Judge tosses out contraception lawsuit filed by Nebraska, six other states

2012-07-17T17:30:00Z 2012-07-17T20:03:33Z Judge tosses out contraception lawsuit filed by Nebraska, six other statesBy KEVIN O'HANLON / Lincoln Journal Star JournalStar.com

A federal judge has dismissed a federal lawsuit in which Nebraska and six other states tried to block part of the federal health care law that requires contraception coverage.

U.S. District Judge Warren Urbom of Lincoln dismissed the case Tuesday, saying the plaintiffs did not have standing to bring the action challenging part of the Affordable Care Act.

“Today’s decision completely disregards the federal government’s continued shell game when it comes to this rule,” said Attorney General Jon Bruning. “Essentially, this decision asks millions of Americans to watch and wait for their religious liberties to be violated. Obviously, we’re disappointed with the ruling, and we will consult with our co-plaintiffs to assess our next steps.”

The attorneys general for Florida, Michigan, Ohio, Oklahoma, South Carolina and Texas joined Bruning's challenge of the contraception rule. All are Republican.

The ACA was one of the cornerstones of Democratic President Barack Obama's 2008 election campaign. Last month, the U.S. Supreme Court upheld most of the provisions of the law.

Plaintiffs also included three Nebraska-based groups -- Catholic Social Services, Pius X High School and the Catholic Mutual Relief Society of America -- along with a nun and a female missionary.

The lawsuit challenged a rule that requires contraception coverage in health care plans -- including for employees of church-affiliated hospitals, schools and outreach programs. It argued that the rule violates the rights of employers that object to the use of contraceptives, sterilization and abortion-inducing drugs.

Urbom sided with the U.S. Justice Department, which argued that the plaintiffs did not show that they faced the immediate threat of having to offer the coverage, because the federal government delayed enforcement of the rule until August 2013. That so-called "safe harbor" provision is to allow accommodations to be worked out for some religious groups.

The Justice Department also said the states lacked the legal grounds to sue over the provision because they don't enjoy First Amendment protections.

"Although the rule that lies at the heart of the plaintiffs’ complaint establishes a definitive, final definition of 'religious employer,' the ACA’s contraceptive coverage requirements are not being enforced against non-exempted religious organizations, and the rule is currently undergoing a process of amendment to accommodate these organizations," Urbom said.

"The plaintiffs face no direct and immediate harm, and one can only speculate whether the plaintiffs will ever feel any effects from the rule when the temporary enforcement safe harbor terminates. This case clearly involves 'contingent future events that may not occur as anticipated, or indeed may not occur at all,' ... and therefore it is not ripe for review.

"None of the plaintiffs have established that they have standing to challenge the rule, and even if I were to assume that they did have standing, their claims are not ripe," Urbom said.

Urbom said 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," Urbom said.

Reach Kevin O'Hanlon at 402-473-2682 or kohanlon@journalstar.com.

Copyright 2015 JournalStar.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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