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ETBU files federal suit over health care mandate

By Joe Holloway
Oct. 9, 2012 at 10 p.m.

East Texas Baptist University filed a lawsuit against the Department of Health and Human Services in the U.S. District Court for the Southern District of Texas on Tuesday in an effort to avoid compliance with an HHS mandate requiring the university to provide emergency contraceptives in its employee insurance plan.

ETBU President Samuel "Dub" Oliver said the lawsuit was the latest in a series of actions by the university contesting the constitutionality of the HHS' "preventative services" mandate that was announced last year.

"We've been working on this issue since August of 2011 and doing different things, writing letters, communicating through the public comment process as these things have been going on," said Oliver, who testified before the house committee on oversight and government reform on the matter in February. "We've continued to try to address these matters but, ultimately, nothing has changed so, in order to defend ourselves and protect our religious liberty, one of the steps that we've now taken is to file this lawsuit."

The mandate went into effect on Aug. 1 but allows a one year transition period for certain institutions, and ETBU has even longer.

"Technically you don't have to change your plan as long as you're in a planned year, and our planned year ends on January 1, so it wouldn't impact us until January 1, 2014," said Oliver. "So we still have a little bit of time and we're hopefully that at some point, in some way, this will change."

However, Oliver indicated that, whatever the result of the lawsuit, ETBU has no plans to comply with the mandate.

"People have used as an example Acts Chapter 5, verse 29 as a guide for this where the scripture says there comes a point where you should obey God's law rather than man's," he said. "That's the matter of conscience that this is for us. That's at the heart of this. The government is saying you must provide these abortion-causing drugs for your employees.

"We believe that life begins at conception and so we're not going to do that."

Non-compliance would mean ETBU dropping its insurance for employees and possibly facing fines exceeding $10 million per year as a result.

"The fine begins the first year and then escalates beyond that," said Oliver. "The first year of the fine, if you drop insurance, it's a little over $2,000 per employee. Then it escalates beyond that."

He added that the university was still evaluating what that would mean for the average ETBU employee.

"We'll have to see about that," said Oliver. "Obviously, we're doing a lot of different scenario planning, looking at different issues and different options."

Oliver said the university doesn't have a problem with many of the rules that comprise the mandate but that it drew the line at providing emergency contraceptives such as Plan-B and Ella, which can be effective up to 5 days after intercourse.

"There are 9 of 10 things in these preventative services for women we frankly have no problem with, and most people don't have problems with but there's this one that we do have a problem with," he said. "Our plans have covered contraceptives, including oral contraceptives. Again, we have no problem with it. But, we have specifically excluded what are commonly called 'emergency contraceptives' that we believe are abortifacient, and will continue to do so."

Patti Unruh, Deputy Director of the Office of Legislation at the U.S. Department of Health and Human Services, said the office couldn't comment on the lawsuit because it is pending legislation, but a White House fact sheet on women's preventive services and religious institutions from the Office of the Press Secretary states that the mandate "exempts churches, other houses of worship, and similar organizations from covering contraception on the basis of their religious objections."

According to Oliver, thousands of organizations have been exempted from the Patient Protection and Affordable Care Act, commonly called "Obamacare," which allowed the Department of Health and Human Services to issue the mandate.

ETBU, he said, would like to be one of them, but the Christian university doesn't meet the act's definition of a religious institution.

"(Obamacare) basically says, you have to be a church, a house of worship, or a denomination and, if you do anything outside of your walls that's separate from inculcation of religious beliefs, you're not religious enough," said Oliver. "So, because we're an educational institution and because we accept students of all faiths and students of no faiths, the government says we're not religious enough to be exempt from this."

Oliver called it "the narrowest definition of a religious institution ever propagated by the federal government."

"One of the quips people have is Mother Theresa couldn't qualify as a religious organization because she helped the poor and didn't ask if people were of the Christian faith," he said. "She wasn't just preaching; she was serving."

ETBU is now one of over 90 plaintiffs in 32 lawsuits concerning the mandate.

"That includes private businesses, stores like Hobby Lobby and others," said Oliver. "There are social service agencies. There are educational institutions, K-12 and higher educational institutions, like the University of Notre Dame, Wheaton and us, Louisiana College and others.

"One of the things we see is that there's this broad coalition of people that say this mandate is unconstitutional and it's wrong."

The non-profit, public interest law firm Beckett Fund for Religious Liberty is acting lead council in the lawsuit, which names ETBU and Houston Baptist University as plaintiffs. Yetter Coleman LLP out of Houston is acting as co-council.

Oliver said he was optimistic the mandate, which he thought could end up in the Supreme Court, would be ruled unconstitutional.

"If they say you've got to provide these abortifacient drugs, these emergency contraceptives this year, what's going to prevent them the next year saying you're going to have to provide abortions and the next year adding to that?" he said. "It's a slippery slope and so we've said 'no, we're going to take a stand.'"



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