White House buckling on HHS mandate?

posted at 1:01 pm on December 19, 2012 by Ed Morrissey

An appeals court reinstated lawsuits from Wheaton College and Belmont Abbey College against the HHS contraception mandate, overruling district courts that had ruled the lawsuits as “premature.”  The recognition of the DC Circuit of the immediate threat to religious liberty would have been a big, albeit temporary victory for The Becket Fund, which represents the plaintiffs in these cases.  However, as TBF explained in its press release and may have been overlooked otherwise, the court forced the Obama administration into conceding that the HHS mandate will be substantially reworked in the near future, emphases mine:

Today, 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. Last summer, two lower courts had dismissed the Colleges’ cases as premature. 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 based its decision on two concessions that government lawyers made in open court. First, the government promised “it would never enforce [the mandate] in its current form” against Wheaton, Belmont Abbey or other similarly situated religious groups. Second, the government promised it would publish a proposed new rule “in the first quarter of 2013” and would finalize it by next August. The administration made both concessions under intense questioning by the appellate judges. The court deemed the concessions a “binding commitment” and has retained jurisdiction over the case to ensure the government follows through.

“This is a win not just for Belmont Abbey and Wheaton, but for all religious non-profits challenging the mandate,” said Duncan. “The government has now been forced to promise that it will never enforce the current mandate against religious employers like Wheaton and Belmont Abbey and a federal appellate court will hold the government to its word.”

While the government had previously announced plans to create a new rule, it has not yet taken the steps necessary to make that promise legally binding. Lower courts dismissed the colleges’ cases while the government contemplated a new rule, but the Court of Appeals for the District of Columbia Circuit decided the cases should stay alive while it scrutinizes whether the government will meet its promised deadlines. The court acted quickly, issuing Tuesday’s order just days after hearing lengthy arguments.

First, it’s interesting that the White House hasn’t announced a review of its HHS contraception mandate outside of court.  As far as is publicly known, the Obama administration considered its “accommodation” in the spring of this year as its final word, and had every intention of enforcing it.  Until now, the suggestion that the rule was under review was an argument intended to delay judicial scrutiny of the administration’s attempt to impose its own definition of “worship” via bureaucratic decree.

This decision forces an end to that strategy.  The “intense questioning” forced the administration to make what the appellate court considers a binding submission, and now has to produce a revamped rule that won’t infringe on religious liberty.  It’s worth pointing out at this juncture that the Obama administration insisted that its “accommodation” 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.

Now that the administration’s legal team has admitted that much and committed to a change in March, perhaps we can speed it up so that the Little Sisters of the Poor don’t have to flee the country:

A religious order of nuns is concerned about its future presence in the United States because of Obamacare’s impact on its charitable operations. The Little Sisters of the Poor told The Daily Caller that it may not qualify for a long-term exemption from Obamacare’s healthcare mandate. The law requires the order to provide government-approved health insurance to its 300 sisters who tend to the elderly in 30 U.S. cities.

The exception is needed, said Sister Constance Carolyn Veit, the Little Sisters’ communications director, because Catholic teaching opposes contraception and medical treatments that cause sterility or can cause abortions.

President Barack Obama’s health-care overhaul law requires employers to include those services in qualifying health care plans they provide for their employees. Failure to comply will bring hefty fines — even for religious orders whose members have taken vows of poverty.

“[I]t could be a serious threat to our mission in the U.S.,” Constance told TheDC, “because we would never be able to afford to pay the fines involved. We have difficulty making ends meet just on a regular basis; we have no extra funding that would cover these fines.”

When the government requires a religious order to provide free contraception coverage to celibate nuns, we’ve gone beyond political satire and into the bureaucratic deep weeds.

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The Little Sisters fluked the rat-eared wonder?

NapaConservative on December 19, 2012 at 1:06 PM

When the government requires a religious order to provide free contraception coverage to celibate nuns, we’ve gone beyond political satire and into the bureaucratic deep weeds.

What these dedicated, celibate nuns need to do is have a strategy session with the human mattress-sperm receptacle known as Sandra Fluke.

Bishop on December 19, 2012 at 1:06 PM

Looks like Sandra Fluke will have to buy her own rubbers.

The Rogue Tomato on December 19, 2012 at 1:08 PM

I’m not used to getting good news after November 6…I pray that this has legs.

