Monday, July 23, 2012

What next?

Ed Whelan at NR's Bench Memos reports that Belmont Abbey's case against the HHS mandate has been dismissed "without prejudice" by a federal court on some grounds or other.

Says Hannah Smith, Senior Legal Counsel, Becket Fund for Religious Liberty:

Yesterday’s decision in the Belmont Abbey College case was on technical grounds: the judge thinks that the case should be delayed for a matter of months to give HHS time to fix the Mandate. The decision says nothing about the merits of Belmont Abbey’s religious freedom claims, and has no effect on any of the 22 other cases currently pending in federal court. It simply delays Belmont Abbey College’s ability to challenge the Mandate for a few months, and the court made clear we have the right to re-file the case if HHS does not fix the problem. We are reviewing the decision and considering our options, but one thing is clear: Belmont Abbey College and the Becket Fund will continue the fight for religious liberty, even if this case is delayed for a few months.

The judge's decision (if you've got some time to kill). Sounds like he wants BA to wait until HHS (according to Whelan) finishes

issuing and implementing its Advanced Notice of Proposed Rulemaking, which supposedly will modify the existing HHS mandate by addressing, in some still-to-be-discovered fashion, Belmont Abbey’s religious-liberty concerns. Because that modification will supposedly occur before the expiration of the one-year safe-harbor that Belmont Abbey has received against administration enforcement, the court held that "Belmont [Abbey]’s injury is too speculative to confer standing and that the case is also not ripe for decision."

Hmm. Almost sounds like you're not allowed to scream in pain unless you've actually been hurt, but who knows? In any case, the supposed modifications to the mandate will only be promulgated after a period of invited commentary. Yes, that means you can go to the HHS website and offer your input. Do it. They'll probably listen.


Lydia McGrew said...

Too speculative??? Oh, come on!

If the administration passes a prima facie unconstitutional rule, they shouldn't be able to get cases delayed and delayed just because maybe they are going to fix it in some unspecified manner. You'd never find a judge doing that if a federal regulatory body issued a rule that would (gasp) restrict a woman's "right" to an abortion, then told the abortion mill it could have a year delay on enforcement and that during that time they would change it somehow.

William Luse said...

Yeah, I tend to agree. If the rule is unconstitutional, the only way you can fix it is to rescind it. I don't see how the rule can be 'fixed' so that it doesn't violate the conscience liberty in question. Why couldn't the judge simply say that the rule is unconstitutional? How would that in any way hinder HHS from rewriting it?

My real worry is that judges *won't* find the contraceptive mandate unconstitutional. Many states (most? all?) already require insurance companies to cover it. That's wrong too. *Nobody* should have to cover this stuff. Shouldn't a private Catholic employer have the same conscience rights as an institution? Right now, the institutional right is all we have left. How big a leap is it for a court to invert my question, and decide that if a private person of religious conviction is not exempt, why should the church or school he attends be exempt either?