Contraception Mandate Taking on Water

Yesterday, Lyle Denniston at SCOTUSBlog reports, the U.S. Court of Appeals for the D.C. Circuit effectively overturned a district court’s dismissal of a challenge to the so-called “contraception mandate,” a regulation issued by the Department of Health and Human Services that employer-provided health care plans include coverage for all FDA-approved forms of contraception without cost-sharing. Various religious employers have objected to this requirement citing the First Amendment’s free-exercise clause and (more persuasively) the Religious Freedom Restoration Act (RFRA).

The D.C. case was filed by Wheaton College and Belmont Abbey College. The district court had dismissed the case for lack of standing and ripeness. In its brief order, the D.C. Circuit explained that the district court was wrong to dismiss the suit against the mandate for lack of standing as “the colleges clearly had standing when these suits were filed.” The ripeness question “is more difficult,” the court explained, because HHS has promised to address religious employers’ claims in a new rulemaking. Taking HHS at its word, the D.C. Circuit concluded the lawsuits should be held in abeyance, pending further action by HHS. As it explained:

In the Federal Register notice announcing their February 2012 Final Rule, the appellees left the religious employer exemption unchanged but created a safe harbor from enforcement of the contraceptive coverage requirement for entities like the appellants, which remains in effect until the first plan year that begins on or after August 1, 2013. 77 Fed. Reg. at 8728. (The plan years of both appellants begin January 2014.) The notice also announced the appellees’ intention to “develop and propose changes to these final regulations that would meet two goals” — providing contraceptive coverage without cost-sharing to covered individuals and accommodating the religious objections of non-profit organizations like appellants. Id. at 8727. Thereafter, on March 21, 2012, the appellees issued an Advance Notice of Proposed Rulemaking (ANPRM), which states: “The Departments intend to propose that, when offering insured coverage to a religious organization that self-certifies as qualifying for the accommodation, a health insurer may not include contraceptive coverage in that organization’s insured coverage. This means that contraceptive coverage would not be included in the plan document, contract, or premium charged to the religious organization.” 77 Fed. Reg. 16,501, 16,505 (Mar. 21, 2012). (The ANPRM went on to state: “Instead, the issuer would be required to provide participants and beneficiaries covered under the plan separate coverage for contraceptive services . . . without cost sharing . . . .” Id.)

At oral argument, the government went further. First, it represented to the court that it would never enforce 45 C.F.R. § 147.130(a)(1)(iv) in its current form against the appellants or those similarly situated as regards contraceptive services. Oral Arg. Recording at 36:25 – 36:33. There will, the government said, be a different rule for entities like the appellants, Oral Arg. Recording at 37:25 – 38:46, and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013. Oral Arg. Recording at 35:39 – 36:02.

We take the government at its word and will hold it to it. Based expressly upon the understanding that the government will not deviate from its considered representations to this court, we conclude that the cases are not fit for review at this time because “[i]f we do not decide [the merits of appellants’ challenge to the current rule] now, we may never need to.”

As a consequence of this ruling HHS will have little choice but to issue a rule relieving many religious employers of the obligation to provide coverage for contraception. The interesting question will be how this is to be accomplished under existing statutory authority. Moreover, the Administration’s proposed fix — allowing religious employers to exclude contraception coverage but requiring insurers to provide separate contraception coverage to employees at no charge — would do nothing to alleviate the burden on those religious employers that self-insure (which many do because, among other reasons, it provides a way to escape state-level contraception mandates).

Meanwhile, on November 28, the U.S. Court of Appeals for the Eighth Circuit stayed a district court decision dismissing a suit against the mandate filed by a private employer professing religious objections. (Judge Arnold dissented from the order without opinion.) Further, as Stuart Taylor notes in this overview of the litigation for Kaiser Health News, three other district courts have issued preliminary injunctions against the mandate in separate cases, and literally dozens more cases are pending. So as predicted, the contraception mandate appears to be having trouble in federal court.

For more, I posted on the mandate here, here, and here.

[Note: In the original post, I mis-identified one of the plaintiffs in this case as the Catholic University of America. CUA is challenging the mandate, but in a different case. I’ve corrected the error.]