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  • Not-So-Safe Harbor: Court Allows Archdiocese's HHS Mandate Challenge to Proceed

    For the first time, a federal court has permitted a Health and Human Services (HHS) mandate challenge by a religious nonprofit organization to go forward.

    A federal district court rejected the federal government’s motion to dismiss the Archdiocese of New York’s challenge to the HHS anti-conscience mandate.

    The U.S. District Court for the Eastern District of New York found that the government’s temporary enforcement suspension against some religious employers, which the Administration misleadingly labels a “safe harbor,” was insufficient to protect the archdiocese and two of its affiliated health care nonprofits from the threat of immediate harm.

    The conscience-crushing mandate requires nearly all employers to provide health insurance coverage for abortion-inducing drugs, sterilization, and contraception to their employees, regardless of the employers’ religious or moral objections.

    In response to widespread protest over the mandate’s religious freedom problems, the President held a White House press conference in February during which he outlined hypothetical policy changes that would supposedly assuage objectors’ concerns. One affected party referred to the possible changes as a “shell game” that would make insurance companies functionally responsible for the mandated services, complicating bookkeeping without relieving religious institutions’ moral responsibility.

    The mandate was finalized without change on February 15, 2012.

    At the time it finalized the rule, the Administration announced a temporary “safe harbor,” merely delaying enforcement on some groups until August 1, 2013. The move gave non-exempt religious nonprofit organizations one additional year to figure out how to violate their consciences and comply with the mandate.

    The Administration then issued a non-binding “advanced notice of proposed rulemaking” (ANPRM), asking for comments on the “bookkeeping gimmicks” the President offered during the February press conference.

    If all of this sounds confusing, it’s because it is. The Administration has argued that it will fix the religious freedom problems before the temporary safe harbor expires, pointing to the ANPRM as evidence. Ten months later, no concrete action has been taken. From a policy perspective, the only plausible conclusion is that accommodating religious objectors is at odds with centralizing health care policy.

    Yet the Administration’s argument has caused some judges to treat nonprofit religious objectors’ cases as premature. Until last week.

    In the archdiocese’s case, Judge Brian M. Cogan called the enforcement deadline “looming and certain,” like “a speeding train that is coming towards plaintiffs.” As religious liberty advocates have pointed out for months, the non-binding ANPRM “is not a change in policy; it merely seeks input to allow the Departments to consider possible revisions to the [HHS] mandate,” Judge Cogan held. Therefore, it does nothing to shield the archdiocese from enforcement actions against it.

    The court observed that the Administration has had plenty of time to address the religious liberty concerns created by the HHS mandate but failed to do so. Ultimately, the court declined to allow the ambiguity created by the Administration’s non-binding promise of some future accommodation to derail the archdiocese’s religious liberty concerns:

    [T]he First Amendment does not require citizens 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. 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.

    The archdiocese expects to incur penalties of up to $200 million per year starting January 1, 2014, for failing to comply with the mandate; its health care affiliates face likely fines of $40 million and $400 million, respectively. It has already expended considerable sums in assessing and preparing for its obligations under the new centralized health care regime.

    As a result of the court’s decision, the archdiocese’s religious freedom challenge to the conscience-crushing mandate will continue. But religious institutions and individuals should not have to go to court to protect their religious liberty, which the Administration’s policies treat as fundamentally at odds with the core nature of Obamacare’s centralizing, standardizing trajectory.

    Posted in Featured, Obamacare [slideshow_deploy]

    3 Responses to Not-So-Safe Harbor: Court Allows Archdiocese's HHS Mandate Challenge to Proceed

    1. Dave says:

      We are fortunate to have the Bill of Rights to protect our religious freedom.

    2. Mutantone says:

      As we have seen in our history the government has a record of failures, when it comes to the rights of the people.
      Just look at the Native Americans and how they are treated and have been treated.
      Look at WWII and the internment camps.
      Look at how they treated the Mormons and other religious groups.
      Where is our protection from the Muslim Brotherhoods' intrusion into our Nation? Obama is far more concerned at advancing the Brotherhoods agenda than the freedoms that the United States use to represent
      Based on the records, the religious freedom that the Constitution guarantees are subjective as are the duties of the government to follow the laws as we have seen with Obama's selective use of the laws for his ends.

    3. Mike, Wichita Falls says:

      Besides the religious liberty violations, another problem with these "safe harbors", ANPRMs, etc. is that there is no accountability. These are bureaucratic whims and dictates, not letter of the law, just like those waivers granted to politically favored groups (mostly unions) in 2010 or the possible delay of the medical device tax implementation pushed by 20 Democrat Senators to aid in their fundraising and re-election.

      If the law, no matter how immoral and unconstitutional it is, states that certain things need to be done by a certain time, then it must be so until a court issues an injunction or the law is overturned or repealed. We must maintain the rule of law and oppose the rule of men, such as Obama, and women, such as Sebelius.

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