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Federal judge dismisses Belmont Abbey College's HHS lawsuit

BELMONT — A federal judge has dismissed Belmont Abbey College's lawsuit against the Obama Administration that had challenged the controversial contraception mandate, but lawyers for the Catholic college in Belmont say they will continue the fight.

U.S. District Judge James E. Boasberg of the District of Columbia dismissed Belmont Abbey's case July 18, saying that the college did not have standing to bring the case to court, nor could it demonstrate it had been harmed yet by the contraception mandate. Read his full ruling.

The contraception mandate, set by the federal Department of Health and Human Services (HHS) as part of the 2010 Patient Protection and Affordable Care Act, requires nearly all employers to provide free artificial contraception, sterilization and abortifacients coverage in their health insurance plans starting in August 2012. Employers that object to providing these services on religious grounds have a limited exemption if they serve or hire people primarily of their own faith. Following outcry from Catholic institutions across the country and the U.S. bishops last spring, the Obama Administration issued an accommodation giving religious employers a year to decide how they would comply with the mandate.

The Becket Fund for Religious Liberty, a non-profit law firm representing Belmont Abbey College in the lawsuit, argued that paying for contraceptive services for employees and students would force the Catholic college and Benedictine monastic community to violate Church teaching against artificial contraception. They argued that the mandate would mean an unconstitutional infringement of their First Amendment right to free exercise of religion.

Although the government regulation includes an exemption from the mandate for certain religious employers, Belmont Abbey College said it believes it would not be exempted from the mandate's requirements.

Boasberg agreed with the Department of Justice's position that Belmont Abbey's case was premature and that more time is needed to see if the government would modify the contraception mandate and further accommodate the concerns of religious employers, which federal officials have promised they would do.

"The Court holds that the challenged rule is not 'sufficiently final,'" Boasberg said in his opinion.

The court did not consider the merits of Belmont Abbey's case, and Belmont Abbey may re-file its lawsuit if and when it can demonstrate harm caused by the mandate.

"At the end of the day, the Court offers no opinion on the merits of the current contraception-coverage regulations or any proposed future ones. If Plaintiff is displeased by the ultimate regulations, it may certainly renew its suit at that time. All the Court holds here is that Belmont has no basis to proceed now," said Boasberg in his 24-page opinion.

Belmont Abbey College's case was the first to be filed challenging the HHS mandate last November. There are 22 other similar lawsuits in federal district courts around the U.S., including cases by other religious colleges, EWTN and Priests for Life.

Hannah Smith, senior counsel for the Becket Fund, said, "Yesterday's decision in the Belmont Abbey College case was on technical grounds: the judge thinks that the case should be delayed for a matter of months to give HHS time to fix the mandate. The decision says nothing about the merits of Belmont Abbey's religious freedom claims, and has no effect on any of the 22 other cases currently pending in federal court. It simply delays Belmont Abbey College's ability to challenge the mandate for a few months, and the court made clear we have the right to re-file the case if HHS does not fix the problem."

Smith continued, "We are reviewing the decision and considering our options, but one thing is clear: Belmont Abbey College and the Becket Fund will continue the fight for religious liberty, even if this case is delayed for a few months."

According to the Catholic legal blog Mirror of Justice, "The court rejected the government's claims that Belmont Abbey lacked standing because it qualified for 'grandfathered' status. It also rejected the government's claim that any injury to Belmont was insufficiently imminent; the court held that the January 2014 deadline was not 'too remote.'

"But the court accepted the government's claim that Belmont's injury was too speculative because of the government's stated intention to engage in new rulemaking before the expiration of the safe harbor. It rejected Belmont's claim that "non-binding promises of future rulemaking" can defeat standing, ruling that the government has done more than promise: it has published its plan to amend and it has issued a notice of proposed rulemaking.

"'The government,' said the court, 'has done nothing to suggest that it might abandon its efforts to modify the rule – indeed, it has steadily pursued that course – and it is entitled to a presumption that it acts in good faith.'"

The blog also noted that the court's dismissal of the case on the grounds of "ripeness" – that it was too early to tell if Belmont Abbey will be harmed by the HHS mandate, since it has not actually taken effect yet – had an "interesting feature":

"Belmont claimed that the case was ripe because even if the proposed rulemaking goes through, it would not be able to comply without violating its religious beliefs about contraception. The court said this:

'This argument assumes, however, that a particular approach described in the ANPRM – which would require health-insurance issuers to offer group plans without contraceptive coverage to organizations with religious objections while "simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries covered under the organization's plan with no cost sharing," (see 77 Fed.Reg. 16503) – will make it into the final rule. Such an assumption is speculative. The ANPRM merely "presents questions and ideas to help shape discussions" regarding how best to accommodate organizations with religious objections to contraceptive coverage. Id. The Notice specifically states that it seeks input on the options it proposes "as well as new ideas to inform the next stage of the rulemaking process." Id. The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff's concerns.'

"Belmont tried to resist this holding by claiming that all the government then needs to do to avoid adjudication is to file a notice of proposed rulemaking. Though the court acknowledged this possibility, and it even said that the 'circumstances are slightly less favorable to the agency here' than in another case where this possibility had been raised, it took the government at its word – or perhaps it is more accurate to say that the court took the government at its promised future word, whatever that word turns out to be."

— Patricia L. Guilfoyle, editor

Federal judge in Nebraska dismisses largest lawsuit against HHS mandate

A federal judge also dismissed a lawsuit in Nebraska against the Department of Health and Human Services' mandated contraceptive coverage July 17, saying it was "based on layers of conjecture." Read more.

More information

For previous filings in Belmont Abbey College's case: http://www.becketfund.org/bacupdate/

How does this issue affect the Diocese of Charlotte? Read here

For more about the Becket Fund's other HHS mandate cases: http://www.becketfund.org/hhsinformationcentral/

Learn more about the contraception mandate: http://www.healthcare.gov/news/factsheets/2011/08/womensprevention08012011a.html

Timeline of key events related to health reform, contraceptive mandate: Read here

Keep up with the latest religious freedom news: http://www.catholicnewsherald.com/features/religious-freedom

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