Supreme Court Remands College’s Challenge of HHS Mandate to Lower Court

When members of the U.S. Supreme Court heard oral arguments in the case of Zubik v. Burwell on March 23, attorneys representing Thomas Aquinas College and its 34 co-plaintiffs in their challenge of the HHS Contraceptive Mandate had every reason to believe that, after four years, the legal disputes had at last come to an end. Little did they, or anyone else, know that there would still be much more to come.

Less than a week later, the Court took the rare step — for the first time in 50 years — of asking attorneys for both sides to file supplemental briefs. Then, just four weeks after the parties had fully complied with this request, the Justices unexpectedly declined to rule on the merits of the case, issuing an order that remanded Zubik v. Burwell’s seven component cases back to their courts of appeal for reconsideration.

“The Supreme Court has given the College a temporary victory — and perhaps much more,” says College General Counsel Quincy Masteller. “It has vacated the appellate court’s ruling against us, meaning that we are, for the time being, still under the protection of a permanent injunction that we received from the U.S District Court for the District of Columbia. Under the terms of that injunction, the government cannot force us to provide illicit coverage or fine us for refusing to do so.”

Moreover, the Supreme Court’s decision bodes well for future developments. “As the Court’s order points out, the government has admitted that there are alternative, less restrictive means available for the government to pursue its purported policy ends that do not trample on religious freedom,” says Mr. Masteller. The Court has asked that the parties pursue these means in settlement discussions.

At issue is the federal government’s HHS Contraceptive Mandate, which compels religious employers to facilitate access to contraceptive, abortifacient, and sterilization coverage for their employees. Thomas Aquinas College joined a lawsuit to oppose the Mandate in 2013, and the case worked its way through the federal court system, culminating in oral arguments before the Supreme Court on March 23.

On that morning, members and friends of the Thomas Aquinas College community across the United States began a day of prayer and fasting for the College, the Supreme Court’s eight justices, and the future of religious liberty. In Washington, D.C., President Michael F. McLean and Mr. Masteller witnessed the proceedings inside the courtroom while, outside the Supreme Court building, Vice President Paul J. O’Reilly joined alumni and members of the Washington, D.C., Board of Regents at a rally.

Only a few days later, the Court issued its request for supplemental briefs, instructing litigants’ attorneys to address whether “contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies,” yet in a manner that “does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees” (emphasis added).

The response, issued by the College’s attorneys, was simple and straightforward: “Yes.” Although careful to note that the co-plaintiffs do not “endorse such an approach as a policy matter,” the brief explained that the government could, for example, require non-objecting insurance companies to provide contraceptive coverage to the employees of religious organizations that cannot, themselves, do so in good conscience. Surprisingly, in its brief, the government agreed. The HHS Mandate “could be modified” so as not to violate the consciences of religious objectors, the government acknowledged, while still fulfilling its stated aim of “ensuring that the affected women receive contraceptive coverage seamlessly.”

Seizing on this area of agreement, the Court responded with its May 16 per curiam order, instructing the lower courts that the parties “should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise, while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”

For the moment, then, Thomas Aquinas College is spared the threat of an annual penalty — possibly as high as $2.85 million — for not complying with the HHS mandate, although final disposition of the case, pending the outcome of negotiations, remains to be seen. “We are hopeful that in the settlement discussions going forward, the government will abandon its effort to force religious institutions such as ours to violate our deeply held religious beliefs,” says Dr. McLean. “We think it is no coincidence that this ruling came down just after we completed a novena to Our Lady. So we ask all friends of Thomas Aquinas College, and all who cherish religious liberty, to join with us in continued prayers for a favorable resolution.”