It was always wrong. But because it was issued by executive fiat, its violation of law had to go through the process of being tried, and there are many lawsuits standing against it.
This one scored a victory.
Today, a federal appeals court in Washington, D.C. handed Wheaton College and Belmont Abbey College a major victory in their challenges to the HHS mandate. Last summer, two lower courts had dismissed the Colleges’ cases as premature. Today, the appellate court reinstated those cases, and ordered the Obama Administration to report back every 60 days—starting in mid-February—until the Administration makes good on its promise to issue a new rule that protects the Colleges’ religious freedom.
This is major.
Health and Human Services Secretary Kathleen Sebelius cannot enforce the Obamacare contraception mandate as it is written, but must follow through on a promise to rewrite the rule to accommodate religious liberty, a federal appeals court ordered.
The Obama administration “represented to the court that it would never enforce [the mandate] in its current form against the appellants or those similarly situated as regards contraceptive services,” the three judges hearing the case wrote in their order. The Obama team made that promise during oral arguments against Wheaton College and The Becket Fund for Religious Liberty, which sued over the contraception mandate but lost at the lower court level.
There will, the government said, be a different rule for entities like the appellants . . . We take the government at its word and will hold it to it,” the judges wrote.
They ruled that the Obama administration must rewrite the regulation by August 2013 and provide updates to the court every 60 days. If the government fails to do so, the lawsuits may proceed.
The court also noted that the Obama administration had not made such an expansive pledge outside the courtroom.
“The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” The Becket Fund’s Kyle Duncan, who argued the case, said in a statement. “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”
Yesterday’s ruling marks the second time in two weeks that a judge has decided that Obama’s promise to change the rule eventually is an insufficient remedy to the religious liberty issues raised by opponents of the mandate.
“There is no, ‘Trust us, changes are coming’ clause in the Constitution,” Judge Brian Cogan wrote in his ruling in favor of the Archdiocese of New York two weeks ago. “To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.”
It’s about time it gets applied.