By Dave Andrusko
Once again citing “timeliness,” a federal judge has dismissed a challenge to the Obama mandate requiring employers to purchase health insurance for their employees that includes coverage for items and procedures, such as contraceptives, that they have moral or religious objections to.
Last Friday U.S. District Judge Robert L. Miller Jr. dismissed Notre Dame’s lawsuit because the University is in a “safe harbor,” a reference to the Obama administration’s assurance that it would accommodate religious institutions like Notre Dame that insure themselves (“rework the regulations” was Judge Miller’s characterization).
“The present regulatory requirement isn’t sufficiently final for review to be ripe because the defendants have announced it will be modified and have underscored that announcement by providing Notre Dame with a safe harbor that protects it from the regulation as it exists today,” Judge Miller wrote. “Notre Dame lacks standing to attack the present regulatory requirement because it isn’t subject to that requirement, and, taking the defendants at their word, never will be subject to the present regulation.” (See the entire 10-page opinion.)
Writing at the First Things website, Leroy Huizenga mused:
“One wonders if this opinion would give plaintiffs such as Notre Dame renewed grounds for legal action if the government does not in fact rework the regulation in a way that guarantees Notre Dame and other Catholic and Christian entities ‘never will be subject to the present regulation.’ For the judge is ‘taking the defendants’– Obama and [Secretary of Health and Human Services Secretary Kathleen] Sebelius–‘at their word.’ I and many other Christians whose consciences and livelihoods are threatened by the mandate cannot find it in ourselves trust promises made by this administration.”
Huizenga concludes from quoting from U.S. District Judge Brian Cogan who ruled in favor of the Archdiocese of New York”
“…the 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 mandate is regulations adopted by the Department of Health and Human Services [HHS] under a provision of ObamaCare. According to the Becket Fund for Religious Liberties, there are 43 cases and over 110 plaintiffs challenging the mandate in court.
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