Contraceptive Mandate Appeal Held in Abeyance Pending Issuance of Final Rule

The D.C. Circuit Court ruled that lawsuits challenging the constitutionality of the contraceptive mandate of the Affordable Care Act (“ACA”) should be held in abeyance until the Department of Health and Human Services issues its final rules regarding the applicability of the mandate to private employers. See Wheaton College v. Sebelius, No. 12-5273 (D.C. Cir. Dec. 18, 2012). In their July 2010 Interim Final Rule, the government issued regulations under ACA, 42 U.S.C. § 300gg-13(a)(4), requiring group health plans and health insurance issuers, unless grandfathered or otherwise exempt, to cover “preventive care and screening[s]” for women in accordance with guidelines to be promulgated by appellee Department of Health and Human Services at a later date. Id. at 1 (citing 75 Fed. Reg. 41,726, 41,728 (July 19, 2010)). On August 1, 2011, the Department issued those guidelines, which require plans to cover all “FDA approved contraceptive[s].” See 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012). An amended Interim Final Rule authorized an exemption for certain organizations with religious objections to contraception, but the exemption does not extend to the appellant religious colleges in these cases. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). Religious colleges filed suit challenging the requirement that they provide contraceptive services.    

At oral argument, the government represented that it would never enforce the contraceptive mandate against the appellants or those like them and that it would publish a new final rule before August 2013. Finding that the government’s representations that a final rule may render the appeal moot, the D.C. Circuit agreed to hold the appeal in abeyance pending the issuance of the new final rule. As such, the D.C. Circuit has not issued any ruling regarding the applicability of the contraceptive mandate to religious and non-profit entities.

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