Four Evangelical and fifteen Catholic colleges sign legal brief against HHS mandate

Four Evangelical and fifteen Catholic colleges, as well as several businesses, have joined in an amicus brief in support of Belmont Abbey College and Wheaton College.  A federal two-judge panel dismissed the lawsuit of these two colleges against the HHS mandate.  The judges said that they dismissed the case because the two schools could not show they had been harmed by the mandate.  The judges did not rule on the merits of the case; they said that both colleges were protected under the “safe harbor” (which expires in August 2013).

These colleges have signed the amicus brief:

·         Benedictine College (Kan.)
·         Catholic Distance University
·         Christendom College (Va.)
·         College of Saint Mary Magdalen (N.H.)
·         College of Saints John Fisher and Thomas More (Tex.)
·         DeSales University (Pa.)
·         Holy Spirit College (Ga.)
·         Ignatius-Angelicum Liberal Studies Program
·         John Paul the Great Catholic University (Ca.)
·         Mount St. Mary’s University (Md.)
·         St. Gregory’s University (Ok.)
·         Thomas Aquinas College (Ca.)
·         Thomas More College of Liberal Arts (N.H.)
·         University of Mary (N.D.)
·         Wyoming Catholic College (Wyo.)
·         Biola University
·         Geneva College
·         Grace Schools (including Grace College and Seminary)
·         Louisiana College
Also, two businesses who have sued the HHS over the mandate have joined the amicus brief:  Seneca Hardwood Lumber Company and Hercules Industries.
Under the 1993 Religious Freedom Restoration Act, the standard of “strict scrutiny” must be used to determine if the Free Exercise clause of the First Amendment has been violated.  To meet this standard, when burdening the exercise of religious freedom, the government must pass two tests.   The burden must meet a compelling government interest, and the government must use the least restrictive means to further the government interest.  These cases will be argued in the U.S. Supreme Court on the basis of the RFRA.
In the amicus brief, the signers show that the government has no compelling interest in providing contraceptives, sterilization, and abortion-inducing drugs to all employees–because the government has grandfathered, exempted, waivered and otherwise excluded 100 million people from the mandate.  If it were compelling, the government would require these services to all, with no exclusions.  As the brief states:

The government cannot carve out these massive exemptions and simultaneously claim that the Mandate advances a compelling interest…. Defendants cannot claim a “grave” or “paramount” interest in imposing the Mandate upon Wheaton, Belmont Abbey, or other religious objectors while allowing nearly 100 million individuals to go “unprotected.”


The signers also argue that the government has not selected the “least restrictive means” of advancing its so-called compelling interest.  

Rather than coerce entities like the Colleges to cover abortifacients and contraceptives in their employee health plans, the government could conceivably create its own “contraception insurance” plan covering all the items the Mandate requires, and then allow free enrollment in that plan for whomever the government seeks to cover. Or the government could directly compensate providers of contraception or sterilization. Or the government could offer tax credits or deductions for contraceptive purchases. Or the government might impose a mandate on the contraception manufacturing industry to give its items away for free. These and other options could fully achieve Defendants’ goal while being less restrictive of Plaintiffs’ beliefs. There is no essential need to coerce Plaintiffs or other religious objectors to provide the objectionable coverage themselves.


Clearly, the HHS mandate is a burden on the free exercise of religion.  Respect for all human life is a core belief of many faiths.  Forcing people that hold this core religious belief to pay for the killing of their employees’ children in the womb forces people to violate their faith.  Just as clearly, the HHS mandate fails the strict scrutiny requirements of the RFRA.




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