Court Demands HHS Rewrite Contraception Mandate by August 2013

Who says the “Free­dom of Reli­gion” pro­vi­sion in the 1st Amend­ment is dead?

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.”

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