WASHINGTON — A federal appeals court in Washington has reinstated the lawsuits for two religious colleges challenging a federal law that would compel them to cover contraception, abortifacients and sterilization in their employee health-insurance plans.
The appellate court’s Dec. 18 decision is a blow to the Obama administration, which has sought to dismiss a slew of lawsuits filed by religious institutions that object to the Health and Human Services' contraceptive mandate. HHS lawyers have argued that the time is not “ripe” for courts to address these legal challenges and that the plaintiffs’ concerns will ultimately be resolved through proposed modifications of the controversial federal law.
Instead, the D.C. Circuit Court of Appeals pressed for hard evidence that the government would quickly fulfill its promise. The court ordered the HHS attorneys to update the court every 60 days until the Obama administration actually amended the HHS mandate to shield religiously affiliated organizations from providing morally objectionable services in their insurance plans.
As for the issue of whether the cases filed by religious institutions against the HHS mandate were premature, the appellate court noted the government’s promise to amend it, adding: “We take the government at its word and will hold it to it.”
Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, a public interest group that represents Belmont Abbey College and Wheaton College, told the Register that the court’s ruling is a “big deal” that could help plaintiffs in other legal challenges to the mandate.
“The court is holding the government to its promises it made in open court to change the mandate,” Duncan said.
“This may seem procedural to laypeople, but there is a big difference between the cases being thrown out of court and having the federal appellate court monitoring the government to make sure it is fulfilling its commitments,” he noted.
During oral arguments Tuesday, HHS lawyers promised that the government would “never enforce” the mandate in its current form against Wheaton College, an evangelical liberal arts school in Illinois, or Belmont Abbey, a Catholic liberal arts college in North Carolina.
Both schools had filed legal challenges that were dismissed by lower federal courts for lack of standing and for being premature, because of the federal government’s pledge to amend the mandate by next year.
During Tuesday’s arguments, government lawyers reported that HHS would publish a proposed new rule in the first quarter of 2013, which would subsequently be finalized by next August.
Religious nonprofits such as Belmont Abbey and Wheaton College are not required to comply with the mandate until Aug. 1, 2013, because they received a one-year “safe harbor” extension. Meanwhile, non-exempt employers were required to begin providing co-pay-free contraceptives and related services by August 2012, or whenever they subsequently updated their health plans.
Court Scrutiny
Duncan said the appeals court considered the administration’s concessions to be a ‘binding commitment” and thus reinstated the cases with the understanding that the court will scrutinize whether the government fulfills its promise to finalize a new rule by March 31, 2013.
“We’re going to get ready for what we assume will be some kind of announcement from the government in the first quarter of next year,” Duncan said. “We’re going to prepare for what we’re going to do for when the government comes out with something. We don’t know what that will be. It could be a complete change of course or something that doesn’t change anything."
“If that happens, we’re going to press forward,” Duncan said.
The decision was the second in less than a month in favor of religious institutions that are challenging the mandate.
On Dec. 5, U.S. district Judge Brian Cogan of the Eastern District of New York allowed a lawsuit filed by the Archdiocese of New York to move forward, marking an initial legal breakthrough for religious opponents.
Judge Cogan’s ruling rejected the assertion that the court and the plaintiffs should “trust” the administration to equitably resolve the church-state dispute at a later date.
“[T]he First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action,” stated the New York ruling. “There is no, ‘Trust us; changes are coming’ clause in the Constitution.”
‘Major Victory’
Belmont Abbey College's president, William Thierfelder, told the Register he was “thrilled” with the court's decision.
“'Overjoyed' wouldn't be strong enough to describe it,” Thierfelder said. “This is a major victory. Just the fact that we're back in court, we're very happy about that.”
Thierfelder added that he was pleased that the court is demanding the government come back with a solid, concrete proposal that will protect religious liberty.
“It seems to me (the government) has to show some good will,” Thierfelder said.
Thierfelder said he was “fairly confident” that the government could come back with a proposed rule change that would address the religious-liberty concerns, though he added that there has not been much proof that that is going to happen.
“If this has to go to the Supreme Court, that is where it will go,” Thierfelder said.
Wheaton College's president, Philip Ryken, said in a prepared statement that the D.C. appellate court’s ruling is “substantially a victory,” signaling that the lower court had wrongly dismissed the case and that “we are suffering real harm as a result of the HHS mandate.”
“We stand ready to resume our pending lawsuit if the federal government fails to respect our rights of religious conscience by providing the exemption we have requested,” Ryken said.
Other Challenges
In its written ruling, the D.C. Circuit Court of Appeals said the lower federal district courts were wrong to dismiss the lawsuits separately filed by Wheaton and Belmont Abbey for lack of standing because the colleges “clearly had standing.”
