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.)