College’s Attorneys File Reply Brief in Supreme Court Case

“When the government itself concedes that it can achieve its ends through less restrictive means, then it must do so, and the substantial burden it has imposed on religious exercise cannot be sustained.”

So declare attorneys representing Thomas Aquinas College and its 34 co-plaintiffs in a supplemental reply brief filed today as part of their Supreme Court challenge of the HHS Contraceptive Mandate. The 10-page document cites the federal government’s acknowledgment, in an April 12 filing, that the HHS Mandate “could be modified” so as not to violate the consciences of religious objectors, while still fulfilling the government’s aim of “ensuring that the affected women receive contraceptive coverage seamlessly.”

This admission, the College’s attorneys charge, should lay the three-year-old legal dispute to rest. Under the terms of the Religious Freedom Restoration Act of 1993 (RFRA), when a law substantially burdens religious exercise, the government must employ only the means of effecting it that are “least restrictive” of religious liberty. “The government itself now concedes that it has less restrictive means available to it, and so it must use them,” proclaims today’s brief. “RFRA demands nothing less.”

Background and Context

On March 29, less than a week after hearing oral arguments in the case of Zubik v. Burwell, the High Court took the rare step of asking both sides to file supplemental briefs. The litigants were “to address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

Per the Justices’ instructions, on April 12 the College’s attorneys filed a brief outlining such possibilities. Although careful to note that petitioners would never “endorse such an approach as a policy matter,” the brief suggested that the government could, for example, require secular insurance companies to provide contraceptive coverage to the employees of religious organizations that cannot do so in good conscience. Such a policy, unlike the HHS Mandate, would not force conscientious objectors to facilitate the objectionable coverage, and as such would not violate their RFRA protections.

The government’s April 12 filing granted, albeit reluctantly, this same point, that the government can achieve its policy ends without requiring the cooperation of religious employers. Nonetheless, the brief insisted that the government should still be permitted to impose the HHS mandate on religious organizations, in part because the Mandate is “very similar” to the Court’s proposed compromise, as both deliver contraceptive coverage at no financial cost to the religious employer.

Petitioners Respond

Yet the reply brief that College’s attorneys filed today — responding to the government’s April 12 filing — flatly rejects the claim that there is no meaningful distinction between the HHS Mandate and the Court’s proposed compromise. “There is a world of difference,” the brief contends, “between [the proposed compromise] and a regime in which the government compels petitioners themselves to ensure there is no gap in coverage by taking affirmative steps, on pain of massive penalties, to make contraceptive coverage available.”

The matter is more complicated, however, in the case of plaintiffs such as Thomas Aquinas College, which do not purchase insurance through a commercial provider, but self-insure their employees. In such situations, “the insurer itself holds the religious objection,” the brief explains, and cannot provide contraceptive coverage “without overriding sincere religious beliefs.”

Moreover, the College’s attorneys observe, self-insuring organizations cannot merely “switch to an insured plan,” as the government blithely suggested in its April 12 brief: “Petitioners use self-insured plans not just for practical reasons, such as reducing costs but also because doing so allows them to provide health benefits in a manner consistent with all their religious beliefs.” (The College, for example, began self-insuring in 2001 as a response to a change in California state law that required commercial insurance plans to pay for surgical abortions.) If the government seeks to extend contraceptive coverage to employees of self-insured organizations, today’s brief continues, it could offer them “separate policies offered by commercial insurers.”

“Full Stop”

In conclusion, the brief found that there is no shortage of methods for the government to achieve its purported policy ends without trampling on the religious liberty of Thomas Aquinas College or any of its co-plaintiffs, such as The Catholic University of America, Priests for Life, or the Little Sisters of the Poor. “The existence of less restrictive means brings this litigation to an end. Full stop,” the filing asserts. “It is now the government’s job, not petitioners’ or the Court’s, to fashion a regulatory scheme that complies with RFRA.”

Today’s filings, which also include the government’s own reply brief, will likely be the last in this case. The Supreme Court is expected to announce its decision early in the summer.