State AGs join fight over Obamacare’s contraceptive mandate

By Jessica Karmasek | Aug 19, 2015

The attorneys general from 16 states filed an amicus brief with the U.S. Supreme Court this month. They want a decision by the U.S. Court of Appeals for the Fifth Circuit denying relief to two Baptist universities and a seminary reversed.

The U.S. Supreme Court building in Washington, D.C.  

WASHINGTON (Legal Newsline) - Sixteen state attorneys general have joined a fight against the contraception requirement of President Barack Obama’s federal health care law.

The attorneys general and several religious groups filed amicus, or friend-of-the-court, briefs with the U.S. Supreme Court earlier this month.

The states say they support two Baptist universities in Texas and a Pennsylvania-based seminary that are asking the nation’s high court to protect them from millions of dollars in IRS fines that will be triggered if they refuse to comply with the mandate.

Houston Baptist University, East Texas Baptist University and Westminster Theological Seminary, represented by The Becket Fund for Religious Liberty and former Solicitor General Paul Clement, filed their petition for a writ of certiorari, or review, with the court July 8.

The contraception coverage mandate, which was imposed under Obama’s health care law, requires employers to offer insurance -- including contraception coverage -- or they may be fined.

Family-owned companies and religious-affiliated nonprofits have argued the mandate requires them to provide contraceptives, procedures and drugs that are contrary to their teachings.

The states, in their Aug. 10 brief, argue that the schools’ petition should be granted and a decision by the U.S. Court of Appeals for the Fifth Circuit should be reversed.

“Religious nonprofits serve their communities in a host of ways, from caring for the most vulnerable members of society, to serving the elderly with compassion, to providing the educations that allow individuals to pursue their own contributions to society,” the states wrote in their 27-page brief. “It is paramount to the amici States that such religious nonprofits -- including the three Texas institutions here -- can continue with those contributions.

“Erecting impediments to their continued adherence to their religious beliefs can threaten their continued work, which is driven and shaped by those beliefs.”

They continued, “Moreover, the States have a substantial interest in ensuring that courts do not demean religious beliefs by second-guessing religious adherents’ line-drawing about what conduct is prohibited to them as sinful or immoral.”

Those states signing onto the brief include: Alabama, Arizona, Florida, Georgia, Kansas, Louisiana, Michigan, Montana, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia.

“This strong show of support for HBU and ETBU demonstrates just how important it is that the Supreme Court address the impact of the HHS mandate, particularly on religious groups,” said Diana Verm, legal counsel at the Becket Fund. “It is especially significant that 16 state governments are supporting HBU and ETBU at the Supreme Court.”

In December 2013, a Houston federal court ruled in favor of the schools, but the Fifth Circuit denied relief to the two universities and Westminster in June. Westminster is separately represented by Ken Wynne of Wynne & Wynne LLP in Houston.

“We didn’t go looking for this fight,” said Dr. Robert Sloan, president of Houston Baptist University. “But here we stand and can do no other. We cannot help the government or anyone else provide potentially life-threatening drugs and devices.”

In addition to the 16-state amicus brief, briefs are being filed by the Ethics and Religious Liberty Commission of the Southern Baptist Convention, the International Mission Board of the Southern Baptist Convention, the Christian and Missionary Alliance Foundation, the Alliance Community for Retirement Living, Simpson University, Crown College and the 181-member Council of Christian Colleges and Universities, among others.

Twice in recent months, the Supreme Court has thrown out federal appellate court decisions backing the requirement, remanding cases for consideration in light of its Burwell v. Hobby Lobby Stores decision.

The June 2014 ruling allowed closely-held, for-profit corporations to be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the law’s interest.

The Becket Fund was part of the legal counsel that successfully led the charge against the mandate in Hobby Lobby.

The court is likely to consider the schools’ petition late next month or early October.

If the petition is granted, the case would be argued and decided before the end of the court’s term in June 2016.

From Legal Newsline: Reach Jessica Karmasek by email at

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