Timing is Everything, Redux
Back in May, I posted about the ACA lawsuits filed by various Catholic institutions challenging the contraception mandate. I wondered why they had decided to file their lawsuits without waiting for the amended rule the administration has promised to promulgate in order to better accommodate religious objections to the mandate. Although I am not a civil procedure maven, I wondered at the time whether, notwithstanding the promulgation of a final rule, claims filed before the promised amendment would be deemed unripe and therefore not (yet) eligible for federal review. Yesterday, a federal judge in Nebraska dismissed an earlier — but similar — lawsuit filed by several states, as well as various Catholic institutions and individuals. In his opinion, the judge did not address the merits of their religious freedom and free speech claims, relying instead on the fact that the plaintiffs have yet to suffer a concrete injury and do not appear to be in any imminent danger of suffering one. In other words, he said they filed their lawsuit too soon.
The complaint in the Nebraska case seems to have been a little less well-developed than Notre Dame’s (for example, unlike Notre Dame, the plaintiffs in the Nebraska case did not specifically allege that they would have to begin planning how to comply with the rule as promulgated well before the safe harbor expires) and so not everything the Nebraska district judge says would apply directly to the more recent lawsuits. Nevertheless, the judge’s reasoning offers some insight into how federal courts may decide the standing and ripeness questions in the other cases. Here’s a taste of what the judge had to say:
[A]lthough the Rule that lies at the heart of the plaintiffs’ complaint establishes a definitive, final definition of “religious employer,” the ACA’s contraceptive coverage requirements are not being enforced against non-exempted religious organizations, and the Rule is currently undergoing a process of amendment to accommodate these organizations. The plaintiffs face no direct and immediate harm, and one can only speculate whether the plaintiffs will ever feel any effects from the Rule when the temporary enforcement safe harbor terminates. This case clearly involves “contingent future events that may not occur as anticipated, or indeed may not occur at all,” Missouri Roundtable for Life v. Carnahan, 676 F.3d 665, 674 (8th Cir. 2012) (quoting 281 Care Committee v. Arneson, 638 F.3d 621, 631 (8th Cir. 2011)), and therefore it is not ripe for review.
Again, not being a civil procedure expert, it’s hard for me to assess the finer points of the decision’s application of the relevant precedent, but from the standpoint of judicial economy, it strikes me as extremely reasonable for the district judge to ask the plaintiffs to wait until the promised accommodation is finalized before litigating whether the unamended contraception mandate violates the First Amendment or RFRA. It will be interesting to see whether the courts hearing the other cases reach the same conclusion.
Is there any idea when the courts will speak regarding the Notre Dame lawsuit and all the others?
I heard on a newscast earlier today that Wheaton College has now filed suit against the federal government over the contraception mandate. I believe that report also mentioned that CUA has also filed suit today.
Wheaton joined in the CUA suit, in effect, filing in District Court in DC in solidarity with CUA. Not sure why didn’t join closer to home with ND. I’ll have a story up on it shortly.
But there are interesting standing questions with Wheaton and similar evangelical institutions — for example, Wheaton is not grandfathered in under the exemption because it already provided contraception coverage, which is not against its beliefs.
One basis for its claims then, are that the mandate covers abortifacients, but it’s also not clear or convincing that Plan B and ella are abortifacients.
Because Wheaton will be subject to the mandate on Jan 1, 2013, and not in a year, it could face a ruling sooner rather than later, but it’s not clear whether any of these suits will reach a resolution or an appeals stage in time to influence the election.
I heard on a newscast earlier today that Wheaton College has now filed suit against the federal government over the contraception mandate. I believe that report also mentioned that CUA has also filed suit today.
CUA filed their lawsuit in May and have different lawyers (Jones Day). Wheaton files a separate lawsuit today and are represented by Becket Fund.
