HBU case headed to Supreme Court

AUSTIN — The U.S. Supreme Court has decided to take up a case involving Houston Baptist University that will determine whether faith-based nonprofits can block their employees from receiving certain kinds of contraceptives under their employerprovided health insurance.

Under the Affordable Care Act, or Obamacare, religious nonprofits opposed to certain birth control methods can opt out of a requirement of providing contraception to their employees. That transfers the responsibility to health care insurance providers, which are to make contraceptive drugs and devices available at no cost.

Several religiously affiliated schools, hospitals and charities, including HBU and East Texas Baptist

University, however, continued to oppose the provision. They sued the Obama administration in 2012, saying the simple act of notifying the federal government of their objections would mean their employees would have access to the same contraceptives they found morally objectionable, such as the morning after pill and certain intrauterine devices.

In July, the 5th U.S. Circuit Court of Appeals ruled against the Texas schools, saying the exception was not a substantial burden to their religious liberties. Altogether, seven out of eight federal appeals courts have agreed with the Obama administration that requiring faith-based groups to make their objections known and identify their insurers or insurance administrators does not violate a federal religious freedom law.

Only an appeals court in St. Louis ruled in favor of the groups.

On Friday, the court said it would take up Texas’ case next year, when it also will hear pending appeals from groups in Colorado, Maryland, New Mexico, Oklahoma, Pennsylvania and Washington, D.C.

HBU President Robert Sloan said he was heartened to hear the high court would take up the university’s case.

“We’re very pleased to be taking this next step,” Sloan said. “I think the Supreme Court wants to resolve this once and for all.”

In addition to HBU and ETBU, the other challengers include the Little Sisters of the Poor, nuns who run more than two dozen nursing homes for impoverished seniors.

“What they’re saying is they have an interest in making sure their employees don’t have access to contraceptives whatsoever. To say they have a statutory right that extends this far, that just seems a stretch of what their religious freedom is, that their religious freedom is to constrain the freedom of others.” Keith Werhan, constitutional expert at Tulane University

“We offer the neediest elderly of every race and religion a home where they are welcomed as Christ. We perform this loving ministry because of our faith and cannot possibly choose between our care for the elderly poor and our faith, and we shouldn’t have to,” Sr. Loraine Marie Maguire, mother provincial of the Little Sisters of the Poor, said in a statement released by the Beckett Fund for Religious Liberties, a Washington-based group representing all seven groups challenging the provision.

Keith Werhan, a constitutional expert at Tulane University, said he thinks the faith-based groups’ arguments are “very ambitious.”

“What they’re saying is they have an interest in making sure their employees don’t have access to contraceptives whatsoever,” Werhan said. “To say they have a statutory right that extends this far, that just seems a stretch of what their religious freedom is, that their religious freedom is to constrain the freedom of others.”

The administration has argued that the accommodation it came up with does not violate the nonprofits’ religious rights. Even if the Supreme Court rejects that argument, the administration has said in court papers, the justices should determine that the system for getting contraceptives to women covered by the groups’ insurance plans is the most effective and efficient way to do so.

The high court twice has preserved the health care overhaul, but it has allowed some for-profit employers with religious objections to refuse to pay for contraceptives for women.

Houses of worship and other religious institutions with a primary purpose to spread the faith are exempt from the requirement to offer birth control.

The justices will hear oral arguments in March.