April Burbank | Development Manager
Wheaton’s lawsuit against the Department of Health and Human Services “tilts at windmills” because Wheaton does not face actual imminent harm, according to a federal judge who dismissed the college’s complaint over contraception insurance last Friday.
On Wednesday, Wheaton appealed the dismissal.
Wheaton filed its lawsuit on July 18 in US District Court in Washington, D.C., over a mandate requiring almost all companies of over 50 employees to cover a range of contraceptives and other “preventative services” in employee health insurance plans. Of that list, the drugs Plan B and Ella have become a sticking point for Wheaton and other religious organizations. The drugs are known informally as the “morning-after pill” and the “week-after pill,” and Wheaton calls them “abortion-causing” drugs because the Food and Drug Administration and other federal agencies say that the drugs can prevent the implantation of a fertilized egg. Wheaton argued that it should not be forced to pay for drugs that it finds objectionable, citing freedom of religion and the First Amendment.
The mandate also requires Wheaton to provide education and counseling related to Plan B and Ella, and Wheaton’s lawsuit objected to this provision as a violation of Wheaton’s free speech rights.
If Wheaton does not comply with the mandate by agreeing to pay for drugs and counseling that it finds objectionable, it stands to face $1.35 million in annual fines in addition to other penalties, according to a court declaration by President Philip Ryken dated Aug. 1.
“Having to pay a penalty to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional,” the lawsuit says.
Wheaton’s student health insurance plans, which cover about one-third of the student body, are not addressed in the lawsuit, Ryken said.
When the mandate was announced, the government allowed for religious exemptions, but only for churches, religious orders and other nonprofit organizations whose primary purpose is inculcating religious values and who primarily serve and employ people of the same religion.
Wheaton College is one of many religious colleges, universities, hospitals and companies that do not meet these criteria for exemption. A total of 26 lawsuits have been filed in opposition to the mandate. The majority of these cases represent Roman Catholic organizations, and Wheaton College announced its lawsuit alongside The Catholic University of America, which had filed its own lawsuit in May.
Wheaton is not the only Protestant college that has filed suit. Colorado Christian University, Geneva College and Louisiana College had all filed similar lawsuits before Wheaton, and Biola University and Grace College and Seminary followed on Aug. 23.
“To my knowledge, this is the first time that Wheaton has filed a federal lawsuit,” Ryken said. “There has not been another instance when, to my knowledge, the government has tried to classify the college as a nonreligious institution, so that’s unprecedented and calls for an unprecedented response.”
Wheaton’s legal complication
About three weeks after the lawsuit began, Wheaton filed a separate request for emergency relief from the mandate. The government had granted “temporary enforcement safe harbor” from the mandate for certain religious organizations that did not qualify for exemption. This safe harbor provision would provide a one-year reprieve from financial penalties associated with the mandate.
Wheaton did not qualify for safe harbor because it did not oppose all forms of contraception and because its insurance plans covered emergency contraception, including Plan B and Ella, as of Feb. 10, 2012. Ryken wrote in his declaration that the coverage had been included in Wheaton’s insurance as an oversight, and that as soon as the human resources department discovered the mistake in late 2011, the college worked to remove it. The college’s new insurance plan for prescription drugs, excluding Plan B and Ella, was in place by April 1, 2012.
The college had notified employees of the new insurance policy but did not highlight the specific changes regarding Plan B and Ella, according to Dale Kemp, vice president for finance, who oversees human resources at Wheaton. The college did not acknowledge its previous coverage of emergency contraceptives on its website until Aug. 7, after several media outlets highlighted Wheaton’s situation.
“We publicly disclosed that information as part of our legal filing at the time of our lawsuit, so in one sense it’s not really a news item,” Ryken said.
According to Ryken’s declaration, the college had been covering emergency contraception since before his tenure as president.
Kemp declined to comment on why no one at Wheaton had known about the emergency contraceptive coverage.
