Wednesday, December 19, 2012

D.C. Circuit Orders Halts ACA Contraception Challenges, but Keeps Eye on Government

A three-judge panel of the D.C. Circuit yesterday ordered challenges to the Affordable Care Act's requirement that covered employers offer group health insurance plans that provide certain forms of contraception, without cost sharing, in abeyance.  The ruling in Wheaton College v. Sebelius means that these challenges will not go forward in the D.C. Circuit, until and unless the government goes back on its promise to write new regulations that exempt religious employers, and that they are unlikely to go forward elsewhere.

Recall that these cases involve religious employers' objections to the ACA's contraception requirement under the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.  Lower courts dismissed the cases, however, on the government's commitment to write new regulations that would exempt religious employers.  

We covered the most recent case, with links to others, here.

The D.C. Circuit's Order puts an exclamation point after these earlier lower-court rulings.  The Order refers to the government's prior commitments to write new regs, but also to its specific commitment at oral argument to never enforce the contraception rule against Wheaton College or those similarly situated.  The court said: "We take the government at its word and will hold it to it."

Still, the court didn't dismiss the cases.  Instead, it ordered them held in abeyance, "subject to regular status reports to be filed by the government with this court every 60 days from the date of this order."  Thus the Order puts the burden on the government to continue to move forward in writing new regs.


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