91�����

On Monday, attorneys from the Jones Day law firm, which is representing 91����� Aquinas College in its Supreme Court challenge of the HHS Contraceptive Mandate, submitted a 96-page brief outlining the College�s legal position. The brief contends that the Mandate � which compels religious organizations to facilitate free contraceptive, abortifacient, and sterilization coverage for their employees � violates the Religious Freedom Restoration Act (RFRA), which President Bill Clinton signed into law in 1993. Under RFRA, the state cannot �substantially burden� the free exercise of religion unless it has a �compelling government interest,� and does so using the  �least restrictive means� available.

�There are numerous ways that the Government can provide Petitioners� employees and students with contraceptive coverage. Petitioners do not seek to prevent the Government from doing so,� the brief contends. �Instead, they ask only that they not be forced to take actions that offend their religious beliefs and to act as conduits for the delivery of such coverage in violation of those religious beliefs.�

Below are key excerpts from the brief�s major arguments:

The mandate substantially burdens the free exercise of religion.

• �Petitioners have historically exercised their religion by working with insurance companies to make high-quality health coverage available to their employees and students in a manner consistent with these teachings.�
• �[T]he Government is forcing Petitioners to take actions that cause the objectionable coverage to be delivered to Petitioners� own employees and students by Petitioners� own insurance companies in connection with Petitioners� own health plans.�
• �Providing a noncompliant health plan subjects employers to penalties of $100 per day per affected beneficiary. � And dropping health coverage exposes employers with more than fifty employees to penalties of $2,000 per year per employee after the first thirty employees.�

The government�s so-called �accommodation� to the HHS Mandate does not relieve this burden.

• �[T]he mandate forces Petitioners to submit a document that authorizes, obligates, and incentivizes Petitioners� own insurance companies to deliver the objectionable coverage to Petitioners� own employees and students by virtue of their enrollment in Petitioners� own health plans. It then forces Petitioners to act in ongoing violation of their faith by maintaining an objectionable insurance relationship and plan infrastructure through which the coverage is delivered.�

The government has not demonstrated a �compelling interest� for infringing on religious freedom.

• �The Government cannot claim any true �compelling� interest in requiring objecting nonprofit religious organizations to comply with the contraceptive mandate, because that mandate is purely a figment of administrative rulemaking. The architects of the ACA did not mandate abortifacient and contraceptive coverage in general, much less in connection with the health plans of religious nonprofits. Instead they drafted the law to require only the anodyne category of �preventive care,� which is why the mandate was imposed through the federal bureaucracy. � Because the contraceptive mandate for nonprofit religious groups is purely the result of administrative rulemaking, the same bureaucracy that created it could decide to revoke it at any time. And because Congress chose to �leave unprohibited� the option of eliminating that mandate altogether, it cannot possibly be considered necessary to protect �an interest of the highest order.��
• �Granting a religious exemption for Petitioners would not undercut any �compelling� interest because the mandate is already riddled with exemptions. For example, the mandate provides a full exemption for certain religious organizations� those that meet the narrow definition of �religious employer� � that are otherwise indistinguishable from Petitioners. � The mandate likewise broadly exempts �grandfathered� health plans, which cover tens of millions of people. This exemption serves no purpose other than to promote administrative convenience and fulfill the President�s promise that individuals could maintain their existing health plans if they wanted to.�

The government can achieve its policy goals via �less burdensome� means.

• �[E]ven if the Government had a compelling need to provide abortifacient and contraceptive coverage to Petitioners� employees, it could use less-restrictive means to provide the coverage independently of Petitioners� health plans. Of all the ways in the world to provide such coverage, there is no need to hijack the health plans of religious nonprofits as the delivery vehicle. As this Court has recognized, �[t]he most straightforward� solution would be for the Government to simply provide the coverage itself for the relatively small fraction of employees who are �unable to obtain [it] under their health-insurance policies due to their employers� religious objections.� Hobby Lobby, 134 S. Ct. at 2780. The Government could easily do so in any number of ways, including by simply allowing the employees and students of objecting religious nonprofits to obtain subsidized health plans (either for contraceptives alone, or full plans) on the existing network of ACA exchanges.�

The government has adopted an excessively narrow understanding of religious exercise.

• �As the Government has explained, this exemption is designed to protect only �house[s] of worship,� while excluding their nonprofit charitable and educational arms �  This new and constricted definition of what it means to be a �religious employer� denies full religious status and protection to clearly religious organizations � By concluding that only �houses of worship� but not religious charitable and educational institutions should be considered �religious employers,� the Government betrays a distressingly narrow view of the proper place of religious faith and practice in our society.�

The mandate is an assault on the rights of religious minorities:

• �In practical effect, the mandate operates as a sword against minority religious groups, not as a shield to protect women. Instead of respecting the choices of nonprofit Catholic entities and the women who associate with them, the mandate licenses people who reject Catholic teaching to go to private Catholic organizations and force them to provide health plans that violate their deeply held religious beliefs. This is akin to going to a kosher butcher and demanding a side of bacon. It does not protect anyone from harm, but instead licenses people to force a religious minority to abandon its unpopular religious practices in order to cater to the values and desires of the majority.

  �And indeed, that would appear to be the very purpose of the mandate. � [T]he only conceivable purpose of applying the mandate to this small group of objecting religious nonprofits is to force these �religious hold-outs� to bend to the will of the prevailing majority.