Christian Organizations Are Losing Obamacare Birth Control Mandate Cases Because Lawyers Not Building Strong Defense, Former Solicitor General Ken Starr Says

Oklahoma Baptist University's Raley Chapel
Oklahoma Baptist University's Raley Chapel | (Photo: Wikimedia Commons)

After a federal appeals court ruled this week that four Christian colleges in Oklahoma and a group of nuns will have to abide by an Obamacare contraception mandate that they say violate their institutions' biblical beliefs, former U.S. Solicitor General Ken Starr explained Thursday that the court loss can be blamed on the organization's lawyers not building strong enough cases.

The U.S. 10th Circuit Court of Appeals on Tuesday overturned a U.S. District Court ruling that temporarily exempted Southern Nazarene University, Oklahoma Baptist University, Oklahoma Wesleyan University and Mid-America Christian University from having to comply with an Affordable Care Act mandate requiring the Christian schools' health insurance providers to offer free birth control drugs that could induce an abortion to its employees.

The court's decision came in one mass-encompassing opinion that also affected the Little Sisters of the Poor, a group of Colorado nuns who serve the elderly, and a handful of other religious organizations.

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Although the use of abortion-inducing drugs is an affront to the schools' biblical convictions, the court ruled that it is not the institution that is providing the contraceptives but rather the health providers.

As the judicial cases on the Obamacare contraception mandate have became another front line in the battle over religious freedom in America, Starr, the president of Baylor University and former U.S. Solicitor General under George H.W. Bush who has argued dozens of cases before the Supreme Court, told attendees of a Georgetown University religious freedom summit that lawyers representing the organizations relied too much on the philosophical argument of freedom of religion.

U.S. Rep. Keith Ellison (L) and Baylor University Chancellor Ken Starr (R) participate in a discussion on international religious freedom at Georgetown University in Washington on July 16, 2015.
U.S. Rep. Keith Ellison (L) and Baylor University Chancellor Ken Starr (R) participate in a discussion on international religious freedom at Georgetown University in Washington on July 16, 2015. | (Photo: The Christian Post/Samuel Smith)

"The four [types of contraception] at issue in the Hobby Lobby case were deemed by the Supreme Court of the United States as satisfying the compelling interest but that the government had failed to use the least restrictive means to accomplish that," Starr stated. "But the broader point is that the scrutiny test does not mean that the religious community will always win."

"I mean no disrespect to any lawyers litigating any of these cases but you got to build your record. You can't just go in and say 'I've got religious liberty and so please judge give me the judgement,'" Starr continued. "You have to build your case and some of the principle losses in the courts to religious liberty have come because lawyers of good faith had not built an overwhelming case."

The court explained that the institutions have the ability to "opt out" of the Obamacare mandate on grounds of religious objection by submitting a form to the schools' health care providers or a third-party administrator and also sending a notification to the Department of Health and Human Services.

Attorneys with the Alliance Defending Freedom, the legal group representing the colleges, argued that making the schools go through the "opt-out" process places an unfair burden on the institutions and violates the institutions' religious freedoms. However, the court did not agree with that argument.

"Although we recognize and respect the sincerity of Plaintiffs' beliefs and arguments, we conclude the accommodation scheme relieves Plaintiffs of their obligations under the Mandate and does not substantially burden their religious exercise under RFRA (Religious Freedom Restoration Act) or infringe upon their First Amendment rights," the court's ruling states.

Alliance Defending Freedom senior counsel Gregory S. Baylor asserted in a prepared statement that the court was wrong in its ruling.

"The court is wrong to punish people of faith for making decisions consistent with that faith," Baylor stated. "The government should not force religious organizations to be involved in providing abortion pills to their employees or students."

"All Americans should oppose unjust laws that force people — under threat of punishment — to give up their fundamental freedoms in order to provide health plans the government prefers," Baylor continued. "It's no different for these Christian colleges, which simply want to abide by the very faith they espouse and teach."

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