Not a victory

The U.S. Court of Appeals in Washington, D.C., only days after hearing Wheaton College and Belmont Abbey College’s cases against the federal healthcare contraceptive mandate, issued an order saying the cases weren’t ready to be decided. But the court did not dismiss the cases, instead holding them in “abeyance.” (Download a PDF of the order.)

Meanwhile, the appeals court ordered the federal government to issue final changes to the mandate, as it has been promising to do for the last year. The mandate goes into effect for religious nonprofit organizations in 2013, and the government has promised it would publish an amended mandate in the “first quarter of 2013.” The mandate as it stands would require most religious groups to cover contraceptives, including abortifacients, for their employees.

The Becket Fund for Religious Liberty, which is arguing the cases on behalf of the two colleges, declared the court order a “major victory,” saying it meant that the government could not enforce the mandate against religious institutions like Wheaton and Belmont Abbey. But the order simply quoted what the government lawyers said in court on Friday, which is that the government will not be enforcing the mandate against groups like the colleges as it is currently written.

“There will, the government said, be a different rule for entities like the appellants, and we take that as a binding commitment,” the court wrote.

In essence, the court said the government needs to hurry up with its promised amendments to the mandate. Almost a year ago, the Department of Health and Human Services issued an Advanced Notice of Proposed Rule Making (ANPRM) that promised to amend the mandate, and posed some ideas for accommodating religious objections to it. That document has remained in the “idea” phase, but it has been enough to convince federal courts to dismiss religious nonprofit groups’ lawsuits against the mandate for now. Two district courts dismissed Wheaton and Belmont Abbey’s cases on the grounds they did not have standing nor were their cases ripe, because the government had promised to amend the mandate. The circuit court disagreed, in part.

“Dismissal for lack of standing was erroneous,” wrote the circuit court. “The colleges clearly had standing when these suits were filed.” But the court said the case might be resolved by the amended mandate, thus it was “not fit for review.” The D.C. Circuit Court ordered the government to send “status reports” on the amendments to the mandate every 60 days.

The circuit court issued a per curiam order, which is an order from the court as a whole—not necessarily a unanimous decision, but an unsigned order.