Becket Fund Misleads on Obama Defense of Contraception Lawsuit

The House Judiciary Committee is holding a hearing “Executive Overreach: The HHS Mandate Versus Religious Liberty.” At the hearing, a spokesperson for the Becket Fund for Religious Liberty, a law firm which represents several religious institutions in lawsuits filed against the Obama administration over the rule, passed out a press release titled, “Obama Administration Takes Another Pass on Defending HHS Mandate.”

I asked him what he meant, or by what legal mechanism the Obama administration was “urg[ing] the court to duck the key issues merely because it has said the mandate might be changed at some unspecified date in the future,” according to the press release. He seemed unaware, or unable to answer my question, so I looked up the Obama administration’s filing in Colorado Christian University v. Sebelius. Although Becket is claiming that the Obama administration action is “remarkable” and “ducks” resolving critical issues of religious liberty, in fact the administration has merely moved to dismiss the suit on the grounds the court lacks jurisdiction, a move not uncommon in litigation.

Specifically, the administration argues, when it finalized the amendment to the interim final regulation on February 10, it also put in place a safe harbor, meaning the administration won’t seek to enforce compliance with the regulation until August 2013. What’s more, there will be additional modifications, which would “require health insurance issuers to offer group health insurance coverage without contraceptive coverage to non-profit religious organizations that object to contraceptive coverage and simultaneously to offer contraceptive coverage directly to such organizations’ plan participants who desire it, at no charge.”

Thus, the administration’s filing concludes, the case isn’t “ripe” or “fit for judicial review,” lawyer-speak for: the rule isn’t final so the court can’t rule yet on whether it violates anyone’s religious freedom. That’s not the same as the Obama administration “tak[ing] another pass on defending HHS mandate.” 

Although unlike the House Oversight and Government Reform Committee hearing of a few weeks ago, the Democrats do have a witness, Dr. Linda Rosenstock, Dean of the School of Public Health at UCLA, who served as chair of the Institute of Medicine’s Committee on Preventive Services for Women, which recommended the contraception coverage requirement. And the Democrats, notably New York’s Jerrold Nadler, is engaging in some tough questioning of the witnesses, including the Becket Fund’s Asma Uddin, on their legal claims. John Conyers of Michigan laid out good arguments on why the regulation does not violate the Establishment Clause, and Nadler just grilled Uddin on Establishment Clause questions.

Nonetheless, the other witnesses are the U.S. Conference of Catholic Bishops’ Ad Hoc Committee on Religious Liberty Chair Bishop William Lori, who already testified at the Oversight Committee hearing, and Jeanne Monahan of the Family Research Council, whose presence is apparently designed to show the Republicans aren’t anti-woman. “This administration’s act of discrimination against people of faith, and women of faith, must be stopped,” she said in her statement.

The tenor of the Republicans’ statements and questioning is captured by Arizona’s Rep. Trent Franks, who called the HHS regulation “not only a slap in the face to millions of Americans of faith, it is patently unconstitutional.” 

But Rep. Zoe Lofgren (D-CA), pointed out, “To be against birth control is a right in America, but to deny women birth control is way beyond that right.”

Sarah Posner, author of God’s Profits: Faith, Fraud, and the Republican Crusade for Values Voters, covers politics and religion. Her work has appeared in The Washington Post, The Guardian, The Atlantic, The American ProspectThe NationSalon, and other publications. Follow her on TwitterRSS feed Email