Last week, Reagan-appointed federal Judge Robert L. Miller dismissed the University of Notre Dame’s effort to undermine Obama Administration rules ensuring that working women will have access to birth control. The court did not reach the merits of the suit, instead dismissing it as, at best, premature:
HHS announced guidelines requiring health plans to cover contraception and abortion inducing drugs. for plan years after August 1, 2012. . . . Several months later, HHS finalized the regulation, but announced a year-long “safe harbor” from enforcement for nonprofit entities of a certain type, including the University of Notre Dame. HHS announced that it would amend the regulations before the end of the safe harbor to accommodate those entities by requiring their insurers to provide cost-free coverage for the contraceptive and abortion-related services. In furtherance of the anticipated amendment, HHS issued an Advanced Notice of Proposed Rulemaking (“ANPRM”). . . .
The present regulatory requirement isn’t sufficiently final for review to be ripe because the defendants have announced it will be modified and have underscored that announcement by providing Notre Dame with a safe harbor that protects it from the regulation as it exists today. Notre Dame lacks standing to attack the present regulatory requirement because it isn’t subject to that requirement, and, taking the defendants at their word, never will be subject to the present regulation. The defendants’ dismissal motion must granted.
For the record, Judge Miller’s claim that the regulations require coverage of “abortion inducing drugs” is completely and utterly false. The rules require coverage of “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Nothing covered by these rules — including emergency contraception — has anything to do with abortion. Indeed, increasing access to birth control will actually reduce abortions by preventing unwanted pregnancies.
Additionally, it is worth nothing that Miller’s opinion rests on a very narrow ground. Notre Dame’s case was tossed out both because it is exempted from current rules under the safe harbor for some non-profits and because the state of the rules that will apply when that safe harbor ends is in flux. Virtually every court to consider a case brought by a non-profit challenging the birth control rules has agreed with Miller that these lawsuits should not move forward for the time being, but the same cannot be said about lawsuits brought by for-profit businesses.
Under current law, these claims by for-profit businesses are especially weak. As the Supreme Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” There is no guarantee, however, that the same justices who decided Citizens United will not also decide to wipe out decades of precedent governing religious employers seeking immunity to the law.