Federal Court Hears Challenges to HHS Mandated Contraception Coverage

Abstract

Federal Court Hears Challenges to HHS Mandated Contraception Coverage -- Belmont Abbey College v. Sebelius1 and Wheaton College v. Sebelius2 -- On December 18, 2012, the U.S. Court of Appeals for the District of Columbia consolidated the Belmont Abbey College v. Sebelius and Wheaton College v. Sebelius cases and held that the claims presented were not ripe for judicial review until the Department of Health and Human Services (HHS) promulgated its promised new Final Rule.3 The plaintiffs in these cases, the first to be argued at the federal appellate level,4 contested an HHS regulation that requires most group health plans 5 to cover women's preventative care, including FDA [Food and Drug Administration] approved contraceptive[s], without cost sharing.6 These cases join more than thirty others 7 challenging the regulation, which was promulgated to comply with the Patient Protection and Affordable Care Act (PPACA). 8 The plaintiffs in these cases are Belmont Abbey College, a private Benedictine Catholic college in North Carolina, and Wheaton College, a private Christian liberal arts college in Illinois (collectively, Plaintiffs). 9 The Plaintiffs, based on moral grounds, strongly object to being forced to offer contraceptives to their employees through their health plans. 10 Under HHS's initial proposed regulation, both employers and religiously affiliated organizations would be in violation of the regulation if they refused to cover contraceptive services. 11 The interim final rule, however, authorized HHS's Health Resources and Services Administration (HRSA) to exempt certain employers, namely non-profit churches and orders, from compliance with the regulation. 12 The government has implemented a one-year safe harbor to protect organizations like Belmont Abbey and Wheaton Colleges from enforcement but failed to include colleges in its final definition of religious employers. 13 Nevertheless, the government indicated that it plans to work with the colleges and other institutions with similar moral concerns to find a way to avoid enforcement after the safe harbor ends.14In late 2011 and mid-2012, the Plaintiffs sued HHS, the Department of Labor, and the Department of the Treasury, seeking declaratory and injunctive relief under the First Amendment, the Administrative Procedure Act, and the Religious Freedom Restoration Act (RFRA). 15 The United States District Court for the District of Columbia first granted HHS's motion to dismiss in Wheaton, finding that the college lacked standing.16 The college argued that certainly impending injury would result from employee ERISA suits in the future, but the court found that this alleged injury was too speculative, remote, and not actual or imminent since the college was protected by the safe harbor for the next year.17 Wheaton College also relied heavily on Chamber of Commerce v. FEC and other pre-enforcement First Amendment jurisprudence to support its standing argument.18 The district court, however, quickly distinguished Wheaton from Chamber of Commerce because of the government's repeated commitment to a solution in Wheaton and the unlikelihood of suits under the Employee Retirement Income Security Act of 1974 by college employees. 19 Finally, the district court found that Wheaton's claims were not yet ripe for review, as the proposed rule was not yet finalized.20In Belmont, the U.S. District Court for the District of Columbia arrived at a similar, but slightly more nuanced, result. The court agreed that the suit was unripe for adjudication 21 but, unlike in Wheaton, rejected HHS's argument that the temporary safe harbor caused the college's injury to be too remote for standing. Instead, the court held Belmont Abbey lacked standing because the alleged injury was not certainly impending, which is also a requirement for standing.22In December 2012, the D.C. Circuit held that the colleges' challenges were not ripe for review and ordered the appeals held in abeyance. …