Southern Baptists now wait with a host of other religious adherents for a U.S. Supreme Court ruling that could decisively affect their ministries after justices questioned a federal contraceptive policy during oral arguments March 23.
Lawyers for GuideStone Financial Resources, the Roman Catholic order known as the Little Sisters of the Poor and other ministries told the high court an accommodation for religious nonprofits to the Obama administration’s abortion/contraception mandate violates religious freedom rights by coercing complicity in providing potentially abortion-inducing drugs and devices.
GuideStone, the Southern Baptist Convention’s health and financial benefits entity, and two of the ministries it serves, as well as three Baptist universities, are among the challengers to the accommodation.
The Supreme Court is expected to issue an opinion before the end of its term, which normally is in late June.
GuideStone President O.S. Hawkins, who attended the arguments, encouraged prayer for the court afterward.
“We are thankful for the opportunity to make our case before the High Court and pray for wisdom for the justices and favor in the outcome,” Hawkins said in a written release. “We are thankful for the prayers of so many in our Southern Baptist and broader evangelical family; this is the time to continue praying for these men and women who will render the verdict.”
Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC), pointed to the pending decision’s importance for the church and the country.
“Religious liberty shouldn’t be a partisan issue,” Moore told Baptist Press in written comments. “It matters to every single American, both to people of faith and to people of no faith, that the government not be empowered to force citizens to act contrary to their conscience.
“A state that can intrude on the beliefs of some people is one that can steamroll the rights of all,” he said. “That’s why this case matters, and that’s why getting it right is so important, not just for the church but for the country.”
The abortion/contraception mandate – a federal regulation issued to help implement the 2010 health-care reform law – requires employers to provide for their workers federally approved contraceptives, including ones with mechanisms that can potentially induce abortions. Those who refuse to abide by the requirement face fines in the millions of dollars.
The Department of Health and Human Services (HHS) provided an exemption to the mandate for churches and their auxiliaries but did not extend it to non-church-related, nonprofit organizations that object.
HHS issued an accommodation for religious nonprofits, but many of those ministries or institutions have found it unacceptable. They contend it still makes them complicit in covering contraceptives and potentially abortion-causing drugs. HHS requires them to provide written notification they meet the requirements for an accommodation, which forces the nonprofit’s insurer or a third-party administrator to provide contraceptive coverage.
The federally approved contraceptives for which coverage is required include the intrauterine device (IUD) and such drugs as Plan B, the “morning-after” pill. Both the IUD and “morning-after” pill possess post-fertilization mechanisms that potentially can cause abortions by preventing implantation of tiny embryos. The rule also covers “ella,” which – in a fashion similar to the abortion drug RU 486 – can even act after implantation to end the life of the child.
While the ideological split between the court’s conservatives and liberals seemed to break evenly during oral arguments, lawyers supporting the religious ministries challenging the accommodation observed some encouraging signs inside the courtroom.
Some of the liberal associate justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – expressed either uncertainty on where to draw lines on protecting religious freedom or an understanding of the difficulty for the religious organizations, said lawyers for the Becket Fund for Religious Liberty and Alliance Defending Freedom (ADF).
Meanwhile, justices in the ideological middle or other end of the court – Chief Justice John Roberts, Samuel Alito and even perennial swing vote Anthony Kennedy – “indicated they understood this is an easy case under the Religious Freedom Restoration Act,” said Adele Keim, counsel for the Becket Fund.
The justices are seeking to determine if the accommodation violates the 1993 Religious Freedom Restoration Act, which bars the federal government from substantially burdening free exercise of religion unless it can demonstrate it has a “compelling interest” and is using the “least restrictive means” to further that interest.
The federal government “just has no case,” since it has exempted plans covering one in three Americans, including its own Tricare plan for military families, Keim told BP outside the Supreme Court building.
