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Wheaton College sues Obama for ‘contraception mandate’

by Brad A. Greenberg

July 18, 2012 | 10:21 am

Wheaton College is announcing this morning that it will filed suit in federal court to enjoin President Obama’s so-called “contraception mandate.” The Illinois evangelical school is not the first religious institution—and not the first Protestant one—to file such a lawsuit.

Sarah Pulliam Bailey writes for Christianity Today:

“This morning, the Board of Trustees filed a lawsuit in the Washington, D.C. District Court opposing the mandate, which, if enacted, would force the College to violate its religious beliefs or pay severe fines,” Ryken wrote in an e-mail to Wheaton’s faculty and staff. “We are joining with Catholic University of America in order to demonstrate that a deep concern for the sanctity of human life and a strong belief in the importance of religious freedom are areas of commonality that transcend our theological differences.”

Ryken said that The list of approved contraceptives includes “abortifacient ‘morning after’ and ‘week after’ drugs, presumably referring to contraceptives such as Plan B and Ella.

“I have every hope that Wheaton College will continue to provide excellent health care to all of its employees,” he said in the e-mail. “However, we stand to face punitive fines for not complying with the HHS regulations as of January 1, 2013.”

The mandate goes into effect August 1, though most religious institutions have another year to comply. But for non-church faith-based organizations whose insurance plans on February 10 did include contraceptives, the mandate comes into effect on or after August 1.

I’m interested to see how these lawsuits shake out.

Courts are not likely to find that the contraception requirement violates the First Amendment. History with challenges to similar state laws suggests as much—in large part because freedom of religion does not exempt religious conduct from generally applicable laws.

However, it may well violate the Religious Freedom Restoration Act, which requires a federal inaction imposing a substantial burden on religious practice to pass strict scrutiny. Is the contraception mandate really the least restrictive means to achieve a compelling government purpose?

With lawsuits by religious institutions continuing to accrue, we’ll soon see.

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