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Becket Fund for Religious Liberty

Transgender health directive halted

One last kick in the rear from the annus horribilis that was 2016.

A Texas judge issued an injunction Saturday against a federal mandate aimed to protect transgender people, finding that the federal health rule violates existing law.

The preliminary injunction, granted by U.S. District Judge Reed O’Connor, is in response to a lawsuit filed by Texas, on behalf of religious hospital network Franciscan Alliance, and four other states in August.

In the suit, Texas and the other plaintiffs argued that a federal regulation prohibiting discrimination against transgender individuals in certain health programs would force doctors “to perform and provide insurance coverage for gender transitions and abortions, regardless of their contrary religious beliefs or medical judgment,” according to the order. The plaintiffs also claim they could be required to perform gender transition procedures on children. Texas asked the court to block the federal government from enforcing the regulation.

Transgender rights activists have refuted claims that the health rule prevents doctors from using sound medical judgment, arguing instead that it clarifies that health care providers can’t deny services or insurance to someone because that person is transgender.

In Saturday’s ruling against the federal government, the judge indicated that a preliminary injunction was appropriate because the federal health mandate violates the Administrative Procedure Act, which governs how federal agencies develop and issue regulations, and likely violates federal religious freedom protections for the plaintiffs that are private entities.

“While this lawsuit involves many issues of great importance—state sovereignty, expanded healthcare coverage, anti-discrimination protections, and medical judgment—ultimately, the question before the Court is whether Defendants exceeded their authority under the ACA in the challenged regulations’ interpretation of sex discrimination and whether the regulation violates the Religious Freedom Restoration Act as applied to Private Plaintiffs,” the order reads.

See here and here for the background. The Chron adds on.

Ezra Young, director of Impact Litigation at Transgender Legal Defense and Education Fund, challenged both rulings as misinterpretations of federal law. He called Saturday’s “flatly contrary to law,” “morally repugnant,” and predicted it would be overturned on appeal.

“The U.S. Supreme Court has long recognized that sex discrimination takes many forms, and our nation’s expansive and unyielding nondiscrimination laws necessarily reach sex discrimination whenever and wherever it strikes,” Young said in a statement Saturday.

[…]

Young said the impact could be damaging to transgender people seeking care, who for years have faced denial of insurance benefits or access to doctors they chose because of their gender identity. Young said while some states have similar rules protecting transgender rights, Obama’s move was “groundbreaking.”

“The benefit of the federal law is it sort codifies things and it gave one unifying rule all across the country,” he said.

I’m sure this will be appealed. At least with the intervention of the ACLU, the defense of the lawsuit can’t be tanked by a corrupted Justice Department. I don’t know enough to speculate about the legalities going forward, but I do know this: Some day, and I hope to live long enough to see it, people will look back at the actions of Ken Paxton and the other obstructers of progress, and wonder what the hell they were doing. Paxton and those like him will be seen as the George Wallace and Bull Connor of the early 21st century. I don’t know when that day will come, I just know that it will.

ACLU intervenes in transgender health care suit

Good for them.

RedEquality

The ACLU and ACLU of Texas are getting involved in a lawsuit over a regulation in the Affordable Care Act. In August, Texas filed a lawsuit against federal regulations that prohibit healthcare discrimination against people who are transgender. The lawsuit was announced by the Becket Fund for Religious Liberty, representing the Franciscan Alliance. The lawsuit will be heard in Wichita Falls.

The rules state that healthcare entities are not allowed to deny or limit services – including gender transition services – based on race, national origin, sex, age or disability.

But the State of Texas, along with four other states, says the regulation in would force doctors to perform medical procedures to change the gender of children.

The ACLU says the lawsuit would have the larger implication of allowing providers to use religion to deny medical care.

Josh Block, a senior staff attorney with the ACLU’s LGBT project, says the lawsuit echoes the recent attempt to strike down guidance from the U.S. Department of Education to allow public school students to use the bathroom that is in line with their gender identity.

Block says the ACLU got involved because no one else had intervened to represent the interest of the people who are being discriminated against.

“It’s really crucial that the people who are being discriminated against have a voice in that courtroom to explain why the law is so necessary,” he says.

[…]

Individual doctors and hospitals are saying they should not be required to perform gender transition procedures because they violate their religious beliefs. Block says the regulations aren’t targeted at individual doctors; instead, they require the medical institution to follow the rules.

