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Court: Obama must rewrite contraception mandate to accommodate religious liberty

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Politics,Beltway Confidential,Joel Gehrke,Politics Digest

Health and Human Services Secretary Kathleen Sebelius cannot enforce the Obamacare contraception mandate as it is written, but must follow through on a promise to rewrite the rule to accommodate religious liberty, a federal appeals court ordered.

The Obama administration “represented to the court that it would never enforce [the mandate] in its current form against the appellants or those similarly situated as regards contraceptive services,” the three judges hearing the case wrote in their order.  The Obama team made that promise during oral arguments against Wheaton College and The Becket Fund for Religious Liberty, which sued over the contraception mandate but lost at the lower court level.

“There will, the government said, be a different rule for entities like the appellants .  .  . We take the government at its word and will hold it to it,” the judges wrote.  They ruled that the Obama administration must rewrite the regulation by August 2013 and provide updates to the court every 60 days. If the government fails to do so, the lawsuits may proceed.

The court also noted that the Obama administration had not made such an expansive pledge outside the courtroom.

“The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” The Becket Fund’s Kyle Duncan, who argued the case, said in a statement.  “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”

Yesterday’s ruling marks the second time in two weeks that a judge has decided that Obama’s promise to change the rule eventually is an insufficient remedy to the religious liberty issues raised by opponents of the mandate.

“There is no, ‘Trust us, changes are coming’ clause in the Constitution,” Judge Brian Cogan wrote in his ruling in favor of the Archdiocese of New York two weeks ago. “To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.”

 

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