Yesterday, Wheaton College appealed a federal district court dismissal of its lawsuit against the Department of Health and Human Services (HHS) for its anti-conscience contraception mandate.
The dismissal on technical grounds fails to address the central religious liberty issues created by the offensive policy. The mandate would force the school to cover abortion-inducing drugs or face staggering fines of $1.4 million each year for holding fast to its deeply held religious beliefs and refusing to do so.
Wheaton College is one of the many non-profit religious organizations whose religious freedom has been under assault from the HHS mandate. Because it is not a house of worship, it does not qualify for the mandate’s exceedingly narrow religious exception. Wheaton was also ineligible for the so-called “safe-harbor” provision—a mere temporary one-year reprieve from enforcement that provides religious non-profits with an additional year to determine how to silence their consciences to conform to the government’s mandate.
The lower court’s dismissal of Wheaton’s case as “premature” resulted from an eleventh-hour rewrite of the HHS mandate’s “safe harbor” provisions by the federal agency earlier this month. It is the Administration’s third such rewrite of the provision in seven months.
The latest change applies to religious non-profit groups who had changes to their insurance plans’ contraceptive coverage underway but not completed by the February 10, 2012, cut-off date for safe-harbor eligibility. Wheaton College was one such case.
The HHS maneuver offered a custom-made delay tactic to preclude substantive review by the court of the mandate’s egregious threat to religious freedom. “[W]aiting another year will not change the fact that the mandate violates our religious liberty and puts our ability to offer our employees health insurance at risk,” commented Philip Ryken, president of Wheaton College.
As the school’s counsel in the suit, Becket Fund general counsel Kyle Duncan also noted:
The dismissal fails to recognize that the new safe harbor still leaves Wheaton in violation of federal law, and therefore vulnerable to lawsuits authorized by the Patient Protection and Affordable Care Act to enforce the mandate.
Read rightly, HHS’s rewrite of the safe harbor is a concession by the government of the very real religious liberty implications imposed by the mandate. The multiple revisions also demonstrate that the Administration has not adequately considered the mandate’s negative consequences before implementing it.
The Administration’s concession placing Wheaton within the temporary enforcement safe harbor does nothing to alleviate the HHS mandate’s two-tiered approach to religious freedom. It essentially confines religious liberty to the four walls of houses of worship but not beyond.
As Ryken explained when the college first joined the lawsuit: “The mandate, by providing an exemption for churches, but not for other religious institutions like Christian colleges, in effect creates two classes of religious institutions in the U.S.: those that have full protection for their religious freedom and those who don’t.”
