Religious universities seek support from a higher authority

Houston Baptist University (HBU) and two of its co-plaintiffs have petitioned the Supreme Court for certiorari, seeking to overturn the decision of the Fifth Circuit Court of Appeals rejecting their challenge to HHS regulations requiring coverage of all FDA-approved contraceptives as a violation of the Religious Freedom Restoration Act (RFRA) (42 U.S.C. §2000bb et seq.) (see Mandate withstands religious challenge, providing contraceptives has “nothing to do with it,” Health Reform WK-EDGE, June 22, 2015). The petitioners contend that: (1) the Court of Appeals incorrectly applied RFRA by “second-guessing” their belief that executing a form and submitting it to the government would make them complicit in their employees’ potential use of birth control methods that are abortifacients; and (2) the decision is inconsistent with the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc.

The petitioners

HBU and East Texas Baptist University (ETBU) are universities affiliated with the Baptist General Convention. Westminster Theological Seminary (WTS) is run by Presbyterian elders and educates people preparing for Christian ministry but is not affiliated with any one denomination or church; its legal status disqualifies it from exemption from the preventive services mandate as an independent auxiliary of a church. All three institutions contend that they provide generous health benefits for their employees but have never covered four FDA-approved methods of contraception that prevent the implantation of a fertilized egg; they consider such methods to be abortion.


The challenged regulations require religious organizations that are not recognized as churches under the tax code to attest to their religious objections by completing a form, which they must submit to the government and their insurer or third party administrator (TPA). The form legally authorizes the insurer or TPA to provide coverage of the alleged abortifacients to their employees. The petitioners believe that execution of the form is closely connected with the coverage; the coverage is not provided unless or until they execute the form.

The trial court granted summary judgment to the petitioners, ruling that self-certification under the HHS regulations substantially burdened the exercise of religion. It rejected the government’s arguments that: (1) any burden was so slight as to be de minimis; and (2) the connection between the certification and the employee’s use of the abortifacients was too attenuated because independent actions by others had to occur.

The trial court also ruled that requiring the certification was not the least restrictive means available to achieve the government’s compelling interests in preventing unwanted pregnancies, as RFRA requires. For example, the government could provide free emergency contraception at clinics.

Why take this case?

The petitioners stressed that the Supreme Court should hear this case because they would actually face onerous penalties if they refused to self-certify. The trial court had already entered final judgment. The Court had already stayed other rulings by courts of appeals pending its review.

There already are other petitions for certiorari pending involving the same issues and decisions by the D.C. Circuit and the Sixth Circuit (see Demanding a better answer, Catholics ask SCOTUS for review, Health Reform WK-EDGE, July 1, 2015; ACA’s contraceptive coverage provisions may not provide sufficient protection, Health Reform WK-EDGE, April 27, 2015).