College Counsel: “The Stakes Are High”

by Quincy Masteller
General Counsel, Thomas Aquinas College
Comments at Priests for Life Press Conference
National Press Club
March 22, 2016

Tomorrow the Supreme Court of the United States will hear oral arguments in Zubik v. Burwell, a consolidated lawsuit against the HHS Mandate. Thomas Aquinas College, where I serve as general counsel, is one of the 35 plaintiffs in the case, which includes the Little Sisters of the Poor and The Catholic University of America, among others.

Thomas Aquinas College objects to the Mandate’s requirement that we provide coverage to our employees for contraceptives, abortifacients, and related services. We do so because we believe the truth of the Catholic Church’s teaching that their use is gravely immoral. And we believe that the truth matters. It matters to us as a Catholic institution because we think integrity is important. And it matters to our students, their parents, our alumni, and our benefactors, all of whom depend on the College to live up to its Catholic identity.

Some are surprised that we have found it necessary to engage in this lawsuit, citing the exemption from the Mandate that exists for religious institutions. What is not widely understood is that in implementing the Affordable Care Act passed by Congress, the Department of Health and Human Services has drawn the religious exemption more narrowly than it has ever before been drawn, restricting it almost exclusively to churches. In effect, it is treating the First Amendment as though it guarantees American citizens only a right to worship in a church, not — as it indeed does — a right to exercise our faith in our public lives.

Schools, hospitals, and other Catholic organizations that take seriously their Catholic identity have thus been put in an untenable position: We must either comply with a government mandate and act against our deeply held religious beliefs, or suffer crushing financial penalties — in our case, up to $3 million annually.

While the Administration has put forth a so-called “accommodation” that it claims will relieve us from complicity in delivering the objectionable coverage, it is illusory at best. The “accommodation” requires us not only to notify the Department of Health and Human Services of our objection to the Mandate, but also to transmit key information about our insurer — which is necessary for the government to then force our own insurance company to provide the objectionable coverage to our own plan beneficiaries in connection with our own health plans. And that is the key: Because the government requires us to take action in order to provide the objectionable coverage with our health plans, it is forcing us to facilitate the coverage. Yet that is the very thing we cannot do.

Tomorrow, our attorneys at the Jones Day law firm will offer a compelling argument demonstrating that the HHS Mandate violates our right of religious liberty under the Religious Freedom Restoration Act — passed by an overwhelmingly bipartisan vote in Congress and signed into law in 1993 by President Bill Clinton. Our attorneys will show that the Mandate fails its two requirements: 1) that the government have a compelling interest in accomplishing its goal, and 2) that it employ the least restrictive means of achieving that goal.

To the first, the government has already granted exemptions to numerous large companies such as Exxon, Visa, and Chevron, to large municipalities such as New York City, and to many more. In fact, there are currently millions of U.S. citizens with health plans exempted from the contraceptive mandate, proving that the government’s interest is clearly not “compelling.” To the second, there are numerous possible alternative methods for providing the objectionable coverage without forcing religious institutions to be part of the process.

The stakes are high not only for Thomas Aquinas and our 34 co-plaintiffs, but for all Americans. Should the Supreme Court uphold this Mandate, a precedent will have been set for curtailing the free exercise of any and all religions.

There is a reason that the right of religious liberty is first among all others enumerated in the Bill of Rights. Our founding fathers recognized that our country’s success would depend upon a vibrant religious life among its citizens. Our nation’s first president explained it thus: “While just government protects all in their religious rights, true religion affords to government its surest support.”

Tomorrow, the students, faculty, staff, alumni, and friends of Thomas Aquinas College will observe a day of prayer and fasting that our arguments might prevail at the United States Supreme Court. We invite all who love our country and cherish religious liberty to join with us.