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Appeals Court Rejects Notre Dame’s Challenge to Contraception Mandate

Jessica Mason Pieklo

The 2-1 decision held the university had not shown that complying with the exemption process for religiously affiliated nonprofits substantially burdened its religious rights.

On Friday, a federal appeals court ruled against the University of Notre Dame’s challenge to the contraception mandate in the Affordable Care Act, holding that the university hadn’t demonstrated that complying with the exemption process for religiously affiliated nonprofits substantially burdened any religious interests the school had.

The decision by the Seventh Circuit Court of Appeals upheld a lower court’s refusal to grant Notre Dame’s request for an injunction, which would have allowed Notre Dame to avoid complying with the contraception mandate while its challenge to the constitutionality of the exemption to the mandate for religiously affiliated nonprofits proceeds. Notre Dame is one of a handful of religiously affiliated nonprofits arguing that the self-certification process through which nonprofits identify that they object to providing insurance plans that cover birth control for their students and/or employees substantially burdens their religious rights because it “triggers” outside insurance administrators from making such coverage available.

Friday’s 2-1 decision rejected that claim, noting that the university had already notified the administrator of its employee and student plans that it objected to providing coverage, which meant it was complying with the law and its legal obligations were met. Essentially, the court said, what Notre Dame was asking for was an order blocking the insurance companies from providing that contraception coverage. Judge Richard A. Posner wrote for the majority:

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), so unless and until they are joined as defendants they can’t be ordered by the district court or by this court to do anything.

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While concluding that Notre Dame hadn’t made the case for a preliminary injunction, Judge Posner’s opinion did note that there were some open questions on the constitutionality of the mandate and its exemption, but that a trial on the merits was the appropriate venue to sort those out.

The university could appeal Friday’s decision to the full Seventh Circuit or to the U.S. Supreme Court.

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