DC appeals court rules new contraception rule must be issued

Washington D.C., Dec 19, 2012 / 16:30 pm

Religious freedom advocates applauded a federal appeals court's decision to hold the government accountable for revising its controversial contraception mandate.

Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, called the decision "a win not just for Belmont Abbey and Wheaton, but for all religious non-profits challenging the mandate."

"The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom," he said in a Tuesday statement responding to the ruling.

On Dec. 18, the D.C. Circuit Court of Appeals said that it will hold the government responsible for following through on its promises to issue a proposed revision of the federal contraception mandate for objecting religious organizations by March 2013.

The mandate requires employers to offer health insurance plans that cover sterilization and contraception, including some drugs that may cause early abortions. Exemptions to the mandate were only granted to a small number of religious employers that meet the government's requirements of existing to teach religious values and primarily hiring and serving members of their own faith.

After a wave of protest from non-exempt individuals and organizations, the government announced a one-year "safe harbor" to delay the enforcement of the mandate against objecting non-profit religious groups. It said that it would create an "accommodation" for their religious freedom during this time.

However, critics have said that the early suggestions put forth by the Obama administration are inadequate. And while the plan for an accommodation was announced in February, the government has not yet issued its formal proposal with the details of the new rule, and its promise to create one was not legally binding.

More than 40 lawsuits have been filed against the mandate, drawing split rulings from district courts. Among for-profit businesses that are not protected by the safe harbor period, four out of six have been granted a preliminary injunction blocking the mandate from being enforced against them.

Several lawsuits filed by religious non-profit groups – including Belmont Abbey and Wheaton Colleges – were dismissed by district courts as premature because of the government's promise to amend the mandate.

However, a federal judge in New York determined on Dec. 6 that a case by the local archdiocese was mature despite the government's promise, noting, "There is no 'Trust us changes are coming' clause in the Constitution." 

In making its Dec. 18 decision, the appeals court observed that the government had said during oral arguments that it would "never" enforce the mandate in its current form against morally objecting religious institutions.

"There will, the government said, be a different rule for entities like the appellants," the court noted, "and we take that as a binding commitment."

The judges also pointed to the government's statement that it would issue a Notice of Proposed Rulemaking for the new rule by the end of March 2013 and would publish the Final Rule before August 2013. 

"We take the government at its word and will hold it to it," they said, ordering the Obama administration to report back every 60 days on the progress of the accommodation. The colleges' lawsuit will be postponed during this time.

The ruling was hailed by supporters of religious freedom around the country.

Maureen Ferguson, senior policy advisor for The Catholic Association, applauded the court for fighting the "disinformation" surrounding the mandate and showing the serious threat to religious freedom facing religious employers.

Charmaine Yoest, president of Americans United for Life and a graduate of Wheaton College, called the decision "a first step toward halting the anti-life coercion in the healthcare law."

Duncan, who argued the case before the appeals court, explained that the decision offers hope to all of the religious plaintiffs throughout the country.

"The court is not going to let the government slide by on non-binding promises to fix the problem down the road," he said.