Under the latest rule, religious nonprofits must notify their insurance companies that they object to birth control coverage. The insurer or administrator of the plan will then notify affected employees separately that coverage will be provided at no cost. The insurers would be reimbursed by a credit against fees owed the government.
But some of those religious nonprofits and businesses contend only an outright exemption can satisfy their conscience concerns.
"The problem the government has here is they only have one tool in their tool kit to force the spread of these drugs, and that is the employer mandate — that is to force employers to be means to (the government's) end," Rassbach said. "The problem is, religious employers don’t want to be the means to that end. So there is a fundamental conflict that’s really just going to get resolved in court."
Whether the government's accommodation to nonprofit religious groups will survive a legal challenge will depend on whether the courts want to objectively examine whether the mandate poses a genuine burden on the religious practices of an employer, said Bob Tuttle, a law professor at George Washington University and an expert on church-state issues and religious liberty.
The nonprofit cases will differ from the businesses that have sued the government because a nonprofit won't have to argue that it is a religious organization. The government's rule has already established that, he said.
But all the claims contend that the mandate violates the plaintiff's First Amendment rights to exercise their religion and creates a "substantial burden" to practice one's faith under the federal Religious Freedom Restoration Act. The 1993 law says if a party can prove substantial burden, the government must show that the law furthers a compelling government interest and uses the least restrictive means of applying that law.
Tuttle explained that if courts simply accept a plaintiff's assertions that the mandate creates a substantial burden to practice his or her faith, then the government is going to have a tough time defending the mandate. But if the courts decide to undertake any kind of objective inquiry into how the mandate poses a substantial burden on the religious beliefs of an employer, the government "could be in pretty good shape."
"In these final rules (released Friday by HHS) the employer plays some role in the relationship of the employee and the ultimate body offering the contraception coverage, but it is a very attenuated role," Tuttle said.
But the religious organizations and businesses that have sued over the mandate contend only the individual, not the government, can decide whether a law violates their religious beliefs.
"It's not appropriate for government to tell them they are wrong about their own moral theology," Baylor said.
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