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The Obama Admininstration has submitted its response (available here )  to the lawsuit that the Becket Fund filed on behalf of Belmont Abbey College in the matter of the contraceptive mandate.  In essence, the Administration argues that the issues raised in the suit are not yet ripe for adjudication because (1) there is no allegation that the college’s health plan will not or cannot be grandfathered (and hence exempt from the regulation), (2) there is a safe harbor for all non-exempt plans until August 1, 2013, and (3) the Admininstration has not yet issued its final regulations.  Because there is no imminent harm, the plaintiffs lack the standing to sue.

The folks at the Becket Fund have a rejoinder for the court of public opinion:

On Thursday, the Obama administration filed its first legal response to Belmont Abbey College’s lawsuit challenging the controversial contraception mandate. This was its first opportunity to explain to the court and the country why the mandate is not illegal and unconstitutional.

So what did the administration say? Not that the mandate is legal; not that the mandate is constitutional. Instead, it asked the court to duck the key issues because the administration has “indicated that they will propose and finalize changes to the regulations” at some unspecified date in the future.

“Apparently, the administration has decided that the mandate, as written and finalized, is constitutionally indefensible,” said Hannah Smith, senior counsel at The Becket Fund for Religious Liberty, which represents Belmont Abbey College. “Its only hope is to ask the court to look the other way based on an empty promise to possibly change the rules in the future.”

Having signed (with many others more prominent and learned than me) the “unacceptable” letter available on the Becket Fund’s site, I share the organization’s concerns about the mandate, but as a matter of law the Administration may well be right that the issues aren’t ripe for adjudication.  It’s an essential feature of our legal system that merely speculative or prospective harms can’t be litigated.  All this means is that Belmont Abbey may have to wait until it can allege an imminent harm before it refiles the suit.  Despite the President’s professed distate for “kicking the can down the road,” he may well have succeeded in doing so here, buying time until after the 2012 election.

None of this means that the Administration’s response isn’t troubling.  Leaving aside the palpably absurd and “unacceptable” dodge of requiring the insurer to provide “free of charge” something the purchaser of the plan can’t in good conscience provide, there’s the admission that the explicit aim of the Administration’s regulations is to increase the use of pills and procedures that the relevant employers find morally and religiously unacceptable.

By requiring coverage for recommended preventive services and eliminating cost-sharing requirements, Congress sought to increase access to and the utilization of recommended preventive services.  Increased use of preventive services, in turn, will benefit the health of individual Americans and society at large. Individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease. Healthier workers will be more productive with fewer sick days.  And increased utilization will result in savings due to lower health care costs.  [citations omitted]

Stated another way, the Administration’s brief contends that social utility trumps religious and moral scruples.  The aim of the regulations is to “reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing.”  The scruples of employers to the contrary notwithstanding, the Administrations wants more people to plan their parenthood.

Then there’s the regulation’s grandfather clause:

A grandfathered plan is a health plan in which an individual was enrolled on March 23, 2010 and that has continuously covered an individual since that date.  A grandfathered plan may lose its grandfather status only if, compared to its existence on March 23, 2010, it eliminates all or substantially all benefits to diagnose or treat a particular condition, increases a percentage cost-sharing requirement, significantly increases a fixed-amount cost-sharing requirement, significantly reduces the employer’s contribution, or imposes or tightens an annual limit on the dollar value of any benefits. [citation omitted]

In other words, the minute (in order to save money) a plan changes in any way (higher copays, for example), it loses its grandfathered status and must become fully compliant with whatever regulations the Obama Administration then has in place.  An organization can keep its “old” plan, assuming it can find an insurer to provide it, but it may have to pay an exceptionally high price to do so.  Under the Affordable Care Act, the one thing that may not be affordable is a clear conscience.

The Obama Administration may have evaded some potentially unfavorable judicial proceedings, but there’s nothing in its response that gives us any expectation that institutions like Belmont Abbey won’t be compelled to go back to court the moment the harm is—from the court’s point of view—“imminent.”

As far as our religious freedom is concerned, the worst is yet to come.


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