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Colleges Bring Birth Control Mandate Challenge to DC Circuit

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By Robyn Hagan Cain on October 12, 2012 12:33 PM

Will the Department of Health and Human Services be forced to carve out an Affordable Care Act exemption for religious institutions that are opposed to paying for health insurance that includes contraception?

There's a regulatory mandate under the Affordable Care Act which requires employers to include contraception coverage in their employer health plans. Some religious organizations are exempt from the regulation. The appellants, Bellmont Abbey College and Wheaton College, are not.

The two religious colleges are appealing the issue to the DC Circuit Court of Appeals, asking the court to reinstate their lawsuit against HHS under the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act.

The colleges say that the birth control mandate violates their religious convictions. After the colleges sued to enjoin the rule, the government postponed its own enforcement for one year (although not enforcement by private parties) and issued a non-binding "advance notice" soliciting "questions and ideas" for a possible future accommodation for religious objectors. The district court subsequently dismissed both suits for lack of standing and ripeness.

The schools, however, claim that the district court got it all wrong. "The correct issue when a defendant promises to change its conduct is mootness, not standing or ripeness," because, when the cases were filed, both colleges were subject to the mandate and were not protected by any safe harbor.

The schools went on to argue in their appellate brief that the district court is allowing "this open-ended promise of possible unspecified future rulemaking to defeat standing and ripeness, even as to the existing final rule, which has not been replaced and may never be replaced."

There are a number of religious organizations challenging the birth control mandate in federal court right now. Do you think it will survive?

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