Notre Dame Denied Injunction on Contraception Mandate

The 7th Circuit Court of Appeals upheld a lower court’s refusal to grant a preliminary injunction in the University of Notre Dame’s lawsuit challenging the ACA’s contraception mandate. ND is arguing that even though they are exempt from having to include contraception in their group insurance policy, the act of having to claim that exemption is itself a violation of their religious freedom. The ruling, written by the legendary Judge Posner, almost mocks that argument:

We imagine that what the university wants is an order forbidding Aetna and Meritain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court. But we can’t issue such an order; neither Aetna nor Meritain is a defendant (the university’s failure to join them as defendants puzzles us)….. Furthermore, while a religious institution has a broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution..

If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to “trigger” the provision of female contraceptives….

The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. United States law and public policy have a history of accommodating religious beliefs…. What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. The closest analogues we have found are cases in which churches seeking rezoning or variances claim that the process for obtaining permission is so cumbersome as to constitute a substantial burden on religious practice….

The process of claiming one’s exemption from the duty to provide contraceptive coverage is the opposite of cumbersome. It amounts to signing one’s name and mailing the signed form to two addresses. Notre Dame may consider the process a substantial burden, but substantiality—like compelling governmental interest—is for the court to decide

It’s just such an absurd position and it’s the same one being taken by many other non-profit organizations (for-profit corporations like Hobby Lobby who are challenging the mandate are making a different argument because they aren’t exempted). You can read the full ruling here.

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  • eric

    it has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution.

    This is the key point here (IMO). Religious employers aren’t giving women contraception, or even seling it to them. The health insurance companies are doing that – because they are compelled to by law. The ND complaint amounts to saying their religion is being infringed because they are required to hire a contractor that follows the law.

  • coragyps

    “It amounts to signing one’s name and mailing the signed form to two addresses.”

    That’s a pretty severe burden….. $0.98 to pay for two stamps, it sounds like to me. Plus the ink for the signatures!

  • Reginald Selkirk

    Don’t forget the cost of the envelopes.

  • eric

    It amounts to signing one’s name and mailing the signed form to two addresses.

    Ah, but once they’ve signed their names, they’re on official record as sexists. That will make it much much harder for them to convince younger people ten years from now that they were actually pro-women’s rights the entire time. When the government insists that they leave a paper trail of their indecent and misogynistic behavior, that’s a burden on their future recruitment efforts.

  • Sure, it’s easy and cheap, but imagine how hard and expensive other companies covering ladyparts it is on Notre Dame’s souls!

  • greg1466

    Eric @ #4, more importantly than being on the record as sexist, once they’ve signed the form, the employees/students can get contraceptive coverage directly from the insurance carrier. At least my understanding is that the carrier requires the subscriber to have a signed form from the employer claiming the exemption before the carrier will cover it directly. By claiming the exemption, but not signing the form, the employer prevents the subscriber from getting contraception included in their coverage. Once again, this isn’t about the employers religious freedom, it’s about the employers freedom to control everyone elses religious freedom.

  • eric

    Greg – I was being a bit tongue in cheek. I wasn’t aware of the loophole you mention…that’s evil, and you’re probably right that that’s what they want.

  • greg1466

    Eric – I know your were being tongue in cheek. I mean come on. The Catholic Church has proudly proclaimed their misogyny for almost 2000 years. Why would they start being ashamed of it now?

  • gopiballava

    I’ll be the person who wrote that rule never contemplated how obnoxiously difficult these people would be. Is the paperwork arrangement part of the law or is it an easily changed regulation? If it’s the latter then it can be changed easily enough.