Appeals Court Oral Arguments Signal Trouble for Obamacare HHS Mandate


ACRU Staff


December 16, 2012

This column by ACRU Senior Legal Analyst Ken Klukowski was published on December 15, 2012 on

A top federal appeals court signaled Friday that it might act on Obamacare’s HHS Mandate–requiring employers to cover birth control and abortion-related services.

After repeated assurances that the Affordable Care Act (ACA) would not mandate abortion or people of faith violating their religious beliefs, the Obama administration issued a mandate requiring both, when Secretary Kathleen Sebelius issued a rule from the U.S. Department of Health and Human Services (HHS) saying that a vague provision in the ACA requiring employers provide “preventive care” means that employer healthcare policies must cover birth control, abortion-related, and sterilization services.

A torrent of lawsuits have flooded the federal courts, with people of faith arguing that the HHS Mandate is both unconstitutional and a violation of the Religious Freedom Restoration Act (RFRA).

The Obama administration did two things trying to derail this litigation. One was to include in the final rule an exemption for religious employers, which is so narrow that it only covers houses of worship. The other is that it issued an Advance Notice of Proposed Rulemaking (ANPRM), saying that it would expand this protection to accommodate other religious employers in a new rule that will be finalized in 2013.

The attempt here is to rob the plaintiffs of standing. Article III of the Constitution requires that a plaintiff must have standing, meaning they have (1) suffered an injury, (2) caused by the defendant, (3) that the court can remedy.

By saying that the religious protections will be expanded, Obama’s Department of Justice (DOJ) can argue that the employers’ injury is only hypothetical, which is not enough for Article III. Hence, the cases must be dismissed for lack of jurisdiction.

Consequently, many religious-employer lawsuits have been dismissed, either on the grounds that the plaintiffs lack standing, or a related doctrine that the case is not ripe for court action. Most of the cases moving forward have been the Alliance Defending Freedom’s lawsuits on behalf of secular, for-profit businesses owned by religious families.

That might now change, as Belmont Abbey College and Wheaton College–represented by Kyle Duncan from the Beckett Fund for Religious Liberty–may win before the U.S. Court of Appeals for the D.C. Circuit. Many of the best and brightest legal minds in the country are appointed to the D.C. Circuit, explaining why half the justices on the Supreme Court are former D.C. Circuit judges.

That legal talent was on display today, as two of the judges dismantled DOJ’s arguments as to why these cases should be dismissed.

Judge Merrick Garland–a Clinton appointee on Obama’s short list for a Supreme Court appointment–strongly suggested he was in favor of affirming the lower court’s decision to dismiss the appeal. But it seemed his two colleagues on this three-judge panel were leaning the other way.

Judge Ray Randolph appointed by the first President Bush–stole the show. For starters, he pointed out that cases involving the First Amendment (where the Religion Clauses are found) “consider not only the parties, but the chilling effect [of the government’s action] on other parties [who are] similarly situated.” The current rule covers almost every employer nationwide. Not only that, but a final decision on the merits would have an “enormous impact” on the plaintiffs right now, which is an indication that the plaintiffs have been injured by the defendant and the court can remedy the injury, satisfying all the requirements for standing.

Randolph also noted Sebelius “has given mixed messages,” citing an HHS press release assuring employees of these religious employers that those employers would still be required to point employees in the direction of no-cost abortion-related services, suggesting HHS did not plan on a hands-off approach to religious employers.

“You can’t challenge a press release here,” Garland retorted, saying the court should not take that into account.

The swing vote on whether the case will move forward seemed to be Judge Tom Griffth, a George W. Bush appointee. At first he seemed skeptical of Duncan’s claim that the HHS’s current rule would ever injure the plaintiffs. “Except that this rule says it is not a final rule,” Griffith said, noting that part of HHS’s Feb. 2012 rule included a declaration that HHS would work to develop a new rule to accommodate religious employers besides churches by Aug. 2013. If the current rule will be replaced, then courts shouldn’t act now.

Randolph responded, “We have seen cases where Congress instructs an agency to make rules by a date certain, and that deadline passed, and we wait a year, and two years, and three years.” In other words, if agencies are willing to ignore laws passed by Congress giving them deadlines, then they won’t think twice before ignoring their own self-imposed deadlines.

When DOJ’s lawyer picked up on Griffith’s statement and tried to win him over by saying the rule itself guarantees a rule change, Randolph pushed back. “You didn’t say anything in the rule, only in the preamble.”

“It is in the rule,” Obama’s lawyer insisted.

Then Randolph dropped the hammer. “What’s the cite in the CFR?”–referring to the Code of Federal Regulations, where every federal rule must be published.

DOJ’s lawyer looked like Randolph just ate his lunch. “It’s not in the CFR,” he quietly admitted. In other words, the only mention in HHS’s document of a change is not in the part that’s legally binding. Instead you have a final rule, currently in force, putting the plaintiffs at risk of litigation, with no expiration date.

Then Griffith opened up on his own additional problem with the HHS Mandate, making the point that HHS was saying they would give additional employers an “accommodation,” but not an “exemption.” In other words, employers would be partially off the hook, but not entirely. Employees are going to have access to birth control in connection with their employers. “That’s not going to change,” Griffith insisted.

Randolph got DOJ to admit they were arguing three things to the court. First, HHS would not enforce the HHS Mandate against these parties. Second, they would issue a formal notice of making a new rule in the first quarter of 2013. And third, they would issue a new final rule by Aug. 2013.

Then he asked if DOJ would object to the court issuing an injunction ordering HHS to comply with all three conditions. When DOJ said they would object, Randolph pointedly reminded them that the injunction would only include items that DOJ just seconds before affirmed they were guaranteeing to the court. An injunction would merely hold them to their word.

If Griffith provides a second vote for that option, then that could be what the D.C. Circuit does. If so, it would be the biggest win to date for religious liberty against Obamacare. And given the high regard the D.C. Circuit is held in by the other federal appellate courts, it might persuade other courts across the country to reach the same result.

But whether the court issues that precise order or not, it seems that at least two of these three judges are willing to claim jurisdiction in this case, and do something about the HHS Mandate.



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