There has been an important development in recent days that few have heard about.  It has received practically no media attention, other than on a few legal blogs.  But it is an important development affecting the religious liberty of employers.  My readers will recall that Wheaton College (Illinois) and Belmont Abbey College filed a challenge against the “contraception mandate,” a regulation issued by the Department of Health and Human Services (“HHS”) that required employer-provided health care plans include coverage for all FDA-approved forms of contraception (including abortions and abortifacients) without cost-sharing.  Various religious employers, including the two Christian colleges, have objected to this requirement citing the First Amendment’s free-exercise clause and the Religious Freedom Restoration Act.

At the district court level, the Colleges’ challenge to the contraception mandate was dismissed because the lower court found that the Colleges had no standing to challenge the contraception mandate, and that even if they did have standing, their lawsuit was too premature for them to challenge a mandate that had not been finalized and implemented (what lawyers refer to as “ripeness).  On appeal, the appellate court explained that the lower district court was wrong to dismiss the suit for lack of standing as “the colleges clearly had standing when these suits were filed,” and reinstated the cases.  However, what was particularly interesting is that while the appellate court found the ripeness question to be “more difficult,” after reinstating the cases, it decided to put the case in abeyance pending the final issuance of HHS’s regulation.  The appellate court relied upon the promises made by HHS lawyers that the new regulation would address the claims of religious employers in the new rules.  The appellate court then ordered the Obama Administration to report back every sixty days, beginning in mid-February, until HHS makes good on its promise to issue the conception mandate regulation before August 2013 that will protect the Colleges’ religious freedom.  A copy of the short appellate court’s order is available here:

http://lawprofessors.typepad.com/files/wheaton-college-v.-sebelius-order.pdf

Having personally listened to attorneys make statements and promises to judges that they knew would never be kept, the appellate court is holding HHS attorneys to their word.  Jonathan Adler, writing in The Volokh Conspiracy (a legal blog) observed:

As a consequence of this ruling HHS will have little choice but to issue a rule relieving many religious employers of the obligation to provide coverage for contraception. The interesting question will be how this is to be accomplished under existing statutory authority.   Moreover, the Administration’s proposed fix — allowing religious employers to exclude contraception coverage but requiring insurers to provide separate contraception coverage to employees at no charge — would do nothing to alleviate the burden on those religious employers that self-insure (which many do because, among other reasons, it provides a way to escape state-level contraception mandates).

There are numerous other cases that are challenging the contraception mandate in various federal courts, but it does seem that the federal courts remain skeptical about this infringement of religious liberty on religious employers.