Fifth Circuit rejects religious universities' HHS challenge

The three-judge panel rejected the appeal, ruling that the court—not the religious institutions—gets to decide what amounts to a ‘substantial burden’ of religious exercise.

Three religious Texas schools challenged the Department of Health and Human Services' religious exemption.

A three judge panel for the U.S. Fifth Circuit Court of Appeals ruled against several religious universities last week, in another case involving the Department of Health and Human Services (HHS) contraceptive mandate.

The appellants included several religious universities from Texas—East Texas Baptist University, Houston Baptist University, and the University of Dallas—as well as a Pennsylvania seminary and the Catholic Archdiocese of Fort Worth. At issue was an “accommodation” offered by HHS, which requires the religious institutions to act as a go-between of sorts between HHS and the insurance company. The accommodation is meant to serve as a “halfway house” between the full contraceptive mandate and the exemption given to churches.

The religious organizations challenged the accommodation under the 1993 Religious Freedom Restoration Act (RFRA), which was co-sponsored by Rep. Nancy Pelosi (D-Calif.), among others. RFRA provides a balancing test for the court to decide cases under: the government cannot substantially burden a person’s religious unless it has a compelling interest in doing so, and uses the least restrictive means in doing so.

In 2014, Hobby Lobby successfully challenged HHS’ contraceptive mandate under RFRA. In Hobby Lobby, the Supreme Court held that the contraceptive mandate did not satisfy the “least restrictive means” portion of the test.

The religious organizations argued that the accommodation required them to “facilitate access” to the contraceptives and abortifacients, something their faith does not allow them to do. The appellants considered this to be a clear substantial burden of their religious exercise. However, the panel of judges rejected that argument.

Part of what constitutes a substantial burden, the panel said, is whether or not “the challenged law pressure[s the appellants] to modify that [religious] exercise?” To this the court answered that it—not the religious institutions—“makes that decision.”

This case may not be over just yet. The attorneys for East Texas Baptist University and Houston Baptist University said they are “examining the decision with a view to next steps, which may include an appeal to the full 5th Circuit or to the Supreme Court.”

A similar case, brought on behalf of the Little Sisters of the Poor, is currently awaiting ruling from the Tenth Circuit.

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