GUEST EDITORIAL
By Kendall Antekeier, The Heartland Institute
Wheaton College, an evangelical college in Illinois, has appealed a federal judge’s decision to dismiss its lawsuit against the Obama administration over the mandate that all employers and institutions provide free access to contraceptives regardless of their religious views.
Wheaton had joined the Becket Fund for Religious Liberty and the Catholic University of America in their lawsuit against the U.S. Department of Health and Human Services (HHS), which claimed the mandate was a violation of their religious liberty. Under the mandate, employers must provide access without a co-pay to contraceptives, including the so-called “morning after” pill.
In the wake of an HHS announcement that some institutions would be granted a one-year reprieve before the mandate is enforced, Federal Judge Ellen Segal Huvelle ruled Wheaton’s lawsuit was premature because the college would not be forced to comply until January 1, 2014.
Wheaton College President Philip Ryken and the Becket Fund lawyers disagree, and have announced their intentions to appeal.
“We’re appealing because we continue to believe that our case should be considered on its merits,” Ryken said in a press statement. “While we are pleased that our lawsuit has compelled the government to delay enforcement, waiting another year will not change the fact that the mandate violates our religious liberty and puts our ability to offer our employees health insurance at risk.”
Wheaton has estimated the cost of complying with the mandate could be more than $1.4 million a year.
Religious Freedom at Issue
Before Wheaton joined the lawsuit, most challenges to the contraception mandate had come from Catholic colleges and organizations. According to Kyle Duncan, General Counsel for the Becket Fund, the addition of Wheaton to the legal pushback shows the opposition to the mandate is not an issue of Catholicism, abortion, or even birth control, but a matter of religious freedom.
“[Wheaton’s addition to the lawsuit] demonstrates that religious liberty violations reach across denominational lines,” Duncan said.
Wheaten’s Ryken said the decision to join the lawsuit was a matter of conviction. He told Health Care News that although Wheaton is Protestant (Protestants typically do not have a theological objection to artificial birth control), it is and has always been a pro-life institution, and it “should not be providing abortion services or coerced to provide those services through the insurance coverage it provides.”
Delay Rather Than Accommodation
The federal government has claimed it seeks an appropriate “accommodation” to the contraceptive mandate that will continue granting greater access to important health services for women but will not infringe upon religious conviction.
Yet Wheaton College joined the lawsuit in part because the federal government had yet to present a formal accommodation—and the accommodation ultimately presented only offered an additional year to comply.
HHS has discussed an additional accommodation that would provide an exemption for churches, Ryken said, but it would not fully exempt colleges and universities such as Wheaton. These institutions and their donors’ funds would still be involved, through an insurer, in providing abortion services, Duncan says, after the implementation delay.
“Any accommodation sketched out by the [Obama] administration doesn’t exist, wouldn’t solve the problem if it did exist, and it wouldn’t take place for a year,” Duncan said. “There is no accommodation for Wheaton whatsoever.”
Other Suits Dismissed
Whether Wheaton can prove it is not exempt from the mandate is especially important to the success of the case, given that seven state-initiated suits were recently dismissed based on the inability to prove states would have to comply with the mandate.
U.S. District Judge Warren K. Urbom of Nebraska dismissed a suit filed by Nebraska, Florida, Michigan, Ohio, Oklahoma, South Carolina, and Texas, and U.S. District Judge James E. Boasberg in the District of Columbia dismissed a challenge from Belmont Abbey College in North Carolina on similar grounds.
Despite these setbacks, Duncan is confident he can show that Wheaton and the other parties to the suit would not be able to escape the mandate.
“The decision from Nebraska has no effect on Wheaton’s decision whatsoever. The dismissal has no application to Wheaton—it is not a state; it is a religious institution that is directly harmed by the mandate, and its health insurance policies are not grandfathered, so they are subject to the mandate,” Duncan said. “It is clear Wheaton can’t qualify for exemption.”
Religious Liberty—for Some?
The lawsuit was filed by Becket and the Catholic University of America two months before Wheaton’s decision to join. John Garvey, president of The Catholic University of America, said legal action was the final resort for all parties of the lawsuit but is now a necessary action.
Ryken says Wheaton had opportunities to communicate with HHS about an accommodation. After not seeing an exemption forthcoming, and with the Supreme Court ruling in favor of the constitutionality of the law, Wheaton concluded it had no choice but to seek legal action.
Ryken says the religious liberty issues must be resolved, and a system of waivers and exemptions is inherently unfair.
“This is separating and creating two definitions of religious institutions: those who have to abandon their convictions and those who don’t,” Ryken said.