Without safe harbor from the mandate, Wheaton would have begun to incur fines on Jan. 1, 2013, and court documents explained that Wheaton would have had to consider dropping its employee health insurance coverage altogether.
“If Wheaton had to terminate its health insurance, it is inevitable that, due to the loss of competitive advantage, the quality of its programs and instruction would suffer,” Ryken wrote in his declaration.
Why the case was dismissed
Two actions from the federal government prompted the district court’s decision to dismiss Wheaton’s case last week.
First, President Obama had promised in February that his administration would soon create a new policy that “accommodates religious liberty” by shifting the cost of contraception coverage from religious organizations onto insurance companies, according to a White House press release. The details of this new policy remain unresolved, but so far the administration has taken one step toward that change, said Hannah Smith, senior counsel for the Becket Fund for Religious Liberty, which is providing pro bono legal representation for Wheaton.
“We have some vague idea of some of the ways the government thinks it’s going to accomplish this new insurance mandate, but it’s not clear yet what they’ve actually decided upon as the concrete basis for this so-called compromise,” said Smith.
More recently, HHS changed its “safe harbor” guidelines in August in response to Wheaton’s lawsuit, addressing two of the reasons Wheaton did not originally qualify for safe harbor. A religious institution may now qualify for safe harbor if it objects to some, but not all, forms of contraception, and if it made any attempt to remove objectionable coverage before Feb. 10, 2012.
Since Wheaton now qualifies for safe harbor and the government has promised to address religious liberty concerns sometime during the “safe harbor” period, US District Judge Ellen Segal Huvelle ruled that Wheaton’s lawsuit was premature and dismissed the case on Aug. 24.
Huvelle wrote that “in light of concrete steps defendants are taking to address Wheaton’s concerns … Wheaton has not alleged a concrete and imminent injury.”
Smith said that the government changed its safe harbor policy in response to Wheaton’s lawsuit because it did not want the case to continue.
“The victory of getting the safe harbor expanded was part of the government’s plan to further delay having to defend the mandate in open court,” Smith said.
Wheaton had to decide to appeal the dismissal or wait to see how the mandate will change as the government changes its policies over the next year, Smith said. The Catholic University of America’s lawsuit has not been dismissed and is continuing in federal court, according to Smith.
Ryken met with alumni in Washington, D.C., on the day the lawsuit was filed, and he said the majority of responses he has received have been positive. Not all alumni support the lawsuit, however.
Arik Bjorn ’95 is part of an alumni group that connected over Facebook in opposition to the lawsuit. He questioned the timing of the lawsuit and said the complaint did not represent Wheaton’s mission.
He also said he was disappointed because he felt the college had not been fully honest about its previous coverage of emergency contraceptives.
“I certainly think the college administration should have examined its words and internal policies more wisely before acting,” Bjorn said. “What comes across is hypocrisy. … How does that look to the world? What kind of witness is that? And what does that do to the reputation of an institution that until now, has had a fairly unblemished record with respect to honesty in communicating to the public and alumni?”
Ryken said that some alumni have expressed opposition to the lawsuit because they believe it is politically motivated, but he said this is a misunderstanding of the college’s intentions.
“We believe that Wheaton College should be granted the same exemptions for religious conscience that churches have been granted,” Ryken said. “We would simply have the liberty not to cover pharmaceuticals that can have an abortive effect.”
Smith said that the heart of the matter is freedom, not contraception, which factored into the decision to appeal the case to the U.S. Court of Appeals for the D.C. District.
"The mandate is federal law... The case is ready to be heard now, and we should not have to wait until the government comes up with this so-called accommodation, which is not part of the original mandate and the original exemption," Smith said after the appeal. "So I think the main point is that the religious liberty issues that Wheaton sued over have not been addressed."
Banner photo courtesy of Ed Pfueller/The Catholic University of America
Printed in the August 31, 2012, issue of The Wheaton Record. Send comments to email@example.com.