WASHINGTON-Judges in two different courts dismissed two different lawsuits against the contraceptive mandate this past week, both saying that the cases were not "ripe" for judicial review because the administration is still working out details of the regulation.
The rulings were the first legal setbacks for the various plaintiffs, even as momentum grew this week against the contraceptive mandate, with Wheaton College filing the 24th lawsuit against it (see "Evangelical heavyweight sues," July 18).
The litigation for these cases is still in its preliminary stages, and two rulings are not much from which to draw a trend. The plaintiffs were also wildly different: One case involved seven states, another a Catholic college. But both judges cited the administration's proposed "accommodation" in their dismissals of the lawsuits.
In the uproar over the mandate's narrow religious exemption in March, President Barack Obama announced an "accommodation"-that insurers would provide coverage for contraceptives to religious employees for free. The administration hasn't fleshed out how that proposal would allow religious employers to avoid paying for contraceptives in their premiums, especially if groups are self-insured. And since that proposal remains just a proposal, the law as it stands requires most religious institutions to cover contraceptives and abortifacients. But the administration's written proposal saying it might change the regulation convinced the two judges that the law wasn't settled yet.
Going forward in other lawsuits, institutions that can show that the mandate puts immediate demands on them may fare better in court.
The Obama administration's lawyers have used this legal strategy in all the contraceptive cases so far, seeking motions to dismiss because they say cases aren't ready for litigation until the administration decides whether to amend the current mandate. Because most organizations don't have to comply with the mandate until August 2013, the administration could feasibly wait until after the November election to decide whether to change the mandate in any way.
On Tuesday, U.S. District Judge Warren Urbom in Nebraska dismissed a lawsuit that seven states as well as several Catholic groups filed together. Urbom said the groups had not provided enough facts to prove that the contraceptive mandate applied to them. But he said even if it did apply, the case wasn't ripe because the administration might revise the mandate.
"[A]lthough the rule does settle the definition of 'religious employer' for the purposes of the contraceptive coverage exemption, it also states that the contraceptive coverage requirements will not be enforced until the departments consider whether to adopt additional, broader religious accommodations," Urbom wrote. "Adjudicating the plaintiffs' claims now would deny the departments a full opportunity to modify their positions and undermine the interests of judicial economy."
On Thursday, U.S. District Judge James Boasberg in Washington, D.C., dismissed Belmont Abbey College's lawsuit, the first lawsuit anyone filed over the contraceptive mandate. Boasberg also said the case wasn't ready because of the proposed accommodation.
"I don't think you should draw too many conclusions from this," said Hannah Smith, who has led The Becket Fund for Religious Liberty's litigation on contraceptive lawsuits across the country. Becket is handling the Belmont Abbey case.
The ruling was "not on substantive grounds. It's not whether the mandate is constitutional. It's purely technical," Smith said, adding that Boasberg, who dismissed Belmont Abbey's case, is an Obama appointee, and other cases will go before a wide range of judges across the country.