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Federal Court Hears Challenges to HHS Mandated Contraception Coverage

Published online by Cambridge University Press:  06 January 2021

Chelsea Rutherford
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Type
Recent Case Developments
Information
American Journal of Law & Medicine , Volume 39 , Issue 1 , March 2013 , pp. 182 - 185
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2013

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References

1 Belmont Abbey Coll. v. Sebelius, No. 11-1989(JEB), 2012 WL 2914417 (D.D.C. Jul. 18, 2012)

2 Wheaton Coll. v. Sebelius, No. 12-1169(ESH), 2012 WL 3637162 (D.D.C. Aug. 24, 2012).

3 Wheaton Coll. v. Sebelius, Nos. 12-5273, 12-5291, 2012 WL 6652505, at *1 (D.C. Cir. Dec. 18, 2012) (per curiam order holding appeal in abeyance).

4 Roger Pilon et al., Wheaton College v. Sebelius and Belmont Abbey College v. Sebelius, CATO INSTITUTE (Oct. 15, 2012), http://www.cato.org/publications/legal-briefs/wheaton-college-v-sebelius-belmont-abbey-college-v-sebelius.

5 This requirement applies to every group health plan unless the plan is grandfathered in prior to the enactment of the mandate or exempt from regulation as a “religious employer.” See HHS Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under PPACA, 76 Fed. Reg. 46,621, 46,623 (interim final regulation Aug. 3, 2011) (to be codified at 45 C.F.R. § 147.130).

6 See 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012).

7 Wilson, Robin F., The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. REV. 1417, 1422 n.17 (2012)Google Scholar; see also Colo. Christian Univ. v. Sebelius, No. 11–CV–03350–CMA–BNB, 2013 WL 93188 (D. Colo. Jan. 7, 2013) (an example of a recently initiated case on the same merits).

8 Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, § 2713(a)(4), 124 Stat. 119, 131 (2010) (to be codified at 42 U.S.C. § 300gg–13(a)(4)).

9 Wheaton Coll. v. Sebelius, No. 12-1169(ESH), 2012 WL 3637162, at *1 (D.D.C. Aug. 24, 2012); Belmont Abbey Coll. v. Sebelius, No. 11-1989(JEB), 2012 WL 2914417, at *4 (D.D.C. Jul. 18, 2012).

10 See generally Wheaton Coll., 2012 WL 3637162; Belmont Coll., 2012 WL 2914417.

11 See Belmont Coll., 2012 WL 2914417, at *4.

12 Belmont Coll., 2012 WL 2914417, at *1.

13 Id. at *2-3.

14 Id. at *3.

15 See Complaint at 16-23, Wheaton Coll. v. Sebelius, No. 12-1169(ESH), 2012 WL 3637162 (D.D.C. Aug. 24, 2012), 2012 WL 4043961; Complaint at 16-23, Belmont Abbey Coll. v. Sebelius, No. 11-1989(JEB), 2012 WL 2914417 (D.D.C. Jul. 18, 2012), 2011 WL 8997549 (generally arguing that the mandated coverage chills religious exercise, is a substantial burden on the free exercise of religion, constitutes intentional discrimination, constitutes discrimination among religions, comprises compelled speech, is arbitrary and capricious, and encompasses agency action not in accordance with law).

16 See Wheaton Coll., 2012 WL 3637162, at *4, *8 (finding a lack of injury-in-fact and a lack of hardship from a procedural delay, both factors required for a finding of standing).

17 Id. at *4-5 (noting the unlikelihood of ERISA suits attempting to compel enforcement of the regulations in such a religious environment).

18 Id. at *5. Wheaton College relied on Chamber of Commerce to support the argument that, even if government action is not imminent, likely action will provide a basis for standing. See Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995).

19 Wheaton Coll., 2012 WL 3637162, at *5-6.

20 Id. at *7-8. In assessing the ripeness of a case, courts consider (1) the fitness of the issues for review, and (2) the extent to which delay would cause the parties hardship. The fitness element largely depends on the finality of an agency's actions. Id. at *8 (quoting Atlantic States Legal Found., Inc. v. EPA, 325 F.3d 281, 284 (D.C. Cir. 2003)).

21 See Belmont Abbey Coll. v. Sebelius, No. 11-1989(JEB), 2012 WL 2914417, at *1 (D.D.C. Jul. 18, 2012).

22 Id. at *10.

23 Wheaton Coll. v. Sebelius, Nos. 12-5273, 12-5291, 2012 WL 6652505, at *1 (D.C. Cir. Dec. 18, 2012) (per curiam order holding appeal in abeyance) (finding that “dismissal for lack of standing was erroneous because standing is assessed at the time of filing” (quoting Chamber of Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011))).

24 Id.

25 Heather Clark, Colleges Win Federal Lawsuits Against Obama's Abortion Pill Mandate, CHRISTIAN NEWS NETWORK (Dec. 20, 2012), http://christiannews.net/2012/12/20/colleges-win-federal-lawsuits-against-obamacares-abortion-pill-mandate/; Editorial, Religion Trumps Obamacare, THE WASHINGTON TIMES (Dec. 19, 2012), http://www.washingtontimes.com/news/2012/dec/19/religion-trumps-obamacare/.

26 See, e.g., Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12 Civ. 2542(BMC), 2012 WL 6042864 at *19 (E.D.N.Y. Dec. 4, 2012) (“There is no, ‘Trust us, changes are coming’ clause in the Constitution.”). These cases are interesting because courts are usually very deferential to agencies under the Chevron and Mead standards. See generally United States v. Mead Corp., 533 U.S. 218 (2001); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

27 O’Brien v. U.S. Dep't of Health & Human Servs., No. 4:12-CV-476(CEJ), 2012 WL 4481208, at *6 (E.D. Mo. Sept. 28, 2012) (pointing out that the RFRA was a “shield, not a sword”).

28 Id. at *6-7; see also Wilson, supra note 7, at 1430.

29 Wilson, supra note 7, at 1446-48.

30 Id. at 1448.

31 William Armstrong et al., Why We Have Gone to Court Against the Obama Mandate, WALL ST. J. (Apr. 23, 2012), http://online.wsj.com/article/SB10001424052702303459004577361850557579424.html.

32 Wilson, supra note 7, at 1420, 1430, 1478-80.

33 Women's Preventative Services Coverage and Religious Organizations, CENTER FOR CONSUMER INFO. & INS. OVERSIGHT, CENTERS FOR MEDICARE & MEDICAID SERVICES (Feb. 1, 2013), http://cciio.cms.gov/resources/factsheets/womens-preven-02012013.html; see also Laura Bassett, Contraception Mandate Clarified to Accommodate Religious Groups, Obama Administration Announces, HUFFINGTON POST (Feb. 1, 2013), http://www.huffingtonpost.com/2013/02/01/contraception-mandate_n_2598893.html.

34 Robert Pear, Birth Control Rule Altered to Allay Religious Objections, N.Y. TIMES, Feb. 1, 2013, http://www.nytimes.com/2013/02/02/us/politics/white-house-proposes-compromise-on-contraception-coverage.html?pagewanted=1&php.