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Retaking Religious Liberties


Greg Baylor, senior counsel for Alliance Defending Freedom and the Director of ADF’s Center for Religious Schools. Baylor unpacks how religious and moral objections to the Obamacare contraceptive mandate have played out judicially under the aid of the Religious Freedom Restoration Act, and if the Trump administration has done enough to provide protections for these objectors.

Greg Baylor discusses the contraceptive mandate and religious liberty

Family Policy Matters
Transcript: Retaking Religious Liberties

JOHN RUSTIN: Thank you for joining us today for Family Policy Matters, the North Carolina Family Policy Council’s weekly radio show and podcast. When we speak about family values and consider the intersection of topics like the sanctity of human life and religious liberty in our current culture, few issues come to mind more quickly than the Federal Affordable Care Act, also known as “Obamacare.” The mention of cases such as Hobby Lobby and Little Sisters of the Poor, conjure up recent recollections of intense legal battles over the Obamacare contraceptive mandate, which pitted government-mandated coverage of contraceptive, sterilization, and abortion-inducing drugs against employers and nonprofit ministries that are simply trying to live out their lives and run their businesses, and organizations, in accordance with their deeply-held religious beliefs. The Trump Administration recently implemented some significant, positive changes to this Obama-era mandate, and the federal courts continue to rule in favor of people of faith and religious employers. Well, the most recent such opinion came in mid-December when a federal district court in Colorado issued a ruling protecting six faith-based organizations from the contraceptive mandate in Obamacare. Today we’re pleased to be joined by Greg Baylor, who serves as Senior Counsel with Alliance Defending Freedom, and is also the Director of ADF’s Center for Religious Schools. ADF was actually one of the organizations to receive relief under this recent court order in the case of Association of Christian Schools International vs. Azar.

Greg, welcome to Family Policy Matters, it’s great to have you on the show.

GREG BAYLOR: Well, thanks John. It’s a pleasure to be with you.

JOHN RUSTIN: Greg, refresh our memories a bit, if you will, about the history of the Obamacare contraceptive mandate, and the impact on it by cases like Hobby Lobby, Little Sisters of the Poor, and others.

GREG BAYLOR: It surely is a long history. It started back in 2010 when Congress passed, and President Obama signed the Affordable Care Act. About a year later, the Department of Health and Human Services interpreted a provision requiring coverage of women’s preventive services to require all FDA-approved contraceptives. Well, that was extremely problematic. First of all, there were many Roman Catholic organizations and employers that do not wish to facilitate access to drugs and devices that they believed to be sinful. And second, there were a lot of Evangelical Protestant organizations that don’t object to most of the birth control items that are required by the mandate, but do object to the ones that can and do act abortifaciently. So, there was a first wave of litigation that was filed by a for-profit business, customarily owned by Christian people. Hobby Lobby is that case and it made it all the way to the Supreme Court and Hobby Lobby won. What happened next was for the Administration to try to do something for the religious nonprofits that objected to the mandate. Well, they finally did and it was unsatisfactory. So, you had a number of cases that were filed saying: Hey, this alternative mechanism that you’ve given us to comply with the mandate still violates our conscience. And the case, that you’re talking about that was just decided last week, is the end of one of those cases where a federal district court in Colorado said that the six religious organizations do not have to comply with the HHS mandate. 

JOHN RUSTIN: Thanks for that background, that’s very helpful, and we definitely want to get into talking more specifically about this recent case. But in the meantime, what changes has the Trump Administration recently made to the implementation of the contraceptive mandate through rule making? 

GREG BAYLOR: The Obama Administration, when it issued its contraceptive mandate, there was a religious exemption in there. The problem was it was extraordinarily narrow. It was basically limited to houses of worship and denominations. The Trump Administration has fixed that problem. The religious exemption is really available to almost anyone who has an objection to the mandate. The second thing that the current administration did was to create protection for organizations that object, not on religious grounds, but on moral grounds. March for Life is not a religious organization. But can you imagine being forced to put abortifacient drugs and devices in your employee health plan? They were astonished by that, but that was the law. So they filed a lawsuit, and they got relief. The Trump Administration said: We’re going to write a rule that protects these kinds of objectors as well. 

JOHN RUSTIN: It may be a little bit confusing to our listeners as far as the timeframe of all of these lawsuits and administrative actions and things of that nature, but they all seem to be very important steps in the process of making sure that the religious liberties of people of faith, and people who run businesses and nonprofits, that are “believing” organizations or “believing” individuals working at organizations, have their religious liberties protected. So Greg, how did this recent case, Association of Christian Schools International vs. Azar, involving the six religious organizations, how does that case differ from similar previous cases, and why was it necessary?  

GREG BAYLOR: It really doesn’t differ all that much from a number of cases that have been resolved, really since the Trump Administration came into office. These six entities were not eligible for the very narrow Obama Administration religious exemption. They were eligible for something the Obama Administration called  the, so called, “accommodation,” which was purported to be a resolution to the moral objection that these six organizations had to complying with the mandate. They still felt that they were complicit in sinful acts and therefore they filed their lawsuit. Now what had to happen was the case had to be brought to a close. One might say: Well, what about these new Trump Administration rules? They expand the exemption. Isn’t that good enough? Well, two reasons why the rules aren’t good enough. First, they’re being challenged by states like California and New York and Pennsylvania and Maryland and Delaware and Massachusetts, and some judges have already entered injunctions against these new rules. The second thing is the rule, even if it’s allowed to go into effect, the next Administration, particularly if it’s of a different party, could change it back. So what these plaintiffs needed was a court saying that the mandate, as applied to them, cannot be applied to them legally; it violates the Religious Freedom Restoration Act. So in getting that protection, they have protection permanently and it really doesn’t matter to them that much what happens with these new rules, whether they go into effect, whether they’re enjoined. So they needed permanent protection and that’s what they got from the District Court judge.

