Germany’s lower house of parliament has adopted a resolution calling on the government to keep male circumcision legal in that country. The resolution responds to a regional court’s ruling last month that doctors who perform circumcisions on boys for religious reasons could be prosecuted under German law and requests that the government submit a bill this fall. Jewish and Muslim groups in Germany have united to oppose the court’s ruling — impressive what a common threat can do, isn’t it? — though, according to polls, Germans narrowly support a ban on circumcisions.
When it rains it pours. Wheaton College, a Christian liberal arts college in Illinois, filed a federal lawsuit yesterday in the District of Columbia (the same jurisdiction in which Belmont Abbey filed) claiming that its constitutional and statutory rights are violated by the Mandate. Causes of action include RFRA, free exercise, free speech, and an APA claim. Wheaton’s specific complaint has to do with providing “health insurance for abortion-causing drugs, abortion procedures, and related services.” “Wheaton College has no conscientious objection to providing coverage for non-abortion-causing contraceptive drugs and services.” (¶ 39)
Yesterday was an active day for the HHS Mandate litigation. The U.S. District Court for the District of Nebraska dismissed an action by several States (Nebraska, South Carolina, Texas, Florida, Ohio, and Oklahoma) and several organizational and individual plaintiffs against the mandate, also on grounds of standing and ripeness.
The organizational and individual plaintiffs’ claims were dismissed on the ground that their health plans would be grandfathered in, and that the claim that they would be “trapped” in their plans, without any real allegation that they were planning to change their plans, was too “speculative” to serve as a basis for standing.
Likewise, the States’ claims of injury, said the court, were founded “in layers of conjecture” about what would happen if religious employers stop insuring and the possible effect on the States’ Medicaid programs. These conjectures were too speculative to confer standing.
Just like (amazingly, almost exactly like) the D.C. District Court, this court ruled on the ripeness claim even though technically it did not need to. Notwithstanding the fact the existing rule “should be considered ‘definitive’ by virtue of its formal promulgation,” the court found that the “tenative nature of the Department’s position” counseled declining review at this point.
I’m sensing a pattern here…
Yesterday, the U.S. District Court for the D.C. Circuit dismissed Belmont Abbey’s law suit alleging that the contraception mandate violates RFRA and the First Amendment. The grounds are lack of standing and ripeness. The court rejected the government’s claims that Belmont Abbey lacked standing because it qualified for “grandfathered” status. It also rejected the government’s claim that any injury to Belmont was insufficiently imminent; the court held that the January 2014 deadline was not “too remote.”
But the court accepted the government’s claim that Belmont’s injury was too speculative because of the government’s stated intention to engage in new rulemaking before the expiration of the safe harbor. It rejected Belmont’s claim that “non-binding promises of future rulemaking” can defeat standing, ruling that the government has done more than promise: it has published its plan to amend and it has issued a notice of proposed rulemaking. “The government,” said the court, “has done nothing to suggest that it might abandon its efforts to modify the rule—indeed, it has steadily pursued that course—and it is entitled to a presumption that it acts in good faith.” The court also dismissed the case for lack of ripeness.
There is an interesting feature of the case that appears in the ripeness discussion. Belmont claimed that the case was ripe because even if the proposed rulemaking goes through, it would not be able to comply without violating its religious beliefs about contraception. The court said this:
This argument assumes, however, that a particular approach described in the ANPRM—which would require health-insurance issuers to offer group plans without contraceptive coverage to organizations with religious objections while “simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries covered under the organization’s plan with no cost sharing,” see 77 Fed.Reg. 16503—will make it into the final rule. Such an assumption is speculative. The ANPRM merely “presents questions and ideas to help shape discussions” regarding how best to accommodate organizations with religious objections to contraceptive coverage. Id. The Notice specifically states that it seeks input on the options it proposes “as well as new ideas to inform the next stage of the rulemaking process.” Id. (emphasis added). The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff’s concerns.
Belmont tried to resist this holding by claiming that all the government then needs to do to avoid adjudication is to file a notice of proposed rulemaking. Though the court acknowledged this possibility, and it even said that the “circumstances are slightly less favorable to the agency here” than in another case where this possibility had been raised, it took the government at its word — or perhaps it is more accurate to say that the court took the government at its promised future word, whatever that word turns out to be. Dismissal was without prejudice.
It would not surprise me at all if this were the approach taken by at least some other courts reviewing this litigation.