July 18, 2012

NRO: One HHS Mandate Case Dismissed, Don’t Read Too Much Into It

Image: NRO: One HHS Mandate Case Dismissed, Don’t Read Too Much Into It

“Decision turns on technicalities and doesn’t decide the merits of the dispute. ” — Kyle Duncan, Becket Fund

One HHS Mandate Case Dismissed, Don’t Read Too Much Into It

By: Kyle Duncan

Today’s decision by a federal district court in Nebraska to dismiss one of the many pending lawsuits against the HHS abortion-drug, contraception and sterilization mandate is unfortunate (and in one respect, seriously mistaken). But the decision turns on technicalities and doesn’t decide the merits of the dispute. Bear this context in mind if you should hear anyone trumpeting this decision as some sort of “victory” for the federal government on the religious-liberty questions at the heart of the HHS mandate litigation. It’s nothing of the sort.

The lawsuit was brought by Nebraska and seven other states, as well as three Catholic non-profit organizations (a high school, a charity, and a mutual society), and two individuals. The federal court (senior judge Warren Urbom, a 1970 Nixon appointee) dismissed the lawsuit without prejudice, finding that none of the plaintiffs had “standing” — which means that the court thought that the plaintiffs hadn’t properly claimed any real “injury” from the mandate in their complaint.

As for the non-profits and the individuals, the court relied on a true technicality: It found they hadn’t given specific-enough reasons for why they weren’t “grandfathered.” “Grandfathering” is the idea that you can keep the health plan you had on March 23, 2010 — and so avoid the HHS mandate — provided that you keep it the way it existed on that date in perpetuity. The court simply reasoned that the plaintiffs hadn’t provided enough detail on why their plans weren’t “grandfathered” (one of the plaintiffs, in fact, had admitted their plan was grandfathered). This is a technicality because, presumably, the plaintiffs could simply amend their complaints to provide the necessary details on “grandfathering” the next time around. But, in any event, the decision has nothing to do with the main question of why the mandate violates the Constitution and federal religious-liberty law. It is merely a decision that these particular insurance policies don’t appear to be subject to the mandate to begin with.

As for the states, the court also found they hadn’t alleged a sufficient injury, and so lacked standing. There was a slightly different reason for this conclusion. The states had said they were injured because the mandate would result in employers dropping employee health coverage, and the resulting exodus of employees would swell the Medicaid rolls and throw the states’ budgets into disarray. The court thought this was too conjectural to support standing. Again, this conclusion has nothing to do with the underlying claims about the mandate’s unconstitutionality.

The only place in the decision where the court went seriously awry is on the question of ripeness. (Judge Urbom admitted that this part of the ruling was non-precedential dicta, because he did not have standing to reach it.) Some readers may recall that the federal government announced a “safe harbor” last February, by which it would delay implementation of the HHS mandate for certain religiously-affiliated employers for one year; during that year, said the government, it would come up with some form of “accommodation” that would solve the religious liberty violations in the mandate. Under the “accommodation” the government sketched out, it would (magically?) deem contraception and sterilization “cost neutral” and force insurance companies to provide these drugs and services “for free” to the employees of religious organizations. Religious organizations were quick to point out that, even if this “accommodation” became the law (which it still hasn’t), it wouldn’t solve the mandate’s religious-liberty problems. Organizations would still be facilitating access to the objectionable services through insurance. What’s more, many religious organizations are self-insured, and so the accommodation would be particularly meaningless for them.

And yet Judge Urbom accepted the government’s argument that the promise of this fanciful “accommodation” rendered the lawsuits premature. This is hard to understand. After all, the HHS mandate itself is a final administrative rule; also final is the narrow “religious employer” exemption (which would exclude the ministries of certain well-known religious figures like Jesus and Mother Teresa, because they insisted on ministering to those of other faiths). The government is not proposing to alter either one of those rules. All the government has done is conveniently postpone enforcement of the mandate as to certain objectors for one year, while it promises to brainstorm about ways to make contraceptives “free” and force insurance companies to provide them at no charge and without using taxpayer dollars. Good luck with that.

The bottom line is that Judge Urbom’s ruling today has nothing to do with the fundamental question of freedom: Does the federal government violate religious liberty by forcing religious objectors to pay a fine for the privilege of practicing their faith? At present, there are 22 other cases pending before other federal courts that are poised to answer that question. And even assuming the technical reasons given by the Nebraska court hold water on appeal (which is highly debatable), many of the other pending cases feature plaintiffs who are indisputably not “grandfathered,” who are palpably “injured” by the HHS mandate, and who will feel the ugly effects of that injury as soon as this Fall. Stay tuned for a decision in one — or many — of those cases that will answer the real question of religious freedom at issue in these crucial cases.”

Kyle Duncan is general counsel at the Becket Fund for Religious Liberty.


  • http://www.facebook.com/profile.php?id=100003406549912 Camille

    Mr. Carney is dead wrong, as are President Obama and HHS. It is not their place to “strike a balance.” Religious freodem is OUR right under God; it is not their right to regulate, balance, or manipulate our God-given rights. When “balance” is needed, surrender that “power” back to the states so that these decisions may be made in specific religion-based situations such as poligamy, ingesting/smoking conscious-altering substances, type of medical care, etc. One size does not fit all, especially in the realm of religious freodems. As a Roman Catholic, I’m waiting for Pres. Obama to rule through presidential fiat that the Catholic priesthood is now open to women. Modern mantra = one mustn’t discriminate.

    • http://www.facebook.com/profile.php?id=100003406728814 Momay

      Beautiful response Susan. Very well-written. The only anti-women aruond are people who insist sexual liberty, sex outside of marriage, abortion, and the free love if it feels good, just do it’ attitude are liberating.’ These people absolutely hate women and their God-given gifts to conceive. Furthermore why should society pay for your utterly irresponsible and entitled method of birth prevention.’ In today’s vile society sex and children are treated as commodities.

  • Sylvia Murdolo

    Not sure if it ever happens, but if victory is won…the Administration’s individuals should pay for the cost of these cases.

    • http://www.facebook.com/profile.php?id=100003406716959 Debbie

      We are clearly on the path of tyrnnay. All that Congress and the President are doing points us in this direction. As citizens seek security from the federal government they give up personal liberty. The transfer of personal responsibility to government dependence is nearly complete. There are more voters who receive from the government than those who give to the government so election outcomes are predetermined. The only way to save this republic is to crush apathy with information. It may be that the internet will be the catalyst whatever it is it needs to happen today, if not yesterday.

      • http://www.facebook.com/profile.php?id=100003407103118 Girang

        I am afraid we may be on thin ice here. While the idea of relioigus freedom may sound good now, this can come back to cause more problems. For instance: under the concept of Dhimmitude Muslims and Mormons could be exempted from buying health insurance as they consider purchasing insurance as gambling. Further, we may be opening the expression of relioigus Freedom to accepting Sharia Law for Muslims. Let us be very careful on this!!!