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Partial win against birth control rule

The D.C. Circuit Court, giving religious organizations a partial but significant victory, ruled Tuesday that two colleges’ lawsuits against the government’s new contraceptives mandate will remain pending in federal court while officials work on finalizing a new exemption for some faith-centered organizations.  In the meantime, the government will have to keep to its promise to the court not to enforce the current mandate on the two colleges, and will have to report to the Circuit Court every sixty days on how it is doing on the final exemption provision.   This was the first ruling by a federal appeals court on the mandate that was written into the new federal health care law.

The mandate requires employers who provide health insurance for their workers to include free coverage for all forms of birth control approved by the federal government, plus pregnancy counseling and other forms of preventive care.  When the Obama administration issued its “interim” rule in August, it created an exemption from the mandate only for churches or other institutions that only serve people of their own faith and are engaged only in religious activities.  Many other non-profit religious institutions, such as schools and hospitals, do not operate as worship institutions and thus do not qualify for an exemption under that provision.  Many of them are protected, however, during a “safe harbor” provision that runs until next August.

Some forty-three lawsuits against the mandate have been filed, around the country, by those non-church entities, but so far most of those cases have been dismissed, usually on the ground that they were premature.

Wheaton College in Illinois and Belmont Abbey College in North Carolina had their lawsuits dismissed by federal district judges in Washington, and those dismissals were reviewed by a three-judge D.C. Circuit panel at an extended hearing last Friday (which the blog covered in this post).  Moving swiftly to decide, the three judges on the panel issued their order on Tuesday, declaring that the cases should not have been dismissed, and ordering that they be held “in abeyance” in the Circuit Court while the government works on its final rule.

Noting that a government lawyer had told the court Friday that the interim rule would never be enforced in its current form against the colleges and similar institutions, and that those institutions will get a different rule when the final provision is developed, the Circuit judges said “we take the government at its word and will hold it to it.”   Based upon the government’s “binding commitment,” the panel went on, the two colleges’ cases should not be decided on the merits of their challenge at this time.  “We may never have to” rule on the merits, given the government’s stance, the three-page order said.

To the colleges’ argument that, in the meantime, they may face lawsuits by their own workers seeking free contraceptive services like those mandated, the Circuit panel said “we see nothing about the bringing of those claims that alters our conclusion” that the colleges’ lawsuits “should be held in abeyance pending the new rule that the government has promised will be issued soon.”   The order concluded with the direction to the government to keep the Circuit Court posted every sixty days.  In court Friday, a government attorney said the final rule will be issued in proposed form in the January-March quarter, and will be finalized by August.

Recommended Citation: Lyle Denniston, Partial win against birth control rule, SCOTUSblog (Dec. 18, 2012, 11:30 PM),