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Wheaton's health insurance lawsuit waits while lawyers deliberate

Wheaton College v. Burwell, Wheaton’s lawsuit against the federal government claiming that the government is forcing them to use their health insurance plans in a way that violates their consciences and religious freedom, remains on hold following an unusual Supreme Court decision in a similar case.
That case, Zubik v. Burwell, raised identical challenges brought by other religious nonprofits but was dodged by the eight justices on the Supreme Court. In lieu of resolving the case, they instructed the government and religious employers to search for a compromise. Until those efforts either succeed or fail, there will be no official precedent to answer the legal questions behind lawsuits like Wheaton’s.
After the passage of the Affordable Care Act in 2010, all non-religious employers were required to offer health care plans that contain access to contraceptive services, including products like Ella and Plan B that Wheaton classifies as abortifacients. Religious employers can seek an exemption to this requirement, but the government narrowly defines religious employers as “primarily houses of worship.” In other words, churches can ignore the requirement to provide contraception but other religious organizations can not.
Facing the threat of hefty fines under the ACA if they refused to provide the contraceptives through their health plans, Wheaton filed suit in 2012 against the federal government to gain exemption. Under pressure from similar lawsuits filed nation-wide, the government responded in 2013 by offering an “accommodation” for nonprofits. This same accommodation was later offered to religiously held for-profit corporations in Burwell v. Hobby Lobby.
Under this accommodation, anyone insured through the health care plans of religious nonprofits like Wheaton can receive contraceptive services directly through the insurance companies without further involvement by the college — as long as the college submits a form to the companies indicating their unwillingness to provide those services.
However, Wheaton again filed suit against the government in 2013, alleging that the accommodation still forces Wheaton to be “morally complicit in the wrongful destruction of human life.” Wheaton argued that the written notification inherent in the accommodation would serve as a “trigger.” By asking Wheaton to sign and send the notice, the government forces Wheaton to become the “trigger-puller,” thus “hijacking” Wheaton’s insurance plans.
The 7th Circuit Court of Appeals ruled that Wheaton may not be protected from the law’s requirements while awaiting a conclusion to its lawsuit. Writing for the court, Judge Richard Posner denied that Wheaton could be morally complicit by signing a piece of paper, saying “It is the law, not any action on the part of the college, that obligates insurers” to provide contraception.
Richard Katskee, legal director at Americans United for Separation of Church and State, goes a step further and argues that Wheaton’s unwillingness to “merely fill out a form” indicates that their concern has less to do with religious freedom and more to do with attempts to “prevent the government from providing the coverage.”
Philip Ryken, president of Wheaton College, is quick to clarify that Wheaton has no position on contraception as a whole. Rather, the Community Covenant includes a promise to “uphold the God-given worth of human beings, from conception to death.” Ryken says that commitment “rules out any form of abortion,” including contraceptives understood as abortifacients.
The Supreme Court could have decided the issue once and for all in this summer’s Zubik decision, but instead it ordered the government and petitioners to attempt a compromise. Such a compromise could create a new accommodation. This would allow the government to make contraception available to women without any sort of involvement from employers at religious nonprofits.
In briefs filed prior to the Court’s order, both the government and the petitioners admitted such an arrangement could be possible. In effect, the petitioners indicated they would consider an option that does not prevent the services, while the government conceded there might be less burdensome ways to provide contraception.
As a practical matter, the voluntarily agreed-to Community Covenant would stand between a Wheaton employee and the objected-to forms of contraception. As a legal matter, though, Ryken neither accepted nor rejected the possibility of a compromise wherein the government would provide the contraceptives in question through its own plans. Ryken says the college “will consider carefully any resolution the government proposes that does not involve Wheaton and its health plans in providing the contraceptives we have objected to.”
Mark Rienzi, senior counsel at The Becket Fund who is part of the team representing Wheaton College, believes it would be easy to arrive at such an arrangement. The ACA opens the door to “dozens” of ways the government could provide these services without involving religious organizations or their health care plans. Rienzi added that the government is “running exchanges right now” that provide health insurance plans which look “exactly like” what the government wants the plans at Wheaton and other religious organization to look like.
If Zubik does resolve itself with some kind of compromise, the agreed-upon resolution would likely become available to Wheaton and other religious nonprofits. In the meantime, Rienzi notes, Wheaton has not had to sign anything yet in accordance with the accommodation. With cases pending, the government has simply instructed Wheaton’s insurer to provide the contraceptive drugs it already knows Wheaton does not want to provide.
By most accounts, the outcomes of these cases will have profound effects on religious liberty. Katskee fears that a loss for the government marks a successful precedent of using “the government to press … religious views on others.” On the other hand, observers like Stephen Bretsen — associate professor of business and law at Wheaton College — think the current form of the ACA contraception mandate legitimizes “different tiers of religious organizations,” and limits religious exercise “within the four walls of a church.”
The government has not always distinguished between “houses of worship” and other religious organizations. Bretsen, who also teaches Constitutional Law, notes that “churches, religious non-profits, or secular non-profits” all receive 501(c)3 tax exempt status according to the Internal Revenue Code. Similarly, Title VII of the Civil Rights Act allows a broad range of religious organizations to hire on the basis of religion.
Ultimately, this is one of Wheaton’s primary concerns. According to Ryken, “the best solution is for the federal government to treat Christian colleges and other religious institutions the same way that it treats churches and other houses of worship: by recognizing our full religious liberty and making us exempt from providing abortifacients to our employees.”
As with many legal quandaries regarding religion, the Wheaton College and Zubik cases involve two sides that believe the other is infringing rights: the government infringing Wheaton’s right to the free exercise of religion, and Wheaton infringing on women’s right to contraceptive care. Until the Obama administration and religious employers can compromise — or until the Supreme Court has the opportunity and will to decide the issues — neither side can claim victory.

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