DC Circuit holds challenges by religious colleges to contraceptive mandate in abeyance

Howard Friedman, Religion Clause

As previously reported, earlier this year the federal district court for the District of Columbia dismissed for lack of standing and ripeness challenges by Wheaton College and Belmont Abbey College to the mandate issued under the Affordable Care Act requiring group health insurance policies to cover contraceptive services for women. Because the Department of Health and Human Services had announced a one-year enforcement safe harbor for non-profit groups whose religious beliefs are violated by the mandate, the court concluded that the schools do not face imminent enforcement action. The colleges appealed, in part arguing that enforcement of the mandate is still sufficiently imminent to make the cases appropriate for decision. (Appellants’ Brief.) Now in an order captioned Wheaton College v. Sebelius, (DC Cir., Dec. 18, 2012) which covers both cases, the D.C. Circuit decided to hold the cases in abeyance and require the government to file status reports with the court every 60 days, saying that the government:

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….  There will, the government said, be a different rule for entities like the appellants, … 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…. 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….

Becket Fund, in a press release announcing the order, called it a victory for all religious non-profits because the government has been forced to promise that it will never enforce the mandate in its current form against non-profit religious employers.