Good news for at least three Christian colleges in the upper Midwest: They don’t have to be complicit in the provision of contraceptives that are tantamount to abortion under Obamacare, or risk ruinous penalties.
The 8th U.S. Circuit Court of Appeals, whose jurisdiction includes Michigan’s Cornerstone University and Iowa’s Dordt College, ruled Thursday that forcing them to even “self-certify” under the Obama administration’s “accommodation” for religious nonprofits, “under threat of severe monetary penalty,” means “the government has substantially burdened Dordt and Cornerstone’s exercise of religion.” (Self-certification triggers the “free” provision of contraceptives by the organization’s insurer.)
The court cited its reasoning in a related decision also issued Thursday involving a drug-abuse recovery nonprofit that runs its own school, Missouri’s Heartland Christian College. It wrote in that decision that Obamacare’s abortion-pill mandate and accommodation process “likely are not the least restrictive means of furthering” the government’s interests in “safeguarding public health and ensuring equal access to health care for women.”
The rulings uphold preliminary injunctions issued by lower courts against enforcing those Obamacare provisions against the plaintiffs.
The 8th Circuit noted it was an outlier among appeals courts in ruling that the self-certification process itself would make the plaintiffs “violate their sincerely held religious beliefs”:
As [the Supreme Court’s ruling in] Hobby Lobby instructs, however, we must accept CNS and HCC’s assertion that self-certification under the accommodation process—using either Form 700 or HHS Notice—would violate their sincerely held religious beliefs. … It is not our role to second-guess CNS and HCC’s honest assessment of a “difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” [quoting from Hobby Lobby] …
If one equates the self-certification process with, say, that of obtaining a parade permit, then indeed the burden might well be considered light. But if one sincerely believes that completing Form 700 or HHS Notice will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear. “The Supreme Court has emphasized that judges in RFRA [Religious Freedom Restoration Act] cases may question only the sincerity of a plaintiff’s religious belief, not the correctness or reasonableness of that religious belief.” [quoting from a dissent in Priests for Life, a related case]
The 8th Circuit went on to argue that the Obama administration’s accommodation process did not get an unconditional green light from the Supreme Court in Hobby Lobby:
Any suggestion that the Court in Hobby Lobby sanctioned the existing accommodation process for all purposes was dispelled only days later when the Court issued its order in Wheaton College and enjoined enforcement of the contraceptive mandate and the Form 700 accommodation regulations as long as Wheaton College directly notified HHS of its religious objection. …
Although the Court’s orders [in Wheaton and other cases] were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests.
The 8th Circuit suggested a workable way for the administration to leave Christian colleges out of the process entirely: just work with their “third-party administrators” directly.
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