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Pressure on contraceptives mandate

Judges on the D.C. Circuit Court, the first appeals court to hear a case against the new federal health care law’s mandate for free birth control and other reproductive health services, went searching on Friday for some way to make sure that the government does not delay in issuing a final order on who has to obey that mandate.  At a hearing that lasted more than twice the scheduled time, an apparent majority of the three-judge panel left the impression that they would not push for an early court ruling on the constitutionality of that requirement, even while showing some sympathy for the plight of religious colleges that complain it will interfere with their faith beliefs.

The panel heard the cases of Wheaton College in Illinois and Belmont Abbey College in North Carolina, joined in a pair of appeals after federal district judges in Washington, D.C., had ruled that their challenges were premature, because the government is exploring ways to expand the exemptions it will allow.   Circuit Judges Merrick B. Garland and Thomas B. Griffith said over and over again that the government may yet make changes in the mandate, so the challengers should wait.  But the third member of the panel, Senior Circuit Judge A. Raymond Randolph, made it clear he thought their challengers should not have to wait.   Some forty-three lawsuits have been filed around the country, mainly by non-profit religious groups, but the Wheaton-Belmont Abbey cases were the first to move forward in an appeals court.

Two of the judges showed some interest in keeping the cases alive in the meantime.   Judge Garland explored the possibility of sending the cases back to the two district judges, with orders to simply put the cases on hold, rather than dismissing them outright, as the government persuaded the district judges to do.   If the court takes that option, the colleges would not have to start all over again with a new lawsuit after the final exemption order is released.   Judge Griffith did not comment directly on that suggestion, but also did not raise any objections.

A Justice Department lawyer arguing the case, Adam C. Jed, expressed some doubt whether the court had the authority to do that, but did not appear to object if that is the route the court chooses.   He refused repeated requests by Judge Griffith to give the court some idea of what is going to be in the final regulation to implement the mandate, saying that the Health & Human Services Department had to go through an already-started process.  In the meantime, government officials have set up a one-year “safe harbor” that postpones the mandate for religious institutions that may yet qualify for an exemption.   That promise runs out next August 1.

Senior Judge Randolph, complaining that the Circuit Court has much experience with federal agencies that fail to meet deadlines, even when those are imposed by Congress, raised the possibility that the Circuit Court could issue an order to direct the government to actually follow the schedule it has said it intends to follow: publicly release a proposed final order sometime between January and March, and then issue the rule in final form before next August, when the “safe harbor” is to expire.   Jed told the judge that the government was “still on track” to meet that schedule, but questioned whether the appeals court had the authority to issue such an order when the government contends that the courts have no authority, yet, to decide anything about the Wheaton and Belmont Abbey challenges.

Most of the district judges who have ruled so far on such challenges have found them to be premature, although a judge in New York City disagreed with that earlier this month.

Under the mandate, part of the new Affordable Care Act, employers who provide health insurance for their workers as a group or individually are required to provide their female workers with free coverage for “preventive care and screenings,” including all forms of birth control approved by the federal Food and Drug Administration, plus pregnancy counseling.   HHS has written a regulation that excludes churches from that obligation toward their own employees, and allows some other religious employers an exemption, depending upon when their insurance plans were created.

In response to strong protests from non-church religious organizations, like the two colleges involved in the D.C. Circuit case, HHS promised to work out a new rule that may give some of them an exemption, and in the meantime created the one-year “safe harbor.”

Stuart Kyle Duncan, a Washington, D.C., attorney for the two colleges, told the Circuit panel that the colleges are already being harmed by the mandate, and that they face the possibility of being sued under federal employee benefit law, beginning on January 1.

But Duncan ran into heavy questioning, especially by Judge Griffith, on why the courts should rule on the challenges now.  “The government has said it is going to change the rule,” Griffith told the lawyer.  “Why not wait?”   To Duncan’s suggestion that the colleges will face lawsuits from their own employees if they don’t begin providing birth control for free in the new year, the judge said that was “highly speculative.”   Judge Garland also said that, without knowing what is in the final rule, courts should exercise “judicial restraint” in avoiding a premature ruling on the mandate’s validity.   Once a new final rule is adopted, the judge said, “the legal analysis will be different.”

Senior Judge Randolph said that “millions of employers” will be affected by the contraceptives mandate, and all of them “will have to be bending to the government’s will.”   The mandate, the judge added, will have “an enormous impact” on religious institutions.  With sarcasm, Randolph said that the government in trying to head off decisions on the mandate’s constitutionality was relying upon “the lazy judges rule,” that courts needed to be spared from having to decide these cases.  He said he could not find anything in what HHS has done so far that was binding, so religious employers have had no formal notice of what is expected of them.   “Guidance documents,” of the kind HHS has issued, “are not binding,” Judge Randolph commented. “They are like a press release.”

The panel gave no hint of when it would decide whether to allow the cases to go forward in district court, or whether to end them now.


Recommended Citation: Lyle Denniston, Pressure on contraceptives mandate, SCOTUSblog (Dec. 14, 2012, 6:52 PM),