NEW YORK — Faced with an explosion of legal challenges to the federal contraception mandate filed by objecting religious institutions, the Obama administration has petitioned to have the lawsuits dismissed, arguing in court papers that the church-state dispute would ultimately be resolved and that the time was not “ripe” for the cases to advance.

On Nov. 27, two separate lawsuits filed by the Dioceses of Nashville and Pittsburgh were both dismissed, suggesting that the administration’s legal strategy was working. But 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 a breakthrough for religious opponents of the HHS mandate.

“It is noteworthy that, with this decision, the Court has recognized that the Archdiocese of New York and other plaintiffs in this case are facing current and imminent harm from the government's contraception coverage mandate," Joseph Zwilling, a spokesman for the New York Archdiocese, said in a statement released after the ruling.

Gerard Bradley, an expert on the U.S. Constitution at the University of Notre Dame Law School, described the ruling as a “welcome” reprieve for embattled religious institutions. But Bradley stressed that it was a “preliminary victory for religious liberty.”

Judge Cogan “decided that the Church's lawsuit could go forward to a later decision on the merits,” Bradley said. “He thus rejected the Obama administration's arguments that the case was not yet ‘ripe,’ due to the temporary moratorium on enforcement of the HHS mandate.”

Added Bradley, “To reach this result Judge Cogan agreed with the Church's lawyers that, even now, the Church was suffering from the impending enforcement of the mandate. And he rejected the reasoning of several other courts (in cases involving Belmont Abbey College, Wheaton College, and Legatus) which bought the Administration's claim that there was so far no ‘harm’ visited by the mandate. There is reason here for a cautious optimism that this judge, at least, will get this case right in the end.”

Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, welcomed Judge Cogan’s decision, and said it would strengthen an upcoming appeal at the D.C. Circuit Court of Appeals by Belmont Abbey College and Wheaton College.

“The judge characterized the mandate as a ‘speeding train’ headed toward these organizations. It is the first judicial opinion to recognize what the religious plaintiffs have been arguing all along: The government’s so-called ‘accommodation’ and ‘safe harbor’ extension don’t alter the fact that the mandate is coming down the road and will hit these organizations soon,” said Duncan.

 

Multiple Plaintiffs

The Archdiocese of New York filed suit against the government last May, in a legal challenge that included additional Catholic plaintiffs: the Catholic Health Care System and its affiliates, the Continuing Care Community of the Archdiocese of New York (collectively, “Arch Care”), the Diocese of Rockville Centre, N.Y., and its Catholic Charities affiliate, and Catholic Health Services of Long Island (“CHSLI”). Jones Day, a top law firm, is representing the plaintiffs pro bono.

However, while Judge Cogan allowed the New York Archdiocese’s challenge to proceed, he dismissed the Rockville plaintiffs’ cases, ruling that they did not provide sufficient evidence that their “grandfathered” health insurance plan could not protect them from injury.

The Becket Fund’s Duncan explained that “a grandfathered health plan involves plans that have not changed since the effective date of the Affordable Care Act — March 23, 2010. When the law was passed, the political promise was that if you like your plan you can keep it. So if the plan hasn’t changed in any significant way, you can keep it and you won’t have to comply with the mandate.” 

The Diocese of Rockville Centre and its Catholic Charities affiliate are discussing their next legal step in light of their dismissal from the case. “We are pleased that Judge Cogan has allowed the lawsuit to proceed with ADNY, ArchCare, and CHSLI and are evaluating our options,” said Sean Dolan, director of communications for the diocese.

 

Judicial Skepticism

Judge Cogan’s ruling expressed open skepticism regarding several key elements of the government’s stance that cases involving objecting religious plaintiffs were premature.

He 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. There is no, ‘Trust us, changes are coming’ clause in the Constitution,” stated the ruling.

“To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.”

In the wake of a hard-fought presidential election that showcased a partisan battle over the HHS mandate, the judge concluded that “there is simply no way to predict what, if any, changes to the Coverage Mandate will be made, even if some policymakers favor certain
changes.”

More importantly, the plaintiffs had good reason to press ahead with their challenge, given that the administration still had not formally approved its own proposal, Advance Notice of Proposed Rulemaking (“ANPRM”).

 “This case has been pending for six months. The earliest case challenging the Coverage Mandate was commenced more than a year ago. The ANPRM was announced nearly ten months ago and entered in the Federal Register over eight months ago,” Judge Cogan noted.

“In that time, the Departments have had ample opportunity to enact a meaningful change to the Coverage Mandate. The fact that they have not further suggests the likelihood of injuries to plaintiffs.”

The ruling acknowledged that objecting religious institutions could not afford to wait until the deadline for compliance had passed and the extent of injury could be fully established. Their responsibility to clients and employees obliged them to develop contingency plans now, and such preparations involved immediate costs.

In court papers, the archdiocese said it could face almost $200 million in annual penalties if it was forced to comply with the mandate.

 

‘Bureaucratic Games’

Matt Bowman of the Alliance Defending Freedom, a public interest group representing a number of for-profit businesses that also have challenged the contraception mandate, applauded Judge Cogan’s decision.

Said Bowman, “Whether the government is targeting a non-profit group or Christians running a business, this decision shows the government cannot disrespect their religious freedom and play bureaucratic games with the First Amendment.”

Joan Frawley Desmond is the Register’s senior editor.