“They don’t require anyone to perform any surgery or give any treatment that the doctor doesn’t want to,” Block says. “The obligations are on the entity that’s employing the doctors. The burden isn’t on anyone’s individual conscience – this is an organization that is claiming the right to have federal funds to provide healthcare to the general public but then discriminate based on their religious beliefs.”

See here for the background. I sincerely hope the ACLU has some company in its involvement here. I put in those last two paragraphs to address a comment from my earlier post on this topic. If the rule in question really applies to institutions and not individual doctors, I’m hard pressed to see what the objection is. Truth be told, though, I believe this rule should apply to individual doctors, for the same reason why individual firefighters should respond to an alarm at an LGBT person’s house regardless of that firefighter’s personal feelings. If you can’t treat every person you serve with equal respect, dignity, and effort, then you really ought to consider another occupation, and that’s before we take the Hippocratic Oath into account for the docs. Every person deserves equal treatment. What is so freaking difficult about that?

Paxton continues his war on transgender people

This is just ugly.

RedEquality

Ramping up its fight over the rights of transgender people, Texas filed a lawsuit Tuesday against the federal government over a regulation prohibiting discrimination against transgender individuals in some health programs.

Texas, on behalf of Franciscan Alliance, a religious hospital network, and four other states are claiming the new federal regulation would force doctors to perform gender transition procedures on children and requested the court to block the federal government from enforcing the regulation. The federal rule on nondiscrimination in health care prohibits denying or limiting coverage for transgender individuals, including health services related to gender transition.

The lawsuit was announced by the Becket Fund for Religious Liberty, which is representing the Franciscan Alliance. It was filed Tuesday morning in the Wichita Falls-based District Court for the Western District of Texas.

The case was assigned to U.S. District Judge Reed O’Connor, who on Monday sided with the state and blocked the Obama administration’s guidelines to accommodate transgender students. Those guidelines say that schools must treat a student’s gender identity as the student’s sex for the purposes of complying with federal nondiscrimination statutes.

[…]

Among several legal claims, they argued that the new rule violates the federal Religious Freedom Restoration Act because it compels religiously affiliated health organizations to violate their sincerely held religious beliefs. The federal government is “forcing them to choose between federal funding and their livelihood as healthcare providers and their exercise of religion,” the wrote in a court filing.

You can see a copy of the lawsuit here. Think Progress pulls out some of the highlights:

Essentially, this suit is akin to Hobby Lobby, except it objects to transgender care instead of birth control.

The complaint repeatedly refers to standards of care, and the need for states and physicians to be able to maintain “standards of care that rely upon the medical judgment of health professionals as to what is in the best interests of their patients.” Requiring doctors to perform procedures that they do not believe are in the best interest of the patient would turn “the venerable medical oath to ‘do no harm’ on its head.” Physicians should have the ability “to offer a contrary view” to HHS’s conclusions that transition-related treatments are no longer “experimental.” The plaintiffs in the suit believe that transition care is not only still experimental, but also “ethically questionable and potentially harmful.”

Building standards of care around this belief, the complaint assures, does not compromise patients’ respect:

Every person should be treated with dignity and respect, especially when in need of medical attention. The standard of care established in Texas, and around the country, enables patients to obtain quality healthcare as determined by medical professionals, and not those outside the doctor-patient relationship. The Regulation, however, usurps this standard of care. It discards independent medical judgment and a physician’s duty to his or her patient’s permanent well-being and replaces them with rigid commands.

Nowhere, however, does the suit acknowledge the World Professional Association for Transgender Health (WPATH), which has maintained research-informed standards of care for transgender people for nearly 40 years. The WPATH standards, first proposed in 1979 and updated several times since, are based on “the best available science and expert professional consensus.” They recommend affirming transgender people’s identities and recognize that gender transition improves their well-being.

The plaintiffs in the suit make no secret of the fact that they reject this science in favor of their own religious beliefs. For example, the suit cites CMDA’s “Transgender Identification Ethics Statement,” which takes the literal opposite position of the WPATH standards, because validating transsexual “desires” is “contrary to a Christian worldview:

In contrast to the current culture, CMDA believes that finding one’s identity within God’s design will result in a more healthy and fulfilled life. CMDA believes, moreover, that social movements which contend that gender is decided by choice are mistaken in defining gender, not by nature, but according to desire. Authentic personal identity consists in social gender expression that is congruent with one’s natural biological sex. CMDA recognizes that this traditional view has become counter-cultural; however, CMDA affirms that God’s design transcends culture.

