Federal Appeals Court Holds Obama To ‘Binding Commitment’ On Contraception Mandate

In the first ruling by a federal appeals court on the Affordable Care Act’s contraception mandate, the influential U.S. Court of Appeals for the D.C. Circuit held Tuesday that a challenge by two universities should not have been dismissed.

Out of the some 43 lawsuits filed by non-church entities to challenge the requirement that employers who provide health insurance include full contraception coverage, most trial courts have dismissed the claims as being premature, including the D.C. Circuit trial court in this case. This is because while religious organizations such as churches are entirely exempt from the mandate under an interim rule, other nonprofit institutions that claim a religious affiliation, such as the two universities suing here, are protected by a “safe harbor” provision that temporarily prevents enforcement and clears the way for these institutions to deny free contraception for the time being. The schools expressed concern that if they do so, they may still be subject to lawsuits by employees.

In its ruling, the court cited statements by the administration during oral argument that it would both stand by the safe harbor provision and issue a new permanent rule by August 2013 as evidence of a “binding commitment” to the court. The three-judge panel therefore said it would not dismiss the case, and instead “hold the government to its word” and hold the case in abeyance pending the development of a new rule. If the administration didn’t feel bound before to develop a new rule on exemption for non-church nonprofits, it now faces what amounts to a court order to do so.

At least one other appeals court preliminarily blocked the mandate, has not issued a final decision. Lawsuits by private employers, which are definitively not covered by the exemption, have had mixed success, with one prominent case noting the dearth of any precedent “concluding that secular, for-profit corporations … have a constitutional right to the free exercise of religion.”