I suppose it’s possible that the court might consolidate the two cases, but Wheaton’s Complaint says that it “has no conscientious objection to providing coverage for non-abortion-causing contraceptive drugs and devices.” It does have an objection if they cause abortions.
http://www.becketfund.org/wp-content/uploads/2012/05/Wheaton-Complaint-_FINAL_.pdf
So, the issues are different in the two cases.
One basis for its claims then, are that the mandate covers abortifacients, but it’s also not clear or convincing that Plan B and ella are abortifacients.
Some IUDs included in the FDA list are, from what i have read, recognized as preventing implantation, which for Catholics and some other religious groups means they are abortifacients. Unless things have changed recently, Plan B is dispensed in Catholic hospitals
for emergency contraception, so it would be hard to argue that it is abortifacient. I don’t know whether any Catholic Hospitals have taken a position on ella.
Sterilization would be objectionable from a Catholic standpoint. I didn’t see anything in Wheaton’s complaint explaining what their position is on sterilization.
Isn’t ripeness a matter of constitutional doctrine, not civil procedure?
Not in the academic world. It’s usually part of the civ pro syllabus, not con law. In most law schools (though there may be exceptions for those that teach students bound to work in a single state), civ pro is federal civ pro. But state courts have standing and ripeness doctrines as well, even though their courts are not governed by Art. III limits. And, of course, even in federal court, the doctrines of ripeness and standing straddle the line between constitutional law and prudential considerations like judicial economy.
Stuart, it can be one or the other depending on the particular nature of the issue. For instance, if you read this decision it goes through a number of different “standing” associated issues: Is there a case or controversy? Is it ripe? Have the plaintiffs suffered injury in fact? Are they within the zone of interest of a particular enactment that they seek to enforce (this was as to the states and RFRA)?
And so on.
Becket fund had these comments
As for the non-profits and the individuals, the court relied on a true technicality: It found they hadn’t given specific-enough reasons for why they weren’t “grandfathered.” “Grandfathering” is the idea that you can keep the health plan you had on March 23, 2010 — and so avoid the HHS mandate — provided that you keep it the way it existed on that date in perpetuity. The court simply reasoned that the plaintiffs hadn’t provided enough detail on why their plans weren’t “grandfathered” (one of the plaintiffs, in fact, had admitted their plan was grandfathered).
And yet Judge Urbom accepted the government’s argument that the promise of this fanciful “accommodation” rendered the lawsuits premature. This is hard to understand. After all, the HHS mandate itself is a final administrative rule; also final is the narrow “religious employer” exemption (which would exclude the ministries of certain well-known religious figures like Jesus and Mother Teresa, because they insisted on ministering to those of other faiths). The government is not proposing to alter either one of those rules. All the government has done is conveniently postpone enforcement of the mandate as to certain objectors for one year,…
full text here
http://www.becketfund.org/one-hhs-mandate-case-dismissed-don’t-read-too-much-into-it/
The international law firm Jones Day is representing the bishops pro bono. It has offices in D. C. Chicago, Atlanta and San Diego, among other cities. Maybe D. C. is preferable because of its federal appeals court — it might be inclined more favorably towards the bishops?
Here is my proposed solution to the HHS contraception/sterilization mandate:
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Do away with any definition of “religious employer”
Provide that any employer that is “a non-profit organization*” which has religious or moral objections shall be exempt from the mandate
*means 501(c)(3) or exempt from filing income tax under sections 6033(a1) and section 6033(a)(3)(A)(i) or (iii) of the IRS Code.
PROVIDE IN A SEPARATE SECTION:
Persons who receive from an exempt employer health insurance that does not include the cover required by the HHS contraception/sterilization mandate shall be entitled to receive that cover, without cost, from another organization as follows:
[explain how]
————————————
This means that churches, hospitals, universities, charities are all treated the same – they are all non-profit employers. No philosophical/theological argument about defining religion is involved. Taco Bell and plumbing supply companies are not exempt (they are not non-profit)
It makes clear that churches, hospitals, etc are not involved in providing contraception/sterilization coverage to their employees. IF HHS is going to arrange for them to get contraception/sterilization through another part of the program, that doesn’t involve the churches, hospitals, etc any more than anyone else.
