Today’s decision by a federal district court in Nebraska to dismiss one of the many pending lawsuits against the HHS abortion-drug, contraception and sterilization mandate is unfortunate (and in one respect, seriously mistaken). But the decision turns on technicalities and doesn’t decide the merits of the dispute. Bear this context in mind if you should hear anyone trumpeting this decision as some sort of “victory” for the federal government on the religious-liberty questions at the heart of the HHS mandate litigation. It’s nothing of the sort.
The lawsuit was brought by Nebraska and seven other states, as well as three Catholic non-profit organizations (a high school, a charity, and a mutual society), and two individuals. The federal court (senior judge Warren Urbom, a 1970 Nixon appointee) dismissed the lawsuit without prejudice, finding that none of the plaintiffs had “standing” — which means that the court thought that the plaintiffs hadn’t properly claimed any real “injury” from the mandate in their complaint.
As for the non-profits and the individuals, the court relied on a true technicality: It found they hadn’t given specific-enough reasons for why they weren’t “grandfathered.” “Grandfathering” is the idea that you can keep the health plan you had on March 23, 2010 — and so avoid the HHS mandate — provided that you keep it the way it existed on that date in perpetuity. The court simply reasoned that the plaintiffs hadn’t provided enough detail on why their plans weren’t “grandfathered” (one of the plaintiffs, in fact, had admitted their plan was grandfathered). This is a technicality because, presumably, the plaintiffs could simply amend their complaints to provide the necessary details on “grandfathering” the next time around. But, in any event, the decision has nothing to do with the main question of why the mandate violates the Constitution and federal religious-liberty law. It is merely a decision that these particular insurance policies don’t appear to be subject to the mandate to begin with.
As for the states, the court also found they hadn’t alleged a sufficient injury, and so lacked standing. There was a slightly different reason for this conclusion. The states had said they were injured because the mandate would result in employers dropping employee health coverage, and the resulting exodus of employees would swell the Medicaid rolls and throw the states’ budgets into disarray. The court thought this was too conjectural to support standing. Again, this conclusion has nothing to do with the underlying claims about the mandate’s unconstitutionality.
The only place in the decision where the court went seriously awry is on the question of ripeness. (Judge Urbom admitted that this part of the ruling was non-precedential dicta, because he did not have standing to reach it.) Some readers may recall that the federal government announced a “safe harbor” last February, by which it would delay implementation of the HHS mandate for certain religiously-affiliated employers for one year; during that year, said the government, it would come up with some form of “accommodation” that would solve the religious liberty violations in the mandate. Under the “accommodation” the government sketched out, it would (magically?) deem contraception and sterilization “cost neutral” and force insurance companies to provide these drugs and services “for free” to the employees of religious organizations. Religious organizations were quick to point out that, even if this “accommodation” became the law (which it still hasn’t), it wouldn’t solve the mandate’s religious-liberty problems. Organizations would still be facilitating access to the objectionable services through insurance. What’s more, many religious organizations are self-insured, and so the accommodation would be particularly meaningless for them.
And yet Judge Urbom accepted the government’s argument that the promise of this fanciful “accommodation” rendered the lawsuits premature. This is hard to understand. After all, the HHS mandate itself is a final administrative rule; also final is the narrow “religious employer” exemption (which would exclude the ministries of certain well-known religious figures like Jesus and Mother Teresa, because they insisted on ministering to those of other faiths). The government is not proposing to alter either one of those rules. All the government has done is conveniently postpone enforcement of the mandate as to certain objectors for one year, while it promises to brainstorm about ways to make contraceptives “free” and force insurance companies to provide them at no charge and without using taxpayer dollars. Good luck with that.
The bottom line is that Judge Urbom’s ruling today has nothing to do with the fundamental question of freedom: Does the federal government violate religious liberty by forcing religious objectors to pay a fine for the privilege of practicing their faith? At present, there are 22 other cases pending before other federal courts that are poised to answer that question. And even assuming the technical reasons given by the Nebraska court hold water on appeal (which is highly debatable), many of the other pending cases feature plaintiffs who are indisputably not “grandfathered,” who are palpably “injured” by the HHS mandate, and who will feel the ugly effects of that injury as soon as this Fall. Stay tuned for a decision in one — or many — of those cases that will answer the real question of religious freedom at issue in these crucial cases.”
Kyle Duncan is general counsel at the Becket Fund for Religious Liberty.