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.