Employers must provide free artificial contraception, sterilization and substances or devices to induce abortion to participants in their health insurance plans starting August 2012, according to the 2010 Patient Protection and Affordable Care Act as implemented by the Department of Health and Human Services (DHHS). The DHHS established a limited exception to this requirement for employers who object to providing these benefits on religious grounds and who primarily hire and serve people of their own faith.
Wheaton College in Wheaton, Ill., and Belmont Abbey College in Belmont, N.C. — both religious affiliated institutions — would not be covered by this exemption and therefore filed suit to be exempted based on their First Amendment freedom of religion rights. Their initial suits were individually dismissed by lower federal courts on the grounds they did not have standing or were "not ripe" for review. The decisions were based on the fact that in the Final Rule, issued in February 2012, a one-year safe harbor was given to religious organizations like the colleges. This delayed their compliance until plan years beginning after August 2013. This extension was granted to give the government time to amend the regulations to address these organizations' concerns.
The two cases were combined in appeal to the D.C. Circuit Appellate Court. The court reinstated the cases on Dec. 18, 2012, dismissing the Obama administration's contention that the case was not ripe for review because the plaintiffs' concerns would be resolved by future amendments to the DHHS mandate. In oral arguments before the court, the government said it would never enforce the regulation in its current form, as related to contraceptive services, against the colleges or similar organizations, and therefore the case should be dismissed. Instead, the court put the case in abeyance subject to the government's regular status reports on its progress in publishing a notice of proposed rulemaking and issuing an amended final rule before August 2013. The court's position was that the "colleges clearly had standing when these suits were filed," but "the ripeness question was more difficult."
The court intends that once the government issues the final amended rule, the case can proceed if the colleges believe the amended regulation continues to deprive them of their First Amendment rights. The government initially proposed a solution in a March 2012 advance notice of proposed rulemaking 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.... Instead, the issuer would be required to provide participants and beneficiaries covered under the plan separate coverage for contraceptive services...without cost sharing.
The general counsel of the Becket Fund for Religious Liberty, the public interest group representing the colleges, said the colleges will decide how to proceed with the case after they see the amended final ruling.
While the courts have not addressed whether the contraception mandate infringed the colleges' First Amendment rights, the decision of the D.C. Circuit Court secures the right of nonprofit religious-affiliated organizations to sue to preserve their freedom-of-religion rights in cases involving the the Affordable Care Act. In addition, the decision supports the premise that the government's promise to change an existing law does not preempt an organization's right to file suit against existing laws and regulations. The fact that the D.C. District Court is monitoring the executive branch and holding it to its word may also have other implications for future cases. We will know more later in the first quarter of 2013, when the proposed rulemaking is required to take place.
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