CMDA’s statement also claims that affirming children’s gender identity and allowing them to delay puberty has “lifelong physical, psychological, and social consequences,” even though the available evidence says the exact opposite — that delaying puberty is safe and totally reversible.

Like CMDA, Franciscan similarly rejects the existence of transgender identities:

Franciscan holds religious beliefs that sexual identity is an objective fact rooted in nature as male or female persons. Like the Catholic Church it serves, Franciscan believes that a person’s sex is ascertained biologically, and not by one’s beliefs, desires, or feelings. Franciscan believes that part of the image of God is an organic part of every man and woman, and that women and men reflect God’s image in unique, and uniquely dignified, ways. Franciscan does not believe that government has either the power or the authority to redefine sex.

The suit claims that even providing “psychiatric support” as part of a medical transition would violate its “best medical judgment and its religious beliefs.” Even simply providing insurance coverage for such procedures would “constitute impermissible material cooperation with evil.”

I can’t even wrap my mind around this. Substitute “gay” for “transgender” in the paragraphs above, and ask yourself if this would come close passing legal muster, let alone common decency and medical ethics. And yes, this is the same judge who granted a national injunction in the bathroom case. Give Ken Paxton his due – he knows who the friendly judges are. The Current has more.

SCOTUS punts on birth control lawsuit

Wow.

Zubik v. Burwell was supposed to be an epic showdown over the power of religious objectors to limit the rights of others. A sequel to the Court’s 2014 decision in Burwell v. Hobby Lobby, Zubik involved regulations expanding women’s access to birth control that the conservative justices appeared to endorse in Hobby Lobby — even as they struck down a more direct method of providing contraceptive coverage to working women.

At oral arguments, however, the four remaining conservatives seemed to have a change of heart. Even Justice Anthony Kennedy, the justice who signaled the loudest in Hobby Lobby that he would tolerate the kind of regulations at issue in Zubik, appeared openly hostile towards the Obama administration’s arguments. The case seemed to be barreling towards a 4-4 non-decision. If conservative Justice Antonin Scalia had not died last February, it is all but certain that the case would have ended in a crushing defeat for the administration and for many women who hoped to benefit from the administration’s birth control rules.

But that’s not going to happen — at least not yet. On Monday, the Supreme Court handed down a brief, three-page opinion that effectively punts the case until next year at the earliest (and, presumably, after someone has been confirmed to fill Justice Scalia’s seat). The opinion explicitly “expresses no view on the merits” of Zubik and a raft of related cases. Instead, it sends these cases back down to the lower courts to consider the views expressed by both parties in supplemental briefing requested by the justices themselves.

[…]

As the Supreme Court notes in Monday’s opinion, the administration “has confirmed that the challenged procedures ‘for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.’” However, that’s not the end of the story. The administration also explained to the Court that the justices’ proposed compromise may not work for employers that self-insure (that is, employers who pay out health claims directly to employees rather than joining them into a broader insurance pool).

In any event, the one thing that’s absolutely clear from the Court’s very brief, unsigned opinion inZubik is that it will not resolve any of the nuances of how employers should exempt themselves, what should happen to women who seek birth control after an employer exempts itself, and whether self-insurance or other situations present unique problems that call for a distinct rule. The Court wants this case to go away, at least for now.

See here for the background. This is just amazing. SCOTUSBlog provides some further analysis:

One reading of Monday’s developments was that the Court, now functioning with eight Justices, was having difficulty composing a majority in support of a definite decision on the legal questions. Thus, what emerged had all of the appearance of a compromise meant to help generate majority support among the Justices. With this approach, the Court both achieved the practical results of letting the government go forward to provide the contraceptive benefits and freeing the non-profits of any risk of penalties, even though neither side has any idea — at present — what the ultimate legal outcome will be and, therefore, what their legal rights actually are under the mandate.

Those uncertainties are now likely to linger through the remainder of President Obama’s term in office, which ends next January. The appeals courts may well order the filing of new legal briefs, and may hold new hearings, before issuing a new round of rulings on the controversy. However, the entire future of the ACA, including its birth-control mandate, may now depend upon who wins the presidential election this year and which party has control of Congress when it reassembles in 2017.

The three issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the ACA mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, whether the government had a “compelling interest” in assuring cost-free access to contraceptives, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the “least restrictive means” to carry out the mandate.

