On Thursday, a federal court entered a permanent injunction protecting Wheaton College from the contraceptive mandate imposed by the Affordable Care Act and its implementing regulations.
The college’s victory came following a five-year legal battle. The Obama administration opposed Wheaton’s claims under the federal Religious Freedom Restoration Act (“RFRA”), but last week the Trump administration agreed that “requiring employers with sincerely held religious objections to comply with the [contraception] Mandate or the accommodation process would violate RFRA.”
Yet the fight over the contraceptive mandate is far from over — even though the government now acknowledges that the regulations violate RFRA, and even though the Trump administration in October issued interim final rules protecting those, like Wheaton College, with religious or moral objections to the contraceptive mandates.
Those interim final rules have been on hold since December, when two federal district courts issued preliminary injunctions prohibiting the Trump administration from enforcing the new religious and moral exemptions. And those preliminary injunctions remain in place on a nationwide basis.
The Trump administration effectively granted Wheaton College the benefit of the revised regulations through a legal maneuver. In early January, the administration agreed in a status report that Wheaton should be allowed to file a motion for a permanent injunction under RFRA. Then, in response to Wheaton’s motion for a permanent injunction, government attorneys acknowledged that the contraceptive mandate and the “accommodation” process adopted by the Obama administration violate RFRA. This concession led Judge Robert Dow Jr. to rule in Wheaton’s favor.
Judge Dow’s ruling conflicts with the decisions entered by the California and Pennsylvania district courts in December. For instance, in Pennsylvania v. Trump, Judge Wendy Bettlestone held that the government’s interpretation of RFRA — that the accommodation process places a substantial burden on a person’s exercise of religion — “is erroneous as a matter of law.” Consequently, Judge Bettlestone entered a preliminary injunction barring the government from enforcing the interim final rules.
District court judge Haywood S. Gilliam Jr. went even further in California v. Hargan, entering a nationwide preliminary injunction barring the government from enforcing the interim final rules and also ordering the government “to continue under the regime in place before October 6, 2017, pending a determination on the merits.”
In the Wheaton case, in conceding that the contraceptive mandate violated RFRA, the government maintained that the injunctions in Pennsylvania v. Trump and California v. Hargan “do not purport to interfere with this case or other existing litigation challenging the prior rules.” Yet the preliminary injunctions entered in the other cases clearly intended to maintain the status quo, pending resolution on the merits. The permanent injunction entered in Wheaton’s favor altered the status quo, but the Pennsylvania and California plaintiffs (and judges) remain powerless to challenge the ruling. And that is as it should be.
The Pennsylvania and California courts never should have entered nationwide injunctive relief in the first instance. The plaintiffs in those cases have no connection to Wheaton College or many of the other religious employers located throughout the country. Accordingly, assuming injunctive relief was appropriate, the courts should have limited the scope of the preliminary injunction to the named plaintiffs.
Yet not only did the district courts in California and Pennsylvania enter a nationwide injunction against the federal government, when an interested party — the Little Sisters of the Poor — sought to intervene to defend the Catholic charity’s interest in the interim final rules, the courts denied their request.
It remains to be seen whether the government will use the same tactic to resolve the still-pending litigation with the Little Sisters of the Poor and other similar organizations.
It remains to be seen whether the government will use the same tactic to resolve the still-pending litigation with the Little Sisters of the Poor and other similar organizations. As recently as February 16, 2018, in a status report filed with the Tenth Circuit Court of Appeals, the government indicated that it remained in discussion with the Little Sisters of the Poor concerning an appropriate resolution to the case.
Now that the Trump administration has successfully sidestepped the question of the validity of the interim final rules in the Wheaton College case, there seems no good reason to leave the Little Sisters of the Poor in limbo while the California and Pennsylvania cases continue a slow march forward. But there was no good reason, either, for the federal government to demand that nuns facilitate the provision of cost-free birth control and abortifacients.