By Bob Allen
A federal appeals court ruled June 22 that the religious exercise of two Texas Baptist colleges isn’t substantially burdened by a requirement they opt out of contraceptive coverage required under Obamacare.
The 5th U.S. Circuit Court of Appeals overturned a lower court’s decision in 2013 barring the federal government from enforcing regulations requiring East Texas Baptist University and Houston Baptist University to provide or execute “self-certification” forms requiring a third-party administrator for FDA-approved emergency contraceptives.
In a case combined with similar complaints by Catholic Charities in Fort Worth and Southeast Texas and Westminster Theological Seminary, the two Baptist General Convention of Texas-affiliated schools argued that the self-certification process makes them a party to allowing their employees to receive cost-free particular forms of birth control that they believe are morally equivalent to abortion.
U.S. District Judge Lee Rosenthal in Houston agreed, ruling Dec. 27, 2013, that the opt-out requirement violated the Religious Freedom Restoration Act, which prohibits the government from substantially burdening a person’s religious exercise without a compelling reason and by the least restrictive means.
In its review of the combined cases, however, the appellate court said self-certification does not burden the universities but instead shifts the burden to a third-party administrator who in turn is reimbursed by the government.
“The acts that violate their faith are the acts of the government, insurers and third-party administrators, but RFRA does not entitle them to block third parties from engaging in conduct with which they disagree,” a three-judge panel ruled.
With the ruling, the 5th Circuit Court of Appeals joined the 3rd, 6th, 7th, and D.C. Circuits in rejecting challenges to the Obama administration’s accommodation process for religious nonprofit organizations that object to the contraceptive coverage mandate in the Affordable Care Act.
Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty and counsel to the two Baptist universities, told the Marshall News-Messenger that he believes the panel got the ruling wrong. Rassbach said he is reviewing the decision and may appeal to the full 5th Circuit Court or the U.S. Supreme Court.
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