NC college, other schools to argue against birth control rules

McClatchy NewspapersDecember 11, 2012 

— North Carolina’s Belmont Abbey College is trying to resurrect a religious school charge against the Obama administration’s signature health care law.

But first, the school and its many allies must prove their time has come.

On Friday, in a cutting-edge case, attorneys for Belmont Abbey and Illinois-based Wheaton College will try to convince a key appellate court that their challenge to the law’s contraception coverage mandate is not premature. If the colleges prevail, they will be poised for a head-on religious liberty showdown.

“It’s incredibly significant,” Emily Hardman, communications director for the Becket Fund for Religious Liberty, said in an interview Tuesday. “If people’s rights are being violated, if there’s an actual injury happening, they should have their case heard in court.”

The oral argument Friday before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will focus on seemingly technical points called “ripeness” and “standing.” Both sound more boring than the First Amendment’s guarantee of religious freedom, but both are crucial.

If a lawsuit isn’t ripe, and if an aggrieved party lacks standing, a lawsuit dies, regardless of the merits.

A Catholic college about 15 miles west of Charlotte, Belmont Abbey is challenging a Patient Protection and Affordable Care Act provision concerning contraception coverage. The provision requires employers’ group health insurance plans to pay in full for all government-approved contraceptive services sought by plan participants, including sterilization, emergency oral contraception and counseling.

Even with some regulatory flexibility offered by the Obama administration, Belmont Abbey officials say the mandate violates their school’s “pro-life” religious principles.

“If they wish to continue offering employee health insurance without violating their religious beliefs, they must do so in violation of federal law and under threat of severe fines, penalties and private lawsuits,” Becket Fund attorneys wrote in an appellate brief.

All told, some 41 lawsuits challenging the contraception mandate have been filed nationwide by employers, ranging from the Roman Catholic Archdiocese of Miami to the University of Notre Dame.

But despite the impressive legal barrage, each lawsuit must first make it through the courthouse door. Judges are supposed to deal with real conflicts and actual or imminent harm. They avoid speculation.

“Plaintiffs face no imminent threat of enforcement action and . . . their claims are not fit for judicial review,” Acting Assistant Attorney General Stuart Delery stated in a Justice Department legal brief.

Enforcement of the health mandate, which could include fines, won’t start until January 2014. The administration has offered a “safe harbor” temporarily shielding organizations from punishment. Moreover, the Obama administration has pledged to amend the regulations to accommodate organizations with religious objections to contraception.

Citing the potential changes, a trial judge dismissed Belmont Abbey’s lawsuit in July as being premature.

“If the agency fails to amend the exemption from the contraceptive-coverage provision by the time the safe harbor lapses, (Belmont Abbey) will be free to renew its challenge to the rule at that time,” U.S. District Judge James E. Boasberg wrote.

On the other hand, underscoring the legal complications ahead, a New York-based federal judge took a different view in allowing the Roman Catholic Diocese of New York to proceed with a similar lawsuit.

“There is no ‘trust us, changes are coming’ clause in the Constitution,” U.S. District Judge Brian Cogan wrote last week. “To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental restraint and self-correction.”

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