Bench Memos

Non-Merits Dismissal in Belmont Abbey Case

Last week a federal district court dismissed “without prejudice” Belmont Abbey’s lawsuit against the HHS mandate. The court made clear that it was “offer[ing] no opinion on the merits of the current contraception-coverage regulations or any proposed future ones” under the First Amendment, the federal Religious Freedom Restoration Act, or any of the other grounds of challenge. (See my discussion of the clear merits of the RFRA claim.)

Instead, the court afforded the Obama administration “a presumption that it [has been] act[ing] in good faith” in issuing and implementing its Advanced Notice of Proposed Rulemaking, which supposedly will modify the existing HHS mandate by addressing, in some still-to-be-discovered fashion, Belmont Abbey’s religious-liberty concerns. Because that modification will supposedly occur before the expiration of the one-year safe-harbor that Belmont Abbey has received against administration enforcement, the court held that “Belmont [Abbey]’s injury is too speculative to confer standing and that the case is also not ripe for decision.” It stated that Belmont Abbey could renew its suit once the modification is final.

As I read the court’s analysis, an employer that isn’t operating a “grandfathered” plan (see Kyle Duncan’s post from last week) and that doesn’t qualify for the one-year safe harbor ought to be able to proceed now with its claim.

On its face, the opinion reads like a plausible application of existing precedent, and on separation-of-powers principles I have no quarrel with the presumption of good faith that the court extends the government, however dubious the actual case for good faith might be. (The court’s opinion does have a glaring error in its second sentence, which asserts that “the Act mandates that group health plans pay in full for all FDA-approved contraceptive services sought by plan participants, including sterilization procedures, emergency oral contraception (such as the ‘morning-after’ pill), and counseling for women of reproductive age.” (Emphasis added.) In fact, as the opinion correctly spells out later, the Obamacare legislation delegates to the health-care bureaucracy the determination of which preventive-care services group health plans will have to pay for in full.)

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

Most Popular


The Media Fell for Elizabeth Warren’s Spin

Do you want to know what media bias looks like? Earlier today, Massachusetts senator Elizabeth Warren released DNA test results that confirmed that she misled employers, students, and the public about her Native American heritage for years. Bizarrely, all too many members of the media treated the results as ... Read More
PC Culture

‘White Women’ Becomes a Disparaging Term

Using “white men” as a putdown is no longer extreme enough for the Left. Now it is moving on to doing the same for “white women.” How rapidly this transpired. It was less than two years ago that the approximately 98.7 percent of white women working in media who were openly rooting for Hillary Clinton ... Read More
Politics & Policy

The World Keeps Not Ending

We were not supposed to have made it this far. George Orwell saw night descending on us in 1984. Orwell was, on paper, a radical, but in his heart he was an old-fashioned English liberal. He dreamed of socialism but feared socialists. He feared them because he knew them. I was in the sixth grade in 1984, but I ... Read More

A Free People Must Be Virtuous

Dear Reader (Even those of you who didn’t seem to notice or care that I failed to file this “news”letter on Friday), So I’m sitting here at Gate C6 at O’Hare waiting for my flight home. I am weary, pressed for time, in desperate need of a shower, and filled with a great sense of dread for the work ... Read More