As anticipated with the start of the new year, the Department of Health and Human Services’ mandate requiring insurance plans to include sterilization, abortion-inducing drugs and contraceptives continued to be challenged --- in at least one case, successfully by a religious institution employer.

On Dec. 20, Judge Amy Jackson of the U.S. District Court for the District of Columbia agreed that the HHS Contraceptive Mandate substantially burdened Thomas Aquinas College's exercise of religion in violation of the Religious Freedom and Restoration Act.

Therefore, Judge Jackson entered summary judgment on behalf of the Santa Paula-based college and issued a permanent injunction against the U.S. Government from enforcing the mandate in its current form. The government has 30 days to file a notice of appeal of this ruling.

In another matter, the Little Sisters of the Poor in Colorado asked that they be temporarily shielded from the mandate by an emergency stay, which was granted by U.S. Supreme Court Justice Sonia Sotomayor on Dec. 31, just hours before the mandate went into effect.

U.S. Justice Department objected to the stay, arguing that the Little Sisters' “religious exercise is not substantially burdened” by the mandate because of the accommodation. But the sisters’ attorneys asserted that the demands of the federal contraception mandate threaten the sisters’ continued works of service.

And last week, the president of the U.S. Conference of Catholic Bishops asked the federal government that temporary protection from the mandate be extended to all religious employers who object to it. The government has not publicly responded to his request.

Aquinas College

In the Thomas Aquinas College matter, Judge Jackson found that because the college self-insures, the challenged regulations could force the college to take steps to facilitate access to contraceptive and abortifacient services. Since the College testified that access to such services is contrary to its Catholic principles, the Court found that the regulations substantially burden the college's free exercise of religion, and thus issued the permanent injunction.

“In the case of a self-insured entity like Thomas Aquinas, the newly enacted regulations fall short of the mark,” said Judge Jackson in her ruling. “Since the accommodation imposes a duty upon the religious organization to contract with a willing third-party administrator that will arrange for the payments for contraceptives, they compel the organization to take affirmative steps --- to do  something --- that is in conflict with the tenets of its faith. And therefore, defendants are enjoined from enforcing the mandate against Thomas Aquinas College."

The college’s co-plaintiffs in the lawsuit were denied relief from the Court and are appealing their ruling to the U.S. Court of Appeals for the District of Columbia. 

Said Dr. Michael F. McLean, Thomas Aquinas College president: “While we are delighted with Judge Jackson’s ruling concerning Thomas Aquinas College in this matter, we deeply regret that our co-plaintiffs did not receive similar rulings. We stand with the archbishop of Washington, D.C., The Catholic University of America, and all our co-plaintiffs, and we pledge our prayers that they, too, will be successful in securing their religious liberties.”

Little Sisters

Eric Rassbach, deputy general counsel with the Becket Fund for Religious Liberty, which is representing the Little Sisters of the Poor in court, charged that the government's claim amounts to “doublespeak” and “trivializes” the situation of the sisters.

For 175 years, he said, the sisters have provided physical, spiritual and emotional care for the low-income elderly and dying in communities throughout the U.S.

Now, however, they are facing crippling fines due to the federal contraception mandate, which requires employers to offer health insurance plans including free contraception, sterilization, and some early abortion drugs for employees. Failing to comply results in fines of up to $100 per employee per day.

While the mandate includes a narrow religious exemption, the Little Sisters fail to qualify for it because they are not affiliated with a particular house of worship. Instead, the group falls under an “accommodation” by which religious employers can sign a form authorizing an insurance company or third party to provide payments for the products they find objectionable. Critics argue that these costs will ultimately be passed on to the objecting employers, despite the government's claims otherwise.

The Little Sisters asked that they be temporarily shielded from the mandate by an emergency stay, which was granted by Justice Sotomayor on Dec. 31.

On Jan. 3, the Department of Justice responded to Sotomayor's order, arguing that the Little Sisters' “religious exercise is not substantially burdened” by the mandate because of the accommodation.

The Little Sisters contend that even being forced to sign a paper authorizing an outside party to provide the objectionable coverage is a violation of their religious beliefs.

Altogether, lawsuits have been filed by more than 300 plaintiffs across the country. The majority have received preliminary injunctions while their cases work their way through the court system.

The U.S. Supreme Court has agreed to hear a case involving for-profit businesses run by religious individuals who object to the mandate. A decision is expected in that case later this year.

Rassbach responded to the Justice Department's statement by saying that “the biggest tell here is what the government is doing.” He questioned why the government is “spending millions of dollars in legal costs” if it is, in fact, a minor matter for the nuns to sign the authorization form.

“In reality the government is acting as if the form matters a lot,” he said, noting that the government has said “in the lower courts that the purpose of the form is to authorize drugs and devices” that the nuns find unconscionable. The idea that it’s just a stroke of a pen trivializes the entire matter.”

USCCB request

In a letter to President Obama, Archbishop Joseph E. Kurtz of Louisville, USCCB president, requested that religious institutions be temporarily exempt from crippling fines if their insurance plans exclude sterilization, abortion-inducing drugs and contraceptives.

Archbishop Kurtz also asked the president to consider that the U.S. Supreme Court already has agreed to hear two cases related to the mandate created by the Department of Health and Human Services (HHS). At least 90 cases have been brought to federal courts by individuals and institutions objecting to the imposition of the HHS mandate. Most of the decisions to date have favored those bringing suit.

Archbishop Kurtz’s request comes as the administration has offered exemptions to numerous people and organizations having difficulty in implementing the ACA. Individuals who faced penalties for not meeting deadlines for enrollment have had deadlines extended.

Businesses with 50 or more employees will not be fined if they drop or otherwise do not offer health insurance at all for 2014. After 2014, if these businesses do not offer a health insurance plan, they face a fine of $2,000 a year per employee.

Meanwhile, beginning as early as Jan. 1, organizations such as church-sponsored universities, hospitals and social services, faced a fine of $100 per day ($36,500 per year) per employee if they provide health coverage that does not include contraceptives, including abortion-causing drugs, and sterilization.

“The result is a regulation that harshly and disproportionately penalizes those seeking to offer life-affirming health coverage in accord with the teachings of their faith,” Archbishop Kurtz said. “The administration’s flexibility in implementing the ACA has not yet reached those who want only to exercise what has rightly been called our ‘First Freedom’ under the Constitution.”  

“I understand that legal issues in these cases will ultimately be settled by the Supreme Court,” he added. “In the meantime, however, many religious employers have not obtained the temporary relief they need in time to avoid being subjected to the HHS mandate beginning January 1.”

Archbishop Kurtz urged the president “to consider offering temporary relief from this mandate, as you have for so many other individuals and groups facing other requirements under the ACA.”

— Catholic News Agency contributed to this story.