Over fifty cases across the country have challenged regulations promulgated under the Patient Protection and Affordable Care Act (“PPACA” or “Obamacare”) that require employer group health insurance plans to provide coverage for contraception, sterilization and related counseling (the “HHS Mandate”).  Suits have been filed by religiously-affiliated organizations as well as private business owners, asserting that the HHS Mandate will require them to provide health insurance plans that violate their deeply-held religious beliefs.  Claims have been brought under the Establishment, Free Exercise and Free Speech clauses of the First Amendment of the US Constitution, as well as the Religious Freedom Restoration Act and the Administrative Procedure Act.  Two of these cases have been filed in the Eastern District of New York and have now reached contrary conclusions on whether the suits are ripe for adjudication.

The United States has argued that challenges to the HHS Mandate are not ripe because the government is in the process of amending it to address religious objections.  A notice of proposed rulemaking suggesting amendments was issued in February 2013.  In addition, for certain non-profit organizations, a “safe harbor” applies, which extends the deadline for complying with the HHS mandate to August 1, 2013.

Judge Block decides “Not ripe”; Judge Cogan says “Yes it is”

In April, in Priests for Life v. Sebelius (decision),  EDNY Judge Frederic Block held that a challenge to the HHS Mandate was not ripe for judicial decision.  Although the HHS Mandate regulations have been published, Judge Block noted that the government had indicated an intent to amend them and had issued a notice of proposed rulemaking, and he cited to the presumption that government agencies are acting in good faith.  The Court found that the HHS Mandate is “not truly final” and that adjudicating the current regulations would be “a waste of judicial resources.”  Judge Block also noted that his holding was consistent with the overwhelming majority of courts to address the issue.

One case reaching a contrary result is also in the EDNY, Roman Catholic Archdiocese of New York v. Sebelius (decision).  In December 2012, Judge Brian M. Cogan held in that case that certain plaintiffs had standing to sue, and that challenges to the HHS Mandate were ripe and should go forward.  Judge Cogan recognized the government’s stated intent to amend the regulations, but observed that the HHS Mandate is “the currently-operative law,” and that failure to comply could result in substantial penalties.  The Court observed that a notice of proposed rulemaking would not prevent the HHS Mandate from going into effect, and found that the HHS Mandate “is not a non-final policy; it is a final rule.”  In language applicable to both his standing and ripeness analysis, Judge Cogan discounted the government’s argument that its intent to amend the regulations required dismissal, stating that: “There is no ‘Trust us, changes are coming’ clause in the Constitution.”

Issues concerning the HHS Mandate and any amendment will continue to work their way through the courts.  In the Archdiocese of New York case, the government recently filed declarations stating that it would never enforce the current regulations against the plaintiffs. The Court stayed proceedings and discovery, and indicated it would consider the newly-filed representations in the context of the government’s motion for reconsideration or an interlocutory appeal.  Courts outside of New York have split on whether injunctions against current enforcement of the HHS Mandate should issue in cases brought by for-profit plaintiffs not covered by the safe harbor.  The more than fifty cases at various stages throughout the country can be tracked on the website of the Becket Fund, which is representing plaintiffs in several of the cases.  Regardless of whether or how the HHS Mandate is amended, the issue of whether it conflicts with the religious liberty rights of organizations, businesses and individuals is likely to find its way to the Supreme Court.