Yet Another Lawsuit Filed in Colorado Attacking the Affordable Care Act’s Contraception Mandate
December 4, 2013
December 4, 2013
This lawsuit was filed yesterday. It is yet another action claiming that the Affordable Care Act’s contraception mandate is unconstitutional and violates the Religious Freedom Restoration Act. This appears to be the fourth lawsuit filed in the District of Colorado alone. Michael Norton and the Colorado branch of the Alliance Defense Fund really seem to be taking advantage of the Tenth Circuit’s Hobby Lobby decision, which held that the first two preliminary injunction requirements – likelihood of success and irreparable harm – were met with respect to a private business’s efforts to enjoin the ACA’s contraception mandate.
The only real wrinkle in the most recent case is the organization bringing it. The main plaintiff, the Fellowship of Catholic University Students, is not technically a church, organization of churches, or the like, so the religious employer exemption to the Affordable Care Act’s contraception mandate does not apply. That doesn’t make a lot of sense. Without opining on the ultimate issue of whether private employers generally should be able to refuse to provide insurance covering various ACA-required services on religious grounds (other than to say that I think the constitutional case is easy, but the RFRA case isn’t), it strikes me that insofar as the Department of Health and Human Services is exempting churches from the contraception mandate, it should also exempt explicitly religious – and especially sectarian – organizations as well.
Here’s what I don’t understand, though. Why is the ADF bringing case after case in Colorado? It’s not like we aren’t going to get a definitive answer on the constitutionality of the ACA contraception mandate in the near future. Indeed, the Supreme Court agreed to hear the Hobby Lobby case just last week. That almost certainly will resolve the issue once and for all. Now, I suppose it’s possible that the Supreme Court could render a narrow decision that might allow FOCUS to distinguish itself from the purely commercial plaintiff in that case, but that seems exceedingly unlikely to me (though I should note that others have a different view). But rather than tie up the busy federal courts with case after case that is likely to be mooted out by next June, why not just wait until then to see what happens?
I get that the owners and managers of these corporations probably don’t want to have to provide contraception coverage in the interim. Given the existing Tenth Circuit precedent, DHHS really should consider postponing the contraceptive coverage mandate – at least for employers in Colorado, Oklahoma, New Mexico, Kansas, Utah and Wyoming – until the Supreme Court has its say. And maybe I’m a bit biased because I experienced how much work it is for a federal judge and his or her chambers to handle a preliminary injunction request. But this all just seems like a colossal – and pointless – waste of time for everyone involved.