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Government Backs Down on Contraceptive Mandate
Image: American Life League
Government Backs Down on Contraceptive Mandate

On Tuesday, Wheaton College and Belmont Abbey College won a legal round against the Department of Health and Human Services (HHS) contraceptive mandate—not only for themselves, but also for dozens of fellow religious employers that have filed similar suits.

"We are grateful that the Circuit Court's ruling—which is substantially a victory for Wheaton College—makes it clear that the original judge was wrong to dismiss our case and that we are suffering real harm as a result of the HHS mandate," said Wheaton College president Philip Ryken.

The D.C. Circuit Court of Appeals ruled that the HHS must not enforce the mandate for employer-provided contraceptives as currently outlined in the Affordable Care Act. In addition, the government must make good on a previous promise to establish a new rule regarding enforcement of the mandate for religious employers by March 2013.

Kyle Duncan, general counsel of the Becket Fund for Religious Liberty who argued the case, says this is a significant victory for religious plaintiffs (including schools with similar lawsuits, like Biola University, Liberty University, and Tyndale House Publishers).

"At least one of the judges kept coming back to the point: This is about the First Amendment. This is about religious freedom," he said.

But Carl Esbeck, a church-state law expert at the University of Missouri, says the colleges did not get the relief that they wanted—and that the government won the day overall.

"The result of the three-judge panel's opinion is that the colleges will continue to have to wait … and there's no promise that the new rule will take care of Wheaton or Belmont Abbey," he said. "The only promise is that the existing rule won't be applied."

The government previously has argued for courts to dismiss religious plaintiffs' cases for being "premature," promising that it would amend the existing rule for religious employers who object to providing contraceptive drugs—especially those believed to be abortifacients—in employee healthcare plans.

Duncan says this tactic left religious employers at the whim of the government. "[But now] three judges are looking over the government's shoulder," he said. "Finally, the federal government … is subject to the oversight of a court on their promise to fix the mandate."

HHS officials said they would issue a notice that it was creating new rules in the first quarter of 2013 and would finalize those rules before August 2013. The D.C. Circuit Court ordered the government to file status reports on those rules every 60 days, apparently along with updates on its promise that it "would never enforce [the existing rule] in its current form" against Wheaton, Belmont Abbey, "or those similarly situated as regards contraceptive services" (emphasis in the original.)

"We take the government at its word and will hold it to it," the court said.

But this might not be the end of the colleges' cases. Duncan says the ruling is an "important pause in the litigation," requiring plaintiffs to "wait and see" what changes the government makes to the HHS mandate in 2013.

"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.

The D.C. ruling comes on the heels of a similar ruling in New York, where a federal judge allowed the Roman Catholic Archdiocese of New York to proceed with its own HHS lawsuit, ruling that the government's promise of new regulations for religious employers was no reason to dismiss a challenge to the mandate.

"There is no 'trust us, changes are coming' clause in the Constitution," wrote judge Brian Cogan.

The New York Archdiocese filed suit in May, objecting to the fines it would face under the mandate. According to Reuters, Cogan denied the federal government's motion to dismiss the lawsuit, saying that the archdiocese had sufficiently demonstrated that it "expects to incur nearly $200 million each year in penalties if it is forced to comply with the coverage requirement."

However, Cogan did dismiss claims from the diocese of Rockville Centre and its Catholic Charities wing.

Duncan says the D.C. appellate court's decision is "the same flavor" as the New York court's ruling.

"It's not enough for the government to say, 'Trust us,'" he said. "We don't simply let the government slide by on a problem when you're talking about constitutional rights."

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Government Backs Down on Contraceptive Mandate