Back in November, Belmont Abbey College sued Secretary of Health and Human Services Kathleen Sebelius after the Obama Administration announced the original HHS mandate — the one in which religious entities like the Catholic Church would be compelled to list and pay for contraceptive and abortifacient products right under the terms of their employee health plan. That mandate, and not whatever modification the President suggested on February 10, now has the force of law. The Obama Administration itself made the original mandate the final rule.
The Department of Justice has now filed a motion to dismiss. DOJ takes no position in this motion on the constitutionality of the mandate, or on its permissibility under the Religious Freedom Restoration Act. It further admits that the original mandate, and not the February 10 proposed modification, has the force of law (see p.6). Instead, DOJ says that Belmont Abbey College (A) might have its health plan grandfathered; (B) can’t demonstrate that it will suffer an imminent injury (because it will not be subject to the mandate until 2014); and (C) has not shown that the case is “ripe” for review under the justiciability doctrine of ripeness.
I am not familiar enough with which health plans get grandfathered-in to know whether (A) is a plausible ground for the motion. (B) seems puzzling. After all, the health care mandate which is itself the subject of the Affordable Care Act litigation is being litigated right now, with arguments scheduled before the Supreme Court at the end of March. Yet that mandate to purchase insurance does not go into effect until 2014 either.
I am not a standing scholar, but (C) seems to me the least plausible ground for the motion. The original contraception mandate now has the force of law. Whatever may happen after the election with respect to the proposed February 10 modification, the original mandate is now final — nothing “informal or tentative” about it. Abbott Laboratories v. Gardner (1967). Any hypothetical future modifications — bracketing the issue of whether they would work any appreciable change — are entirely speculative. I’d appreciate illumination from readers who are expert in standing doctrine, however.