In the first ruling on the mandate at the appellate level, the District of Columbia Circuit Court of Appeals ordered the federal government Dec. 18 to keep its promise to issue a new rule to protect the religious liberty of two colleges and other religious nonprofits. The three-judge panel told the Obama administration to report back every 60 days on its commitment to publish a notice of a proposed rule by March 31 and to issue a final rule before August.
The D.C. Circuit Court also said it expected the administration to fulfill its pledge not to enforce the current rule against Wheaton College, an evangelical Christian school in suburban Chicago, and Belmont Abbey College, a Roman Catholic institution in North Carolina, as well as other religious nonprofits.
"We take the government at its word and will hold it to it," the panel said in its three-page order.
The appeals court issued the order in response to lawsuits by Wheaton and Belmont Abbey against a rule by the Department of Health and Human Services (HHS) that mandates employers provide workers with health insurance covering contraceptives and abortion-causing drugs. The rule is part of the implementation of the 2010 health care reform law, which has been dubbed Obamacare.
The abortion/contraception mandate went into effect Aug. 1 of this year, but the Obama administration established a one-year "safe harbor" from that date intended to accommodate the concerns of nonprofit religious entities. Neither the "safe harbor" nor the D.C. Circuit Court's order applies to for-profit companies with owners opposed to the mandate.
Religious freedom advocates praised the court's order.
Richard Land of the Southern Baptist Convention called it "a tremendous day for religious freedom and freedom of conscience," adding he was "extremely pleased but not surprised" at the court's action.
"It shows clearly that when the federal government oversteps its bounds and denies the First Amendment free exercise and freedom of conscience rights of Americans that those citizens can successfully appeal to the federal court system to be the protector of those divinely endowed and constitutionally guaranteed rights," said Land, president of the Ethics & Religious Liberty Commission which signed onto a friend-of-the-court brief on behalf of Wheaton and Belmont Abbey.
Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, said the court "has now made it clear that government promises and press conferences are not enough to protect religious freedom. The court is not going to let the government slide by on non-binding promises to fix the problem down the road."
The D.C. Circuit Court's order came only four days after Duncan and government lawyers presented oral arguments before the panel of judges. During the arguments, the Obama administration lawyers promised the judges the government would not enforce the current rule against religious nonprofits and would provide a new rule to guard their religious freedom.
Wheaton and Belmont Abbey appealed to the D.C. Circuit Court after federal judges dismissed their lawsuits separately, partly because they ruled neither school had standing to sue. The appeals court, however, ruled the schools had standing. The three-judge panel also decided not to return the cases to the federal judges for further action but to hold them until a new rule is issued.
In addition to the challenges by the two colleges, 40 other lawsuits have been filed against the HHS for a rule that requires employer coverage of drugs defined by the Food and Drug Administration as contraceptives, even if they can cause abortions. Among such drugs are Plan B and other "morning-after" pills that can prevent implantation of tiny embryos and "ella" which -- in a fashion similar to the abortion drug RU 486 -- can even act after implantation to end the life of the child.
While the religious exemption to the rule provided by HHS covers churches, it is insufficient to protect religious hospitals, schools and social service ministries, as well as some churches, critics have pointed out.
Four Baptist schools -- Louisiana College, Houston Baptist University, East Texas Baptist University and Criswell College - are among the institutions or businesses that have filed lawsuits against the mandate.
Among others suing the federal government are Hobby Lobby, Christian publisher Tyndale House, Colorado Christian University, Geneva College, Priests for Life and the EWTN Catholic television and radio network.
The ERLC joined 10 other evangelical organizations in a brief filed by Christian Legal Society in support of the appeals by Wheaton and Belmont Abbey on religious liberty grounds.
Tom Strode is the Washington bureau chief for Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).
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