WASHINGTON – The Southern Baptist Convention’s ethics entity has told two more federal appeals courts the Obama administration’s abortion/contraception mandate violates religious liberty.
The Ethics & Religious Liberty Commission (ERLC) signed on to friend-of-the-court briefs filed Feb. 19 with both the Sixth and 10th Circuit Courts of Appeals in supporting lawsuits against the mandate, which requires employers to pay for coverage of drugs defined by the Food and Drug Administration as contraceptives, even if they can cause abortions. The ERLC has now endorsed five briefs defending the religious freedom of entities challenging the requirement at the appeals court level.
The administration proposed a change Feb. 1 supposedly designed to satisfy the concerns of faith organizations, but religious freedom advocates said objecting employers – other than churches and church ministries – still would be unwilling participants in underwriting both contraceptive and abortion-causing pills. Under the revision, dissenting employers would have to be affiliated with an insurance plan connected to coverage of such pills and may end up absorbing increased costs for the drugs if the insurance companies pay for them and consequently increase rates.
Religious institutions and business owners with conscience objections to paying for contraceptives or abortion-causing drugs have challenged the mandate in more than 40 lawsuits against the Department of Health and Human Services (HHS), which issued the rule. So far, owners of for-profit companies that have challenged the rule have won injunctions blocking enforcement of the mandate 11 of 14 times.
The latest ERLC-endorsed briefs – written by the Christian Legal Society (CLS) – are in support of two for-profits that have not gained injunctive relief – Hobby Lobby in the 10th Circuit and Autocam Corp. in the Sixth. The ERLC also has signed on to CLS-authored briefs regarding the mandate in these circuits: District of Columbia (Wheaton College v. Sebelius); Seventh (Korte v. HHS) and Eighth (O’Brien v. HHS).
In the latest briefs, the ERLC and other organizations join CLS in saying the mandate’s “current definition of ‘religious liberty’ is grossly inadequate to protect meaningful religious liberty.” In the mandate, HHS chose to go with a narrower definition of “religious employer” than a standing definition under federal law, according to the brief.
“The proposed rule would continue to violate the [First Amendment clauses protecting religious free exercise and barring government establishment of religion] because the government would continue to squeeze religious institutions into an impoverished, one-size-fits-all misconception of ‘religious employer,’” the brief said.
The HHS mandate “departs from the [United States’] bipartisan tradition of respect for religious liberty, especially its deep-rooted protection of religious conscience rights in the context of participation in, or funding of, abortion,” according to the brief.
“At the end of the day, this case is not about which religious viewpoints regarding contraceptives or abortion are theologically correct – a question, of course, beyond the competency of the courts – but whether America will remain a pluralistic society that sustains a robust religious liberty for Americans of all faiths.”
Federal judges ruled the HHS mandate does not substantially burden the religious liberty of Hobby Lobby and Autocam – or their owners.
Hobby Lobby – founded by evangelical Christian David Green, who remains its chief executive officer – opposes providing insurance for abortion-causing drugs and has said it will not obey the mandate. As a result, the 525-store chain based in Oklahoma City ultimately could face government fines amounting to $1.3 million a day.
Autocam – a Michigan-based auto parts firm owned by John Kennedy, a Roman Catholic – opposes the contraceptive mandate as well as the requirement to cover abortion-causing drugs.
In addition to the ERLC, others signing on to the latest CLS briefs were the National Association of Evangelicals, Prison Fellowship, Association of Gospel Rescue Missions, Association of Christian Schools International and Institutional Religious Freedom Alliance. The C12 Group, which serves Christian CEOs, joined in the brief on behalf of Hobby Lobby.
Drugs considered contraceptives under the mandate – which HHS issued to implement the 2010 health care law – include Plan B and other “morning-after” pills, which can prevent implantation of tiny embryos. That secondary, post-fertilization mechanism of the pill causes an abortion. The mandate 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.
(EDITOR’S NOTE – Tom Strode is the Washington bureau chief for Baptist Press.)