On July 2nd the Federal Register published the long-promised final regulations for the accommodation offered to non-exempt nonprofit religious employers that object to the requirement to include all FDA-approved contraceptive services in the health insurance they offer to their employees or students.

Colorado Christian University originally filed against the contraceptives mandate in December, 2011. That lawsuit was dismissed in January of this year when the judge accepted the federal government’s claim that the case was not ripe for review because the administration was preparing an accommodation that would respond to CCU’s religious freedom concerns. Many of the other lawsuits filed by non-exempt nonprofit religious organizations have been dismissed or put into abeyance for the same reason. (It is the for-profit cases that have gone forward, because the government has neither provided for companies a non-enforcement safe harbor nor promised a future accommodation. See the Becket Fund’s HHS Mandate Information Central for information on all of the cases.)

But now the accommodation regulations have been published and, in the view of CCU and others, the rules do not adequately protect religious freedom. Thus CCU’s renewed lawsuit, which was filed on August 7th by the Becket Fund.

The CCU complaint says:

“The regulations do offer CCU and other non-exempt religious organizations a so-called ‘accommodation. But the ‘accommodation’ is meaningless. It would still require CCU to play a central role in the government’s scheme and force it to ‘designate’ an agent to pay for the objectionable services on CCU’s behalf. This would do nothing to resolve CCU’s objections.

“The supposed ‘accommodation’ also continues to treat CCU as a second-class religious organization, not entitled to the same religious freedom rights as other religious organizations, including any religious universities that are ‘integrated auxiliaries’ to churches.

“The ‘accommodation’ also creates administrative hurdles and other difficulties for CCU, forcing it to seek out and contract with companies willing to provide the very drugs and services it speaks out against.

“If CCU does not compromise its religious convictions and comply with the regulations, however, it faces severe penalties that could exceed $12 million each year.”

The complaint points out that the accommodation, while purporting to enable CCU to purchase employee and student health insurance that does not cover the emergency contraceptives to which it has a moral objection, in fact requires it to work with insurers and third-party administrators so that they can tell the employees, students, and dependents that they do have cost-free access to those same emergency contraceptives.

In response to the common criticism that emergency contraceptives are not abortifacients as claimed by CCU and others, the CCU’s complaint includes as an appendix an FDA “Birth Control Guide” that clearly states that both Plan B and Ella can work by “preventing attachment (implantation)” of a fertilized egg.