Judge OKs New York archdiocese's anti-HHS mandate lawsuit

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A federal judge on Wednesday ruled that the Archdiocese of New York may proceed with a lawsuit challenging the HHS mandate that could cost the archdiocese nearly $200 million in fines each year.

Eric Baxter, Senior Counsel for the Becket Fund for Religious Liberty, said the court recognized the “significant harm that the mandate is causing right now.”

“Religious organizations that object to the mandate are subject to private lawsuits, as well as being faced with critical budgeting, and health insurance decisions in the face of millions of dollars in fines,” Baxter continued. “Truly the ‘safe harbor’ is neither a harbor nor safe.”

U.S. District Judge Brian Cogan rejected the argument of Department of Health and Human Services lawyers that the lawsuit was premature and should be dismissed.

He said “uncertain future harms” have present effects that are sufficient to grant standing needed to challenge the federal regulation, the judge ruled. He characterized the mandate as a “speeding train that is coming towards plaintiffs” that requires them to incur present costs ahead of the mandate’s implementation.

The HHS mandate requires most employers with 50 or more employees to provide no co-pay insurance coverage for sterilization and contraceptives, including some abortion-causing drugs. Employers who violate the federal rule must pay fines of $100 per employee per day. The rule’s narrow religious exemption does not include many Catholic organizations, though Catholics have religious and moral objections to providing the covered drugs and procedures.

The Archdiocese of New York employs over 10,000 people and covers about 9,000 Catholic and non-Catholic employee plans. The archdiocese’s legal papers said that the archdiocese is still unclear what its obligations will be under the mandate, but it believes it will face $200 million each year in penalties, Reuters reports.

The Obama administration granted a “safe harbor” period until August 1, 2013 for organizations with objections to providing the coverage. It has also said it will revise the mandate to accommodate those with religious objections, but the details of this revision are still unclear.

Judge Cogan said citizens are not required to “accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action.”

“There is no, ‘Trust us, changes are coming’ clause in the Constitution,” he said.

The judge noted that the administration’s possible revisions to the mandate are not required and might not take place.

The court ruling is the first to allow a lawsuit from a church entity to proceed.

While Judge Cogan allowed the lawsuit from the Archdiocese of New York, he dismissed the claims from the Diocese of Rockville Centre and Catholic Charities of the Diocese of Rockville Centre on the grounds they had not proven the mandate will affect them.

On Nov. 27 two U.S. district court judges rejected two separate lawsuits, one from the Diocese of Pittsburgh and another from the Diocese of Nashville, Catholic Charities of Tennessee and several Catholic schools and assisted living homes. The judges said the plaintiffs did not have standing and the lawsuit was not “ripe” for judicial review.

Over 40 lawsuits with over 110 plaintiffs have been filed to challenge the federal mandate. Plaintiffs include the University of Notre Dame and EWTN Global Catholic Network.

The Beckett Fund, the law firm Jones Day, and the Alliance Defending Freedom are among the legal groups representing plaintiffs with religious or moral objections to providing the coverage.

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