The Department of Justice, under President Trump, raised some eyebrows Monday by requesting more time from the Fifth Circuit Court of Appeals on the Obamacare contraceptive mandate case, East Texas Baptist University v. Price, rather than dropping the defense of the Obama era case.
East Texas Baptist University v. Price is a consolidated case, including plaintiffs such as the Little Sisters of the Poor and other nonprofit religious organizations that have religious objections to Obamacare’s contraceptive mandate. The Obama administration offered the groups an accommodation that would delegate the contraception coverage to a third party but they objected that the process still left them complicit in the coverage.
Their case was remanded to appeals courts with direction from the Supreme Court that the Obama administration and the organizations work out a compromise.
But given the vocal opposition to the Obamacare mandate expressed by President Trump, the plaintiffs requested in March that the case be “resolved soon.”
Their brief points out that President Trump has referred to the Rule as an “onerous mandate” and its impact on the Little Sisters as “a hostility to religious liberty you will never see in a Trump Administration.”
They also pointed out that Dr. Price, now the Secretary of Health and Human Services, took the position in an amicus curiae brief in the original case that “the Government’s defense of its so-called ‘accommodation’ for religious non-profits —an ‘accommodation’ that requires petitioners to take an action they believe to be morally wrong—cannot satisfy the strict demands of RFRA.”
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However, the Trump administration has asked the court for 60 more days to work with the plaintiffs toward a solution, citing unfilled cabinet positions.
“The new Administration has been in place for only a few months,” the DOJ writes. “The regulations at issue here are jointly administered by three Departments—the Department of Health & Human Services, the Department of Labor, and the Department of the Treasury—and are the subject of numerous other lawsuits being handled by the Department of Justice. The nominee to be Secretary of Labor has not yet been confirmed, and numerous subcabinet positions at the Departments have not yet been filled.”
“The issues presented by the Supreme Court’s remand order are complex; for example, the original accommodation took more than a year to develop with input from interested parties,” they add, also pointing out that the group will still have “the benefit of the interim relief that the Supreme Court provided in its remand order.”
Eric Rassbach, a lawyer with the nonprofit law firm the Becket Fund, that represents the plaintiffs in the case, doesn’t buy that the Department of Justice needs 60 more days.
"The Department of Justice has been settling lots of lawsuits since January,” Rassbach told Townhall Tuesday. “As we explained in our report to the Court, deciding to drop their own appeals in the HHS mandate litigation is not a difficult or complicated issue."
Rassbach suggested to the Washington Post Tuesday that the DOJ seems to be planning to continue to defend the Obama administration’s application of the birth-control mandate.
“That just seems to be very contrary to what they’ve been saying publicly,” Rassbach added.
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