Appeals Court Keeps Contraception Challenges Alive Pending Rule Change

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Appeals Court Keeps Contraception Challenges Alive Pending Rule Change

Jessica Mason Pieklo

A federal appeals court ordered two lawsuits challenging the contraception mandate can stay in federal court until a final religious accommodation gets worked out.

A federal appeals court threw another hurdle in front of the Obama administration’s birth control benefit and ruled Tuesday that lawsuits filed by Wheaton College and Belmont Abbey College challenging the mandate can remain pending in federal court while the administration finalizes additional exemptions for some “faith-centered” organizations.

The decision was issued just a few days after the parties’ oral arguments, and the short, three-page order drew heavily from those arguments. Noting that attorneys for the Obama administration told the court in oral argument that the interim rule would never be enforced in its current form against the colleges and similar institutions the appeals court ordered the administration to report to the court every sixty days with an update on the new accommodations. During arguments an attorney for the Obama administration said the final rule would be issued in proposed form during the first quarter of 2013 and finalized by August.

The order effectively overturns the lower court which had dismissed the claims against the administration on the grounds the colleges were not under any immediate threat. But on this point the administration was pinched. The court, relying on what it described as the government’s “binding commitment,” to finalize the rule the panel held the two colleges’ cases should not be decided on the merits of their challenge at this time.  “We may never have to” rule on the merits, given the government’s stance, the three-page order said.

The decision was not completely unexpected and while not a win for the administration, it’s not exactly a stunning loss either. It’s hard to imagine any rule issued by HHS short of repealing the mandate that will satisfy the religious right. So we know more legal challenges are on the way. What we don’t know is to what extent the flood of litigation is influencing the rule-making process.

Roe is gone. The chaos is just beginning.

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