Appeals court directs Obama administration to rewrite HHS mandate

December 20, 2012

The Court of Appeals for the District of Columbia Circuit has ruled that the Obama administration must rewrite its controversial HHS mandate, which in its current form will compel many religious institutions, such as colleges and charitable agencies, to offer insurance coverage for contraception and sterilization beginning on August 1, 2013.

The appeals court had consolidated appeals by Belmont Abbey College (a Catholic college) and Wheaton College (an evangelical Protestant college) into one case. Lower courts had dismissed the colleges’ lawsuits because the institutions had not yet been harmed by the mandate.

During oral arguments before the appeals court, attorneys for the Obama administration asserted the administration would rewrite the HHS mandate and would not enforce it against religious institutions such as the two colleges. The appeals court stated in its ruling that the government

represented to the court that it would never enforce [the HHS mandate] 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 … the petitioners’ lawsuits should be held in abeyance pending the new rule that the government has promised will be issued soon.

Upon consideration of the foregoing, it is ordered, that in reliance upon the Departments’ binding representations, this court will hold these cases in abeyance, subject to regular status reports to be filed by the government with this court every 60 days from the date of this order.

The decision was written by Judges Arthur Raymond Randolph (a 1990 Bush appointee), Merrick Garland (a 1997 Clinton appointee), and Thomas Griffith (a 2005 Bush appointee).

Though there is no guarantee that revisions to the HHS mandate will be to the colleges’ satisfaction, Belmont Abbey College President William Thierfelder hailed the decision.

“Christmas came early this year,” he said. “The DC Circuit Federal Court of Appeals' ruling is a major victory for Belmont Abbey College in its challenge to the HHS mandate. The two concessions made by the government lawyers in court to never enforce the current mandate against Belmont Abbey College and to publish a proposed new rule by the end of the first quarter in 2013, are the answers to our prayers.”

 

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Further information:

• Federal Appeals Court Hands Victory to Religious Colleges, Commands HHS to Act Quickly to Fix Mandate (Becket Fund)
• Full text of ruling (Becket Fund)
• Federal appeals court sides with local college on controversial contraception requirement (WBTV-TV)