By Roy Hayhurst, GuideStone Financial Resources
DALLAS — On March 23, attorneys for GuideStone Financial Resources, Reaching Souls International and Truett-McConnell College, along with more than 30 other ministry organizations, will present oral arguments in the ministries’ litigation against a U.S. Department of Health and Human Services’ mandate that would require these ministries to participate in the government’s efforts to provide abortion-causing drugs and devices through their health programs or face crippling penalties.
The high court is being asked to determine whether the government can compel the ministries to participate in providing access to these drugs and devices that it could easily provide — without violating the conscience of the ministries — through its own health care exchanges.
The case will be among the first argued without Justice Antonin Scalia, who died in February.
History
“GuideStone began working alongside many large and historic denominational health plans when the Obama Administration first signaled that comprehensive health care insurance reform was a top legislative priority,” said Harold R. Loftin, Jr., GuideStone’s general counsel. “We recognized that the unique nature of church health plans would require attention by Congress in any overhaul of health care insurance.”
Part of the Affordable Care Act’s reach was giving broad regulatory powers to the federal bureaucracy. Throughout the early years after the law was enacted, multiple regulations were issued to which GuideStone and others worked to comply.
It was the contraceptive mandate, which was announced in August 2011, that garnered the most attention.
The mandate would require that insurers provide, at no cost to a participant, all FDA-approved contraceptive methods, sterilization procedures and patient education and counseling for women with reproductive capacity. That could include girls as young as age 10. The FDA has approved some 20 contraceptive drugs and devices. GuideStone today covers 16, refusing to cover abortion-causing drugs or devices.
A So-Called Accommodation
A very narrow segment of religious employers were exempted from the mandate — churches and integrated auxiliaries of churches. This means that no church or a closely related institution would have to provide abortion-causing drugs and devices in its health plans. GuideStone, as an auxiliary of the Southern Baptist Convention, was exempted. Churches and church-owned schools also were exempted.
Other religious non-profit organizations are not exempt. These organizations were offered a so-called accommodation to the mandate: they did not have to pay for contraceptive coverage, but they were required to sign a document authorizing their health plan administrator to provide contraceptives—including ella, the so-called week-after pill—to their employees and their employees’ children as young as 10. If they did not sign the authorization form, they faced daily fines that could add up to millions of dollars each year.
“The accommodation was unacceptable from its first reading,” said GuideStone President O.S. Hawkins. “As many in Southern Baptist life rightly noted, this was nothing more than an accounting trick. The government claims this is an ‘opt-out,’ when actually, it is an ‘opt-in,’ in that the government seeks to use our plan.”
One out of every three Americans do not have a plan that is subject to the mandate HHS is fighting to force on many religious organizations. In fact, many large corporations, who elected to offer “grandfathered” plans under the ACA, are exempt from the very mandate that would violate the conscience of many ministry organizations. The United States military, the largest employer in the nation, is not required to provide these same services through its family insurance.
“If you had told me when I entered ministry that our federal government would be dictating matters of conscience to churches and their ministries, I would have scarcely believed it,” Hawkins said. “These are challenging times but GuideStone remains committed in our calling to serve those ministries that have entrusted their employee benefits to us.”
Although GuideStone sought to work with HHS, it became clear that litigation was the only option available to challenge the mandate.
Litigation
On October 14, 2013, GuideStone, along with Reaching Souls and Truett-McConnell, filed suit in the U.S. District Court for the Western District of Oklahoma, objecting to the mandate as an assault on biblical convictions and an attack on religious liberty. According to the suit, the mandate substantially burdens the plaintiffs’ exercise of religious beliefs because it forces them to be involved in a program to provide employees with access to drugs and devices that risk human life.
At the time, Hawkins noted that it was a reluctant step to take legal action, but with the unanimous consent of trustees, the litigation was filed to protect the unborn and to preserve “the religious freedom that is guaranteed under the laws of this nation,” he said. “This mandate runs roughshod over these foundational principles.”
By December, the Honorable Timothy DeGiusti, an Oklahoma federal judge, granted a preliminary injunction against the government’s enforcement of the mandate and penalties for ministries in GuideStone’s health plans. The government appealed that case in 2014 to the Denver-based Tenth Circuit Court of Appeals. All remained quiet in the case until the Tenth Circuit ruled in July 2015 that the ministries must comply with the mandate or face the penalties, but agreed to let the preliminary injunction remain in place until the appeal was decided by the Supreme Court.
In September 2015, five judges on the full Tenth Circuit Court of Appeals, in a highly unusual move, sharply criticized the court decision that ruled against GuideStone and convened a vote of the entire Tenth Circuit judges to reconsider the panel’s 2-1 decision. That vote fell one vote short, but displayed vividly the sharp divide among judges over the mandate.
Part of the government’s argument is that since it has offered to reimburse the costs of the services it wants provided, impacted ministries should have no moral objection to offering them.
“These ministries are saying this is not about the money,” said Mark Rienzi, Becket Fund counsel in the case. “This is about conscience and whether these ministries should be forced to change their health care plan to offer services that they have a moral objection to when those services could be provided more effectively through the government’s health care exchanges.”
To the Supreme Court
As the case makes its way to the oral arguments, both Hawkins and Loftin expressed their thanks for the support provided by so many Southern Baptists, as well as from the broader evangelical community and beyond.
Amicus, or friend-of-the-court, briefs were filed by a large cross-section of ministries and organizations asking the Supreme Court to hear the case. Southern Baptist amicus supporters included the Ethics and Religious Liberty Commission, the International Mission Board, Dr. Albert Mohler and The Southern Baptist Theological Seminary. Twenty states, more than 200 congressmen, the Cato Institute, the Christian Legal Society, the National Association of Evangelicals, the Lutheran Church — Missouri Synod, the Christian and Missionary Alliance Foundation, a group of Orthodox Jewish Rabbis and many other religious and secular organizations also filed amicus briefs supporting GuideStone and the Little Sisters.
“These are times for prayer from the family of God,” Hawkins said. “It is always good to seek His face, but especially in the times we live, to ask for His wisdom, His guidance and His favor.”
The case will be argued March 23 at the Supreme Court building in Washington, D.C. The case is GuideStone v. Burwell.
