Federal judges on Friday seriously entertained ways to revive a religious liberty lawsuit that North Carolina's Belmont Abbey College filed against the Obama administration's signature health care law.
In a closely watched and occasionally electrifying oral argument, members of a powerful three-judge appellate panel suggested they might restore Belmont Abbey's legal challenge but keep it dormant until the administration issues final new health care rules.
A compromise of sorts, this would keep the lawsuit alive before a trial judge who'd previously dismissed it as premature.
"It doesn't decide the case," Judge Merrick Garland suggested, "but it holds on to the case."
A Roman Catholic college founded by Benedictine monks about 15 miles west of Charlotte, N.C., Belmont Abbey has filed one of 41 lawsuits nationwide challenging a provision of the Patient Protection and Affordable Care Act that sets insurance coverage standards.
The provision requires employers' health insurance plans to cover certain medical procedures, including immunizations, mammograms and – most controversially – contraceptive services such as sterilization and emergency oral contraception.
Combined for now with a similar challenge filed by Illinois' Wheaton College, the Belmont Abbey lawsuit is the first of the legal challenges to the law to reach the appellate level. The schools, as well as some employers that are challenging the law, contend that the contraception coverage mandate runs counter to First Amendment protections.
"It's a violation of their religious liberty," attorney Kyle Duncan told the panel of the U.S. Court of Appeals for the District of Columbia Circuit.
Because of its sway over many federal agency decisions, the Washington-based appellate court sometimes is called the nation's second-highest court. In the Belmont Abbey case, argued for 65 minutes Friday before a crowded courtroom, the panel won't decide the underlying First Amendment dispute.
Instead, the judges most likely will decide whether the colleges' lawsuit will be dismissed as premature, permitted to proceed full-steam ahead or, as Garland suggested, be held "in abeyance" while final health care rules are revised and set.
The Obama administration argues, and the trial judge agreed in September, that it's too early for legal challenges since the rule implementing the contraception mandate remains under revision.
Still, underscoring the higher stakes involved, Judge A. Raymond Randolph sounded distinctly sympathetic to the religious schools. A Republican appointee, Randolph spoke of religious colleges and employers "bending to the government's will" under the health care law, as well as a "chilling effect" that even temporary rules might impose on people's First Amendment rights.
"Do you concede that the rule in its present form is unconstitutional?" Randolph pointedly asked Justice Department attorney Adam C. Jed.
Jed disputed the point, and said the Obama administration intended to publish revised rules before next April. Administration officials say the revised rules will offer stronger protections for religious schools and employers that seek exemptions from the contraception mandate.
"The government has said from the very beginning that it's going to take seriously the concerns," Jed said.
The issue first arose earlier this year, when Catholic leaders and the White House quarreled over the contraception mandate. The government subsequently offered a compromise that granted women free coverage of contraceptives but put the cost onus on insurance companies. Nonetheless, skeptics argue that the exemptions provide inadequate protection for non-churches, and say they can't rely on the new rules being an improvement.
"The government is simply saying they are going to change something in the future," Duncan said. "It is not binding."
Duncan is with the Becket Fund for Religious Liberty, which filed the Belmont Abbey and Wheaton lawsuits pro bono. The Becket Fund also has represented Belmont Abbey in Equal Employment Opportunity Commission complaints filed by eight faculty members, who say the college's policy against covering contraception discriminates against them.
Enforcement of the contraceptive-coverage mandate, which might include fines, won't start until January 2014. The administration has offered a "safe harbor" shielding organizations from punishment until then. Citing the potential rule changes, a trial judge dismissed Belmont Abbey's lawsuit in July as 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.
By Michael Doyle
McClatchy Newspapers