February 2013 Update on HHS Lawsuit
Dear Biola Community,
I want to update you on Biola University’s pending federal HHS lawsuit. On Feb. 1, the Obama administration released a third proposed regulation regarding religious organizations and the HHS preventive services mandate. Unfortunately, this third proposal once again does not allow faith-based institutions like Biola University to classify as exempt of this rule based on religious affiliation.
While this proposed regulation attempts to expand the definition of a “religious employer” for purposes of exemption from the mandate, the religious exemption continues to remain too narrow. It was disappointing news to us and our fellow faith based Christian colleges and universities around the nation that have filed similar suits. I was in our nation’s capital when the news was released. The day before, I was able to convene and facilitate at the U.S. Capitol, a panel of two attorneys and seven presidents of faith-based colleges that have also filed complaints against HHS. Presidents represented College of the Ozarks, East Texas Baptist University, Grace College and Seminary, Louisiana College, Geneva College, and Wheaton College.
Rather than providing a more reasonable religious exemption as is the case in other federal laws and regulations, the administration has proposed an “accommodation” to non-exempt, non-profit religious employers with religious objections to the mandate. This proposed accommodation is also unsatisfactory in that it would allow only nonprofit religious organizations (if they qualify as “eligible organizations”) to exclude coverage for objectionable contraceptives and services from their employee health plans while still requiring that these contraceptives and services be made available to their employees at no cost. The accommodation merely attempts to shift the cost of the objectionable coverage from the employer to the employer’s insurance company (or the third-party administrator of a self-insured plan) at no cost to the employer. If Biola qualifies as an “eligible organization” under the rules, this “accommodation” will apply to Biola, however, this falls far short of a full religious exemption recognizing Biola as worthy of the same exemption as churches.
Furthermore, the proposed rule does nothing to address the rights of individual American citizens and business owners who object to providing abortifacient drugs on sincerely held religious grounds. This proposed amendment continues to violate the Religious Freedom Restoration Act as well as the First and Fifth amendments to the U.S. Constitution. We continue to stand in unity with these citizens and likeminded religious groups in opposing the mandate and this proposed rule.
In the pending litigation between Biola and HHS, the government has filed a "motion to dismiss" our case based on its assertion that Biola has not yet been harmed or damaged by the mandate and, thus, the case is not "ripe" to be heard by the court. We are still awaiting a decision from the court in our case. It is likely that if Biola's lawsuit is dismissed, we would have the opportunity to appeal the decision or refile the case at a later time if the "accommodation" rules are not satisfactory to us.
Biola University will express its concerns to the HHS on the proposed rule during the open comment period through April 5, 2013. A final HHS rule is to be issued by Aug. 1, 2013.
Thank you for your ongoing prayers for Biola University in the midst of these challenging external circumstances. I want to reiterate that this lawsuit is not politically driven; rather, it is simply a natural outgrowth of our calling to be stewards of the mission Biola’s founders have entrusted to us — to hold fast to biblical convictions even in the midst of shifting cultural sands. I will continue to keep you informed on all matters related to this historic stance by religious institutions.
Barry H. Corey
February 8, 2013