Administration Rewrites “Safe Harbor,” Dodges Defense of HHS Mandate in Court After ”safe harbor” expansion, Wheaton College dismissed from lawsuit on technicality

WASHINGTON, DC – In direct response to a lawsuit challenging the HHS mandate brought by Becket Law on behalf of Wheaton College, the federal government has rewritten its one-year “safe harbor” to include Wheaton, giving the prominent evangelical institution until August, 2013, before being forced to comply with the mandate or face crippling fines. As a result of the government’s concession, last Friday, a federal judge for the U.S. District Court for the District of Columbia dismissed Wheaton College’s lawsuit as premature.

The government claims that it will create a new “insurer” mandate during that safe-harbor period which would purportedly solve the religious liberty problem, but religious organizations like Wheaton remain unconvinced.

“The government has now re-written the ‘safe harbor’ guidelines three times in seven months, and is evidently in no hurry to defend the HHS mandate in open court,” said Kyle Duncan, General Counsel for Becket Law. “By moving the goalposts yet again, the government managed to get Wheaton’s lawsuit dismissed on purely technical grounds. This leaves unresolved the question of religious liberty at the heart of the lawsuit.”

Still, the new “safe harbor” guidelines are a victory for Wheaton. Before the lawsuit, the government could have enforced the HHS mandate against Wheaton regardless of its religious objections to providing coverage for abortion-inducing drugs. As a direct result of Wheaton’s lawsuit, the college now has some protection for its faith and its employees’ health insurance–albeit only for one year and only against government enforcement of the mandate.

“Millions of religious employers are relying on the safe harbor guidance from HHS about who is subject to the mandate and who isn’t,” said Duncan. “It should be more clear than a series of confusing ad hoc changes to the safe harbor.”

Unfortunately, the court’s dismissal of the lawsuit fails to acknowledge the government coercion Wheaton still faces. Despite qualifying for the “safe harbor,” not complying with the mandate during that safe harbor period technically places the college in violation of federal law, and thus exposed to lawsuits authorized by the Affordable Care Act to enforce the HHS mandate. Wheaton therefore is carefully considering an appeal to the U.S. Court of Appeals for the D.C. Circuit.

The government has already lost the religious liberty argument over the mandate once—when a federal court in Colorado issued an injunction against the mandate in favor of a Catholic business owner—and the government appears to be in no hurry to defend the mandate in open court again.

Becket led the charge against the unconstitutional HHS mandate, and along with Wheaton represents: Belmont Abbey College, Colorado Christian University, the Eternal Word Television Network, and Ave Maria University.  There are now 26 separate lawsuits challenging the HHS mandate.

Becket Law is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions—from Anglicans to Zoroastrians. For 18 years its attorneys are recognized as experts in the field of church-state law, and they recently won a 9-0 victory in Hosanna-Tabor v. EEOC, which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”

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 For more information, or to arrange an interview with one of the attorneys, please contact Melinda Skea at media@becketlaw.org or call 202.349.7224.