Two federal judges have dismissed lawsuits against the Department of Health and Human Services’ mandated contraceptive coverage under the new health reform law.
U.S. District Court Judge Warren K. Urbom ruled July 17 in Nebraska that seven states and various other individuals and groups that filed suit in February against the mandate had failed to show that their health insurance plans would not be grandfathered — and therefore not exempt from the requirement.
He said the suit was “based on layers of conjecture.”
Joining the attorneys general of Nebraska, South Carolina, Michigan, Texas, Florida, Ohio and Oklahoma in the lawsuit were a Catholic nun, a lay missionary working with the Fellowship of Catholic University Students, Pius X Catholic High School in Lincoln, Neb., and the Omaha-based Catholic Mutual Group, a self-insurance fund that covers more than 125 dioceses or archdioceses and 200 Catholic religious congregations in the U.S. and Canada.
Spokesmen for several of the attorneys general said they were considering whether to appeal Urbom’s ruling.
The dismissal does not affect more than a dozen lawsuits brought in May by 43 dioceses and Catholic organizations nor another 10 suits brought by various Catholic and Protestant colleges, organizations or employers.
In another federal court, U.S. District Judge James E. Boasberg of the District of Columbia dismissed a suit against the contraception mandate of Charlotte, N.C.-based Belmont Abbey College July 18. The judge said the college did not have standing to bring the case to court nor could it demonstrate it had been harmed yet by the regulation.
The mandate — issued in August 2011 by the federal Department of Health and Human Services as part of the 2010 Patient Protection and Affordable Care Act — requires nearly all employers to provide free artificial contraception, sterilization and abortion-causing drugs coverage in their insurance plans.
There is a narrow exemption for employers who object to providing these services on religious grounds, namely if they serve or hire people primarily of their own faith.
The mandate takes effect for new health plans and those that undergo significant changes Aug. 1, 2012 — unless the narrow religious exemption applies or a one-year “temporary enforcement safe harbor” applies.
Following an outcry over the contraceptive mandate from Catholic institutions across the country and the U.S. bishops this past spring, the Obama administration established the “safe harbor” period to allow those employers that do not provide contraceptives for religious reasons time to figure out how they will comply with the mandate. The “safe harbor” period expires Aug. 1, 2013.
The mandate requiring individuals to get health insurance or face fines goes into effect Jan. 1, 2014.
The diocesan lawsuits have continued to add plaintiffs since their filing, with Catholic Charities of the Archdiocese of Chicago joining July 9 with the dioceses of Joliet and Springfield, Ill., and their Catholic Charities agencies and Wheaton College, an evangelical liberal arts college in Illinois, signing on July 18 to a lawsuit that includes the Archdiocese of Washington and The Catholic University of America.
The Becket Fund for Religious Liberty, a nonprofit law firm representing Belmont Abbey College in the lawsuit, argued that paying for contraceptive services for employees and students would force the Catholic college and Benedictine monastic community to violate Church teaching against artificial contraception.
The firm argued that the mandate would mean an unconstitutional infringement of their First Amendment right to free exercise of religion and that Belmont Abbey College said it believed it would not be exempted from the mandate’s requirements.
Boasberg agreed with the Department of Justice’s position that Belmont Abbey’s case was premature and that more time is needed to see if the government would modify the contraception mandate and further accommodate the concerns of religious employers, which federal officials have promised they would do.
“The court holds that the challenged rule is not ‘sufficiently final,'” Boasberg said in his opinion. “The government has done nothing to suggest that it might abandon its efforts to modify the rule — indeed, it has steadily pursued that course — and it is entitled to a presumption that it acts in good faith.”
The court did not consider the merits of Belmont Abbey’s case, and Belmont Abbey may re-file its lawsuit if and when it can demonstrate harm caused by the mandate.
Kyle Duncan, general counsel of the Becket Fund, said on a July 18 teleconference that the Urbom ruling in Nebraska had “no application” to the remaining lawsuits because they can easily demonstrate that the HHS mandate will impact them immediately.
Philip Graham Ryken, president of Wheaton College, said the first freshmen will be arriving at the school by early August and the college has to know whether it will be able to offer health insurance that complies with its moral and religious beliefs to faculty, staff and students.
Ryken said evangelicals do not oppose contraception on religious grounds but are opposed to those that can induce abortions, such as Plan B and ella, which are included on the Food and Drug Administration’s approved list of contraceptives.
Also speaking on the teleconference was John H. Garvey, president of Catholic University, who said in response to a question that the lawsuits have not been brought for political reasons, as some have charged.
“The timing of the lawsuit is not something we have chosen,” he said. “HHS has chosen to put these rules into effect now and we are up against our own deadlines” for negotiating health insurance contracts.
“We believe this is not a partisan issue,” Garvey added. “Religious freedom is an issue we had hoped that both Republicans and Democrats would be attentive to and one that both parties have been guilty of ignoring from time to time.”
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Patricia L. Guilfoyle, editor of the Charlotte Diocese’s newspaper, The Catholic News & Herald, contributed to this story.
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