On August 31^st, a federal judge held that the secular nonprofit pro-life organization March for Life, is permitted to opt out of the Affordable Care Act’s contraceptive mandate. This ruling is likely to be appealed. This marks the first case of a secular, nonreligious organization being granted an exemption from this HHS regulation. In fact, government defendants made the case that March for Life should in fact not receive an exemption precisely because it is not a religious organization. However, in his decision, Judge Richard Leon stated that March for Life can legally object to artificial contraception on moral grounds, calling HHS’s exemptions for religious organizations “regulatory favoritism.” Leon’s opinion stated that the HHS Contraceptive Mandate went against RFRA, the Administrative Procedure Act, and the Equal Protection Clause of the Constitution. Leon wrote: “What HHS claims to be protecting is religious beliefs, when it actually is protecting a moral philosophy about the sanctity of human life.”

What are proponents of religious freedom for faith-based organizations to make of this case? At first glance, permitting exemptions for for organizations on moral, as opposed to religious grounds, may appear to be a slippery slope in undermining the unique, distinctive reasons to grant distinctively faith-based exemptions. Adding a moral basis for the HHS contraceptive mandate broadens the exemption and has the potential to dilute the special significance of protecting organizations for explicitly religious reasons. It also makes exemptions to the contraceptives mandate in general more susceptible to attack. However, it is important to note that when it comes to protecting life, the strong tradition is to include protections for conscience and not just religious conviction – this is different than allowing a conscience defense in every case. The nuance of this issue shows that religious and moral exemptions can co-exist without necessarily sacrificing the robustness of the claim for an exemption based on faith precepts.

ADF’s senior legal counsel Matt Bowman said: “Pro-life organizations should not be forced into betraying the very values they were established to advance.” The court’s ruling in this case demonstrates an important point that is frequently made by defenders of the religious freedom of faith-based organizations:

Namely, secular organizations consistently engage in mission-based practices that impact their internal operations, and religious organizations should be allowed to do the same, even if their mission encompasses doctrines about God that necessitate practices that are not in line with public opinion. A secular organization that supports environmental sustainability efforts may require all their employees to engage in waste reduction and recycling efforts, and would likely inquire into a potential employee’s values and personal habits around protecting the environment before making hiring decisions. Likewise, a secular nonprofit whose mission is to oppose abortion would not be practicing mission-consistency if it was forced to provide what it believed was abortion-inducing drugs to its employees, who were hired to carry out the organization’s prolife mission. The logic of the argument allowing an exemption for a secular organizations on moral grounds when the exemption is necessary to the living out of its mission, also supports allowing FBOs to practice mission-consistency in their practices as well in areas such as faith-shaped hiring and services provision. In this way, the decision extending the contraceptives mandate to secular organizations who oppose the mandate on moral grounds is potentially strengthening the case for the freedom of religious organizations to operate according to their faith-centric missions.

More directly applicable to the freedoms of faith-based organizations is the recent 8^th Circuit Court of Appeals ruling that upheld two lower-court decisions, lawsuits brought by Cornerstone University and Dordt College, that stopped the government from forcing religious institutions to fund contraceptive coverage for employees. The court stated that the government could not coerce these religious institutions of higher learning to participate in the contraceptive mandate and accommodation process under “threat of severe monetary penalty” without substantially burdening these colleges exercise of religion. The court further stated that even if the government did have a compelling public health interest, the government failed to provide the least restrictive means in achieving this compelling interest through the contraceptive mandate and accommodation process. The court further stated that the government must trust the employers’ “sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage.”