Bowman suggested this would have implications for other challenges against the HHS mandate.
“The D.C. court did not affirm dismissal, and so dismissal should not occur elsewhere, because the restrictions on religious freedom can’t be left to the unfettered discretion of bureaucrats,” he said.
Michael Warsaw, president and CEO of the Eternal Word Television Network, which owns the Register, praised the appellate court’s decision. EWTN has also filed a lawsuit challenging the HHS mandate. The Becket Fund is representing EWTN.
“For EWTN, this decision by the D.C. Court of Appeals is very encouraging, especially as we continue to wait for a decision from the judge in our own lawsuit,” Warsaw said.
“Unfortunately, until we see the new rules that the appellate court has ordered the government to issue, we really will not know whether the concerns raised by EWTN in our lawsuit have been adequately addressed. If not, EWTN will continue to push forward with our challenge to the HHS mandate,” he said.
Matt Bowman, senior legal counsel for Alliance Defending Freedom, a coalition of Christian attorneys formerly known as the Alliance Defense Fund, told the Register that the Dec. 18 ruling shows that religious nonprofits have standing “to protect themselves from bureaucrats that are attacking their religious freedom.”
“It shows that federal bureaucrats who are trying to pick and choose what faith is and who can practice faith cannot do so without oversight to ensure they don’t trample on religious freedom,” said Bowman.
The Alliance Defending Freedom is the lead counsel in five lawsuits challenging the HHS mandate and consults on three others.
Spreading the News
The Becket Fund has already informed other courts dealing with similar legal challenges about the appeals court’s ruling.
“Our basic argument is: ‘Look, the D.C. Circuit Court said dismissing these cases simply because of a government promise to change [the mandate] in the future is not the right thing to do. At the very least, hold these cases and wait to see what the government does,’” Duncan said.
“The bottom line is the court didn’t dismiss the cases, and it is a very influential court,” Duncan said. “We hope it has a good effect on the other pending cases.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.
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In reading stories on this issue in the mainstream media it is interesting to note how well buried this story about the court decision has been buried. Also, most of those stories about the lawsuit that made it into print or TV only mentioned contraceptives—no mention of the two things in the mandate that MOST upset many people both Catholic and Protestant—the coercion to provide abortifacients and the virtual government takeover of operating rooms in Catholic hospitals to do steriizations.
I’m glad the court imposed some deadlines on the federal government to carve out exemptions for religious institutions, but two things to remember: One, HHS had already promised—sincerely or not, depending on one’s politics—these exemptions to religious and quasi-religious institutions like Belmont Abbey. This court simply underlined that promise in red ink. Second, this case has no bearing on the “Taco Bell” employer issue, i.e., whether secular employers will be able to exercise an individual conscience objection to paying for insurance that includes contraceptives. For 40 years now, the Supreme Court has said there is no individual conscience exception for payment of taxes. This is part of why Roberts’ declaration that Obamacare is a tax is so important. By declaring the mandate a “tax”, Roberts shoved the square peg of health care into the round hole of a “tax.” As a tax, it is extraordinarily unlikely that the Supreme Court will find an individual conscience exception to paying that tax. The irony is that the Supreme Court Justice who as been the most articulate and contemptuous of individual conscience claims in tax cases has been . . . Scalia. People who think secular employers are going to get a conscience exemption from this Court are simply deluded.
Praise God! Hopefully we are on the road to affirming that religious freedom is sacrosanct and not subject to the whim of bureaucrats in the nation that first established these freedoms.
This is such good news!
This is good news. I am interested in more education from the Catholic Church on Pope John Paul II’s “Theology and the Body” and Natural Family Family. “Nature abhors a vacuum” and something approved as a positive workable alternative for people to know about, can offer an educated choice to what is presently being taught in our “sex saturated culture”.
While there are many other appeals of this sort yet to be addressed, it is an answer to prayer that the D.C. Circuit Court has addressed the Administration by insisting it has to go further than just “talk the talk” when addressing First Amendment rights! Let us keep the appeals in our prayers, thanking God for this first answer.
It is astonishing how little mention these lawsuits receive in the regular media. I am so thankful for NCR keeping us posted. It is all good work for us Catholics; to pray and watch and spread the word!
It is astonishing how little attention the regular media gives to this urgent issue. There are none so blind as those who will not see. Let the rest of us keep our watch and say our prayers! God be with you!
“People who think secular employers are going to get a conscience exemption from this Court are simply deluded.”
Exactly. That would be a Pandora’s box of merging religions and corporations into new super entity not bound by laws. How does the legal fiction of a corporation have a conscience? That is a human attribute.
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