More Religiously Affiliated Nonprofits Ask Roberts Court to Step Into Birth Control Fight

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More Religiously Affiliated Nonprofits Ask Roberts Court to Step Into Birth Control Fight

Jessica Mason Pieklo

A petition to the U.S. Supreme Court filed by a group of religiously affiliated nonprofits argues that any process that allows employees to access contraception coverage is a violation of employer's rights.

Attorneys representing three religiously affiliated nonprofits challenging the birth control benefit in the Affordable Care Act have asked the U.S. Supreme Court to step in after a federal appeals court ordered they must comply with the law.

The Becket Fund for Religious Liberty filed the request last week on behalf of Houston Baptist University, East Texas Baptist University, and Westminster Theological Seminary. The plaintiffs in East Texas Baptist University argue that the task of completing the government’s form that self-certifies them as religious employers—and eligible for an accommodation to the benefit—“triggers” or “facilitates” the ability of their employees to get contraceptive coverage elsewhere. That, the plaintiffs argue, makes them complicit in what they believe to be a sinful act: supporting contraception generally. A federal district court initially sided with the organizations, but in June the U.S. Court of Appeals for the Fifth Circuit reversed that decision and ruled the organizations had not shown how requesting an accommodation from the requirement substantially burdened their religious rights.

“They sincerely believe that fulfilling the contraceptive mandate via this regulatory option facilitates the provision of contraceptives and abortifacients and makes them complicit in actions that violate their religious beliefs,” the petition said.

Despite hundreds of legal challenges to the accommodation process, so far not a single federal court of appeals has ruled in favor of the nonprofit organizations challenging the Obama administration’s birth control benefit. However, despite the unanimity in the federal appeals courts that the accommodation process does not substantially burden any religious rights, Supreme Court Justice Samuel Alito has revived similar challenges from other religiously affiliated nonprofits, ordering the appeals courts to reconsider their rulings. Those courts did, ruling again in favor of the administration’s accommodation process.

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Complicating matters further for the challengers, the Obama administration last week issued final regulations concerning the birth control benefit. The regulations came as a result of the Roberts Court rulings in Hobby Lobby that some secular, for-profit businesses should have available to them an accommodation process if they object on religious grounds to complying with the birth control benefit. They also came following the Court’s interim order in Wheaton College, which allowed for an alternative process for religiously affiliated nonprofits to follow in order to avail themselves of the religious accommodation to the benefit. The new regulations codify those rulings and make available workarounds for those employees whose employers object to complying with the birth control benefit.

“We didn’t go looking for this fight,” said Dr. Robert Sloan, president of Houston Baptist University, in a statement following the filing of the Supreme Court petition. “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.”

The Court is likely to consider all of the petitions in late September or early October. If the petition is granted, the case would be argued and decided before the end of the Court’s term in June 2016.