First win

NEW YORK—A federal district judge ruled for the first time Wednesday that religious organizations do have standing to sue the federal government over the health insurance law’s contraceptive mandate.

Federal District Judge Brian Cogan of Brooklyn, N.Y., ruled that the Roman Catholic Archdiocese of New York, Catholic Health Services of Long Island, and ArchCare could move forward with their lawsuit against the Obama administration over the mandate, which would require the groups to provide coverage of abortifacients, contraceptives, and sterilization for their thousands of employees. (Download a PDF of the ruling.)

The ruling contrasts with every other district-level ruling on the mandate so far in regard to religious nonprofit groups. Other courts have said religious groups like Wheaton College cannot sue now because they are under a yearlong safe harbor from the mandate and the federal government might amend the mandate before it applies to these groups.

Almost a year ago, the Department of Health and Human Services issued an Advanced Notice of Proposed Rule Making (ANPRM) that posed some ideas for accommodating religious objections to the contraceptive mandate. That document has remained in the “idea” phase, but it has been enough to convince courts to dismiss religious nonprofit group’s lawsuits against the mandate for now.

Judge Cogan acknowledged that his ruling contradicted other courts but said the Catholic groups concerned in the lawsuit face immediate harm, even under the safe harbor. He ruled that their lawsuit should move forward, denying the federal government’s motion to dismiss the lawsuit.

Cogan did dismiss the claims of two of the five Catholic plaintiffs, saying the two dismissed groups had health insurance plans that were “grandfathered” and thus technically exempt from the contraceptive mandate, but the three other groups face a “speeding train” coming toward them in the mandate.

“The law as it currently written requires that, beginning Jan. 1, 2014, plaintiffs must either pay onerous fines or provide contraceptive coverage in violation of their beliefs,” he wrote. “It is not a non-final proposed policy; it is a final rule.”

Cogan said other courts were too deferential to the federal government’s notice that it might change the mandate. “I conclude that those courts overestimate the significance of the ANPRM and underestimate the finality of the coverage mandate,” he wrote. “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.”

The district judge also said the religious plaintiffs in other cases hadn’t done a good job of explaining how the mandate was hurting them now. He said the Catholic groups in this case were very specific about how resources are already being diverted to prepare for these major health insurance changes and potential fines. He quoted from the healthcare regulations themselves saying that organizations needed final regulations “well in advance” of those regulations going into effect.

“Defendants [the federal government] cannot recognize employers’ need for advance preparation as a result of their actions in one context, but disclaim responsibility for those preparations in another context,” Cogan wrote. He added that the administration’s inaction on the mandate in the 10 months since the ANPRM was published “suggests the likelihood of injury to plaintiffs.”

“The departments are, of course, free to amend the coverage mandate at any time and the court takes no position on whether any amendment is necessary or advisable,” he concluded. “But the coverage mandate has caused and will continue to cause plaintiffs harm so long as it remains in place.”