5th Cir.: Dissent preaches morality, talks of ‘immortal souls’ after losing contraception vote

A majority of the active Fifth Circuit judges voted against a panel rehearing of East Texas Baptist University’s challenge to the accommodation allowing religious non-profit organizations to opt-out of the contraception mandate under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). Of the active judges, 11 voted against the rehearing and four voted in favor of a rehearing. Edith Jones, one of the four, authored the dissenting opinion, calling the majority’s decision “ironic and tragic” (East Texas Baptist University v. Burwell, September 30, 2015, Smith, J.).


Under the ACA, employers with fifty or more full time employees must offer a health plan for employees including “minimum essential coverage.” As part of this, plans typically are required to cover all FDA-approved contraceptive methods without copayments or deductibles. An accommodation is available to religious entities that object to the mandate but are not exempt as “religious employers.” Such an organization can either execute an EBSA Form 700, certifying that it is a nonprofit entity holding itself out as a religious organization and that it opposed the provision of contraceptive services, or notify HHS in writing with the name of the organization, the nature of the objection, and certain plan information.

Procedural background

East Texas Baptist University, Houston Baptist University, Westminster Theological Seminary, University of Dallas, the Catholic Diocese of Beaumont, Catholic Charities Diocese of Fort Worth, and the Catholic Charities of Southeast Texas Incorporated opposed the ACA mandate and its accommodation on the grounds that by obligating the organizations to participate in the provision of contraceptives, the mandate and accommodation violated the organizations’ religious liberties. In each of the lawsuits filed by the organizations, either a preliminary or permanent injunction was granted by a district court in favor of the religious objections.


When the cases reached the Fifth Circuit, the appellate court held that the accommodation did not violate the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb) because it did not require religious organizations to provide or facilitate access to contraceptives (see Mandate withstands religious challenge, providing contraceptives has “nothing to do with it,” Health Reform WK-EDGE, June 22, 2015). Two of the faith-based organizations, Houston Baptist University and East Texas Baptist University filed a petition for writ of certiorari with the Supreme Court (see Religious universities seek support from a higher authority, Health Reform WK-EDGE, July 15, 2015).


In response to the panel’s decision to deny a rehearing, threatening that “the props of morality and civic virtue will be destroyed,” the dissent admonished the court, saying that it should have corrected “the panel’s grave error en banc.” The dissent asserted that the court should have addressed three issues upon rehearing: “(1) whether under RFRA, the courts decide the ‘substantiality’ of a burden imposed by government regulations on sincerely held religious beliefs, or whether the believers’ views are controlling; (2) whether the substantiality of a burden is measured by the degree of modification of the religious objector’s behavior or by the severity of the penalty for noncompliance with the objectionable action; and (3) whether under the ‘accommodation,’ the acts causing the provision of insurance coverage for services the institutions believe are immoral are truly “independent” of the institutions.”

After reminding the majority that “Thomas More went to the scaffold rather than sign a little paper for the King,” the dissent asked two rhetorical questions: “If the government’s ‘accommodation’ forms are really ‘independent’ of the provision of free contraceptive insurance to religious institutions’ employees, why does the government insist on requiring them? And if the forms are not ‘independent’ but indeed inseparable from the “attenuated” consequences, how can HHS or the federal courts thrust them on religious believers under the false nomer of ‘accommodation?’”

The case is Nos. 14-20112; 14-10241; 14-40212; 14-10661.