![\"\"](\"https:\/\/wp-media.patheos.com\/blogs\/sites\/85\/2012\/12\/lady-justice-511x340.jpg\" "\\"lady-justice-511x340\\"")
<\/a><\/p>\nBack in May, the Archdiocese of New York filed suit against the Department of Health and Human Services<\/a> (HHS) because of the HHS Mandate<\/a> requiring contraceptive, abortifacient, and sterilization coverage for employees.<\/p>\n The plaintiffs in the case are as follows: The Roman Catholic Archdiocese of New York,\u00a0Catholic Health Care System and its affiliates, the Continuing Care Community of the\u00a0Archdiocese of New York (collectively, \u201cArch Care\u201d),\u00a0The Roman Catholic Diocese of Rockville Centre, New York, \u00a0Catholic Charities of the Diocese of Rockville Centre, and Catholic Health Services of Long Island (\u201cCHSLI\u201d).<\/p>\n Yesterday, Judge Brian Cogan allowed the lawsuit to continue.\u00a0Jessica Dye of Reuters reports,<\/p>\n The Roman Catholic Archdiocese of New York can proceed with a lawsuit challenging a requirement that employee healthcare plans cover contraceptives, a federal judge ruled Wednesday.<\/p>\n The lawsuit is one of several brought by dozens of Catholic institutions against the contraceptive provisions of President Barack Obama\u2019s new healthcare law.<\/p>\n The U.S. Department of Health and Human Services had said the lawsuit was premature and asked the U.S. District Judge Brian Cogan to dismiss it. Cogan denied that motion on Wednesday, saying the archdiocese was already preparing to incur millions of dollars in expenses in connection with the requirement.<\/p>\n ****<\/p>\n The archdiocese argued in court papers that even though it is unclear what its legal obligations will be once the exemption is fully outlined, it expects to incur nearly $200 million each year in penalties if it is forced to comply with the coverage requirement.<\/p>\n The department had argued it is too soon for the Catholic groups to bring legal challenges to the requirement, since it is not yet certain how, or if, it would harm them once the exemption is fully fleshed out. But Cogan said that uncertainty should not preclude groups like the archdiocese from challenging what could prove to be an onerous burden on both their finances and religious freedom rights.<\/p>\n \u201cThere is no \u2018Trust us, changes are coming\u2019 clause in the Constitution,\u201d Cogan wrote.<\/p><\/blockquote>\n Read the rest.<\/a><\/p>\n It should be noted that Judge Cogan dismissed the claims of \u00a0The Roman Catholic Diocese of Rockville Centre, New York, \u00a0Catholic Charities of the Diocese of Rockville Centre (The Diocese and Catholic Charities) for lack of \u00a0standing, as the court determined that their plans would qualify as being \u201cgrandfathered,\u201d and thus not subject to the Mandate. The court wrote,<\/p>\n Since the Coverage Mandate does not apply to grandfathered plans, see\u00a042 U.S.C. \u00a7 18011(a)(2), defendants contend that Diocese, Catholic Charities, and ArchCare\u00a0cannot suffer an injury in fact fairly traceable to the Coverage Mandate if they are exempt from\u00a0its requirements and do not need to change their current coverage.<\/p><\/blockquote>\n For the full context of Judge Cogan\u2019s quote about trusting the government, here is the excerpt from the order (bold highlight is mine).<\/p>\n Moreover, the First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. There is no, \u201cTrust us, changes are coming\u201d clause in the Constitution. 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.<\/strong> See Florida Cannabis Action Network, Inc. v. City of Jacksonville, 130 F. Supp. 2d 1358, 1362 (M.D. Fla. 2001) (\u201cThe whim, self restraint, or even the well reasoned judgment of a government official cannot serve as the lone safeguard of First Amendment rights.\u201d). Considering the extraordinary political passion surrounding the Coverage Mandate from all sides, there is simply no way to predict what, if any, changes to the Coverage Mandate will be made, even if some policymakers favor certainchanges.<\/p><\/blockquote>\n Judge Cogan went on to say that the,<\/p>\n plaintiffs here have demonstrated how the enormous changes to their plans required by the Coverage Mandate currently exacerbate their preparation costs. They have also demonstrated that the imminent operation of the Coverage Mandate has already caused them to divert funds from their ministries and, in the case of CHSLI, face increased health care costs for their employees.