Doing on Monday much the same that it had done in several temporary orders at earlier stages of this controversy, the Court accepted that the non-profits already had given the federal government sufficient notice of their objection to the mandate, and that the government could use that notice as the basis for going ahead to provide actual access, at no cost, to the employees and students of those institutions.

The unsigned opinion that the Chief Justice announced included an attempt to explain why the Court was bypassing a definitive ruling on the legal issues. It cited the replies that both sides had filed, after the cases had been argued, in reaction to a suggested compromise plan devised by the Court.

The Court on Monday interpreted those filings as containing concessions that move the two sides somewhat closer together, but at the least provided a basis for letting the federal appeals courts be the first to analyze the meaning and impact of those concessions. The Court expressed the hope that the two sides would use this new opportunity, in the appeals courts, to work toward common ground that would protect the religious sensibilities of the non-profit institutions at the same time that women of child-bearing age would not be deprived of contraceptive devices and methods.

“We anticipate,” the Court said, “that the courts of appeals will allow the parties sufficient time to resolve any outstanding issues between them.” That appeared to be an invitation for the lower courts at least to explore whether the two sides could reach agreement without prolonging the court battles. It conceded, though, that there may still be “areas of disagreement” between the two sides.

It may just be my cynicism showing, but I don’t expect any of the litigants to go seeking common ground. This was from the beginning an ideological fight, and they’re not going to settle for anything less than victory. As the Trib noted, the district court in Texas originally found for the plaintiffs, HBU and East Texas Baptist University, but the Fifth Circuit overturned that verdict. I have no idea what happens from here, but I look forward to a Supreme Court with either a Justice Merrick Garland or a President Clinton-named Justice getting the case again in the future. TPM, Dahlia Lithwick, Rewire, and Daily Kos have more.

Once more with SCOTUS and birth control

Here we go.

In another major case concerning Texas women’s reproductive care, the U.S. Supreme Court on Wednesday will consider if the right to religious freedom is broad enough to completely exempt nonprofits with religious objections to birth control from providing women access to it through their insurance plans.

The case, formally known as Zubik v. Burwell, pits religious nonprofit groups — including East Texas Baptist University and Houston Baptist University — against the federal government over a provision of the Affordable Care Act requiring some employers to provide contraceptive coverage to female workers.

The Texas case is among seven related lawsuits the high court agreed to hear together in which religious nonprofits argue the mandate infringes on their religious freedom. The Obama administration says the groups are offered a way around the requirement through a mechanism that still gives women access to free contraception.

Under the federal health care act, employers with 50 or more full-time employees are required to offer health plans with “minimum essential coverage,” including access to federally approved contraception for women, without co-payments or deductibles.

Religious nonprofits can seek “accommodations” to be exempted from the contraceptive mandate by submitting a form or notification certifying the organization’s objection on religious grounds. Doing so transfers the administrative duties of providing contraception coverage from the employer to the insurance company or a third party, which takes over handling the claims.

But the nonprofits argue they should be exempted from the requirement altogether because they are still “being forced to facilitate access” to contraceptives they oppose. In this case, the religious groups object to emergency contraceptives, including the so-called morning-after-pill, and intrauterine devices, which they liken to so-called “abortifacients” — or drugs that induce an abortion. (Health experts and scientists have disputed that claim.)

That parenthetical statement really understates the matter. People are free to believe what they want, but when those beliefs are contradicted by objective reality, I’m not sure why the law needs to accommodate them. Too bad I’m not on the Supreme Court.

Anyway. I’ve been following the HBU/East Texas Baptist lawsuit from the beginning – see here, here, and here for the basics, and remember that the full Fifth Circuit – yes, that Fifth Circuit – refused to uphold the initial lower court ruling in HBU’s favor.

Given the current composition of the Court, the fact that nearly every appeals court rejected the plaintiffs’ arguments, and the way things went with the HB2 case, there was a fair amount of optimism going into this one that the good guys would prevail. Unfortunately, it looks like perhaps the Bad Anthony Kennedy showed up for oral arguments.

In Burwell v. Hobby Lobby, the last major case brought by religious objectors to birth control, the Court’s five justice conservative majority effectively wrote the “substantially burden” requirement out of the law. As Justice Samuel Alito wrote for the Court in that case, the Hobby Lobby plaintiffs “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”

It quickly becomes clear during the Zubik argument, however, that the Court’s four justice liberal bloc wants to put the words “substantially burden” back into the law. Justice Sonia Sotomayor notes that, under the conservatives’ truncated reading of RFRA, it is unlikely that a plaintiff would ever fail to show a substantial burden because “we’re not asking you to do anything except identify yourself.” Justice Stephen Breyer even goes so far as to wax philosophic about how much easier life was in the few years before RFRA was enacted.

