A few weeks ago, the Obama Administration effectively adopted the Court’s Wheaton College order’s proposal–non-profits need not fill out a form, but only need to notify the government they object to paying for contraceptives. Then, HHS would notify the insurance provider who would provide coverage for the contraceptives (oversimplifying).
WSJ reports that the Little Sisters of the Poor, and other similarly situated groups, have filed briefs in the 10th Circuit objecting to this new compromise:
In briefs filed to the U.S. Court of Appeals for the Tenth Circuit Monday, several groups that had already begun cases against the administration said the fresh arrangement announced last month still doesn’t resolve their concerns.
“The Little Sisters have stated a clear religious objection to facilitating the distribution of contraceptives in connection with their plan in any way,” said lawyers for the Little Sisters of the Poor, Catholic nuns who run a chain of nonprofit nursing homes. The fresh proposals “therefore merely offer the Little Sisters another way to violate their religion and comply with the mandate.”
The other challengers in the Denver-centered circuit are Southern Nazarene University, a Christian college in Oklahoma affiliated with the Church of the Nazarene, and Reaching Souls International, an evangelical Christian mission based in Oklahoma City. They also signaled in court filings the compromise doesn’t satisfy them and they want the courts to consider their lawsuits challenging the requirement
Government lawyers told the court that the fresh system will “provide an alternative opt-out mechanism that respects religious liberty while allowing the government to achieve its “compelling interest in providing insurance coverage that is necessary to protect the health of female employees.'”
I am not quite sure if the circuit court will consider the new issues afresh. It may make sense to remand to the district court to consider the new regulation. In effect, the current suit is challenging a regulation that is no longer in effect.
But who knows.
Update: It seems that the United States thinks the 10th Circuit should go ahead with the appeal without remanding. I thought the government would try to drag their feet with this, as they do with all other Obamacare cases. But I suppose when the an injunction prevents the provision of contraception, they must move with all deliberate speed.