<\/p>\n For the reasons discussed in the standing context, the Court concludes that the Coverage Mandate is causing plaintiffs at least some \u201csome present detriment\u201d and that plaintiffs\u2019\u00a0preparations in order to avoid noncompliance (or budget for the penalties) are justified in light of\u00a0the practical realities of the Coverage Mandate. Thus plaintiffs have adequately demonstrated\u00a0hardship from withholding judicial review. Importantly, even if the Court were to find that the\u00a0Coverage Mandate was not fit for review, plaintiffs\u2019 hardship would \u201coutweigh the competing\u00a0institutional interests in deferring review.\u201d<\/p><\/blockquote>\n Regarding the fact that similar lawsuits have been thrown out in for various reasons in the past, Judge Cogan stated that,<\/p>\n The Court appreciates that other courts have held otherwise. Nevertheless, I conclude\u00a0that those courts overestimate the significance of the ANPRM (advanced notice of proposed rulemaking) and underestimate the finality of\u00a0the Coverage Mandate. For example, the Nashville court concluded that \u201cthe preventive services\u00a0regulations, in their current form, will not be enforced against Plaintiffs,\u201d 2012 WL 5879796, at\u00a0*3, and the Legatus court remarked that \u201cLegatus asks the court to enjoin the Government from\u00a0enforcing a rule that is not yet finalized[.]\u201d 2012 WL 5359630, at *5. I do not see the basis for\u00a0such holdings. This case has been pending for six months. The earliest case challenging the\u00a0Coverage Mandate was commenced over a year ago. The ANPRM was announced nearly ten\u00a0months ago and entered in the Federal Register over eight months ago. In that time, the\u00a0Departments have had ample opportunity to enact a meaningful change to the Coverage\u00a0Mandate.\u00a0The fact that they have not further suggests the likelihood of injuries to plaintiffs.<\/p>\n The Coverage Mandate is a final rule, see 77 Fed. Reg. 8,730 (adopting the Interim Final rules \u201cas a final rule without change\u201d), and the ANPRM has not made the Coverage Mandate any less binding on plaintiffs. Therefore, this is not a case where an enforcement action is only \u201cremotely possible\u201d or plaintiffs\u2019 concerns are \u201cimaginary or speculative.\u201d See Babbitt v. United\u00a0Farm Workers Nat\u2019l Union, 442 U.S. 289, 298-99, 99 S. Ct. 2301, 2309 (1979). Even if plaintiffs\u2019 future harms were not sufficiently imminent to be considered injuries in fact, the Court would find that plaintiffs have standing because the Coverage Mandate is causing plaintiffs to suffer present harm. First, the impending effectiveness of future regulations can cause present effects that are sufficient to create standing. For example, in cases where plaintiffs challenged the Individual Mandate of the ACA prior to its effective date, courts focused on \u201cthe immediate economic pressure\u201d on plaintiffs \u201cas a direct result of the Individual Mandate.\u201d Goudy-Bachman v. Dep\u2019t ofHealth & Human Servs., 764 F. Supp. 2d 684,691 (M.D. Pa. 2011). Courts found that plaintiffs had standing because they were already incurring\u00a0the opportunity costs of having to purchase health insurance- such as not purchasing a new car,\u00a0reducing spending, or diverting money from other business goals. Id. at 691-92. See also Butler\u00a0v. Obama, 814 F. Supp. 2d. 230, 236-37 (E.D.N.Y. 2011) (collecting cases where standing was\u00a0found based on plaintiffs\u2019 allegations of\u201dsome current financial injury based upon their\u00a0preparation for the implementation of the Individual Mandate\u201d).<\/p><\/blockquote>\n And so the ARCHNY lawsuit against HHS will continue.<\/p>\n You can read the entire Memorandum and Decision Order here, courtesy of the Becket Fund<\/a>.<\/p>\n UPDATES:<\/strong><\/p>\n Bloomberg News:\u00a0Catholic Groups\u2019 Can Pursue Contraceptive Coverage Suit<\/a>.<\/p>\n An Important Mandate Decision: EDNY Holds Standing and Ripeness Requirements Satisfied<\/a>.<\/p>\n Obama health care law: Catholic groups lawsuit over contraceptive coverage to proceed<\/a>.<\/p>\n