The Legal Arguments for Religious Liberty in the Challenge to the HHS Mandate

United States Supreme Court

As a follow-up to yesterday’s summary review of the major issues involved in the legal challenge to the HHS Mandate brought by the Archdiocese of Washington, its affiliated organizations and others, I would like now to share with you some of the specific legal arguments presented in the briefs filed with the Supreme Court.

The brief filed for the archdiocese notes that, “In accordance with their faith, Petitioners have been careful to craft their insurance plans to exclude coverage for abortifacients, contraceptives, and sterilization. The Government, however, has made it impossible for them to continue that religious exercise” (p. 1).

In short, “the challenged regulations substantially burden Petitioners’ religious exercise by threatening them with ruinous penalties unless they take specific actions to comply with a regulatory mandate to provide abortifacient and contraceptive coverage in violation of their Catholic faith” (p. 25). As a result, the mandate regulation violates the protections of the Religious Freedom Restoration Act (RFRA).

The amicus brief filed on behalf of the U.S. Conference of Catholic Bishops describes the public benefit provided by various non-exempt faith-based organizations, which provide services such as “day care, foster care, adoption, community centers, emergency meals, emergency shelters, temporary and transitional residences, permanent affordable housing, counseling, financial assistance, maternity services, supportive housing for the mentally ill, residences for those with special needs and disabilities, and services for immigrants and refugees.” Catholic Charities agencies in the United States alone in 2014 “served over 8.7 million people, with total expenditures exceeding 4.4 billion dollars” (pp. 13-14). If the government were to effectively shut down these religious ministries due to the devastating monetary penalties imposed upon them, it is not just the ministries that would suffer, the entire community would too.

A major concern is the way the mandate says that many of our ministries are not religious enough to be exempted. The archdiocese’s brief expands on this issue, saying, “The Government has also already decided to exempt certain religious organizations, and it has no legitimate justification – much less a compelling justification – for forcing other equally religious organizations to comply. Moreover, even 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” (p. 53).

In denying an exemption to many religious ministries, the government has also claimed that its alternative mechanism – which it calls an “accommodation” – effectively allows non-exempt religious employers to “opt out” of the process. The archdiocese’s brief, however, shows how this claim does not withstand scrutiny. “Contrary to the Government’s characterization, this case is not about a challenge to an ‘opt out.’ Quite the opposite: the 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” (p. 1). The brief then adds, “While the Government may believe that its ‘accommodation’ absolves Petitioners of moral responsibility for the objectionable coverage, it has ‘no business’ making that determination” (p. 2).

In one compelling section of the archdiocese’s brief which goes directly to our concerns about protecting our Catholic identity, it is observed that a practical effect of the mandate is that it “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. . . . 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” (pp. 63-64, emphasis added).

Touching upon the real reason for the mandate, given that the government has at hand other less oppressive means of providing abortion-inducing drugs, contraceptives and sterilization services to people, the brief suggests that “the 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. RFRA was designed to prevent this type of governmental overreach. Under RFRA, individuals can decide for themselves whether to work for or obtain their health coverage through a Catholic nonprofit, and Catholic nonprofits can decide for themselves whether to offer health plans that come with abortifacient and contraceptive benefits. Neither side can impose its beliefs or practices on the other” (pp. 64-65).

If you are not a lawyer, reading legal briefs can be a challenge, but you might consider making the effort to read our brief and the others filed in this case rather than relying upon the news reports in the secular media. In addition, for more information on the HHS Mandate, the legal challenges and the broader effort to protect religious liberty, please visit

Please also continue to stay informed about this matter which is so critical to the protection of freedoms that has always been enjoyed in our nation. Be sure to share the facts with your family and friends. And most importantly, please pray for the protection of religious liberty, our first and most sacred freedom.