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 ACAs 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.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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