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July 20, 2012

Frequently Asked Questions about Wheaton's HHS Lawsuit

UPDATE: AUGUST 27, 2012

Q: What is the result of the August 23 hearing in D.C. Federal District Court?

A: Judge Ellen Segal Huvelle held a hearing August 23 related to the government’s motion to dismiss Wheaton’s lawsuit requesting relief from the HHS Preventative Services mandate. The government (specifically, the Department of Health and Human Services, the Department of Treasury, and the Department of Labor) argued that Wheaton’s lawsuit was premature because the government has promised to create a new accommodation before it begins to enforce the mandate against Wheaton. Attorneys with The Becket Fund for Religious Liberty, which represents Wheaton in its case, argued that the College needs relief from the mandate now because the rule is final and will apply to Wheaton’s insurance policies beginning in January 2013.

In a ruling filed Friday, August 24, the judge dismissed Wheaton’s case, ruling that because the government has pledged to revise the mandate in 2013, Wheaton’s lawsuit was premature.

Q: What does the ruling mean for Wheaton’s lawsuit going forward?

A: The Board of Trustees is currently exploring its options related to appealing the ruling.

Q: How do recent court actions affect Wheaton’s employee insurance coverage?

A: As a direct result of Wheaton’s lawsuit, the government re-wrote the “temporary enforcement safe harbor” to include Wheaton and similar religious organizations. Under the safe harbor, these three government agencies have promised to wait one year before they begin fining religious non-profits for refusing to cover abortion-causing drugs. Wheaton sought emergency relief from the court in part because it did not qualify for the safe harbor for two reasons: (1) Wheaton objected to emergency contraception only (not contraception generally), and (2) Wheaton was still in the process of changing its insurance policies when the safe harbor was announced in February 2012. On August 15 the government expanded the safe harbor on both counts, specifically including organizations that can show that they took measures to correct inadvertent coverage of abortion-causing drugs before Feb. 10, 2012. This expansion means that Wheaton now qualifies for the safe harbor, and can offer insurance coverage consistent with its beliefs before enforcement of the mandate begins January 1, 2014.

Q: If Wheaton is now eligible for the safe harbor, why would the College consider appealing dismissal of its lawsuit?

A: Wheaton won an important victory when the government re-wrote the safe harbor—but that relief is both partial and temporary. The safe harbor’s protection is partial because although the government has promised not to fine Wheaton for excluding abortion-causing drugs in its 2013 plans, it admits that federal law will still require Wheaton to cover all mandated drugs. This leaves Wheaton in violation of federal law and vulnerable to lawsuits authorized by the Patient Protection and Affordable Care Act to enforce the mandate.

Additionally, the government’s promise to waive fines for one year does not address Wheaton’s fundamental concern: being forced to comply with a mandate that violates it religious beliefs is a violation of the College’s freedom to operate in alignment with its religious convictions.

UPDATE: AUGUST 7, 2012

Q: Is it true that Wheaton’s insurance previously covered abortion-causing drugs?

A:  As noted in documents filed with the court, Wheaton College undertook a comprehensive review of its health insurance plans in late 2011 to ensure that they were consistent with Wheaton’s religious convictions. During that review, an employee discovered that abortion-causing drugs had been included in Wheaton’s plans through an oversight unknown to the College’s leadership. As soon as it was discovered, Wheaton worked diligently with its insurer and plan administrator to exclude abortion-causing drugs from its plans in order to be consistent with its long-standing, sincerely held religious convictions.

JULY 18, 2012

On Wednesday, July 18, Wheaton College filed a lawsuit against the Department of Health and Human Services related to the HHS mandate requiring religious institutions to provide insurance coverage for abortion-causing drugs. Wheaton is represented by The Becket Fund for Religious Liberty in its suit; more detailed information is here.

Below are answers to several Frequently Asked Questions Wheaton has received about the suit.

Q: Isn’t there an exemption to the Health and Human Services mandate for religious institutions that would make this suit unnecessary?

A: The Department of Health and Human Services recognizes that, for religious reasons, certain provisions in its mandate violate the conscience of some employers. For this reason, the HHS has provided a full exemption for churches and other houses of worship.

