What the Recent HHS Mandate Decisions Means

Fr. Frank Pavone
National Director, Priests for Life
December 11, 2012

With over 40 lawsuits, including Priests for Life’s, having been filed against the HHS mandate that requires religious institutions and business owners to violate their deeply held beliefs or pay enormous fines, courts are now beginning to issue rulings in some of the cases.  Some of these decisions are victories for those challenging Obamacare’s mandate that employers provide free abortion causing drugs to employees while others appear to be defeats.

In fact, the rulings in HHS mandate cases thus far have dealt with technicalities, not on the merits of plaintiffs’ substantive arguments; that is, the decisions have been based on procedural grounds, not on whether the mandate itself is constitutional.

Two requirements for any lawsuit challenging the constitutionality of a statute or regulation are that the person or entity filing the case have legal standing to do so and that the controversy be ripe for hearing.  In other words, a plaintiff can only sue if he can show that he has suffered, is suffering, or will imminently suffer harm from the law in question and that now is the appropriate time to bring his case. 

With the HHS mandate cases, the Obama administration has been arguing that it’s too early for anyone to sue – that no one has standing because no one has been injured by the regulation, at least not yet.  Although the administration published a “final” regulation almost a year ago declaring that religiously based schools, hospitals, and charities, along with privately owned businesses, must provide no-cost contraceptives, sterilization, and abortifacients to their employees, it claims that no one has standing to sue now and that the matter is not ripe for litigation because it’s “final” regulation is not really final.  The administration promises to look at the concerns of the charities and businesses it has threatened with ruinous fines and address those concerns in the next year. 

The Obama administration’s argument boils down to, “Give us time.  We may not really do what we’ve already declared we’ll do.”

Incredibly, a few courts have agreed with the administration’s argument and dismissed the claims of the Diocese of Pittsburgh, the Hobby Lobby arts and crafts stores, and others.  The courts didn’t say that the lawsuits were without merit, just that the plaintiffs’ cases were premature.  Appeals are pending. 

Other courts, more in tune with logic, are allowing the lawsuits to proceed.

Most recently, a federal judge ruled that the Archdiocese of New York has standing to sue the Obama administration over the HHS mandate.  Rejecting the administration’s argument that the Archdiocese should not attempt to protect its rights at this time, Judge Brian M. Cogan wrote that while the HHS mandate may not be enforced against the Archdiocese for another year, the Archdiocese is already planning for eventualities and expenses now.  With regard to the administration’s possible amendment of its regulation, the judge declared:

Moreover, the First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. 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.

In allowing the Archdiocese of New York’s case to proceed, Judge Cogan joined other courts across the country that have held that religious institutions and religious business owners do not have to wait to protect their rights.  These rulings mean that the battle for religious liberty now moves forward, perhaps all the way to the Supreme Court. As for us at Priests for Life with our lawsuit -- which also has not been dismissed by the court -- that is certainly where we are prepared to go.

You can keep informed of the progress of these various cases, and also let your own voice be heard by the Courts, at www.priestsforlife.org/hhsmandate.

Priests for Life
PO Box 236695 • Cocoa, FL 32923
Tel. 321-500-1000, Toll Free 888-735-3448 • Email: mail@priestsforlife.org