Contraception mandate challenge reaches appeals court
By Michelle Bauman
Kyle Duncan, general counsel for the Becket Fund for Religious Liberty.
Kyle Duncan, general counsel for the Becket Fund for Religious Liberty.

.- The D.C. Circuit Court of Appeals has become the first federal appellate court to hear arguments surrounding the federal contraception mandate, as two religious colleges argue that their religious freedom is threatened by the rule.

“The decision from the D.C. Circuit will no doubt influence the decisions of others courts,” said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty.

Duncan told CNA shortly after the Dec. 14 hearing that the ruling in the case – brought by Belmont Abbey College and Wheaton College – could have important implications for the dozens of other lawsuits challenging the mandate.

The lawsuits revolve around a federal mandate that requires employers to offer health insurance plans covering contraception, sterilization and early abortion drugs. The mandate includes only a narrow religious exemption that applies only to non-profit organizations that exist to inculcate religious doctrine and employ and serve primarily members of their own faith.

Most religious organizations fail to qualify for the exemption and will be faced with devastating fines if they do not comply with the regulation.

Responding to waves of protest after the mandate was initially announced, the government created a one-year “safe harbor” to delay enforcement of the rule against non-profit religious organizations that object to it.

During this time, the government has promised to create an “accommodation” for the religious liberty of these groups. However, that process is still in its very early stages, and the initial suggestions put forth by the administration have been criticized as inadequate.

The safe harbor period will end Aug. 1, 2013, and religious organizations will be subject to the mandate after that time.

More than 110 organizations have filed lawsuits challenging the mandate for threatening their constitutional right to free exercise of religion. Plaintiffs include the Archdiocese of New York, EWTN, the University of Notre Dame and over a dozen schools of different religious affiliations, along with health groups and Catholic Charities affiliates throughout the country.

In addition, seven states and numerous for-profit businesses have filed lawsuits against the mandate, includes arts-and-crafts giant Hobby Lobby and manufacturers of products including medical equipment, auto lights and wood cupboards.

Belmont Abbey College, a Catholic liberal arts college in North Carolina, became the first plaintiff to challenge the mandate when it was initially announced in 2011. Wheaton College, an Evangelical Christian liberal arts school in Illinois, filed a lawsuit in July 2012.

Both cases had previously been dismissed by lower courts as being “premature” because of the government’s promise to issue an additional accommodation.

However, a federal judge in New York issued an opposing decision in the local archdiocese’s case on Dec. 6, determining that it was mature and noting, “There is no ‘Trust us changes are coming’ clause in the Constitution.”  

The D.C. court of appeals combined the Belmont Abbey and Wheaton cases in an expedited appeal.

During the Dec. 14 oral arguments, the Becket Fund argued on behalf of the colleges, stressing that “the mandate is final” and is “currently burdening the conduct of the colleges,” said Duncan.

He explained that the budgeting and hiring decisions currently facing the schools are heavily impacted by the potentially-crippling fines they could be slammed with for refusing to follow the mandate’s requirements.

In addition, he said, the safe harbor period protects religious institutions from federal government penalties but does not prevent individuals from suing the colleges for failing to adhere to the mandate.

The government argued during the hearing that it is still working on the accommodation, Duncan continued, but it would not say “what the new rule will be” or what might be in it, suggesting only that a proposal should be expected in the first quarter of 2013. That proposal would then have to undergo another process before being finalized.

In the next few months, the appeals court will issue a decision, determining whether the lawsuit is “ripe” to proceed or if the safe harbor and government promise of an accommodation render it premature.  

Duncan said that he is “encouraged” when cases are judged on their actual merits because he believes the government’s argument is weak.

An injunction has been granted to four out of five for-profit cases that have received a ruling, he pointed out.

Despite the safe harbor, he said, it is clear that the mandate is already hampering the colleges by “putting pressure on the exercise of their religious rights.”

Tags: Contraception mandate

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