Based on discussions to date, insurance companies that sell group health policies to exempt employers that exclude contraception/sterilization coverage will have to provide that cover directly to the employees covered under those group plans – without involving the employer.
For self-funded group health plans HHS still has to come up with a scheme.
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It seems to me that the only difference between this and what HHS has proposed is in the presentation. But, in politics, presentation is everything.
Becket fund had these comments
I read that before I read the judge’s decision. It’s more PR spin than an objective report of the decision.
The judge’s decision is here:
http://www.modernhealthcare.com/assets/pdf/CH80687718.PDF
I’m really just wondering why you, a brilliant former Supreme Court clerk, are including so many disclaimers about even daring to opine on one of the most basic legal doctrines out there, one that you have encountered many, many times no matter where it is supposedly classified in an official syllabus. You have an opinion on ripeness (that’s why you keep posting about it), your opinion is perfectly defensible, why be diffident about it?
I realize that your last post is addressed to Professor Peñalver, but I thought I would point out that Becket and DOJ have been going back in the EWTN case on the issue of ripeness (and lack of standing). Here is DOJ’s latest filing:
http://www.becketfund.org/wp-content/uploads/2012/01/EWTN-DOJs-Replay-in-Support-Motion-to-Dismiss.pdf
Stuart, broadly speaking, there are multiple factors that get grouped together (as this case shows) that collectively amount to what I call threshhold issues. In many ways, calling standing (in the broadest sense of these considerations) “constitutional” is really a matter of separation of powers — that courts are not looking for opportunities to second guess legislatures, but will only do so if they absolutely must. For sure, jurisdiction can be a constitutional issue (article III courts are courts of defined jurisdiction). But these “run for the courts as soon as the legislature or executive acts” kind of cases have not been the normal course throughout our history, where people have, in fact, usually had to wait for something bad to be imminent, at the very least, before a judge finds that a case or controversy with sufficiently well-defined countours exists.
See this post on Mirror of Justice:
Continued here.
The court rejected the government’s claims that Belmont Abbey lacked standing because it qualified for “grandfathered” status.
To clarify that, a plaintiff who was grandfathered would lack status
The DOJ claimed that Belmont lacked status because its complaint didn’t assert that it wasn’t grandfathered
Belmont submitted an amended complaint with more information as to grandfathering. DOJ said it was not dispositive but it would not pursue it in relation to the motion to dismiss.
Here is the decision:
http://www.leagle.com/xmlresult.aspx?xmldoc=In%20FDCO%2020120718C05.xml&docbase=CsLwAr3-2007-Curr
So Belmont Abbey could wait for the new rule to actually be promulgated, and then refile if it wishes?
So Belmont Abbey could wait for the new rule to actually be promulgated, and then refile if it wishes?
The court said:
“At the end of the day, the Court offers no opinion on the merits of the current contraception-coverage regulations or any proposed future ones. If Plaintiff is displeased by the ultimate regulations, it may certainly renew its suit at that time. All the Court holds here is that Belmont has no basis to proceed now.”
The government “. . . is entitled to a presumption that it acts in good faith.”
WOW! Take that Catholic bishops!!
Wouldn’t the very sympathetically Catholic Scalia, Thomas, Kennedy, Alito and Roberts have craved out a plausible constitutional challenge when SCOTUS recently upheld the constitutionality of ACA If they could have gotten away with it?
When Roberts joined the SC’s liberals to uphold ACA, the proverbial handwriting was on the wall: These challenges by Catholic-institutions-against-ACA-because-it-treats-women-as if-they-were-fully-human-with-full-constitutional-rights to the ACA have no merit or legal standing.