Three federal judges today discussed whether to revive one of the major lawsuits filed against the Obama administration’s HHS mandate that compels religious groups to pay for drugs that may cause abortions.
A three judge panel heard oral arguments about whether to potentially allow the lawsuit to be revived but keep it on hold until after the Obama administration issues new rules that it claims it widen the religious exceptions under the statute.
Earlier, Judge James E. Boasberg of the D.C. Federal Court threw out the lawsuit Belmont Abbey College in North Carolina, the first plaintiff to file suit against the mandate, filed. Judge Boasberg said he dismissed the lawsuit because the Obama administration is revising the initial rule it release forcing religious groups to pay for the drugs that violate their conscience and beliefs.
He wrote that he favored “deferring review until the agency’s position on exemptions to the contraceptive-coverage requirement is settled.”
Kyle Duncan, general counsel at the Becket Fund for Religious Liberty, attorneys for plaintiffs, said the decision turns on technicalities and doesn’t decide the merits of the dispute.
During oral arguments today, Duncan said the HHS mandate is “a violation of their religious liberty.”
The panel of judges probably will not issue a decision on the merits of the case soon or whether it was prematurely dismissed by the lower court but will likely have it be held “in abeyance” while the Obama administration revises the rules.
However, one news report indicated Judge A. Raymond Randolph sounded like he agreed that the HHS mandate violates Belmont Abbey College’s First Amendment rights.
“Do you concede that the rule in its present form is unconstitutional?” Randolph pointedly asked Justice Department attorney Adam C. Jed.
Jed disputed the point, and said the Obama administration intended to publish revised rules before next April. Administration officials say the revised rules will offer stronger protections for religious schools and employers that seek exemptions from the contraception mandate.
“The government has said from the very beginning that it’s going to take seriously the concerns,” Jed said.
The D.C. Circuit Court of Appeals is the first appeals court to consider whether the government’s one-year ‘safe-harbor’ adequately protects religious employers like Belmont Abbey College and Wheaton College from the abortion-drug mandate which forces the Catholic and Evangelical institutions to violate their deeply held religious beliefs or pay millions in fines each year.
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After receiving a firestorm of opposition to the HHS mandate, the government created the ‘safe-harbor’ to delay enforcement against non-profit religious organizations while the government “considered” some future “accommodation,” leading two lower courts to dismiss Belmont Abbey and Wheaton College’s lawsuits as premature.
Last Wednesday, however, a federal judge in New York became the first to rule against the government on this issue holding that the “safe harbor” and promised “accommodation” were inadequate to protect religious organizations from suffering harm. The court remarked that, “There is no ‘Trust us changes are coming’ clause in the Constitution.”
