The first lawsuit (but surely not the last) challenging the putatively revised HHS contraceptive and abortifacient mandate has been filed right here in the U.S. District Court for the Eastern District of New York: Priests for Life v. Sebelius. The plaintiff is a private non-profit with about 50-60 employees. Whatever the content, and future, of the alteration that President Oabama mentioned last Friday, it is the mandate as originally crafted by the Obama Administration which has now become final. This action challenges that rule, alleging violations of the First Amendment and RFRA, though it also claims that there is no distinction between that rule and the proposed alteration.
I think the RFRA claim is a serious one. One of the interesting features of the case on the free exercise front is that the plaintiffs argue that the law is not a neutral one of general application because “[t]o date, HHS has granted over 1,000 individualized waiver requests from employers and to insurance plans,” and because by the very terms of the Affordable Care Act, certain insurance plans are grandfathered in. ¶¶ 17, 20. One to keep an eye on. (h/t Professor Friedman)