Fight Over Contraceptive Coverage Heats Up In Court

Feb 17, 2012

The fight over who pays for birth control isn't confined to Congress or the campaign trail. It's burning in federal court, too.

The Obama administration has now officially responded to the lawsuit filed in November by North Carolina's Belmont Abbey College, alleging that the new rules requiring no-cost contraceptive coverage for women violate their religious teachings. Belmont Abbey is a Catholic college founded by Benedictine monks.

The lawsuit charged that the rules "run roughshod over Belmont Abbey College's religious beliefs, and the beliefs of millions of other Americans by forcing them to pay for contraception, sterilization, abortion, and related education and counseling."

The administration's lawyers, however, respond that the rules — even before the changes announced last week — do nothing of the kind. And not for the reason you might think.

The fact is, according to the Justice Department's motion to dismiss the case, Belmont Abbey College's health plan apparently is not now, and was not in November, subject to the contraceptive coverage requirement.

That's because it seems to have been "grandfathered" under the 2010 Affordable Care Act, meaning it has not changed benefits or cost-sharing enough since the act was passed to be considered a new plan. As such, the college's health plan is not subject to the contraceptive coverage rule, either the original or modified one.

"This is simply not a case where plaintiff is 'forced to choose between forgoing lawful activity and risking substantial legal sanctions,'" the Justice Department wrote.

And even if, in fact, the plan has changed and is subject to the rules, as a religious institution it will have at least an additional year to come into compliance under the modifications announced last week. That makes it "not yet ripe" in legal parlance, for a court decision, since no injury is imminent.

That, not surprisingly, did not go over well with the college's lawyers.

"The Administration is taking the remarkable position that announcing future plans at a press conference means the courts should ignore what the law on the books actually says," sais Hannah Smith, senior counsel for the Becket Fund for Religious Liberty, which is representing Belmont Abbey College and several other religious institutions suing over the rule. "Since when does 'Trust me, I'm from the government' suspend the laws of the land?' "

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