Several religious groups that challenged ObamaCare's birth control mandate want Justice Department lawyers to end the legal battle, arguing the arrival of the Trump administration makes their case impossible to argue.
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Lawyers for the East Texas Baptist University and five other plaintiffs say President Trump and new Health and Human Services Secretary Tom Price already oppose the coverage mandate on employers.
“Trump and Price have a public position,” Mark Rienzi, lawyer for the Becket Fund for Religious Liberty which is representing the plaintiffs, told Fox News on Tuesday. “My point is this: There’s no plausible way they can continue this appeal.”
The Supreme Court remanded the case, along with a similar one, last year to the lower courts, ordering the federal government and plaintiffs to strike a compromise.
But that case has dragged on even after the change in administration. Rienzi made his argument following a routine status report the Justice Department filed Monday with the U.S. Court of Appeals for the Fifth Circuit.
Justice lawyers, in their report, asked for an additional 60 days.
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The lawyers primarily argued the Supreme Court anticipated when returning cases to lower courts that both sides would need “sufficient time to resolve outstanding issues.”
They also argued that the Beckett Fund made a failed request last month in a similar case before the Tenth Circuit.
But in the plaintiffs’ status report, lawyers wrote the government’s case has “changed dramatically” in recent months and its appeal has become “untenable” -- considering the country has a new president, attorney general, health secretary and Supreme Court justice.
“It is now high time for the Department of Justice to admit defeat and dismiss the appeal,” they wrote. The plaintiffs oppose the mandate on religious or moral grounds.
Justice lawyers also noted big changes in recent months. But they argued that Cabinet-level agencies are facing “numerous other” legal arguments, while understaffed as a result of the presidential transition.
The Obama administration attempted to resolve the mandate issue -- which requires employer-based insurance to cover contraceptive services -- by allowing religious groups and others to put a third party in charge. However, some of the groups want the same full exemption that churches have.
Price has already filed a so-called “amicus brief” with the Supreme Court, arguing the mandate violates the 1993 Religious Freedom Restoration Act.
And Trump argued during the 2016 presidential campaign that Democratic nominee Hillary Clinton “supports forcing” the Little Sisters of the Poor, which has a similar suit against the federal government, to pay for contraceptives in its health care plan.
“That is hostility to religious liberty that you will never see in a Trump administration,” Trump wrote in a letter to the Catholic Leadership Conference.
The Justice Department declined to comment beyond its court filing.
Rienzi declined to speculate about why the Justice Department, now being led by Trump-appointed Attorney General Jeff Sessions, hasn’t concluded the case.
“It’s oblique to me,” he said. “Exactly what’s going on, I don’t know.”
However, Rienzi allowed that he would like the entire matter concluded with Price making a rules change and Justice lawyers dropping the case.