A Christian liberal arts college lost a bid to secure a court ruling that would both characterize the health reform’s contraceptive mandate as improper and enjoin the government from enforcing it. It’s one of 26 challenges to the mandate that health plans cover contraceptives without patient cost-sharing.
On Aug. 24, the U.S. District Court for the District of Columbia ruled Wheaton College in Illinois did not have a concrete and imminent injury to complain about, in light of an enforcement stay available to Wheaton and the U.S. Department of Health and Human Services’ promise to accommodate the college’s concerns. The college had filed its lawsuit before the enforcement stay was announced.
Wheaton College argued its religious beliefs prevent it from covering emergency contraceptives, particularly Plan B (levonorgestrel) and Ella (ulipristal), which terminate pregnancy after conception occurs.
The college challenged the contraceptive mandate as violating the Religious Freedom Restoration Act, the First Amendment and the Administrative Procedures Act, saying the mandate prevents it from exercising its religious beliefs.
District Judge Ellen Segal Huvelle noted that in depositions, Wheaton College representatives indicated their intent to apply for an expanded exception that would allow the college to continue its health plan design, which does not cover Plan B and Ella.
Therefore, the judge concluded that the college failed to establish it suffered an actual injury that is: (1) not theoretical; (2) impending ; (3) caused by the mandate or the agencies that enforce it; and (4) not speculative.
Also, the judge said courts should not hear cases that are not ripe for review. HHS had not finished formulating its final position on religion and the contraceptive mandate. Indeed, it was in the middle of amending its position with the express purpose of accommodating Wheaton College and institutions like it, Huvelle said. Finally, the college didn’t demonstrate harm from the mandate that would override the fact that its case is premature.
Exemption Available
The government created an exception for employers that fell under a religious exemption in Feb. 15rules http://www.gpo.gov/fdsys/pkg/FR-2012-02-15/pdf/2012-3547.pdf. (Grandfathered plans are not under a mandate to cover preventive care without cost-sharing, of which contraceptives are a part.) But many employers that did not qualify for the exemption had strong religious objections to the mandate nevertheless.
To address the religious concerns of those employers, the Center for Consumer Information and Insurance Oversight added to the enforcement safe harbor in an Aug. 15 memo, which said that HHS will not takeenforcement action against even against non-grandfathered employers and ones that don’t fall into the religious exception, IF those institutions:
- are non-profit;
- historically never offered contraceptives because of religious objections;
- provide notice to participants that contraceptives won’t be offered; and
- are certified to have met steps 1 through 3.
Such organizations can receive an enforcement stay from the mandate until August 2013, CCIIO stated.
Many of the plaintiffs in the other 25 lawsuits challenging the mandate are being represented by one of two entities: the Becket Fund for Religious Liberty or the Jones Day law firm.
In another court ruling on the contraceptive mandate, a court granted an enforcement stay to Hercules Industries, an HVAC company with religious beliefs, in spite of the fact that it met none of the criteria set by the government to allow an enforcement stay. The government didn’t adequately argue that noncompliance posed a threat to the government’s goal of protecting the public health, the judge in that case said.
For more information about health reform and the preventive care mandate, see Thompson’s employee benefits library,including the Employer’s Guide to Self-Insuring Health Benefits.