By Bob Allen
The government has no right to force religious groups including an order of Catholic nuns and the Southern Baptist Convention’s insurance provider to alter their own health care plans to achieve an Obamacare goal to provide women with contraceptives free of charge, according to a 79-page brief filed with the U.S. Supreme Court Jan. 4.
The opening brief filed in consolidated lawsuits challenges the Obama administration’s plan for allowing certain religious organizations to opt out of required coverage of all FDA-approved methods of birth control — including those that can prevent implantation of a fertilized egg.
Clients including GuideStone Financial Resources of the Southern Baptist Convention say they do not object to government action that provides contraceptives to their employees, resist what they say is co-opting the infrastructure of their health care plans.
Rules developed by the Department of Health and Human Services to implement the Affordable Care Act recognized potential religious liberty pitfalls by automatically exempting “churches, their integrated auxiliaries, and conventions or associations of churches” from the contraception mandate.
Other faith-based organizations like religious hospitals and colleges that hire and serve people who do not share their faith tradition are subject to fines for non-compliance unless they follow a government-prescribed protocol for shifting the responsibility for birth-control coverage to a third-party administrator.
“The government has no legitimate basis for forcing faith-based educational institutions to provide abortion pills to their employees or students,” said Gregory Baylor, senior counsel for the Alliance Defending Freedom, which represents five Christian schools including Oklahoma Baptist University in two of seven cases the Supreme Court agreed to take up last November.
“The Obama administration is forcing the schools to choose between following their faith and following the government’s rule,” Baylor said. “This is utterly inconsistent with legal protections for religious liberty.”
The Beckett Fund for Religious Liberty — representing clients including the Little Sisters of the Poor, Truett-McConnell College, Houston Baptist and East Texas Baptist universities and GuideStone — said the government does not need the help of Catholic nuns who care for the poor to get contraceptive coverage to those who want it.
“It is ridiculous for the federal government to claim, in this day and age, that it can’t figure out how to distribute contraceptives without involving nuns and their health plans,” said Mark Rienzi, senior counsel for the Beckett Fund.
The brief says the Obama administration would like to present those registering religious objections to the HHS accommodation “as objecting to the very process of opting out, like the impossible-to-satisfy conscientious objector who objects to even having to object.”
A better analogy, it suggests, is “a conscientious objector who (quite reasonably) objects to a government policy that allows him to avoid military service only by providing a form that both identifies and obligates a family member or friend to serve in his stead.”
GuideStone, an “integrated auxiliary” of the Southern Baptist Convention, is exempt from the mandate, but many of its clients are not.
GuideStone sponsors a self-insured medical plan and contracts with third-party administrators to provide medical networks, certain administrative services and pharmaceutical benefits.
According to the brief, the largest TPA has stated that it would use GuideStone’s plan infrastructure to identify and contact beneficiaries about how to obtain contraceptives to which their employers object.
“The government’s regulatory scheme not only deprives the organizations that use GuideStone’s plan of the ability to provide health benefits in a manner consistent with their beliefs, but also denies GuideStone the ability to supply those organizations with a plan that allows them to do so,” the brief argues.
The petitioners do not claim a right to prevent their employees from receiving contraceptive coverage, the brief says. “They simply object to being forced to provide or facilitate the provision of that coverage themselves through their own plan infrastructure.”
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