It has been two and a half years since the federal government, on August 1, 2011, announced that the preventative health services for women that all health plans must cover must include all FDA-approved contraceptive services, including emergency contraceptives and contraceptive devices that act as abortifacients. Since then, despite a (very narrow) religious employer exemption and a (very inadequate) “accommodation” for non-exempt religious nonprofit organizations, opposition on religious freedom grounds has been continuous-protest letters, critical comments on regulations, delegations to the White House, congressional conscience bills, street protests, pulpit condemnations . . . and a growing flood of lawsuits and a mounting toll of knockdowns of the contraceptives mandate by lower and appeals courts.

Among the latest developments are these (check the Becket Fund’s HHS Mandate Information Central for the lawsuits):

* The total number of lawsuits has mushroomed to 87, nearly equally split between for-profit and non-profit plaintiffs.

* The US Supreme Court has decided to take up two of the religious-owned business cases, Hobby Lobby and Conestoga Wood. (See Richard Garnett’sLos Angeles Times op-ed and Mary Ann Glendon’s Boston Globe commentary.)

* Businesses, which are protected by neither the exemption nor the accommodation, have a great record in obtaining preliminary injunctions against the mandate: 33 victories to 6 losses.

* The “accommodation” is insufficient. The accommodation is now in the regulation book, so courts are taking up the non-profit cases, and the religious nonprofits are winning–despite the accommodation. The score is currently 4 injunctions granted to 0 injunctions denied.

Here’s what the judge in one of the Catholic nonprofit cases said (Zubik v.Sebelius):

“[A]lthough the ‘accommodation’ legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products, services, and counseling, the ‘accommodation’ requires them to shift the responsibility of purchasing insurance and providing contraceptive products, services, and counseling, onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that ‘shifting responsibility’ does not absolve or exonerate them from the moral turpitude created by the ‘accommodation’; to the contrary, it still substantially burdens their sincerely-held religious beliefs.

. . . .

“Why should religious employers who provide the charitable and educational services of the Catholic Church be required to facilitate/initiate the provision of contraceptive products, services, and counseling, through their health insurers or TPAs, when religious employers who operate the houses of worship do not?”

H.T. to the Evangelical Council for Financial Accountability.

* With the “accommodation” finalized, new nonprofit cases are being filedand cases that had been dismissed are being re-filed.

The University of Notre Dame re-filed on December 3. In the press release Rev. John Jenkins, Notre Dame president, said:

“As I said regarding our original filing, because at its core this filing is about the freedom of a religious organization to live its mission, its significance goes well beyond any debate about contraceptive services. For if we concede that the government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately will undermine those institutions. For if one presidential administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.”