Judge dismisses AGs suit over contraception rule

Jessica M. Karmasek Jul. 19, 2012, 12:00pm



LINCOLN, Neb. (Legal Newsline) - A federal judge has dismissed a lawsuit filed by a group of Republican state attorneys general against the federal government over a rule in the federal health care law that requires contraception coverage in health care plans.

In a memorandum and order filed Tuesday, Judge Warren K. Urbom, for the U.S. District Court for the District of Nebraska, granted defendant U.S. Department of Health and Human Services' motion to dismiss.

Urbom said the seven states did not have standing to file the lawsuit because they did not prove they would suffer "immediate harm" once the rule is enacted.

The proposed rule would require all employers, including religious institutions, to pay for contraception, abortion-inducing drugs and sterilization.

"The complaint does not allege that the State plaintiffs will suffer 'direct injur(ies) resulting from the (defendants') challenged conduct,'" the judge wrote. "Instead, the State plaintiffs' theory of standing is based on layers of conjecture."

Also, Urbom ruled that the individual plaintiffs in the case -- Sister Mary Catherine and Stacy Molai -- lacked standing.

The judge wrote that they did not show that their current health plans "will be required to cover contraception-related services" under the rule and therefore their claims must be dismissed.

In February, attorneys general from Florida, Michigan, Nebraska, Ohio, Oklahoma, South Carolina and Texas, along with plaintiffs Catholic Social Services, Pius X Catholic High School and the Catholic Mutual Relief Society of America, filed a suit against the Department of Health and Human Services regulation.

In their suit, the seven states asked Urbom to block the administration's mandate that requires birth control coverage for employees of religious-affiliated hospitals, schools and outreach programs.

The attorneys general argued the new rule violates the First Amendment rights of groups that object to the use of contraceptives.

The rule, announced as part of the president's federal health care law, has come under fire from religious groups that object to the use of such contraceptive methods.

In response, Obama administration officials have said they will shift the requirement from the employers to health insurers themselves.

Urbom wrote of the states' claims, "First, the plaintiffs speculate that there are religious employers who are subject to the rule's requirements and who will cease to provide health coverage to their employees in order to avoid subsidizing contraceptive services that conflict with their religious beliefs.

"Then, the plaintiffs speculate that if those employers do elect to cease providing coverage, the employees of those organizations will seek (and obtain) Medicaid coverage from the States, which will cause the States to suffer budgetary strain."

He continued, "Alternately, the plaintiffs speculate that religious organization employers who do continue to provide health coverage to their employees will attempt to qualify for the rule's religious employer exemption by ceasing to provide charitable services to persons who do not share the organizations' religious views, and this in turn will cause those unserved persons to rely on state resources.

"Both alternatives allege hypothetical injuries to the States based on conjecture about the reactions of third parties, and the complaint simply does not allege facts showing that it is plausible -- and not merely possible -- that those reactions 'have been or will be made' in the manner that the plaintiffs suggest."

In his 45-page ruling, Urbom also noted the Obama administration's willingness to work with religious groups to try to address their concerns.

Nebraska Attorney General Jon Bruning, who lead the case, was disappointed in the court's ruling.

"Today's decision completely disregards the federal government's continued shell game when it comes to this rule," he said in a statement.

"Essentially, this decision asks millions of Americans to watch and wait for their religious liberties to be violated."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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