IRONDALE, Ala. — A federal judge in Alabama dismissed the Eternal Word Television Network’s lawsuit against the federal government’s contraceptive and abortion mandate as premature because of the government’s promises to amend the mandate and address religious-liberty concerns.
U.S. district court Judge Sharon Lovelace Blackburn’s decision March 25 followed a March 22 ruling by a federal judge in Ohio who dismissed a similar lawsuit filed by Franciscan University of Steubenville and the Michigan Catholic Conference.
"While we are extremely disappointed that Judge Blackburn did not rule on the constitutional issues that were at the heart of the EWTN lawsuit, we are not surprised by the decision. In every lawsuit filed against the mandate, the government has made promise after promise to amend its unjust rules," EWTN President and CEO Michael Warsaw said.
"As a result, nearly everyone, including the courts, is left waiting to see what the government might or might not do to address the serious issues of conscience that have been raised since the first set of rules were published over a year ago," Warsaw said.
On Feb. 9, 2012, EWTN — which owns the Register — filed its complaint in federal court against the U.S. Department of Health and Human Services’ mandate that employers provide — without deductibles or co-pays — all government-approved forms of birth control, abortifacients and sterilization.
EWTN, represented by the Becket Fund for Religious Liberty, said the mandate violated its religious-liberty rights under the U.S. Constitution’s First Amendment, the Religious Freedom Restoration Act and the Administrative Procedure Act.
The government subsequently filed a motion to dismiss, arguing that EWTN lacked standing to file the lawsuit and that its complaint was not ripe for litigation because the mandate’s rules had not been finalized.
Blackburn said EWTN had standing — meaning that EWTN stood to be injured by the mandate — but ruled that its complaint was premature because of the government’s stated intent to amend the mandate before its final version takes effect Aug. 1.
"The standing part was good. Not every court has ruled that the plaintiffs have standing," said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which has filed eight of the 52 lawsuits challenging the HHS mandate.
To date, 12 federal lawsuits filed by nonprofits have been dismissed, another 12 are still pending, four are awaiting action by the federal government to amend the mandate, and two have been allowed to move forward. Judges have not ruled on the constitutional merits of the nonprofits’ complaints.
In lawsuits brought forward by for-profit businesses, 14 have secured injunctive relief — meaning they do not have to comply with the mandate while their cases are pending — and six were denied injunctions.
The largest of those private employers, Hobby Lobby, which is represented by the Becket Fund, has filed an appeal.
Duncan told the Register that EWTN’s lawsuit was ripe for litigation because of the religious-liberty issues at stake, the government’s promises notwithstanding.
"EWTN’s argument to the court was: ‘If the government comes out with a new rule, great; we’ll consider the new rule when it does. But we just can’t take the government at its word and dismiss the lawsuit. The court should at least hold onto the lawsuit until we actually see the new rule,’" Duncan said.
"The court decided not to do that, which is disappointing. But this is not a ruling on the merits. EWTN is free to come back to court and say, ‘Now that the new rule has come out, we’ll be filing suit,’" Duncan said.
In early February, President Barack Obama’s administration proposed new rules that it said would accommodate religious nonprofits with moral objections to covering contraceptives, abortifacients and sterilization in their employee health-insurance plans. The amended rule, the administration said, would have employees enrolled in separate individual policies — at no cost to the employer — that would only cover contraceptives.
The U.S. Conference of Catholic Bishops subsequently said the administration’s "accommodation" is based on questionable factual assumptions and does not address the federal government’s "unprecedented violation of religious liberty." The bishops said the mandate still defines "religious employer" in a narrow sense and makes no exemption for individuals and stakeholders with religious and moral objections to contraceptive coverage.
Proponents of religious freedom and conscience rights have also urged Catholics and others to present their concerns to HHS, which is accepting comments on the mandate until April 8. The government is expected to present its final rule before Aug. 1, at which point the "safe harbor" — the temporary exemption from the mandate granted to religious nonprofits — expires.
Duncan said he believes it is important for affected parties to submit comments and inform the federal government that what it has proposed thus far does not resolve the problem.
"We anticipate that EWTN will submit comments. Other groups will submit comments, both pointing out that the proposal doesn’t appear to solve the moral problem and that it is still unclear how this proposal is supposed to work," said Duncan, who added that the government will be under political pressure to present an amended mandate.
Said Duncan, "Whether that new rule solves the problem is a different question."
Brian Fraga writes from Fall River, Massachusetts.