Union filed a lawsuit April 4 seeking an injunction against the contraceptive mandate of the Affordable Care Act. The lawsuit states that the mandate violates the university’s religious belief in the importance of protecting unborn life.
The mandate requires employers to provide all Food and Drug Administration-approved “contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity,” according to Union’s memorandum.
According to the memorandum, Union objects to four of these contraceptive methods: the emergency contraceptives ella and Plan B and two intrauterine devices.
“Union has provided for years contraceptives as part of their health plan,” said Samuel W. “Dub” Oliver, president-elect of the university. “What we have excluded are these abortifacients. … The overarching issue is religious liberty. The confronting issue is the abortifacients.”
Until this spring, the mandate did not apply to Union because the university was “grandfathered in,” meaning existing plans could continue unless changed.
This semester, changes in Union’s health insurance policies ended the exemption. Union provides employee health insurance through the Tennessee Independent Colleges and Universities Association.
Union’s lawsuit states that the university’s religious liberty has been violated under the Religious Freedom Restoration Act, the First and Fifth Amendments of the U.S. Constitution and the Administrative Procedures Act.
“The idea of religious liberty is that not only do you answer questions of ultimate significance, but then you live in light of the answers,” Oliver said. “This is true religious liberty.”
The suit was filed in the U.S. District Court for the Western District of Tennessee. After a ruling in district court, the case likely will be appealed to circuit court, then the Supreme Court, Oliver said.
East Texas Baptist University, where Oliver is still president until June 1, filed a similar suit alongside Houston Baptist University in 2013. In December, a federal court in Houston ruled in favor of the two universities, and the suit has now been appealed to the Fifth Circuit.
According to the American Civil Liberties Union, which supports the mandate, 95 cases have been filed “challenging the rule as an infringement on religious liberty,” including both nonprofits such as Union and for-profit companies such as Hobby Lobby, a Christian-owned crafts store chain.
The ACLU filed an amicus brief opposing ETBU and HBU in September 2013 and also opposes Union’s position.
“What [Union] University is trying to do is use their religious liberty claim to deny a benefit or service to others and to withhold a service in particular that women need,” said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project. “We believe the university is, therefore, using their religious belief to engage in sex discrimination.”
Sebelius vs. Hobby Lobby already has been argued before the Supreme Court with a decision expected in June. Although Hobby Lobby and Union represent different contexts — a for-profit organization and a non-profit organization — the arguments are the same.
Therefore, the Supreme Court’s decision regarding the Hobby Lobby suit may set a precedent that would affect Union, Oliver said.
“We are a self-avowed Christian university with a straightforwardly Christian and even Baptistic statement of faith,” said C. Ben Mitchell, Graves Professor of Moral Philosophy and biomedical ethicist. “So there are two levels of the problem. One is the mandate itself. The other is the role of government in defining what is a religious institution, what qualifies as a religious institution, and then the imposition of that definition and the mandate on the institution.”
When the government defined exemptions to the mandate, it narrowly defined religious organizations to mean churches and exclude institutions such as Christian universities, Oliver said.
Mitchell and Oliver spoke on separate panels before a congressional committee meeting Feb. 16, 2012, opposing the Department of Health and Human Services decree that religious organizations such as Union and ETBU provide all FDA-approved contraceptives to employees.
Any method of contraception that destroys an embryo violates Union University’s commitment to respecting unborn human life, Mitchell said.
Although Union does not oppose many of the FDA-approved contraceptives, Amiri said the opposition is still significant, especially because IUDs, which are some of the few long-acting and reversible contraceptives available, also are highly expensive.
“Removing the cost barrier is very important,” Amiri said.
Although Union refers to these contraceptives as abortifacient (causing an abortion) throughout its press release, other organizations disagree.
An amicus brief filed by several physicians and health care-related organizations regarding Sebelius vs. Hobby Lobby states that the same contraceptives do not cause abortions.
Part of this disconnect comes from the definition of pregnancy, Mitchell said.
The legal and scientific definition of pregnancy is the “period of time from implantation to delivery,” according to the brief, which urges courts to “preserve the scientific distinction between a contraceptive and an abortifacient.”
However, institutions such as Union define pregnancy as beginning with conception before the embryo implants on the uterine wall.
“So if it’s not implanted in the uterus it’s not a protectable human life,” Mitchell said of the legal definition of pregnancy. “I don’t want to make the sanctity of human life dependent on the geography of the embryo.”
Opinions also differ regarding whether these contraceptives actually do stop implantation from occurring.
The amicus brief states that Plan B and ella “do not prevent fertilization or implantation.”
However, the FDA states on its website that Plan B, ella and IUDs may prevent implantation.
Mitchell said that data is in some cases contradictory but that some forms of these contraceptives do at some times prevent implantation. It is problematic as long as there is that possibility, Mitchell said.
“Union University cares very much about its employees, including its female employees and their health,” Oliver said. “And so the government’s argument that we are somehow inhibiting women from accessing quality health care, I think it’s laughable. Second, I would say in most of the media this is characterized as people who are against contraceptives as opposed to what it really is, and that is a defense of religious liberty.”
