In Wheaton College v. Sebelius, the key litigated issue was whether two colleges' claims challenging the government's contraceptive mandate, part of the Affordable Care Act's (ACA's) preventive services rules, for certain employers were ripe for review in light of a temporary enforcement safe harbor and ongoing rulemaking addressing how the mandate applies to health plans sponsored by nonprofit organizations having religious objections to contraception.

In August 2011, HHS released guidelines under the Affordable Care Act's (ACA's) preventive services rules that require non-grandfathered group health plans and health insurers offering group or individual health insurance coverage to provide first-dollar coverage for contraceptives for women. Although an exemption was provided for group health plans established or maintained by certain religious employers, that exemption did not cover health plans sponsored by qualifying colleges and hospitals with religious affiliations. In February 2012, however, HHS issued guidance providing a temporary enforcement safe harbor under which health plans sponsored by certain religious-affiliated employers would have additional time to comply with contraceptives coverage mandate. The enforcement safe harbor remains in effect until the first plan year beginning on or after August 1, 2013. HHS reissued the bulletin in August 2012.

Wheaton College and Belmont Abbey College (the colleges), both religious-affiliated educational institutions, filed separate lawsuits in the US District Court for the District of Columbia challenging the contraceptives coverage mandate. The colleges' plan years begin in January 2014. These lawsuits were each dismissed on the grounds that:

The colleges appealed, and on September 20, 2012, the DC Circuit consolidated the two cases and granted them an expedited appeal.

On December 18, 2012, the US Court of Appeals for the DC Circuit issued an order in Wheaton College v. Sebelius, in which it:

The court's conclusion that the cases were not fit for review was based on:

Based expressly on the government's representations, the court concluded that the issues presented were not fit for review because they might never need to be resolved. However, the court stated that it would hold HHS to its representations, and ordered it to file status reports every 60 days from the date of the order (December 18, 2012).

As the DC Circuit noted in its order, HHS' litigation position in this case goes further than its guidance issued to date and envisions a broad exemption or nonenforcement policy for health plans sponsored by nonprofit organizations like the colleges that have religious objections to offering contraception. Of course, the details of such a policy remain to be seen. The order also offers a clearer picture of the timing of HHS' proposed guidance, which can be expected (at least according to HHS' representations in this litigation) by the end of March 2013. The government's first status report regarding the proposed guidance is due in February 2012, assuming the guidance is not already issued by then.