The Obama administration's attempt to satisfy religious nonprofits that object to offering birth control under their employee health plans will unleash a new wave of legal action by employers who claim the contraceptive mandate violates their religious conscience, lawyers said Friday.
Health and Human Services officials said its final compromise issued Friday balances "common sense" religious considerations with the need to provide millions of women preventive health care services, including contraceptives, at no cost.
But attorneys representing some of the faith-affiliated schools, charities and other nonprofits that have already sued or are contemplating legal action said the new rule doesn't satisfy their concerns that any role in providing birth-control to employees is against their religious beliefs.
"As we said when the proposed rule was issued, this doesn’t solve the religious conscience problem because it still makes our nonprofit clients the gatekeepers to abortion and provides no protection to religious businesses,” said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty. “The easy way to resolve this would have been to exempt sincere religious employers completely, as the Constitution requires. Instead, this issue will have to be decided in court.”
The Becket Fund represents seven of the 30 religious nonprofits that have sued the government only to have their claims dismissed because no rules had been issued on how religious organizations would comply with the birth-control mandate. Rassbach said the only thing that changed Friday is that his clients now have that rule to refile their complaints.
And more plaintiffs will likely follow, said Doug Baylor, an attorney for the Alliance Defending Freedom, which represents several nonprofits and has others contemplating legal action.
"Now clients are considering whether to refile claims, and new potential plaintiffs that were waiting for what the final rule would say now have something concrete to make a judgment on whether they want to sue," he said.
Those lawsuits will join some 32 more that have been filed by for-profit businesses whose owners say the contraception mandate violates their right to practice their faith. Legal experts expect some of the cases to make their way to the Supreme Court to settle what has become a rallying issue for religious liberty advocates.
The final offer
The birth-control rule is part of President Barack Obama's health care overhaul that drew praise from many women's groups and condemnation from religious leaders who argued for broader exemption beyond churches and other houses of worship.
A series of accommodations resulted in the final rule issued Friday. HHS officials said the compromise simplifies the definition of religious organizations that are fully exempt from the requirement. It now aligns with the IRS definition of the religious groups and includes, for example, a charity directly operated by a religion but which serves and employs those outside of the faith.
"There's a much brighter line here — a simpler line — and we think that responds to a good many of the comments that we got," said Michael Hash, director of the Health and Human Services Office of Health Reform.
The agency received more than 400,000 comments on the latest proposed rule designed to remove nonexempt religious organizations from arranging coverage or paying for contraceptives, which include the morning-after pill that some faith groups consider tantamount to abortion.
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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