Newsjournal of the Baptist State Convention of Michigan | March 2023 | Volume 67, Number 3
ABORTION MANDATE CASES RETURNED TO LOWER COURTS
by Tom Strode – Baptist Press
WASHINGTON, DC (BP) – The U.S. Supreme Court unanimously voided multiple appeals court decisions against religious institutions that object to the Obama administration's abortion/contraception mandate in an opinion released today.
The justices returned to the lower courts for reconsideration a disagreement between religious objectors and the federal government over the mandate, which requires employers to make contraceptives available to their workers, including ones with mechanisms that can potentially induce abortions. The high court remanded the cases to the appeals courts of the Third, Fifth, 10th and District of Columbia districts in light of their brief opinion and blocked the administration from fining the objecting institutions.
The appeals acted on by the Supreme Court famously involve the Little Sisters of the Poor, a Roman Catholic order of nuns who serve the needy. The plaintiffs in the cases also include Southern Baptist organizations such as GuideStone Financial Resources and several universities, as well as other evangelical Christian institutions.
While they await a final determination, Southern Baptist and other religious freedom advocates applauded the high court's latest action.
GuideStone Case has been sent down to lower court for re-evaluation. (Photo courtesy Baltimoresun.com)
Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, expressed gratitude the Supreme Court "recognizes the problem and the right of these organizations not to be subject to a heavy-handed administrative state that tramples the most basic American freedoms."
"On this day, we should be encouraged by this unanimous ruling which forbids the government to bully these organizations out of existence through crippling fines and penalties," Moore said in a written statement. "On the other hand, the fact that these basic rights are in question shows that there is much work yet to be done, work in which we will engage, to ensure that organizations like GuideStone and the Little Sisters of the Poor are not abandoned in legal purgatory."
GuideStone President O.S. Hawkins said in written comments, "We are thankful, first and foremost, to the Lord for this decision. We appreciate the diligence of our legal teams in working through the legal and constitutional issues that were raised as well as for the men and women of the Supreme Court who took seriously their oaths of office.
"This is a good day for which we are thankful."
The lengthy legal dispute -- which arose from a Department of Health and Human Services (HHS) rule related to the 2010 health-care law's implementation -- involves an accommodation to the controversial mandate that GuideStone, Little Sisters and many other religious nonprofits contend violates their religious freedom by forcing them to comply with providing potentially abortion-inducing drugs and devices. The latest of nearly 10 accommodations proposed by the Obama administration requires the nonprofits 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 justices' May 16 opinion followed the unusual action of requesting supplemental briefs from both sides less than a week after hearing oral arguments in March. The justices directed both sides to address whether the coverage can be gained "in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees."
Both sides filed supplemental and reply briefs in April. The religious nonprofits agreed there were other approaches they would accept that did not violate their consciences, and the administration admitted there were other ways to achieve contraceptive coverage than those it had proposed.
In its decision, the high court said it was not providing an opinion on how the lower courts should rule. It said, however, the federal government should accept the nonprofits' suits as notification they qualify for an accommodation and "may not impose taxes or penalties on petitioners for failure to provide the relevant notice." Previously, the administration had threatened millions of dollars in fines for those institutions that refused to abide by the requirement.
The justices said the appeals courts should give both parties "an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage.'"
The Becket Fund for Religious Liberty -- which is representing GuideStone, the Little Sisters and others -- described the justices' decision as a "win for religious liberty."
"This is a game-changer," Mark Rienzi, senior counsel for the Becket Fund, said in a written release. "The Court has accepted the government's concession that it can get drugs to people without using the Little Sisters. The Court has eliminated all of the bad decisions from the lower courts. And the Court has forbidden the government from fining the Little Sisters even though they are refusing to bow to the government's will. It is only a matter of time before the lower courts make this victory permanent."
Alliance Defending Freedom (ADF), which is representing some of the other challengers to the mandate, also welcomed the opinion.
"The Supreme Court was right to protect the Christian colleges and other groups from having to pay fines or fill out forms authorizing the objectionable coverage," ADF senior counsel David Cortman said in written comments. "The government has many other ways to ensure women are able to obtain these drugs without forcing people of faith to participate in acts that violate their deepest convictions."
GuideStone -- the SBC's health and financial benefits entity -- is exempt from the mandate, but it serves ministries that are required to obey the requirement. Two of those ministries -- Truett-McConnell College, a Baptist school in Cleveland, Ga., and Oklahoma City-based Reaching Souls International -- joined GuideStone in challenging the accommodation. Other Baptist institutions involved in the cases are East Texas Baptist University, Houston Baptist University and Oklahoma Baptist University.
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 act even after implantation to end the life of the child.
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.
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 the accommodation violates religious freedom.
In the consolidated cases, the Supreme Court sought to determine if the HHS 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.