Government 'Moving Goalposts' in HHS Contraceptive Mandate Controversy, Lawyer Charges

Alliance Defending Freedom attorney also says 'government bureaucrats' are 'redefining what religious faith is.'

The federal government is being accused of “moving the goalposts” in deciding what religious nonprofits qualify for a temporary exemption from the mandate that their employee health-insurance plans cover all forms of Food and Drug Administration-approved birth control.

“In my view, the administration is constantly changing the rule book in order to attack religious freedom in the broadest fashion possible,” asserted Matt Bowman, legal counsel for Alliance Defending Freedom, a coalition of Christian attorneys. Alliance Defending Freedom was formerly called the Alliance Defense Fund.

Bowman told the Register that government bureaucrats are “redefining what religious faith is and what faith organizations are.”

On Aug. 15, the U.S. Department of Health and Human Services released a bulletin with the stated intent to clarify what organizations qualify for the “safe harbor” rule, the one-year extension that some religious nonprofits are granted before they must comply with the federal contraceptive mandate.

The HHS mandate requires that all employer-provided health-insurance plans cover, without co-pays, all FDA-approved forms of birth control, including sterilization and emergency contraceptives.

The bulletin said that the safe harbor is available to nonprofits with religious objections to some but not all contraceptive coverage, and to group health plans that tried to eliminate or limit contraceptive coverage before the deadline to qualify for the safe harbor.

The federal government said the Aug. 15 bulletin did not change its original policy, but attorneys fighting the mandate in court argue otherwise.

“The government has now rewritten the safe-harbor guidelines three times in seven months, and it is evidently in no hurry to defend the HHS mandate in open court,” said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty.

The Aug. 15 bulletin resulted in Wheaton College, an evangelical liberal arts school in Illinois, suddenly qualifying for the safe harbor.

Originally, Wheaton College did not qualify for the safe harbor because the school had offered some contraceptive coverage after Feb. 10, the deadline when employers had to discontinue coverage in order to qualify.

Wheaton College subsequently filed a lawsuit in federal court challenging the HHS mandate. But since the school now qualifies for the safe harbor, a federal judge for the U.S. District Court for the District of Columbia dismissed the college’s lawsuit last week as premature.

Attorneys saw the federal government’s bulletin as a tactical maneuver to dismiss lawsuits like Wheaton College’s.

“That’s how we interpreted it,” Duncan told the Register. The Becket Fund is representing Wheaton College and at least three other clients in lawsuits, including EWTN, the parent company of the Register.

“It seems to us that the government revision was tailored to the issue in this litigation,” Duncan said.

“The safe harbor is unclear, and the confusion is increased by all these ad-hoc changes,” Duncan added.

Wheaton College is considering its legal options, including the possibility of appealing the judge’s dismissal.

The safe harbor may give Wheaton College temporary relief from providing abortifacients such as the morning-after pill, but it still leaves the school vulnerable to lawsuits from individuals who want the school to provide contraceptive coverage.

“An employee could say, ‘No, we want these benefits’ and turn around and sue Wheaton,” Duncan said.

The Wheaton dismissal also left unresolved the religious-liberty question at the heart of the debate over the HHS mandate.

At least in one court, the federal government has already lost the religious-liberty argument. A federal judge in Colorado granted a preliminary injunction last month to a Catholic business that objected to covering contraceptives in its company’s health-insurance plan.

Duncan suggested that the federal litigators are in no hurry to revisit the religious-liberty argument in court.

“The Wheaton ruling shows that bureaucrats change the rules, not to accommodate these entities, but to gain an advantage in litigation and to still force the entities to comply with the mandate,” Bowman said.

With the safe harbor, Wheaton College, like other religious nonprofits, such as Catholic hospitals and universities, will not have to comply with the HHS mandate until Aug. 1, 2013. Meanwhile, starting this August, non-exempt employers are required to begin providing co-pay free contraceptives and related services whenever they update their health plan.

The federal government has indicated that it will reach a compromise, in part, by directing insurers, rather than objecting religious employers, to carry the costs of “free” contraception coverage. But many church-affiliated institutions are self-insured, and even Sister Carol Keehan, the president and CEO of the Catholic Health Association and a firm ally of the administration, have concluded that the administration’s proposed solutions are unworkable.

“The whole safe-harbor creation process has been arbitrary and sloppy since this began,” Bowman said.

“The government has shown that it doesn’t care. It’s not interested in protecting the nonprofits. They’re gerrymandering rules.”

There are currently 24 separate pending lawsuits challenging the mandate, with at least a dozen suits filed by Catholic entities. The U.S. Conference of Catholic Bishops has been seeking passage of federal legislation, including the Respect for Rights of Conscience Act, to protect stakeholders with a conscientious objection to abortifacients, contraceptives and sterilization.

The U.S. Conference of Catholic Bishops has also been promoting its text-message campaign, urging religious-liberty supporters to call or write their congressmen and women to urge them to pass such legislation. Supporters may sign up for religious-liberty updates by texting the word “Freedom” to 377377.

Register correspondent Brian Fraga writes from El Paso, Texas.


Antonin Scalia and Ruth Bader Ginsburg at the National Press Club in Washington, DC, April 17, 2014.

Recalling the Unlikely Ginsburg-Scalia Friendship

Justice Antonin Scalia’s love of debate was one of the things that drew him to Justice Ruth Bader Ginsburg, a woman with whom he disagreed on many things, including many aspects of the law.

Antonin Scalia and Ruth Bader Ginsburg at the National Press Club in Washington, DC, April 17, 2014.

Recalling the Unlikely Ginsburg-Scalia Friendship

Justice Antonin Scalia’s love of debate was one of the things that drew him to Justice Ruth Bader Ginsburg, a woman with whom he disagreed on many things, including many aspects of the law.