22044 on December 19, 2012 at 1:08 PM

meh, who didn’t already know we are in bureaucratic deep weeds as this narrative illustrates so well

DanMan on December 19, 2012 at 1:08 PM

If this gets back to the SCOTUS, my guess is Roberts won’t be as “friendly” this time.

Tater Salad on December 19, 2012 at 1:09 PM

When the government requires a religious order to provide free contraception coverage to celibate nuns, we’ve gone beyond political satire and into the bureaucratic deep weeds.

Weren’t we told that Catholics secretly were thanking HHS for this mandate? They couldn’t say it in public but they really wanted Flukecare. Because, after all, if a slut at a top law school can blow through $10K of contraception a year I can only imagine how much it would cost for 300 nuns!

Happy Nomad on December 19, 2012 at 1:09 PM

Looks like Sandra Fluke will have to buy her own rubbers.

The Rogue Tomato on December 19, 2012 at 1:08 PM

Heh! With that face, I’m guessing a box goes pretty far.

Happy Nomad on December 19, 2012 at 1:11 PM

even a nun could need the Morning After Kill, we can’t judge unless celibate ourselves.

Slade73 on December 19, 2012 at 1:11 PM

Heh! With that face, I’m guessing a box goes pretty far.

Happy Nomad on December 19, 2012 at 1:11 PM

Either that, or a paper bag.

NapaConservative on December 19, 2012 at 1:12 PM

guess what? I bet 90% of those nuns vote Dem and happily voted for this idiot

I couldn’t care less about defending the Catholic Church anymore, it’s evolved into a liberal institution and its members consistently vote for Democrats anyway

And why exactly should only religious non-profits be exempt from the mandate?

Why wouldn’t a private small business, oven a large company like Chick-Fil-A, whose owner has certain religious beliefs, also be exempt from the mandate?

It seems like the same 1st amendment issue

thurman on December 19, 2012 at 1:13 PM

If this gets back to the SCOTUS, my guess is Roberts won’t be as “friendly” this time.

Tater Salad on December 19, 2012 at 1:09 PM

Do you still believe that he ruled on his own free will? It’s Chicago machine we’re talking about here. Even USSC judges need their kneecaps intact, and so do their families.

Archivarix on December 19, 2012 at 1:13 PM

Maybe Nancy would rather have found out what was in Obamacare before passing it, now. Idiots!!

Deano1952 on December 19, 2012 at 1:14 PM

If this gets back to the SCOTUS, my guess is Roberts won’t be as “friendly” this time.

Tater Salad on December 19, 2012 at 1:09 PM

Meh. He’ll uphold it under the government’s right to provide condoms or something.

UltimateBob on December 19, 2012 at 1:14 PM

I just pray this will stop bhocare on this issue! Please, any business or whatever that feels their 1st against their faith file suits, ALL of you! Stop bhocare by courts and the states doing their 10th!
L

letget on December 19, 2012 at 1:14 PM

When the government requires a religious order to provide free contraception coverage to celibate nuns, we’ve gone beyond political satire and into the bureaucratic deep weeds.

I’m waiting for the inevitable “Nuns are Racists who hate your lady-parts” story from the NYT.

Tim_CA on December 19, 2012 at 1:14 PM

Will they actually keep their promise

With his track record…… hmmmmm

cmsinaz on December 19, 2012 at 1:16 PM

First, it’s interesting that the White House hasn’t announced a review of its HHS contraception mandate outside of court

Too busy trying to ban guns while driving us over the fiscal cliff.

JPeterman on December 19, 2012 at 1:17 PM

This is the inherent danger of this newfangled trend of “placeholder law”, where they push to pass the general idea of what they want to do, then spend the next ten years either writing exemptions and waivers, or enforcing something they previously said was not intended for the final product and mocking anyone who pointed this out to them.

The Schaef on December 19, 2012 at 1:18 PM

I finally figured why Democrats push so hard to force the “free sex” agenda on religious organization. Obama is deathly afraid of another birth by immaculate conception – he doesn’t want competition in the Savior department!

Archivarix on December 19, 2012 at 1:19 PM

“Mhhh, just think that I could have replaced this ultra conservative Mr. Bork with Sandra Fluke” — Obama.

Schadenfreude on December 19, 2012 at 1:23 PM

Too busy trying to ban guns while driving us over the fiscal cliff.

JPeterman on December 19, 2012 at 1:17 PM

I have absolutely no doubt that 0bama wants us to go over the “fiscal cliff.” The reason being that in the ensuing chaos, the attention will be diverted away from the devastating avalanche of tax increases that 0bamacare will bestow on all Americans, especially on the poor and middle class who can least afford it.

