D.C. Appellate Court Requires Updates from HHS Regarding Contraception Requirements for Health Plans

HHS will have to report every 60 days on the status of the development of a new rule that will require all group health plans and health insurers, including religious organizations, to cover all FDA approved contraceptives, according to an order of the United States Court of Appeals for the District of Columbia (Wheaton College v Sebelius). In addition, the court will hold in abeyance the cases of Wheaton College and Belmont Abbey College until this rule is published. These cases had previously been dismissed by the district court.

In their cases Wheaton College and Belmont Abbey argued that the mandate adopted in the Affordable Care Act (ACA)(P.L. 111-148 and 111-152)  violated their constitutional right to freely practice their religion. The colleges argued that forcing them to pay for contraceptives for their employees goes against their religious beliefs. The district court dismissed the cases on grounds that the colleges did not have standing and that the issue was not ripe for judicial determination.

 Statements at the District Dourt

During the proceedings at the lower court, representatives for the government made statements that it would never enforce the regulation in its current form against these schools and those similarly situated as regards contraceptive service. The government further stated that it would issue a different rule for entities like these two colleges and that it would publish a Notice of Proposed Rulemaking describing the new rule in the first quarter of 2013. It was based on these statements that the lower court dismissed the cases of the two colleges.

 The justices of the appellate court in their order said, “we take the government at its word and will hold it to it,” and that these statements were “a binding commitment.” The appellate court stated that the colleges clearly had standing when these suits were filed, but that the issue of ripeness was more difficult. “The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” said Kyle Duncan, General Counsel of the Becket Fund for Religious Liberty, who argued the cases. He continued, “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”

 Furthermore, Duncan said, that the appellate court understood the government as saying that it would not enforce the contraceptive requirement against colleges like Wheaton and Belmont Abbey, and that the appellate court intents to hold the government to those words as well. “This is not just a win for Belmont Abbey and Wheaton, but for all religious non-profits challenging the mandate,” said Duncan. He continued by saying that, “the government has now been forced to promise that it will never enforce the current mandate against religious employers like Wheaton and Belmont Abbey and a federal appellate court will hold the government to its word.”

 Delayed Effective Date

In a Final rule published in the Federal Register on February 15, 2012,  HHS and other government agencies created a safe harbor from enforcement for religious organizations like the two colleges. The Final rule was not put into effect until the first plan year that begins on or after August 1, 2013 for entities like the two colleges. For the two colleges this means that the provisions of the Final rule will require them to provide coverage for all FDA approved forms of contraceptive beginning on January 1, 2014. The Final rule also announced HHS’ intention to develop and propose changes to these final regulations.