“If the government is content to let the wives and daughters of service members go without this coverage, why is it trying to force this coverage on the Little Sisters of the Poor, GuideStone, Truett-McConnell, Reaching Souls, the other courageous ministries that have taken a stand against this mandate?”
Truett-McConnell College in Cleveland, Ga., and Oklahoma City-based Reaching Souls International – two entities served by GuideStone – joined in challenging the accommodation. GuideStone is exempt from the mandate and accompanying fines, but it serves ministries that face massive penalties for failure to obey the rule. Other Baptist institutions involved in appeals before the high court are Oklahoma Baptist University, East Texas Baptist University and Houston Baptist University.
Given the justices’ uneasiness with the difficulty for religious ministries, ADF Senior Counsel Steven Aden said, “I think where the conversation should turn at that point is: Granting this is a substantial burden on religious belief and exercise, has the government shown that it has a compelling interest not just in ensuring access to contraceptives generally but specifically … a compelling interest in forcing religious employers to utilize their own provided coverage, their own health plan to provide access to abortion pills to their employees?
“I don’t think that the government can make that case very well,” Aden told BP outside the Supreme Court building. “I don’t think they made it very well today. And I’m hopeful that in the end the decision will be in our favor and will turn on that failure by the government to make that case for why they have to do it to religious persons in this way” when it has made accommodations for millions of others.
The challenge to the accommodation follows by two years the Supreme Court’s decision in favor of Hobby Lobby’s challenge to the abortion/contraception mandate. In its 5-4 opinion in that case, the justices upheld objections to the requirement by “closely held,” for-profit companies, such as family owned businesses.
The nonprofit challenge to the accommodation is a “much easier case” than Hobby Lobby, said Keim, a member of Capitol Hill Baptist Church in Washington.
“[I]n Hobby Lobby and really on down the line, the government said, ‘Well, of course, we recognize that groups that are religious nonprofits have religious freedom,’” she said. “And in this case, the groups that are standing before the court and asking for relief” – such as Little Sisters of the Poor and GuideStone – “there’s no question these folks have religious freedom.
“And what you saw inside today was you saw the government’s lawyer admitting, ‘Yeah, [the ministries] believe they’re complicit in sin [under the accommodation], and they believe that our system makes them complicit in sin, and we just think that we should be able to force them to do that,’” Keim said. “And I just don’t think that they’re going to be able to maintain the four votes that they had in Hobby Lobby.”
ADF’s Aden pointed to the distinction between the GuideStone/Little Sisters of the Poor case and the Hobby Lobby case while expressing his wish the court would have focused more on that distinction.
“It’s different, right, because a large corporation does not necessarily hire employees on the basis of their religious belief,” Aden told BP. “A religious organization typically does. A religious school typically does.
“And so they select those with whom they minister on the basis of their shared commitment to that ministry, and I just wish that I heard more about that in the arguments today from the justices, more acknowledgment of that.”
As has been the case since the mid-February death of conservative Associate Justice Antonin Scalia, the high court heard oral arguments with only eight members sitting. It appears the court could split 4-4. If so, the appeals court decisions would stand, leaving only the Eighth Circuit Court of Appeals with a ruling in favor of the nonprofits’ religious freedom rights.
If a deadlock exists, the case could receive a rehearing by the high court after a ninth justice is confirmed.
The ERLC and two other SBC entities – the International Mission Board and Southern Baptist Theological Seminary, as well as Southern’s president, R. Albert Mohler Jr. – filed a friend-of-the-court brief in January that urged the high court to rule that the accommodation violates religious freedom.
Among the organizations filing friend-of-the-court briefs in support of the federal government’s accommodation was the Baptist Joint Committee for Religious Liberty, which once represented the SBC in Washington on church-state issues. The committee’s brief contends the accommodation is not a substantial burden on religious exercise because contraceptive services are delivered with separate funds and communications through secular insurance companies.
The case is Zubik v. Burwell.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press, the Southern Baptist Convention’s news service.)