Christian college in Pa. sues over birth-control provision in health-care law
February 21, 2012By Kevin McCorry
A Presbyterian college in Western Pennsylvania filed a lawsuit against the Obama administration Tuesday over the birth control provisions in the president's national health-care mandate.
Geneva College brought the suit with help from the Alliance Defense Fund, a Christian litigation group that aims to "keep the door open for the spread of the Gospel." They say the president has breached the constitution by forcing religiously affiliated employers to include birth control in their workers' health insurance plans.
"Religious institutions like Geneva College should not be forced to violate their religious rights about the sanctity of human life by having the federal government mandate that they cover items that the organization teaches are the killing of innocent human beings," said Matt Bowman, an ADF attorney representing Geneva.
While religious institutions have always been exempt from the mandate, the businesses that they control (such as hospitals and universities) were originally given no such leeway.
After pressure from both sides of the aisle, the Obama administration amended its position on the matter earlier this month, saying those religiously affiliated employers would not have to foot the birth control bill. The employers' health insurance companies would do so instead.
Obama supporters saw this compromise as a victory for all sides: religiously affiliated employers wouldn't have to actively support an affront to their beliefs, and women would still be granted full access to guaranteed coverage.
Even health insurance companies would win because the cost of providing birth control compared with the cost of providing pregnancy coverage more than equals out.
Yet the ADF claims that, officially, the compromise doesn't exist. ADF representatives contend that because Obama filed his original birth-control rule in the federal register "without change," any further qualifications are currently only "vague promises."
The federal agency which worked with the Obama administration on the compromise -— the Department of Health and Human Services -— did not return calls for comment.
Kermit Roosevelt, a law professor at University of Pennsylvania specializing in constitutional law, said that regardless of the ADF's claims, a court would be unlikely to find either version of Obama's plan -— the original or the compromise — unconstitutional.
"They can impose some political costs on the Obama administration," Roosevelt said of those bringing lawsuits. "But I don't think that they could get a court to say that this is unconstitutional."
Roosevelt's rationale: If there's a law that applies to everyone, and doesn't single out religious organizations (which Obama's mandate doesn't), then religious organizations and their members must comply.
As Roosevelt puts it, "Claims of free exercise of religion do not get you an exemption from a law of general applicability."
The ADF doesn't think the case will be so simple. It claims there have been so many exemptions built into the Obama administration's law that it can't be thought of as being generally applied.
Larger looming legal threat
Despite this disagreement, there is another aspect of the lawsuit that both sides agree could pose a real threat to Obama's proposition: The Religious Freedom Restoration Act.
This statute was passed by Congress in 1993 as a direct response to Supreme Court decisions which ruled against religious institutions for the very reasons Roosevelt outlines. Under this statute, courts weigh the burden a law has on religious institutions against the government's necessity for passing said law.
Just what's deemed a "burden" and a "necessity" will, of course, be for the courts to decide.
If it were up to Geneva College President Ken Smith, the decision would be a quick one. He feels that, as an employer, the Obama administration's proposal would unduly force him to act against his conscience. This would leave him, he says, with only one other option -- "to not provide insurance coverage."
But to do this, of course, would be to break the mandate that the Affordable Care Act is contingent upon —- a transgression Smith estimates that would penalize Geneva College up to $500,000 per year.
On these points, ADF senior counsel Greg Baylor compares his client's moral and financial dilemmas with what he sees as meddlesome government intrusion.
"What is the state's interest in this? Is it really necessary to provide that sort of burden on [Geneva's College's] conscience in order to save some one from spending 55 dollars on a box of Ella?" said Baylor. "The burden on conscience is not justified by the government's alleged interest in having party 'A' pay for party 'B's' abortion-causing drugs."
Here supporters of the preventive-services mandate claim that the proposal doesn't actually impinge on rights because it doesn't actually force anyone who doesn't want birth control to take it.
Despite this, Roosevelt adds that -— at least in the face of the Religious Freedom Restoration Act -— history is not on Obama's side.
"Courts are reluctant to say, 'No it's not a burden on your religious beliefs,' because that involves them too closely in figuring out exactly what people believe," Roosevelt explained. "Generally speaking, if people say, 'My religious belief forbids me from doing this, or commands me to do this,' courts take that at face value."
Roosevelt points out that the issue is complicated further by the fact that the act in question has been deemed unconstitutional at the state level, but is still enforceable in regard to national measures.
The U.S. Conference of Catholic Bishops has publicly decried the president's plan. Philadelphia Archbishop Charles J. Chaput wrote in an Inquirer column published immediately following the Feb. 10 compromise, "No similarly aggressive attack on religious freedom in our country has occurred in recent memory."
The Catholic Church teaches that artificial contraception is immoral because marital sex must be open to the possibility of procreation.
Supporters of Obama's plan point to the 28 states, including New Jersey and Delaware, which already have these types of laws on the books. But critics have responded to this figure by pointing out that many of those states provide some form of exemption for religiously affiliated institutions.
This is the sixth lawsuit concerning the birth-control provision of the Affordable Care Act brought against the government since November, and the first in Pennsylvania.