JOHN RUSTIN: Greg, as it relates to this case, is this the end of the line for this case? Has it been resolved, or is there the possibility of an appeal that could overturn or prolong the final decision?

GREG BAYLOR: No, it really has come to a conclusion. The Department of Justice has essentially changed its mind about the legal validity of imposing the mandate on folks like these six religious organizations—Of course, that switched came after the 2016 election. So when we went into court on behalf of our clients, and ask the judge to enter a final permanent injunction because the mandate violated religious freedom, the Department of Justice said: Well, we agree that it violates religious freedom, and therefore they didn’t resist the entry of this injunction. And of course they’re not going to appeal, that would be inconsistent with what they said in the case, and in what they’re saying when they go forward with these new rules that expand the exemption. So thankfully we’re at the end of this long journey.

JOHN RUSTIN: Great! Congratulations on that. I do know that one of the laws under which the parties in this case we’re seeking relief, was under the Federal Religious Freedom Restoration Act, or RFRA. What is the relationship and legal interplay between the healthcare law’s contraceptive mandate, and the long established Religious Freedom Restoration Act?

GREG BAYLOR: The amazing thing about the Religious Freedom Restoration Act is that it applies to all federal laws and regulations. So if you’re someone who’s religious and you think that something the federal government is doing to you burdens your religious exercise, you can go into court and try to convince the judge to tell the federal government to stop imposing that burden on you. And that’s exactly what’s been happening in these HHS contraceptive mandate cases. Our clients like Taylor University and Indiana Wesleyan said: Look, you’re forcing us to give our own people access to drugs and devices that can and do destroy human life. That violates our religious beliefs. And under this Religious Freedom Restoration Act, the judge then turns to the federal government and says: Well, what’s your rationale for doing this? Do you have a compelling interest in the words of the statute? And is there some other way you might be able to achieve your objective? Well, the court held, in our case and a bunch of others, that yes, this mandate did burden their religious exercise. It did force them to do something that violated their institutional consciences, and that there wasn’t a sufficient rationale, there wasn’t a compelling interest that supported it.

JOHN RUSTIN: And I think it’s important for our listeners to understand that RFRA does not guarantee an outcome. It simply provides an opportunity to “have your day in court.” And if you do feel, as you’ve described, that your religious liberties are being infringed upon by a federal law, rule or regulation, then you can seek relief in the court, but it doesn’t guarantee an outcome. Fortunately, with respect to this contraceptive mandate in Obamacare, we’ve seen a lot of relief granted under RFRA and under other legal constructs so that religious people, and people of faith, have had their liberties protected. Greg, give us a your perspective on the lay of the legal landscape for where things stand now in relation to the overall contraceptive mandate in Obamacare. Do you still have concerns about its application and implementation considering these recent rulings and actions by the Obama Administration, or do you think that most of the needed exemptions and protections are now in place?

GREG BAYLOR: I still think there’s a lot of work to be done. Just thinking about this decision that was just handed down by the court in Colorado, it doesn’t protect everyone. It only provides permanent protection to the six organizations that filed the lawsuit. All of the other decisions that are coming down and resolving challenges to the HHS mandate, they only protect the people who filed the lawsuit. What provides protection for everyone else are these rules that the Trump Administration has put forth. Well, now the final versions of the rules are coming out; they were published shortly ago and they’ll go into effect on January 14th. And all the same folks that challenged the good Trump interim final rules that were issued in October 2017, are now saying that they will challenge these new rules—the final versions of these new rules. So if it turns out the wrong way, everyone else who didn’t serve as a plaintiff in a lawsuit and get an injunction, is once again exposed to the HHS contraceptive mandate. Suppose that the rules are upheld, again, you’d still have a problem of a future Administration revising, resending, repealing those rules, and perhaps returning us to the regime that we had under the Obama Administration. Again, the folks that got injunctions from courts, they’re protected permanently, but the state of protection for other people is very much in play and probably will be for years to come.

JOHN RUSTIN: And because of that, Greg, we’re so happy that Alliance Defending Freedom exists and is really seeking to protect the religious liberties and other rights of individuals across the nation. Before we go, tell us how our listeners can learn more about your great work and the good work at Alliance Defending Freedom.

GREG BAYLOR: I would just encourage them to visit our website. It’s, and there you can learn about the work that we’re engaged in, learn about how we enter into alliances with a large number of organizations across the country—including yours, John—and if they’re so inclined, to support our work that we would be most grateful.

JOHN RUSTIN: I certainly want to encourage our listeners to do just that: support Alliance Defending Freedom. They do excellent work. And with that, Greg Baylor, I want to thank you so much for being with us on Family Policy Matters, and for your great work defending religious liberties of individuals across this country.

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