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updated: 8/17/2012 3:57 PM

Wheaton College suit prompts change in contraception 'safe harbor'

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A lawsuit filed by Wheaton College helped push the federal government this week to change its guidelines on how religious institutions can qualify for a year's reprieve from a health care reform requirement to cover emergency contraception.

The government now is seeking to dismiss the suit, but attorneys for the college said Friday they plan to continue pursuing the challenge, filed in July, seeking an exemption from the mandate of providing emergency contraception coverage.

Wheaton College originally was not eligible for a one-year "safe harbor" from the mandate because the college "inadvertently" covered emergency contraceptive drugs such as Plan B and Ella in its insurance plans after the cutoff date of Feb. 1, 2012, according to a legal declaration filed by President Philip Ryken.

Late last year, the Christian liberal arts college "was dismayed to discover that Wheaton's insurance policies did contain objectionable coverage of emergency contraception," Ryken wrote in the declaration. "That coverage was provided inadvertently. It had been included in Wheaton's plans without my knowledge."

Changes the government announced this week appear to make Wheaton eligible for the one-year break, said Hannah Smith, senior counsel for the Becket Fund for Religious Liberty, which is representing Wheaton College and The Catholic University of America in the jointly filed suit.

"They have rewritten the guidelines so that the 'safe harbor' says if you took measures before Feb. 10, 2012, to correct any inadvertent coverage of these contraceptive drugs, these abortion-inducing drugs, then you will still qualify for the 'safe harbor,'" Smith said.

Wheaton began working with its insurance provider, Blue Cross/Blue Shield of Illinois, late last year to remove emergency contraceptive coverage from its three health care plans. The coverage was no longer provided by the end of March.

"We were glad to be able to make those changes because we thought the coverage we had was inconsistent with our convictions," Ryken said Friday.

Wheaton College does not have religious objections to other forms of contraception that it believes do not cause abortion. Smith said the government's changes to "safe harbor" guidelines also made it clear a reprieve can be granted even if a religious institution does not oppose all types of contraception.

"Those were two really significant changes to the 'safe harbor' that the government made this week that were a direct result of the Wheaton legislation and are helpful to Wheaton," Smith said.

Ryken said the college will pursue its lawsuit because the one-year delay would not stop potential private lawsuits from employees who could sue under a federal statute that deals with employee health benefits. Gaining "safe harbor" status also does nothing to address the issue of whether the mandate restricts the college's religious liberty, he said.

"The fundamental issue has not been resolved," Ryken said. "The 'safe harbor' at best would provide one year's respite without dealing with the fundamental religious liberties at stake in the lawsuit."

The "safe harbor" effectively gives the government a year to devise a new way to address its requirement that religious employers provide coverage of all Food and Drug Administration-approved contraceptives, Smith said. Provisions of such a new policy are not yet clear.

"Everyone has been touting the 'safe harbor' as some sort of religious victory," Smith said. "It's really unclear how much protection that 'safe harbor' actually gives."

The government could create what Smith called an "insurer mandate," which could shift the responsibility for covering contraceptives from the religious employer to the insurance company. That solution may not satisfy faith-based institutions such as Wheaton College.

"None of the insurance changes the government has suggested to date resolve our religious liberty concern," Ryken said.

Until that concern is addressed, Ryken said Wheaton College intends to continue pursuing its legal challenge and seeking an exemption from the contraceptive coverage mandate, issued last summer.

"Regardless of people's views on abortion-inducing drugs, everyone in the United States has a vested interest in religious institutions being able to carry out their mission in a way that's consistent with their religious principles," Ryken said. "We remain hopeful that at the end of this legal process those religious convictions will be protected."

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