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Responding to a rare order from the U.S. Supreme Court, attorneys representing Thomas Aquinas College and its 34 co-plaintiffs today filed a supplemental brief brief in their ongoing case against the HHS Contraceptive Mandate. “There is no reason,” the brief declares, “for the government to insist, on pain of massive penalties, that petitioners abandon their sincerely held religious beliefs when the government can achieve its ends through other means.”

On March 29, less than a week after hearing oral arguments in the case of Zubik v. Burwell, the Court’s justices asked both sides to file briefs outlining ways in which the government could achieve its purported end of free, universal contraceptive, sterilization, and abortifacient coverage without compelling religious employers to participate in the process. Per the Justices’ instructions, the College’s newly filed brief describes several such methods, all of which would protect the deeply held religious beliefs of Thomas Aquinas College and its co-plaintiffs.

Although careful to note that petitioners do not in any way “endorse such an approach as a policy matter,” the brief asserts that it is possible for the government to “simply impose a regulatory requirement directly on insurance companies that, to the extent they contract with an eligible organization that does not include some or all contraceptive coverage in its plan, the insurance company must make available to plan beneficiaries a separate plan providing the excluded contraceptive coverage.” An arrangement of this kind need not “compel petitioners to forsake their sincerely held religious beliefs.”

To preserve religious organizations’ federally protected conscience objections, however, the government would need to provide the objectionable coverage without the participation or cooperation of religious employers. Coverage must be “truly independent of petitioners and their plans” and “provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication.”

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. “When an employer self-insures, the employer itself is the insurer,” the brief explains. As such, “there is no scenario in which such coverage could be obtained by the petitioner’s employees through the petitioner’s own insurer without directly involving a religious objector.” Nonetheless, the government could still achieve its policy ends by, for example, enabling “commercial insurance companies to make separate contraceptive coverage plans … available to the employees” of such organizations, free of charge.

In offering these arguments, the College’s attorneys flatly rejected the government’s recent contention that it has a “compelling interest” in providing contraceptive coverage “seamlessly” — that is, through employees’ employer-provided health plans. “The government cannot simultaneously insist that employers must provide coverage seamlessly and that petitioners are mistaken to perceive that their plans are being used to provide the service,” the brief contends. “If the seams are absent for their employees, then they are absent for the employer.”

The federal government also filed its brief today, and the Court has ordered both sides to issue reply briefs no later than April 20. A decision is expected early in the summer.

“We continue to be very pleased with the way our attorneys at Jones Day have represented the College and made the case for religious liberty before the Supreme Court,” says Thomas Aquinas College President Michael F. McLean. “We are grateful for their counsel, as well as for all the prayers that have, no doubt, sustained them in their work. We ask that friends of the College continue to pray for a favorable outcome in this case.”