Wednesday, July 03, 2013

Delay Of Affordable Care Act Employer Mandate Could Raise Ripeness Issues In Business Challenges To Contraceptive Coverage Mandate

The White House announced yesterday that it is delaying implementation of the Affordable Care Act's employer mandate by one year in order to simplify reporting requirements for businesses.  As reported by the Washington Post, this means that businesses with over 50 employees that do not offer health care insurance meeting federal standards to their employees will not face the $2000 per employee fine until January 2015. The move now raises the question of whether any of the numerous small business lawsuits objecting on religious freedom grounds to complying with the contraceptive coverage mandate might be dismissed on ripeness grounds.  While there is nothing to suggest that the mandate will not ultimately be imposed, it could be tempting to a court to seize on a justiciability rationale instead of wrestling with the difficult free exercise issues posed by the mandate.

UPDATE: The Becket Fund argues that yesterday's policy change has no impact on the contraceptive coverage mandate because it is subject to a separate reporting requirement and excise tax penalty not mentioned in the Treasury Department's statement.