He needs to blame that on the Republicans somehow, and the “fiscal cliff” is the perfect cover. He is doing everything he can to avoid a deal.

UltimateBob on December 19, 2012 at 1:23 PM

…where there is a will…there is a way!

KOOLAID2 on December 19, 2012 at 1:27 PM

GOP suffering from ED; Judiciary grows a pair.

BobMbx on December 19, 2012 at 1:28 PM

This decision forces an end to that strategy. The “intense questioning” forced the administration to make what the appellate court considers a binding submission, and now has to produce a revamped rule that won’t infringe on religious liberty.

In a nutshell this means the Democrats are going to try to rework the worst piece of legislation ever passed by Congress. What could possibly go wrong?

DaveDief on December 19, 2012 at 1:49 PM

Heh! With that face, I’m guessing a box goes pretty far.

Happy Nomad on December 19, 2012 at 1:11 PM

I wouldn’t kiss her, even with your lips.

:)

petefrt on December 19, 2012 at 1:50 PM

Either that, or a paper bag.

NapaConservative on December 19, 2012 at 1:12 PM

Or a level of intoxication that leads to death

22044 on December 19, 2012 at 1:56 PM

[Weren’t we told that Catholics secretly were thanking HHS for this mandate? They couldn’t say it in public but they really wanted Flukecare. Because, after all, if a slut at a top law school can blow through $10K of contraception a year I can only imagine how much it would cost for 300 nuns!]

Woowee, what kind of contraception is she using that would cost $10k. All I know, is that it’s only $10 a month…as per my daughter.

USMCmom on December 19, 2012 at 2:03 PM

We get legislation like Obamacare because of the idiots we elect over and over again. We’re in store for a whole lot of regulatory surprises from HHS. Common sense has left the building.

iamsaved on December 19, 2012 at 2:07 PM

Either that, or a paper bag.

NapaConservative on December 19, 2012 at 1:12 PM
Or a level of intoxication that leads to death

22044 on December 19, 2012 at 1:56 PM

heard a saying once, go to bed at 2 with a 10, get up at 10 with a 2. That Fluker definitely qualifies for that…

RedInMD on December 19, 2012 at 2:14 PM

The Becket Fund link shows the Fund site as having been suspended. Not sure why.

Zumkopf on December 19, 2012 at 2:14 PM

We will see. If HHS does not perform, what remedy will the DC appeals court be willing to impose. Anny involuntary would be challenged.

I have to laugh out loud when conservative pundits suggest the Obama Administration must obey the rule of law.

Ha! I laugh again.

doufree on December 19, 2012 at 2:19 PM

SWalker on December 19, 2012 at 1:29 PM

Excellent my good fellow!! :-)

Scrumpy on December 19, 2012 at 2:27 PM

When the government requires a religious order to provide free contraception coverage to celibate nuns, we’ve gone beyond political satire and into the bureaucratic deep weeds.

No, the really scary part is that such a requirement MAKES SENSE to the liberal mind!

GarandFan on December 19, 2012 at 2:28 PM

SWalker on December 19, 2012 at 1:29 PM

Excellent my good fellow!! :-)

Scrumpy on December 19, 2012 at 2:27 PM

Why thank you Scrumpy, that is my “Christmas Blog Post” I do hope you had as much fun reading it as I did writing it. If we lose our ability to laugh we will lose everything.

SWalker on December 19, 2012 at 2:31 PM

This HHS mandate was conceived and delivered as political candy for the “Julia” masses to help Obama with single women voters. It worked and its usefulness is pretty much over and done with.

It was issued with an expiration date somewhere beyond November 6, 2012.

marybel on December 19, 2012 at 3:07 PM

I might point out t=hat the Obama Administration has ignored judicial decisions before, with energy permits.

Why should they listen to this one?

Scott H on December 19, 2012 at 4:14 PM

The HHS mandate has served its purpose: keeping alive the meme that republicans want to outlaw contraception. It will be quietly dropped now.

jdp629 on December 19, 2012 at 7:07 PM

It’s all part of the stealth White House “War on Women”

J_Crater on December 20, 2012 at 1:32 AM

…requires a religious order to provide free contraception coverage to celibate nuns…

and also requires they pay for maternity coverage? Ahem.

Fleuries on December 20, 2012 at 8:56 AM