Kennedy, however, wants no part of this project to make “substantially burden” mean something again. “It seems to me that there is a substantial burden” in this case, Kennedy tells Solicitor General Don Verrilli in an uncharacteristically candid moment. About a minute later, Kennedy is even more candid, disclosing that he believes that this entire case comes down to whether the government could have used a less restrictive alternative (the third prong of RFRA) to provide birth control to women whose employers object to birth control.

For most of Verrilli’s time at the podium, however, Kennedy is sphinx-like, saying little and revealing little about whether he believes the government has made its case. Chief Justice John Roberts and Justice Alito spend this period taking shots at Verrilli. At a major argument over abortion earlier this month, the Court’s conservative wing appeared stilted and unsure how to seize the offensive with Scalia absent from the bench. Today, with Scalia’s seat literally absent from the Courtroom and just eight chairs facing the audience and the attorneys, it was clear that Roberts and Alito had their mojo back.

In their briefs, the religious objectors argue that requiring them to fill out a form in order to receive a contraceptive plan is not the “least restrictive means” of ensuring access to birth control. The government could have created a new birth control entitlement program funded by taxpayers (an alternative that Kennedy briefly appears skeptical of), or they could have offered birth control-only plans in the Affordable Care Act’s health care exchanges to women whose employers refuse to provide them with contraceptive coverage.

Alito focuses on the later of these two opinions, in a series of questions for Verrilli that can fairly be described as combative and nasty. At one point, Alito demands to know how the government can claim that Obamacare’s exchanges are “so unworkable” that they cannot provide an alternative for women that need birth control-only plans. It’s the sort of remark that seems more at home on Fox News than in the Supreme Court of the United States, and its delivered in a tone that seems to betray Alito’s bitterness over the fact that he has twice tried and failed to gut Obamacare by judicial decree.

In response, Verrilli argues that offering birth control-only coverage in the exchanges would not be a workable solution. For one thing, it’s not currently legal to sell such single-subject plans in the exchanges. For another, it’s far from clear that any private insurer would agree to offer such a plan. And even if they did, there’s no guarantee that a woman would be able to buy a plan that included the same doctors she relies upon for other medical care. This could lead to a world where a woman’s regular physician would be unable to prescribe contraception or even counsel the woman on many issues related to her reproductive health. And it would add an additional layer of complication that would discourage many women from seeking out contraceptive care.

Roberts, meanwhile, embraces the religious objectors’ argument that the government is “hijacking employers’” health plans via its fill-out-the-form regulation. This proves to be a very effective argument for Roberts, largely because it appears to sway Kennedy near the end of Verrilli’s time at the podium. In response to Verrilli’s attempt to explain some of the details of how the fill-out-the-form rules operate, Kennedy snaps back “that’s why it’s necessary to hijack the plans!”

In contentious cases, Kennedy often appears to play the role of Hamlet, asking questions of both sides and giving off an air of uncertainty about how he will ultimately vote. But when Kennedy shows real emotion in one of his questions, or when he adopts the loaded language of one of the parties, that’s normally a good sign that he’s made up his mind. When the votes are cast and the Court’s decision is released, it’s a good bet that Kennedy will vote against Team Birth Control.

Yeesh. The good news from our perspective in Texas is that a 4-4 split would leave the Fifth Circuit ruling against the plaintiffs in place. That’s a small consolation for anyone in a state governed by the Eighth Circuit, which was the one to buy into that dumb argument, of course. Perhaps some day we can get a ninth Justice confirmed and settle this once and for all. In the meantime, this may be the best we can do. Have I mentioned that this election is super important? A transcript of the oral arguments is here, while TPM, SCOTUSBlog, Kevin Drum, and the Trib have more.

HBU contraception lawsuit goes to SCOTUS

Here we go.

The U.S. Supreme Court will decide whether religious nonprofits should be required to provide birth control benefits to female employees even if the employers object to certain contraceptives on religious grounds.

The court announced Friday that it would consider a case 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 provide contraceptive coverage. It is one of seven related cases from around the country that the high court agreed to hear at once.

The religious universities oppose emergency contraceptives, including the so-called morning-after pill, and intrauterine devices, which they liken to “abortifacients” — or drugs that induce an abortion. (Health experts and scientists have disputed that claim.)

