Female employees of religious nonprofits should not be given insurance coverage for birth control if their employers object to certain contraceptives on religious grounds, according to a brief filed at the U.S. Supreme Court by Texas Attorney General Ken Paxton.
Paxton’s “friend of the court” brief was filed Monday in support of a lawsuit brought by East Texas Baptist University and Houston Baptist University against the federal government over a provision of the Affordable Care Act requiring some employers to offer health plans that include contraceptive coverage.
The religious universities oppose emergency contraceptives, including the so-called morning-after pill, and intrauterine devices, which they liken to abortifacients. (Health experts and scientists have disputed that claim.)
In the brief filed by Paxton’s office, state attorneys wrote that the “supposed ‘accommodation’” will still “coerce employers to proceed with a course of action despite a belief in its religious impermissibility.”
“Many employers around the country feel driven by their faith to care for their employees by providing them health insurance,” the brief reads. “But some employers find it incompatible with their religious convictions to provide that health insurance when it means contracting with a company that then, by virtue of that very relationship, becomes obligated to pay for drugs regarded as abortifacients.”
A federal district court previously sided with the universities, blocking the requirement from going into effect. The U.S. Department of Health and Human Services appealed the case to the New Orleans-based U.S. 5th Circuit Court of Appeals — considered the most conservative appellate court in the country — which reversed that decision, saying the universities had “not shown and are not likely to show that the requirement substantially burdens their religious exercise under established law.”
In its ruling, the panel of the appellate court sided with the federal government in its argument that the universities’ religious exemption from providing contraception coverage did not extend to third parties left to administer insurance plans if a religious organization is exempted.
See here, here, and here for the background. While HBU and ETBU won in district court, no plaintiffs have prevailed at the appellate level yet. As such, there isn’t a district split yet for SCOTUS, though as we saw with the Obamacare subsidies case they don’t need to have one to take up an appeal. I’ll be surprised if it’s not on their docket by next year.