- The Washington Times - Tuesday, February 19, 2013

Religious nonprofits have begun to respond in court to the plan the Obama administration offered this month to shelter them from a mandate requiring certain employers to insure contraception — and it’s probably not what the White House wanted to hear.

East Texas Baptist University and Houston Baptist University filed court papers that make it clear their dispute with the Department of Health and Human Services is not over, even after the agency proposed an accommodation on Feb. 1. That proposal would require insurers to set up separate policies to handle birth control, morning-after pills and other forms of contraception covered by the requirement in the Patient Protection and Affordable Care Act.

The universities said little would change under the proposal, since the administration did not extend the religious exemption that, as it stands, applies only to houses of worship.

“The same drugs would be provided by the same insurer to the same employees, all as an automatic result of plaintiffs’ offering health insurance,” the Baptist nonprofits said in a status report filed Friday with the U.S. District Court for the Southern District of Texas.

When HHS officials unveiled their accommodation, they stressed it was merely a proposal that is open for comment. But the nation’s Catholic bishops flatly rejected the plan, and legal advocacy groups that are handling lawsuits against the Obama administration show no signs of standing down.

The lawsuits — mostly from universities with religious affiliations — were placed on hold while the Obama administration devised a compromise for religious nonprofits. While attorneys for Baptist universities in Texas were quick to update the courts with their reaction to Mr. Obama’s olive branch, other plaintiffs have yet to reignite their legal disputes through legal briefs, motions or status reports. The Obama administration’s rule must be finalized by Aug. 1.

“We haven’t had to file anything new, because nothing has really changed,” said Matt Bowman, senior legal counsel for the Alliance Defending Freedom, which is representing several religious nonprofits and religiously devout corporate owners who have sued over the mandate.

He said the lawsuits will continue and likely pick up by August if the exemption is not broadened to cover all religious employers.

Victor Nakas, a spokesman for Catholic University in Washington, said Tuesday the university is “still evaluating all our options and [we] are not yet prepared to announce our next steps with regards to the HHS mandate.”

“The administration could have made this very simple by simply exempting all objecting organizations from the mandate, out of respect for their consciences,” said S. Kyle Duncan, general counsel at the Becket Fund for Religious Liberty that is handling the Texas lawsuits and other cases. “It didn’t do that, however.”

HHS has said the contraception mandate provides services that most women rely on, yet many in the 18 to 34 age bracket find hard to afford. As a legal argument, supporters of the mandate say employers are not entitled to push their religious beliefs onto their employees.

Attorneys for the federal government filed their own status report Monday — in Texas and other federal courts — to note the HHS proposal fulfills a December court order that delays the nonprofits’ lawsuits while the Obama administration worked on its accommodation.

Under the proposal, religious nonprofits must self-certify that they object to the “Obamacare” mandate so their insurers can divorce contraception coverage from the nonprofits’ regular health plans. Objecting institutions that self-insure would be assisted by a third-party administrator.

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