In the Obama Administration’s first formal response to constitutional challenges to the new birth control mandate, Justice Department lawyers have argued that the federal courts should stay on the sidelines of the dispute at least until a new attempt at compromise is finally worked out, more than a year from now. In a filing Thursday in U.S. District Court in Washington, the Department challenged as premature a lawsuit by a religiously affiliated college in North Carolina seeking to avoid any legal duty to provide contraceptive care for its employees or students in violation of its religious beliefs.
President Obama announced last week that the government will revise the mandate it is going to impose on health care plans to include preventive care services that include contraceptive drugs and devices. That mandate was included in the new health care law, the Affordable Care Act.
Although a preliminary rule would have exempted only religious organizations — such as churches — that serve primarily their own believers, a revised plan will shift the birth control access requirement to insurance companies, at no cost to the individuals who get the coverage or their employer, if the employer is affiliated with a religious organization but serves a wider group than its own followers. The legal version of the new approach was published in the Federal Register on Wednesday.
A legal advocacy group that focuses on religion issues, the Becket Fund for Religious Liberty, has filed three lawsuits claiming that the mandate will interfere with the religious freedom of organizations for whom contraception is a violation of their faith. The government filed its first response in the case filed in Washington by Belmont Abbey College, a Catholic college in Belmont, N.C., with some 1,700 students and about 300 employees, full- and part-time. It argued that it does not qualify for the religious exemption from the contraception mandate, and thus it would have to include such preventive health services in its existing health coverage.
In its response, the Justice Department argued that the college’s plan may be exempted from the new mandate, under a “grandfather” clause, but that, in any event, it cannot show that it is going to have to provide birth control even later, and, under the compromise, may never have to do so. Under the final version of the mandate, it does not go into effect until January 2014 and, in the meantime, the Department said, the government is going to be working out ways to deal with religious objections by hospitals, colleges and other institutions that do not qualify for the religion exemption, but still are opposed to providing birth control coverage.
Arguing that there is no threat of immediate or near-term harm to the college’s religious preferences, the Department’s filing argued that the college does not have a legal right to sue (“standing”) at this time. Moreover, it argued, the college’s challenge is not yet “ripe” for judicial review because the move to transfer to insurers the obligation to provide birth control, without any obligation on employers like the college, may eliminate any obligation that would violate the college’s religious views.
The motion to dismiss contended that Belmont Abbey has not shown that its health plan is not entitled to “grandfather” status, and that it plans to make any changes in its plan that would take away that status. The college appears now to be exempt from the provision, and thus may be able to continue with its plan that does not and would not cover contraception, the filing asserted.
For the next year, the motion added, no organization that might have to begin providing contraception coverage will have to do so, because there is a “safe harbor” provision that will delay its implementation. The earliest that the college may be subjected to enforcement of the mandate (assuming it does not qualify as “grandfathered”) would be January 1, 2014, according to the motion. To rule on its challenge now, the government said, would be to issue a forbidden advisory opinion of the kind that federal courts are barred from issuing.
On the government’s separate claim that the college’s challenge is not yet legally “ripe” for court review, the motion said that the coming changes in the mandate — to be worked out over the “safe harbor” period of a year’s delay — will be “intended to accommodate the concerns expressed” by the college and other religiously affiliated employers who object to contraception. The coming changes, the motion added, may “alleviate altogether the need for judicial review,” but at a minimum would “narrow and refine the scope of any actual controversy to more manageable proportions.”
The college will have a chance to respond to the dismissal motion before the District judge handling the case, Judge James E. Boasberg, rules on the motion.
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