College Continues Legal Challenge of HHS Mandate

“The Supreme Court’s decisions in Burwell v. Hobby Lobby Stores, Inc., and Wheaton College v. Burwell confirm what Plaintiffs have argued all along: the Government substantially burdens the exercise of religion whenever it forces religious believers to violate their sincere religious beliefs. And here, the Government’s revised regulations continue to do exactly that.”

So begins a supplemental brief (PDF) filed in the Washington, D.C., Circuit Court of Appeals on Tuesday by attorneys representing Thomas Aquinas College and other Catholic institutions in their challenge of the HHS contraceptive mandate. “After Hobby Lobby and Wheaton, the Government tacitly acknowledged that its regulations could not pass muster under the Religious Freedom Restoration Act (RFRA) and accordingly revised them for the seventh time,” the brief continues. “In truth, the new regulations do nothing more than provide Plaintiffs with another avenue for violating their religion.”

Echoing concerns that Thomas Aquinas College President Michael F. McLean raised when the Department of Health and Human Relations released its most recent “accommodation” to the Mandate, the brief, prepared by attorneys at the Jones Day law firm, contends that “the new regulations continue to violate the Establishment Clause” of the First Amendment. Citing the Supreme Court’s ruling in this summer’s Hobby Lobby case, the brief explains, “Plaintiffs have a sincere religious objection to (a) submitting any notice that, in their religious judgment, impermissibly facilitates delivery of the objectionable coverage, or (b) maintaining an insurance relationship with a company that will procure contraceptive coverage for the beneficiaries enrolled in their health plans. The Government, however, forces Plaintiffs to take exactly those actions on pain of crippling penalties.”

In September 2013 Thomas Aquinas College filed a lawsuit, together with the Roman Catholic Archbishop of Washington, The Catholic University of America, and others challenging the Mandate, which requires employers to provide contraceptive, abortifacient, and sterilization coverage to their employees. That December the College succeeded in its challenge, with Judge Amy Jackson of the U.S. District Court for the District of Columbia issuing a permanent injunction against the government from enforcing the Mandate on Thomas Aquinas College. The government has since appealed that ruling, which is currently under review, particularly in light of the Hobby Lobby decision and the government’s subsequent modification of the regulations.

“Throughout this saga, the government has responded to each and every legal setback with only cosmetic concessions, thereby compelling further litigation,” says Thomas Aquinas College President Michael F. McLean. “We are therefore left with no choice but to continue defending our religious liberty by seeking judicial relief.”