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Notre Dame birth-control protest denied again

Reacting to a Supreme Court order to reconsider, a federal appeals court refused on Tuesday for a second time to stop enforcement of the federal government’s birth-control mandate against the University of Notre Dame.  In a two-to-one ruling, the U.S. Court of Appeals for the Seventh Circuit cleared the way for a trial of the university’s challenge but denied any immediate religious exemption.

This marked the first time that a federal appeals court had rejected a claim that the Supreme Court’s ruling last June in the case of Burwell v. Hobby Lobby Stores should shield a non-profit religious organization from any role whatsoever in carrying out the Affordable Care Act’s contraceptive mandate. The issue seems certain to return to the Justices, probably next Term, although Notre Dame could try to get some temporary relief by returning quickly to the Supreme Court.

The university’s case has yet to go to trial in a federal district court, so the appeals court ruling was limited to denying preliminary protection for the university in the meantime.  Still, it was a strong signal that the Roman Catholic institution may have a hard time, at least in lower courts, getting an exemption.

Although the government has made clear that non-profit groups need to take only a minimal step to take advantage of a religious exemption, Notre Dame — like some other non-profits — has been arguing that even taking such a step would mean that it had helped to implement the mandate in a way that violates its religious opposition to birth control.

Although the Supreme Court has now issued four temporary orders in non-profit cases, it has made clear that none of those was a decision on whether such institutions will ultimately be spared any role at all under the ACA mandate.  This Term, the Court has sent two of those cases — Notre Dame’s was one of them — back to appeals courts to examine the impact, if any, that the Hobby Lobby ruling would have on the non-profit sector.

The Hobby Lobby decision gave for-profit businesses that are “closely held” — that is, owned by only a few individuals — an exemption from the birth-control mandate if the firm’s owners had a religious objection to one or more mandated birth-control devices or methods for their female workers.   That decision was based on the federal Religious Freedom Restoration Act.

Before that decision, only strictly religious organizations, like churches, and some religiously affiliated non-profit groups could qualify for an exemption, under federal rules implementing the ACA mandate.

For a time, to qualify for an exemption for contraceptive coverage for its employees, a non-profit other than a church had to file a government-prescribed form.  That met with complaints by non-profits that filing that form “facilitated” the availability of birth-control techniques paid for by their health insurance providers.

Under temporary orders from the Supreme Court, some religious non-profits have been allowed simply to send a letter to the federal government, claiming an exemption.  After that, the insurance companies would take on the legal duty under ACA of providing contraceptives — at no cost to the employees or persons served by the non-profit, such as college students — in return for government financing of that coverage.

Notre Dame’s case is somewhat confusing — and the Seventh Circuit expressed frustration over this on Tuesday — because the university has already filed the prescribed form, when it faced a government-imposed deadline.

But it is now arguing that such a filing, or even the submission of a letter to the government, made it or will make it “complicit” in giving its employees and its students access to the services to which the university objects based on Roman Catholic doctrine.

Among other arguments the university has made — and the court of appeals has now rejected — is that the Hobby Lobby decision should spare it from having to take any steps under the ACA mandate.  It proposed a series of alternatives, but the Seventh Circuit Court found each of those not appropriate.

Notre Dame uses outside insurance companies to provide either management or actual coverage of health insurance for some 4,600 of its employees and their dependents, and some 2,600 students and their dependents.  Most Notre Dame students have coverage from their parents’ insurance, provided by other insurers.

The Seventh Circuit, noting that it had been puzzled about what the university actually wanted, at the time it refused temporary legal relief, remarked on Tuesday that “we now have (we think) a clearer idea of what the university wants.”  That, the opinion said, is that the court should prohibit the outside insurers from providing any contraceptive coverage for its staff or students.

That, the court remarked, would mean that employees and students who do not now have such coverage “would have to fend for themselves.”  The court refused to set that prospect in motion, refusing explicitly to remove any legal obligation under ACA that would be directed to the insurers even without the university taking any steps.

The Seventh Circuit’s main opinion, written by Circuit Judge Richard A. Posner, went on to deny any preliminary relief, saying that it was the ACA, not anything that Notre Dame would have to do directly, that would mandate the contraceptive coverage for staff and students.

Circuit Judge David F. Hamilton supported the denial, but wrote a separate opinion.  Circuit Judge Joel M. Flaum dissented, saying that Notre Dame had already made a case for an exemption, and so enforcement of the mandate should have been blocked.

The university has the legal option of asking for further review by the en banc Seventh Circuit or instead returning to the Supreme Court.   The Justices have only about six more weeks remaining in the current Term, so it would be too late to get a formal appeal decided before the summer recess.


Recommended Citation: Lyle Denniston, Notre Dame birth-control protest denied again, SCOTUSblog (May. 20, 2015, 10:03 AM),