Federal Judge Rejects DOJ’s Request to Delay Constitutional Challenge to Obamacare “Contraception Mandate” due to Government Shutdown

Washington, D.C. (October 3, 2013) — In a stunning ruling in favor of opponents to Obamacare, Federal Judge Emmet G. Sullivan, sitting in the U.S. District Court for the District of Columbia, denied the Department of Justice’s (DOJ) request to stay litigation in the American Freedom Law Center’s (AFLC) challenge to the recently announced regulations enforcing the Obamacare contraceptive services mandate against religious organizations.  The challenged mandate requires certain non-exempt religious employers to provide insurance plans that promote and facilitate the use of contraceptive services in violation of the employers’ constitutional and statutory rights.  On October 1, the DOJ requested a stay of litigation due to the lapse of appropriations as part of the partial government shutdown.  Yesterday, Judge Sullivan denied the request.

AFLC, which is representing Priests for Life, an international Catholic organization, its National Director, Father Frank Pavone, and two Priests for Life employees in its legal challenge to the contraception mandate, informed the DOJ attorney handling the case that Priests for Life would agree to a stay if the federal government would agree to stay the enforcement of the challenged mandate until the court has had a chance to rule on the merits.  The DOJ attorney refused. 

As a result, AFLC immediately filed an opposition to the DOJ’s motion for a stay, pointing out that in a September 30 press conference, President Obama declared that the implementation of the new healthcare law and its mandates would not be affected by the shutdown and would therefore proceed without delay.  Thus, AFLC argued, if the government is going to force Priests for Life to abide by an unconstitutional mandate, then the government should have to defend that mandate in court.  The federal judge agreed.

In his ruling, Judge Sullivan stated, in relevant part, the following: 

The Court concludes that a litigation stay would be inappropriate here.  This case involves certain, newly-ripe issues regarding the Affordable Care Act’s contraception mandate, which will go into effect regarding plaintiffs on January 1, 2014.  Plaintiffs filed a preliminary injunction in September, which they agreed to consolidate with a merits determination . . .  with the express understanding that the Court would resolve the issues prior to December 31, 2013.  Finally, plaintiffs represented in their opposition to the motion for a stay that they offered to consent to the government’s motion if the government would stay enforcement of the contraception mandate against plaintiffs until the court was able to rule on the merits, but the government refused.  In light of the irreparable harm alleged, the impending time sensitive mandate, and defendants’ refusal to delay enforcement of the mandate as to the plaintiffs in this case, the Court finds that an indefinite stay would be incompatible with the fair administration of justice

Robert Muise, AFLC Co-Founder and Senior Counsel, commented:

“The Obama administration wanted to ‘shut down’ this litigation for the duration of the government shutdown; yet, it was not willing to ‘shut down’ the enforcement of the contraception mandate.  Thankfully, Judge Sullivan recognized this inequity and that the serious legal questions raised in these proceedings need to be resolved irrespective of the ongoing stalemate on Capitol Hill.”

AFLC Co-Founder and Senior Counsel David Yerushalmi added:

“The court’s ruling is about fundamental fairness.  The Obama administration should not be permitted to create the conditions of a government shutdown and then refuse to show up in court to defend a constitutionally offensive contraception mandate the President refuses to suspend during the shutdown.”