[…]

Under federal religious freedom laws, religious nonprofits can seek “accommodations” to be exempted from the contraceptive mandate by submitting a form or notification certifying the organization’s objection to paying for contraception coverage on religious grounds. Doing so transfers the administrative obligations of providing contraception coverage from the employer to the insurance company or a third party, which takes over handling the claims.

But the universities argue that requirement infringes on their religious freedom because female employees may still be able to obtain contraception under that process.

See here, here, here, and here for the background. As the Chron notes, the Supremes actually took appeals from seven related contraception/insurance cases and combined them. They’ll hear oral arguments in March and render their decision in June as usual, just in time to capture people’s attention during the Presidential race. ThinkProgress, RH Reality Check, and SCOTUS Blog, which details all seven cases, have more.

Full Fifth circuit denies HBU in contraception lawsuit

Still no joy for them.

A federal appeals court will not reconsider its ruling, delivered in June, that the Affordable Care Act’s contraceptive rules do not violate the religious freedom of church-based organizations in Texas.

The religious organizations, including two Catholic dioceses and the University of Dallas, had asked the full 5th U.S. Circuit Court of Appeals to reject the ruling by a three-judge panel.

The court refused 11-4, issuing an opinion that did not discuss the merits of the case.

Three of the justices on the losing side, however, issued a scathing dissent that called the original ruling “ironic and tragic” for denying the free exercise of religion and placing “literally millions of dollars in fines and immortal souls on the line.”

“This should have been an easy case for upholding religious liberty,” said the dissent, issued Thursday and written by Justice Edith Jones and joined by Justices Edith Brown Clement and Priscilla Owen. The three are among the court’s most conservative members.

See here, here, and here for the background. It would be far more accurate to say that those three are among the most ideologically driven judges, not just on that court but any federal court, though I suppose it’s not polite to say things like that. As of August, when Ken Paxton found time in his busy schedule to file an amicus brief on behalf of the plaintiffs, there wasn’t a circuit split in cases like this, but now there is and there’s been an even more radical anti-contraception ruling in another federal court, so the likelihood of SCOTUS hearing some case related to this, whether it’s HBU’s or one of the others out there, seems pretty high. And after Obergfell, one can only imagine the caterwauling and chest-thumping vows of defiance that will ensue if the plaintiffs lose there as well. The Press has more.

Paxton files amicus brief in HBU contraception lawsuit

Of course he does.

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.

HBU appeals contraceptive case to SCOTUS

Here we go.

Houston Baptist University on Wednesday turned to the U.S. Supreme Court in its battle to avoid providing employees with forms of contraception it finds morally objectionable.

The appeal of a 5th U.S. Circuit Court of Appeals ruling was filed on behalf of the Houston university, East Texas Baptist University and the Westminster Theological Seminary in Pennsylvania by lawyers with the Becket Fund for Religious Liberty.

The Press fills in some important details.

HBU’s is just one of many cases challenging the Affordable Care Act’s birth control mandate. Under the law, religious employers who object to some or all forms of birth control (HBU, for example, takes issue with some emergency contraception that it wrongly likens to abortion) can seek an exemption from the feds. Typically this just means filling out a form letting the feds know of your objection to birth control and naming the company that administers your employee health plan. The government then works separately with the insurance company to make sure workers can get birth control coverage on another health plan if they want it.

East Texas Baptist University and Westminster Theological Seminary joined HBU in challenging the mandate. The schools have argued that by simply informing the feds of their objection – either by filling out a form or by some other means – they’re triggering or facilitating birth control coverage in violation of their religious beliefs. In their challenge, they’ve cited the federal Religious Freedom Restoration Act (RFRA), which says the federal government can’t, except in limited circumstances, “substantially burden a person’s exercise of religion.”

That the Fifth Circuit didn’t buy that argument is notable for a couple of reasons. First, every single federal appeals court that’s so far considered the issue has ruled that religious nonprofits can’t block their workers from getting coverage for birth control. Secondly, the Fifth Circuit, as we’ve written before, is perhaps the most conservative federal appeals court in the country. If anyone was going to buck the trend in favor of religious institutions, you’d have thought it would be the Fifth.

See here and here for some background. Basically, this is about employers attempting to control how their employees are spending their money, based on their belief in a demonstrable falsehood than none of them even gave a thought about as recently as a couple of years ago. But hey, religious freedom! Obamacare oppression! We’ll move to Irion County if we have to! You get the idea.