However, to date the HHS has not extended a similar exemption to other religious institutions, such as Christian colleges and universities. This is our primary concern: if allowed to stand, the HHS mandate allows the government to declare that Wheaton College is not a religious institution, effectively stripping us of our First Amendment freedom of religion. We believe that we too have religious liberties that are fully protected by the United States Constitution.

Q: Why doesn’t Wheaton simply accept the HHS mandate, recognizing that its faculty and staff do not have to utilize the services that their insurance must provide?

A: We believe that it is morally inconsistent to provide services that go against our conscience and violate the standards of our Community Covenant. This is a matter of religious principle, which it is unconstitutional for the government to force us to violate. Just as importantly, in denying us the exemption it has provided to churches, the mandate allows the government to declare that we are not entitled to First Amendment protection for our freedom of religion—a dangerous precedent.

Q. Did Wheaton file this lawsuit in an attempt to reject the Obama Administration’s Patient Protection and Affordable Care Act, influence the election, or for other political purposes?

A. No. Wheaton College is a non-partisan institution. Our Trustees—who are affiliated with multiple political parties—properly regard religious liberty as a non-partisan issue. 

As a non-partisan institution, Wheaton neither supports nor opposes the Patient Protection and Affordable Care Act, which remains substantially unaffected by our lawsuit. Our objection is to a particular requirement of the HHS Health Insurance Mandate, namely, the mandatory provision of abortion-inducing drugs. An exemption, rather than a repeal, would satisfy our concern.

Political considerations played no part in the decision to sue, or in the timing of Wheaton’s filing. The trustees decided to wait on filing until after the Supreme Court published its decision on the Affordable Care Act at the end of June, in case that decision might provide any relief for Wheaton’s First Amendment concerns. With the mandate scheduled to take effect on August 1, and with punitive fines accruing from January 1, they believed that the College could not afford to wait any longer.

Q: Did the College attempt to resolve its concern with the Department of Health and Human Services before filing a lawsuit?

A: Yes. Wheaton’s Administration first raised its concerns quietly and directly with the HHS shortly after the mandate was handed down last August. Our hope all along has been that the HHS would grant the exemption we believe that we are entitled to receive. When this exemption was not forthcoming by May, the Trustees voted unanimously—yet reluctantly, as a last resort—to proceed with a lawsuit.

Q: Aren’t the drugs required by the HHS mandate contraceptives, rather than abortion-causing drugs?

A: The mandate includes drugs that, although categorized by the government as contraceptives, can cause an early abortion. For example, the Food and Drug Administration, National Institutes of Health, and the Department of Health and Human Services are all on record as stating that the “week after” pill (ella) can have an abortive effect on a fertilized egg.

Q: In filing this lawsuit, isn’t Wheaton College limiting the access of women to vital health services?

A: No. Wheaton supports nine of the 10 preventative services required by the HHS mandate and provides comprehensive health coverage to all of its employees, women included. Our objection is to a service we do not presently provide, so there is no question here of taking away any choices or services from women in the Wheaton community (or elsewhere). On the contrary, filing this lawsuit is a principled way for Wheaton to continue to provide excellent health care to all its employees.

Q: Wheaton is interfering with contraceptive decisions that ought to be a woman’s personal choice.

A: Wheaton College respects the views of Roman Catholics and other Christians who reject contraception outright. However, neither our Statement of Faith nor our Community Covenant require anyone to refuse contraception, and we provide certain forms of contraception in our health coverage. By their own free choice, in signing the Community Covenant, Wheaton’s women and men promise to “uphold the God-given worth of human beings, from conception to death”—a voluntary commitment that rules out any form of abortion.

Q: Why would Wheaton College devote its financial resources to a lawsuit?

A: Wheaton College is grateful for the legal representation of The Becket Fund for Religious Liberty, which is provided pro bono. Wheaton chose to work with The Becket Fund in part because of its clearly-established track record as a non-partisan, non-sectarian law firm that has successfully defended the religious liberty of Jews, Muslims, Christians, Hindus, and clients from other faith communities.

Q: Shouldn’t Wheaton focus on matters that are more central to the gospel?

A: Yes. Many “weightier matters of the law,” as Jesus called them, remain at the forefront of a Wheaton education, such as mercy and evangelism. Yet we also need to give appropriate attention to the one place where the government is acting to deny our freedom to carry out our mission—a conflict we would not choose, but cannot ignore.