U.S. District Judge Robert L. Miller Jr., a Reagan appointee, has dismissed Notre Dame’s lawsuit regarding the HHS mandate requiring coverage of abortifacients, contraceptives, and sterilizations on the grounds of timing, as Notre Dame finds itself in “safe harbor” while awaiting the administration’s finalization of the ruling. (pdf of opinion here.) Judge Miller notes that all other courts but one which have ruled on the matter have found the plaintiff’s claims “unripe”:
None of those rulings bind this court, but the majority are persuasive. Notre Dame’s claims aren’t ripe, and they don’t have standing to bring them. Both conclusions flow from the government’s creation of a safe harbor for certain employers (including Notre Dame) while it re-works the regulation. As a result, Notre Dame faces no penalty or restriction based on the existing regulatory requirement.
In ten other instances not involving the so-called “safe harbor” per se, however, temporary injunctions or restraining orders have been granted to plaintiffs such as Tyndale Publishers and the Triune Health Group. In any event, institutions and the law really are in a bind here because of the government’s promise to finalize a rule protecting certain institutions. And so a court’s ruling depends on whether one trusts the government, as Judge Miller subtly observes:
The present regulatory requirement isn’t sufficiently final for review to be ripe because the defendants have announced it will be modified and have underscored that announcement by providing Notre Dame with a safe harbor that protects it from the regulation as it exists today. Notre Dame lacks standing to attack the present regulatory requirement because it isn’t subject to that requirement, and, taking the defendants at their word, never will be subject to the present regulation.
One wonders if this opinion would give plaintiffs such as Notre Dame renewed grounds for legal action if the government does not in fact rework the regulation in a way that guarantees Notre Dame and other Catholic and Christian entities “never will be subject to the present regulation.” For the judge is “taking the defendants”– Obama and Sebelius–”at their word.” I and many other Christians whose consciences and livelihoods are threatened by the mandate cannot find it in ourselves trust promises made by this administration. As U.S. District Judge Brian Cogan wrote in ruling in favor of the Archdiocese of New York on the matter,
…the First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. There is no, “Trust us, changes are coming” clause in the Constitution. To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.