Federal courts should put off looking at employer challenges to the birth control benefits mandate, because the U.S. Department of Health and Human Services (HHS) and other departments will be releasing new regulations designed to address religious employers' objections by Aug. 1, 2013, according to lawyers for the government.
U.S. District Judge Brian Cogan said a government promise that new regulations are coming is no reason to dismiss a suit challenging the mandate.
The First Amendment to the U.S. Constitution does not require citizens to accept assurances from the government that it will correct its mistakes, Cogan wrote in a memorandum released earlier this week.
"There is no, 'Trust us, changes are coming' clause in the Constitution," Cogan wrote.
Cogan, a judge in the Eastern District of the U.S. District Court for New York, has issued a ruling that will let the Roman Catholic Archdiocese of New York and two other plaintiffs move forward with a federal suit, Roman Catholic Archdiocese of New York et al. vs. Sebelius et al. (1:12-cv-2542) against HHS, HHS Secretary Kathleen Sebelius and other federal departments and officials.
The employer plaintiffs remaining in the case — which include Catholic Health Care System and Catholic Health Services of Long Island as well as the New York archdiocese — allege that the federal birth control benefits mandate regulations violate their right to religious liberty, by requiring them to prepare for the possibility that they might have to pay for contraceptive coverage despite their belief that interfering with the creation of human life is immoral.
Cogan, who was appointed by President George W. Bush, said he believes the courts should look at the case now, even before final regulations take effect.
"The coverage mandate has caused and will continue to cause plaintiffs harm so long as it remains in place," Cogan wrote.
A representative for the U.S. Department of Justice, the department representing HHS and other departments in the case, said the Justice Department does not comment on pending litigation.
Representatives for the New York archdiocese and other plaintiffs were not immediately available to comment on the case.
PPACA
The Patient Protection and Affordable Care Act of 2010 (PPACA) requires individual health insurers and group health plans to cover a basic set of preventive services created by the U.S. Health and Human Services (HHS) secretary without imposing deductibles, co-payment requirements, or other cost-sharing requirements on the patients.
HHS Secretary Kathleen Sebelius has ruled that the preventive services packages should include services and products aimed at women — including Pap smears and breastfeeding supplies as well as contraceptive services — starting with plan years beginning on or after Aug. 1, 2012.
A safe harbor issued in February, which is set to expire Aug. 1, 2013, frees houses of worship, religious denominations and other clearly religious employers from having to offer birth control benefits.
