The sliver of ground Ken Paxton and the state of Texas are fighting over is so small as to be absurd. That's not a surprise, of course. So far this year, setting aside the big fights over things like saving the planet, he's taken a brave stand against same-sex spouses taking federally mandated unpaid family leave, made a man take him to court in order to be listed on his husband's death certificate and fought for the right of Texas AR-15 owners to continue to buy armor-piercing ammunition. Whatever thing the farthest far right cares about, Paxton is here to fight as hard as he can, looming felony indictments be damned.
This week, Paxton has taken up the cause of religious nonprofits that don't want their employee health insurance to cover birth control. Actually, that's putting it a bit too simply. In Hobby Lobby v. Burwell, the Supreme Court decided that it was OK for businesses or institutions to use religion as an excuse to not include birth control coverage on any health insurance plans the employers subsidize. Women at these places still get the free birth control mandated under the Affordable Care Act, but organizations with moral objections don't have to pay for it; the government does. They do have to ask for an accommodation, though.
For East Texas Baptist University and Houston Baptist University, that's not good enough. As crystallized by Paxton in a friend of the court brief submitted to the Supreme Court, merely asking the universities to ask for the accommodation infringes on their religious liberty.
“The continued assault on religious liberties in our nation threatens every single American and undermines the foundation of our Constitution,” Paxton said Monday. “No government should impose costly fines on its citizens for living in accordance with their convictions, and today the State of Texas stands with all religious institutions seeking protection from the overreaching mandates of Obamacare.”
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Even our friends at the 5th U.S. Circuit Court of Appeals in New Orleans, far and away the most conservative federal appellate court, disagree. In June, the circuit overturned a lower court ruling in favor of the universities because, the court said, having to apply for an accommodation did not infringe on their rights to freely exercise their religion. Signing paperwork does not constitute an undue burden, apparently, although Paxton disagrees.
"The supposed “accommodation” offered by the government does not change that fact, because how a hired company pays for the drugs is immaterial to this religious belief. Hence, the mandate will coerce employers to proceed with a course of action despite a belief in its religious impermissibility, because the alternative is not providing health insurance at all and thus incurring serious fines," he says in his brief.