Former U.S. Solicitor General Noel Francisco. Photo: Diego M. Radzinschi/ALM

Former Trump administration Solicitor General Noel Francisco is back in the U.S. Supreme Court with his first petition since leaving that office a year ago. And he has a familiar client and a familiar issue: the Roman Catholic Church and abortion.

Francisco returned to Jones Day as a partner in July 2020 after serving three years as solicitor general of the United States. He argued 17 cases while in that office on issues ranging from the Trump so-called travel ban to religious freedom, separation of powers and property rights.

His office and then-U.S. Attorneys General Bill Barr and Jeff Sessions also mounted a strong campaign against nationwide injunctions, which they often fought when judges blocked controversial Trump administration policies.

Francisco's first petition since returning to Jones Day is in the case Roman Catholic Diocese of Albany v. Lacewell. Linda Lacewell is the superintendent of the New York Department of Financial Services.

In the petition, Francisco challenges a 2017 state regulation that requires employer health insurance plans to cover abortions—except those "tax-exempt entities that have the 'purpose' of 'inculcating … religious values' and primarily 'employ' and 'serve' those of the same religious persuasion."

Francisco argues that the regulation burdens a subset of religious organizations that have a broader purpose, such as serving the poor, or that employ or serve members of other faiths or no faith. He asks the justices to decide whether the mandate to cover abortions is "neutral and generally applicable" under the high court's 1990 decision in Employment Division v. Smith and its 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah. The New York Supreme Court, Appellate Division, Third Department, ruled the regulation was neutral and generally applicable and so did not run afoul of the First Amendment's religion clauses.

"Finally, if there is a question as to whether the Free Exercise Clause protects religious entities against this mandate under Smith, the court should revisit that decision," he wrote in the petition. "It cannot be that the Constitution allows New York to require religious groups to participate in a practice so fundamentally in conflict with their religious beliefs."

The Supreme Court in June declined to revisit the Smith ruling in its decision in Fulton v. City of Philadelphia, although three justices—Samuel Alito, Clarence Thomas and Neil Gorsuch—said they were prepared to overrule it.

The state, represented by New York Solicitor General Barbara Underwood, must file a response by Aug. 23.

Jones Day has had a long relationship with the Catholic Church. In 2012, the firm's managing partner Stephen Brogan, then a trustee of Notre Dame University, fielded a team of lawyers to represent pro bono 43 Catholic dioceses, schools, hospitals, social service organizations and other institutions in challenges to the Affordable Care Act's requirement that employer health insurance plans cover contraception.

In 2018, Cardinal Donald Wuerl, leader of the Catholic Church in Washington, tapped Jones Day for legal advice on matters relating to a Pennsylvania grand jury report documenting thousands of child sexual assault victims at Catholic dioceses in Pennsylvania.

And last December, the Archdiocese of Washington hired a team of Jones Day attorneys, including former White House counsel Don McGahn, to sue Washington, D.C., over its pandemic restrictions for religious institutions.