Contraception Mandate's 'Safe Harbor' Not Safe, Appeals Court Told

In its opening brief on behalf of Christian colleges, a legal group on Friday told a federal court of appeals that the contraception mandate's "safe harbor" does not protect religious institutions as was earlier held by a trial court that dismissed two lawsuits against the measure on that basis.

The Becket Fund for Religious Liberty filed an opening brief before the D.C. Circuit Court of Appeals, seeking the reversal of the dismissal of two Health and Human Services mandate lawsuits by the trial court, which held that the government's "safe harbor" protects the religious colleges from suffering any imminent harm and that their lawsuits were thus premature.

"The safe harbor's protection is illusory," Kyle Duncan, general counsel for the Washington, D.C.-based legal group, said in a statement Friday.

On Sept. 20, the U.S. Court of Appeals for the D.C. Circuit consolidated Belmont Abbey College v. Sebelius and Wheaton College v. Sebelius in an expedited appeal against the mandate, which requires health insurers, or employers, including faith-based employers, to provide insurance coverage for contraception and abortion-inducing drugs at no cost to employees.

Both the Belmont Abbey College and Wheaton College case had been dismissed at the trial court level after the government granted a one-year "safe harbor." Belmont Abbey is a Catholic liberal arts college, and Wheaton is a leading evangelical liberal arts institution.

This is the first time a federal court of appeals will consider the mandate, which provides for crippling fines in case of violation. It was promulgated by HHS Secretary Kathleen Sebelius, and issued in August 2011.

"Even though the government won't make religious colleges pay crippling fines this year, private lawsuits can still be brought, schools are at a competitive disadvantage for hiring and retaining faculty, and employees face the specter of battling chronic conditions without access to affordable care," Duncan said in the statement. "This mandate puts these religious schools in an impossible position."

"In sum, both Wheaton and Belmont Abbey have suffered, are suffering, and will continue to suffer hardship if consideration of their legal challenges to the final rule is further delayed," the brief filed Friday states. "Regardless of the Safe Harbor, the Colleges are now experiencing government pressure to violate their religious convictions, and suffering present harm as a result. Like any educational institutions, they must plan well in advance for their upcoming budget and hiring needs."

Current employees at the two schools have expressed deep concerns about the possibility of losing health insurance, about the possible reduction in academic programming, and about increased costs passed on to them as a result of anticipated fines, the brief explains.

"These harms are real and significant. For example, several Wheaton employees have expressed fear that, if Wheaton is forced to terminate their insurance coverage, they will not be able to afford health care for themselves or their families. Some of them may have to seek expensive medical treatments before January 1 to be assured coverage. Others face the specter of battling chronic conditions without access to affordable care."

The federal government has said it will create a new "insurer" mandate during that safe harbor period to solve the religious liberty problem, but religious organizations are not convinced.

"The government has now re-written the 'safe harbor' guidelines three times in seven months, and is evidently in no hurry to defend the HHS mandate in open court," Duncan said earlier.

There are now over 30 separate lawsuits challenging the contraception mandate, a regulation under the Affordable Care Act or Obamacare.

Hobby Lobby Stores, Inc., a privately held retail chain with 22,500 employees led by a Christian family, last month filed a lawsuit opposing the mandate in the U.S. District Court for the Western District of Oklahoma.

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