NEW ORLEANS—Two Texas Baptist Universities were among a host of faith-based institutions losing an appeal in their legal challenge to divest themselves of the Affordable Care Act (ACA) mandates requiring they provide insurance coverage for birth control and abortifacients. The U.S. Court of Appeals Fifth Circuit ruled June 22 the mandate did not and, likely, would not “substantially burden their religious exercise.”
Claiming they should receive the same consideration as churches under the ACA and the federal Religious Freedom and Restoration Act (RFRA), Houston Baptist University, East Texas Baptist University, Westminster Theological Seminary, University of Dallas, Catholic Diocese of Beaumont, and Catholic Charities of Southeast Texas and Fort Worth filed a lawsuit (ETBU et al vs. Burwell) demanding an exemption from the contraceptive mandate and the policies requiring they defer insurance coverage to a third party. A federal judge in 2013 sided with the plaintiffs. The government appealed and the Fifth Circuit Court reversed the lower court ruling last week.
Robert Sloan, HBU president, said faith-based schools and organizations have historically been recognized by the government 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.
But the Fifth Circuit disagreed with the lower court’s ruling. In its decision, the three-judge panel wrote, “The district courts held that the requirement [to provide birth control and abortifacient coverage] violates RFRA. … 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.”
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 is arbitrary and an affront to people of conscience.
“We think the panel got the law and the facts wrong today,” said Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty and counsel to East Texas Baptist University and Houston Baptist University. “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.”
By Friday, June 26, Sloan 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 he is optimistic because of the Hobby Lobby case in which the U.S. Supreme Court ruled the family-owned arts and craft store could opt out of the contraceptive mandate because of the owners’ religiously held convictions.
Failure to win their case would force HBU, ETBU, and the other religious institutions to either 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 is also out of the question as the non-compliance penalty of $100 per employee per day totals $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. Besides, Sloan said, the university’s insurance provider is Guidestone Financial Resources, the faith-based insurance provider for the Southern Baptist Convention also fighting the legal battle with the Obama administration over the mandate.
While the cases are pending appeal the mandate is not in force.