Contraception mandate battles over? DoJ settles with scores of plaintiffs

“The nuns won,” writes Wesley Smith at NRO. That’s not literally true, at least not yet, but it now appears inevitable. The Department of Justice has finally settled the HHS contraception-mandate lawsuits it had previously contested with the law firm Jones Day, which represents scores of religious organizations that refused to comply with the regulation:

A week after issuing new religious-freedom guidelines to all administrative agencies in the federal government, the U.S. Department of Justice has settled with more than 70 plaintiffs who had challenged the controversial HHS contraceptive mandate.

The Oct. 13 agreement was reached between the government and the law firm Jones Day, which represented more than 70 clients fighting the mandate. Made public Oct. 16, the agreement states that the plaintiffs would not be forced to provide health insurance coverage for “morally unacceptable” products and procedures, including contraception, sterilization and abortion-inducing drugs.

“This settlement brings to a conclusion our litigation challenging the Health and Human Services’ mandate obliging our institutions to provide support for morally objectionable activities, as well as a level of assurance as we move into the future,” said Cardinal Donald Wuerl of Washington, D.C., in an Oct. 16 letter to priests of the archdiocese.

The Little Sisters of the Poor, the most notable group of nuns involved in these lawsuits, are not among these plaintiffs. They are being represented by Becket Law, which also represents other clients fighting the HHS contraception mandate. At least for now, those cases remain open, although one would presume that the DoJ would try to settle them all on roughly the same terms. Becket attorney Mark Rienzi expected that to happen shortly after HHS issued its new rule on exemptions:

“It should be easy for the courts to finalize this issue now that the government admits it broke the law. For months, we have been waiting for Department of Justice lawyers to honestly admit that fact, like the President did in the Rose Garden five months ago. Now that the agencies admit the mandate was illegal, we expect the leadership of the Department of Justice will cooperate in getting a final court resolution.”

Interestingly, the DoJ has not yet posted an announcement of the settlement terms, perhaps waiting until they make their way through more than 300 cases. The terms included in the Jones Day settlement demonstrate remarkably repentant; the DoJ has agreed to cover some of the plaintiff’s legal fees and costs, which seems a little unusual for a settlement outside of court. On top of that, the DoJ has apparently agreed to exempt these organizations from all future exemption enforcement, even if the parameters of the exemption change:

Thomas Aquinas College, a Catholic college in California and another plaintiff against the HHS mandate, also celebrated the protection the settlement brings.

“While we welcomed the broadening of the exemption from the HHS mandate last week by the Trump administration, we have under our agreement today something even better: a permanent exemption from an onerous federal directive — and any similar future directive — that would require us to compromise our fundamental beliefs,” said Thomas Aquinas College President Michael McLean in an Oct. 16 statement.

That’s a pretty impressive win, and signals an outright surrender on these lawsuits. That’s more or less what these organizations expected months ago, if not a repeal of the mandate as part of the repeal of ObamaCare. It’s taken quite a while to get here, but at least we have arrived. Well … some of us, anyway.

Jazz Shaw Aug 07, 2022 2:31 PM ET