Supreme Court: lower court's mandate decision lacking

WASHINGTON (BP) -- The U.S. Supreme Court appears to be indicating the White House and some judges still don't get it when it comes to protecting religious liberty.

The justices' latest act regarding the increasingly contentious issue of free exercise of religion came as a rebuke to an appellate ruling in support of rules implementing the administration's abortion/contraception mandate.

In a March 9 order, the high court vacated a ruling by the Seventh Circuit Court of Appeals against the University of Notre Dame and told it to reconsider its decision in light of the justices' ruling in support of the religious freedom of for-profit companies. The Seventh Circuit will re-examine its February 2014 ruling against the Roman Catholic school in view of the June win by Hobby Lobby and another business at the Supreme Court.

The abortion/contraception mandate, which was part of the implementation of the 2010 health-care law, requires employers to provide for their workers not only contraceptives but drugs and devices that can potentially cause abortions. The Department of Health and Human Services (HHS) is on its eighth revision of rules in response to complaints it failed to protect the conscience rights of employers. None of those amendments has satisfied the concerns of religious liberty advocates.

The high court's latest action elicited approval from defenders of free exercise of religion.

"The Supreme Court took a big step in the direction of liberty and justice," said Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC). "I pray that the present administration will stop its reckless disregard of soul freedom and liberty of conscience."

Religious freedom lawyer Mark Rienzi called the justices' order "a strong signal that the Supreme Court will ultimately reject the government's narrow view of religious liberty."

"This is a major blow to the federal government's contraception mandate," said Rienzi, senior counsel of the Becket Fund for Religious Liberty, which has led the diverse effort challenging the mandate. "For the past year, the Notre Dame decision has been the centerpiece of the government's effort to force religious ministries to violate their beliefs or pay fines to the [Internal Revenue Service]."

The Seventh Circuit's ruling against Notre Dame left the South Bend, Ind., university the only non-profit religious ministry in the country without legal protection from the abortion/contraception mandate, according to the Becket Fund.

Four months after the Seventh Circuit's decision, the Supreme Court upheld the objections of Hobby Lobby, the nationwide retail chain owned by evangelical Christians, and Conestoga Wood Specialties, a Pennsylvania cabinet-making company owned by pro-life Mennonites. The justices ruled the HHS mandate did not protect the conscience rights of "closely held" for-profit companies, such as family owned businesses.

While that opinion did not address the many non-profits with objections to the mandate, the Supreme Court acted in a non-profit case in July. It blocked enforcement of the mandate against Wheaton College, a Christian school in suburban Chicago, until the appeal process is complete. The justices' order said the school -- and, by likely extension, other objectors -- need only inform HHS it is a religious non-profit with religious objections and not fill out a form required by the government.

In August, HHS issued its eighth rules revision in three years following the Supreme Court actions. The latest regulations provide a non-profit with the option of notifying HHS in writing of its religious objection to providing coverage of all contraceptives or those that are potentially abortion-causing. In response, the federal government will notify the insurer or a third-party administrator it is responsible for providing employees of the non-profit with payments to cover the services. The new version no longer requires the non-profit to authorize the government to contact its insurer.

The ERLC and other foes of the mandate and its failure to protect the conscience rights of employers strongly criticized the latest revision.

The new option does not eliminate the moral objection by religious organizations, Moore said in October comments filed with HHS. "Non-exempt religious organizations which object to providing abortifacients on moral and religious grounds are still the conduit by which employees receive the drugs and devices," he wrote.

"Non-exempt organizations are unable to comply with the rules, and, at the same time, maintain fidelity to their religious beliefs," Moore said. "The new accommodation is merely a reshuffling of the paperwork and does not resolve the concerns of non-exempt religious organizations: their actions are ultimately providing abortifacients to their employees."

In recent months, some federal appeals courts have upheld the HHS' latest regulations. The most recent decision came in February in the Third Circuit Court of Appeals in Philadelphia against Geneva College, a Christian school in western Pennsylvania.

The abortion/contraception mandate, which was part of the implementation of the 2010 health-care law, requires coverage of such drugs as Plan B and other "morning-after" pills that appear to possess a post-fertilization mechanism that can cause an abortion by preventing implantation of tiny embryos. The rule also covers "ella," which -- in a fashion similar to the abortion drug RU 486 -- can act even after implantation to end the life of a child.

HHS provided an exemption to the mandate for churches and their auxiliaries but did not extend it to non-church-related, non-profit organizations that object. The result has been federal lawsuits by 140 non-profit parties in 56 cases, according to the Becket Fund. In addition, more than 190 for-profit plaintiffs have filed suit in 49 cases.

The Southern Baptist Convention's health and financial benefits entity has filed its first-ever lawsuit against the federal government in a legal challenge to the Obama administration's abortion/contraception mandate.

GuideStone Financial Resources, the Southern Baptist convention's health and financial benefits entity, has sued the federal government because of its objection to the mandate. Its case is under consideration by the 10th Circuit Court in Denver.

Tom Strode is Washington bureau chief of Baptist Press, the Southern Baptist Convention's news service.
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