Judge Tosses Challenge by Seven States to Obama Mandate

By Dave Andrusko

U.S. District Judge Warren Urbom

U.S. District Judge Warren Urbom has dismissed a federal lawsuit brought by seven states against the Obama Administration’s mandate that requires religiously-affiliated universities, hospitals, and charities to pay for health insurance that covers sterilization and contraception.

Urbom threw out the suit on Tuesday, holding that the plaintiffs (which also included Catholic Social Services, Pius X High School, the Catholic Mutual Relief Society of America, a nun, and a female missionary) lack standing to challenge a portion of Obama because they “face no direct and immediate harm” from the mandate, which will not go into effect for most religious organizations until August 1, 2013. (The formal name for ObamaCare is the Affordable Care Act—ACA.)

Response was quick.

“Today’s decision completely disregards the federal government’s continued shell game when it comes to this rule,” said Nebraska Attorney General Jon Bruning. “Essentially, this decision asks millions of Americans to watch and wait for their religious liberties to be violated. Obviously, we’re disappointed with the ruling, and we will consult with our co-plaintiffs to assess our next steps.”

Texas Attorney General Greg Abbott said in a news release, “The very first amendment to our Constitution was intended to protect against this sort of government intrusion into our religious convictions.”

Oklahoma Attorney General Scott Pruitt told the Associated Press in a statement that he planned to talk to his colleagues in other states about an appeal.

“This was not a ruling on whether the religious mandate is a violation of the First Amendment, but merely a decision on whether the plaintiffs can file a lawsuit at this time,” he said. “The violations need to be heard and the federal government held accountable.”

The provision was challenged by the Attorneys General of Nebraska, Florida, Michigan, Ohio, Oklahoma, South Carolina,  and Texas.

Urbom swallowed the Justice Department’s two-fold position, hook, line, and sinker.

First, that the suit was premature. The states couldn’t show they faced an “immediate threat” because (after a barrage of criticism) the Department of Health and Human Services said it would delay enforcement until next year while it worked out an “accommodation.” (This is referred to as the “safe harbor” provision.)

“Although the rule that lies at the heart of the plaintiffs’ complaint establishes a definitive, final definition of ‘religious employer,’ the ACA’s contraceptive coverage requirements are not being enforced against non-exempted religious organizations, and the rule is currently undergoing a process of amendment to accommodate these organizations,” Urbom said.

“The plaintiffs face no direct and immediate harm, and one can only speculate whether the plaintiffs will ever feel any effects from the rule when the temporary enforcement safe harbor terminates. This case clearly involves ‘contingent future events that may not occur as anticipated, or indeed may not occur at all,’ … and therefore it is not ripe for review.”

Second, Urbom agreed with the Justice Department’s contention that the states lacked the legal grounds to sue because they don’t enjoy First Amendment protections.