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Wheaton College Wins 'Major Victory' Against HHS Contraceptive Mandate

Federal government makes 'binding commitment' to 'never enforce' current mandate against religious employers.

(Note: We've posted a major update on this story here.)

On Tuesday, Wheaton College and Belmont Abbey College won a legal round against the HHS contraceptive mandate not only for themselves, but for all fellow plaintiffs as a D.C. appeals court prompted the Obama administration to promise not to enforce the mandate (as currently written) and–on top of that–regularly report on its progress toward new rules that better protect religious freedom.

"The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom," said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, in a press release. "The court is not going to let the government slide by on non-binding promises to fix the problem down the road."

The Becket Fund, which argued the case, explained the significance of the ruling as follows:

Today, a federal appeals court in Washington, D.C. handed Wheaton College and Belmont Abbey College a major victory in their challenges to the HHS mandate. Last summer, two lower courts had dismissed the Colleges' cases as premature. Today, the appellate court reinstated those cases, and ordered the Obama Administration to report back every 60 days—starting in mid-February—until the Administration makes good on its promise to issue a new rule that protects the Colleges' religious freedom. The new rule must be issued by March 31, 2013.

The court based its decision on two concessions that government lawyers made in open court. First, the government promised "it would never enforce [the mandate] in its current form" against Wheaton, Belmont Abbey or other similarly situated religious groups. Second, the government promised it would publish a proposed new rule "in the first quarter of 2013" and would finalize it by next August. The administration made both concessions under intense questioning by the appellate judges. The court deemed the concessions a "binding commitment" and has retained jurisdiction over the case to ensure the government follows through.

While the government had previously announced plans to create a new rule, it has not yet taken the steps necessary to make that promise legally binding. Lower courts dismissed the colleges' cases while the government contemplated a new rule, but the Court of Appeals for the District of Columbia Circuit decided the cases should stay alive while it scrutinizes whether the government will meet its promised deadlines. The court acted quickly, issuing Tuesday's order just days after hearing lengthy arguments.

In a related case, a federal court judge has 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 Roman Catholic Diocese of Rockville Centre, New York, and the Catholic Charities of the Diocese of Rockville Centre.

Meanwhile, an Illinois court rejected a similar legal challenge by a for-profit construction business, ruling that, in the words of Religion Clause, "the exercise of religion is a purely personal right; corporations cannot exercise religion even though they may advance a belief system."

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