - we're just opposed to it. Whether a person agrees with that view or not, it's our sincerely held belief. We believe it to our core."

But to some outside observers, the underlying issue in the universities' protests is "the boss making decisions for employees."

"They want to deny insurance coverage," said Leila Abolfazli, senior counsel for National Women's Law Center's health and reproductive rights program. "The federal requirement is for all FDA-approved contraception. This is about women being able to determine which is right for them and being able to get them. It shouldn't be a matter of cost defining which birth control they use, but of what they need."

In issuing its order to provide health insurance covering contraception, Health and Human Services exempted churches and their auxiliaries, religious orders and companies employing fewer than 50 people. Additionally, a plan was devised by which morally objecting nonprofits could shed responsibility for the contraception program.

By "self-certifying" themselves as morally opposed, nonprofits could transfer the program's administrative obligations to their insurance company or a third-party administrator.

Acting independently of the nonprofits, that entity would then process and pay contraception claims and advise employees that such options were available.

The universities, though, argued the exemption did not absolve them of moral complicity because, by self-certifying, they set in motion a mechanism by which contraception options they deemed abhorrent still would be provided.

Sebelius' stance

Rassbach charged in his initial brief that the regulations were "promulgated by government officials and promoted by non-governmental organizations who strongly oppose religious teachings and beliefs regarding marriage and family." Kathleen Sebelius, who was HHS secretary at the time, "has long been a staunch supporter of abortion rights and a vocal critic of religious teachings and beliefs regarding abortion and contraception," he wrote.

In a brief filed with the 5th Circuit, government attorneys countered by citing other circuit courts' rulings that found that federal law, not action by nonprofits, compelled insurers to assume full responsibility for the contraceptive program."The implications of plaintiff's arguments are sweeping," the federal lawyers argued. "It is one thing to urge that the government may not impose a requirement to provide contraceptive coverage on a religious organization that objects on religious grounds. It is quite another thing to urge that the government may not ensure that women have access to separate coverage through third parties after such an organization exercises its option not to provide the coverage. That latter argument, if accepted, would make women's access to contraceptive coverage dependent upon the religious beliefs of their employers."

In the coming appeals court deliberations, the Houston Baptist University and East Texas Baptist University case has been combined with similar ones involving Catholic institutions in Dallas, Fort Worth and Beaumont.