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Court: Obama Admin Must Rewrite HHS Mandate to Protect Religious Liberty

by Steven Ertelt | Washington, DC | LifeNews.com | 12/19/12 12:43 PM

National

In a victory for the pro-life battle against the HHS mandate, a federal appeals court yesterday reinstated two of the top legal challenges to the mandate, which requires religious employers to pay for drugs that may cause abortions.

The D.C. Circuit Court of Appeals handed Wheaton College and Belmont Abbey College a major victory in their challenges to the HHS mandate. Previously, two lower courts had dismissed their lawsuits as premature because the Obama administration is expected to revise the mandate next year. However, the appellate court reinstated those cases.

The federal appeals court also ordered the Obama Administration to report back every 60 days—starting in mid-February—until the Administration makes good on its promise to issue a new rule that protects their religious freedom. The Obama administration was ordered to rewrite the mandate by March 2013.

“The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” said Kyle Duncan, General Counsel of the Becket Fund for Religious Liberty, who argued the case.  “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”

Duncan told LifeNews the appeals court based its decision on two concessions that government lawyers made in open court.

First, the government promised “it would never enforce [the mandate] in its current form” against Wheaton, Belmont Abbey or other similarly situated religious groups.  Second, the government promised it would publish a proposed new rule “in the first quarter of 2013” and would finalize it by next August.

Duncan said the Obama administration made both concessions under intense questioning by the appellate judges and that the court deemed the concessions a “binding commitment” and has retained jurisdiction over the case to ensure the government follows through.

“This is a win not just for Belmont Abbey and Wheaton, but for all religious non-profits challenging the mandate,” said Duncan. “The government has now been forced to promise that it will never enforce the current mandate against religious employers like Wheaton and Belmont Abbey and a federal appellate court will hold the government to its word.”

While the Obama administration had previously announced plans to create a new rule, it has not yet taken the steps necessary to make that promise legally binding. Lower courts dismissed the colleges’ cases while the government contemplated a new rule, but the Court of Appeals for the District of Columbia Circuit decided the cases should stay alive while it scrutinizes whether the government will meet its promised deadlines. The court acted quickly, issuing Tuesday’s order just days after hearing lengthy arguments.

Recently, 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.”

The most recent poll shows a plurality of Americans oppose the mandate.

The Supreme Court has ordered a federal appeals court to take a new look at the controversial Obamacare law and whether it unconstitutionally forces taxpayers to fund abortions and birth control, violating religious freedoms. The high court is ultimately expected to resolve the debate over the HHS mandate.

Before Thanksgiving, a federal district court judge in Chicago issued a preliminary injunction requested by the religious publisher Tyndale House in its challenge to the mandate. HHS has denied Tyndale House’s request for an exemption, saying that it didn’t meet the government’s definition of a “religious employer” because it operates as a “for-profit” business.

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But while Tyndale House won an important victory, at the same time the owners of Hobby Lobby, an arts and crafts store chain, were losing their challenge to the HHS mandate in Oklahoma City. Like other challengers, they said that paying for such coverage violated their religious beliefs.

There are now 40 separate lawsuits challenging the HHS mandate, which is a regulation under the Affordable Care Act (aka “Obamacare”) including suits from Hobby Lobby, Wheaton College, East Texas Baptist University, Houston Baptist University, Belmont Abbey College, Colorado Christian University, the Eternal Word Television Network, and Ave Maria University.