Yesterday, the D.C. Court of Appeals issued a major victory in the ongoing litigation battle against the HHS Mandate, the government edict mandating that employers pay for abortion-inducing drugs in employee health plans.
The case involved two religious institutions: Belmont Abbey College, a Catholic college in North Carolina, and Wheaton College, an Evangelical college in Illinois. The colleges independently sued the federal government earlier this year claiming that, among other things, the HHS Mandate is an unconstitutional encroachment on their ability to follow their religious beliefs. In short, the schools asked the court to strike down the HHS Mandate because it forces them to provide their employees with abortion-inducing drugs in violation of the schools’ deeply held belief in the sanctity of human life. The American Center for Law and Justice filed an amicus brief in this case, arguing that the Mandate violated long-held traditions of religious freedom and that the Colleges had standing to challenge the Mandate because they are currently suffering injury due to the Mandate’s terms.
When the Obama administration promised to consider changing the Mandate by August 2013, the lower courts decided that was enough to dismiss the cases. This meant that religious institutions like Wheaton College and Belmont Abbey College would have to wait a year to determine whether they would be subject to heavy fines for refusing to violate their consciences. It also meant that the government could avoid litigation by simply promising to consider changing the Mandate, a tactic it has employed in nearly all the cases currently filed against the Mandate. The lower courts dismissed both cases on technical grounds only and did not say one way or the other whether the Mandate survives constitutional muster.
The D.C. Circuit on appeal, however, unlike the lower courts, did not simply accept the government’s promises to consider a modification to the mandate wholesale. Instead, the appeals court required the government to show that it is serious about accommodating religious objectors by reporting regularly on the status of the promised new rule. The court warned, “We take the government at its word and will hold it to it.” In other words, when the government sought to avoid litigation by simply promising to make a new rule, the D.C. Circuit basically said, “Prove it.” This order marks the first time a court has required accountability regarding the government’s continued, yet unrealized, promises to take religious entities into account.
There are over 40 challenges—including over 100 plaintiffs—to the HHS Mandate currently filed. Hopefully the judges hearing those cases will take notice of this important decision and require more than an empty promise before dismissing serious constitutional violations.
As we approach the one year anniversary of the Hobby Lobby decision , where the Supreme Court held that the HHS Mandate violated the religious liberties of business owners, it’s clear that the struggle to vindicate religious freedom and the right to conscience is far from over. Having said that,
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