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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