Today, (19th) a federal appeals court in Washington, D.C. handed Wheaton College and Belmont Abbey College a major victory in their challenges to the HHS mandate requiring religious organizations to include contraceptives and abortion drugs in their health insurance plans.
Only last summer, two lower courts had dismissed the Colleges’ cases as premature, but today, the appellate court reinstated those cases, and 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 the Colleges’ religious freedom. The new rule must be issued by March 31, 2013.
The court’s “intense questioning” forced the Obama administration to make what the appellate court considers a binding submission, that “it would never enforce [the mandate] in its current form” against Wheaton, Belmont Abbey or other similarly situated religious groups, and secondly, the government would publish a proposed new rule “in the first quarter of 2013” to be finalize it by next August. The court deemed the concessions a “binding commitment” and has retained jurisdiction over the case to ensure the government follows through.
Now HHS and Obama have to come up with a revamped rule that won’t infringe on religious liberty. It’s worth pointing out that the Obama administration has always insisted that its HHS “accommodation” to religious challenges didn’t infringe on religious liberty, so this concession gives the strong impression that the White House’s legal team is admitting that it in fact does infringe on the freedom of religious expression.
“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, in a press release. “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”
In a related case, a federal court judge has allowed the Roman Catholic Archdiocese of New York to proceed with its own HHS lawsuit, ruling that the government’s promise of new regulations for religious employers was no reason to dismiss a challenge to the mandate. “There is no ‘Trust us changes are coming’ clause in the Constitution,” wrote judge Brian Cogan.