A federal appeals court on Tuesday again rejected claims by the University of Notre Dame that the federal accommodation process to the birth control benefit in the Affordable Care Act (ACA) substantially burdened the university’s religious rights.
The ACA requires some employers to offer health insurance plans that cover contraception as part of a package of preventive care services provided to employees at no additional cost or co-pay. The health law includes an exemption for churches and other houses of worship. It also contains an accommodation process for religiously affiliated nonprofits, like Notre Dame, that are not churches but maintain a religious objection to providing plans with contraception coverage.
That process allows the objecting employers to complete a form that notifies the federal government of their religious objection and triggers a process whereby the insurance company contracts directly with the people who want contraception coverage at no additional cost.
Under the accommodation process, groups like Notre Dame that claim a religious objection to the birth control benefit must simply notify the administration of their objection. The administration then takes on the task of coordinating coverage between insurance providers and those who want contraception coverage.
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Notre Dame and other religiously affiliated nonprofits objected to this requirement, arguing that simply filling out the form to notify its insurance company, or other relevant third parties, violates its religious beliefs by making it complicit in a scheme it finds morally objectionable: providing contraception to university employees and students.
So far federal appeals courts in multiple jurisdictions have rejected those claims which, under most circumstances, would be the end of the road for the legal challenges to the birth control benefit.
The litigation surrounding the birth control benefit has never been like “most circumstances.” Despite relying heavily on the existence of the accommodation process to rule for-profit companies like Hobby Lobby could opt out of the benefit, conservatives on the Roberts Court resurrected the claims of Notre Dame and other nonprofits, prompting appellate courts take a second look at their decisions in light of the Hobby Lobby ruling.
Tuesday’s decision was the first of those opinions to come back following the Roberts Court’s order to reconsider, and it is a strong repudiation of the religiously affiliated nonprofits claims. In a 2-1 decision, a panel of judges from the Seventh Circuit Court of Appeals rejected Notre Dame’s claims that participating in the accommodation process substantially burdened its religious rights.
Judge Richard Posner, writing for the majority, rejected the university’s claims that the Hobby Lobby decision means courts must take at face value claims of religious burden, stating “[a]lthough Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs.”
Posner noted that Notre Dame was effectively asking the court to block the university’s insurance provider from contracting with a third party—the Obama administration—to provide contraception coverage.
Unlike Notre Dame, those insurance companies have not raised religious objections to the birth control benefit. They are not even parties to the litigation. “It is irregular, moreover, for a court to be asked to enjoin nonparties,” Posner wrote. “For all we know, Aetna and its subsidiary value the opportunity to provide contraception coverage with generous reimbursement by the federal government.”
“Their business is providing health care, health care administration, and health insurance, and Notre Dame wants unilaterally to exclude them from a possibly lucrative chunk of that business,” said Posner.
Posner also rejected outright Notre Dame’s claims that the government has a myriad of other ways to accomplish its contraception coverage goals, such as directly providing contraception to those employees who want it.
“The very word ‘accommodation’ implies a balance of competing interests; and when we compare the burden on the government or third parties of having to establish some entirely new method of providing contraceptive coverage with the burden on Notre Dame of simply notifying the government that the ball is now in the government’s court, we cannot conclude that Notre Dame has yet established its right to the injunctive relief that it is seeking before trial,” Posner wrote.
In a concurring opinion, Judge David Hamilton answered the Supreme Court’s request to reconsider its earlier decision in favor of the Obama administration more directly than Posner’s opinion. “The accommodation for religious not-for-profits like Notre Dame played a pivotal role in Hobby Lobby,” Hamilton wrote, “but not in a way that helps Notre Dame in this case.”
Hamilton calls for a trial on the merits where the Notre Dame’s claims can be fully dissected. “Federal courts are not required to treat Notre Dame’s erroneous legal interpretation as beyond their reach—even if that interpretation is also a sincere and religious belief,” wrote Hamilton. “Notre Dame is not entitled to nullify the law’s benefits for others based on this mistake of law, which is the foundation of its claim of a substantial burden.”
The Notre Dame challenge is unique. Of the hundreds of lawsuits filed challenging the contraception benefit, it was the first, and so far only, to include attorneys representing the interests of those most affected by the law’s requirement: students and employees.
Americans United (AU) for Separation of Church and State intervened in the case on behalf of three anonymous Notre Dame students, saying the Seventh Circuit Court of Appeals should stick to its original ruling. Gregory Lipper, senior litigation counsel at AU, applauded the decision.
”The government has already relieved Notre Dame of any obligation to provide contraception coverage to anyone,” Lipper said. “As a result, the Seventh Circuit correctly concluded that Notre Dame has no right to stop third parties from stepping in to provide that coverage to employees and students. Nothing in the Religious Freedom Restoration Act allows Notre Dame to control the behavior of others, especially when it comes to something as important as reproductive health care.”