The Seventh U.S. Circuit Court of Appeals has again rejected Notre Dame’s complaint that the accommodation to the Affordable Care Act’s contraception mandate is a “substantial burden” on its religious liberty and denied its request for an injuction.
The Seventh Circuit had made the same ruling previously, but was ordered by the U.S. Supreme Court to reconsider the ruling in light of the Hobby Lobby decision.
In his opinion, Judge Richard Posner rebuffed Notre Dame’s theological objections to the accommodation and said its legal maneuverings showed its real objective was to prevent women from accessing contraception through their insurance period:
We now have (we think) a clearer idea of what the university wants. It wants us to enjoin the government from forbidding Notre Dame to bar Aetna and Meritain from providing contraceptive coverage to any of the university’s students or employees. Because of its contractual relations with the two companies…Notre Dame claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain—with both of which, to repeat, it continues to have contractual relations—to provide any contraceptive coverage to Notre Dame students or staff. The result would be that the students and staff currently lacking coverage other than from Aetna or Meritain would have to fend for themselves, seeking contraceptive coverage elsewhere in the health insurance market.
He then proceeded to demolish Notre Dame’s claim that simply providing notification of its intent to claim the accommodation would in fact make it a “conduit” to the provision of contraceptives, which is the lay reading of Notre Dame’s insistence that it can’t participate in any degree of moral cooperation with contraception:
[T]he scanty record contains no evidence to support the conduit theory. Although 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. As far as we can determine from the very limited record, the only ‘conduit’ is between the companies and Notre Dame students and staff; the university has stepped aside. … there is no suggestion that Notre Dame is involved at all in Aetna’s and Meritain’s contraception coverage.
In doing so, Posner showed a refreshing willingness to engage in the substance of theological objections to the contraception mandate and hold them up against the objective standards of the law.
He also took on Notre Dame’s contention that the accommodation would be a substantial burden to its religious liberty under the Religious Freedom Restoration Act because it would cause “scandal,” which is a term in Catholic moral theology for the encouragement of sinful acts:
[I]n invoking the exemption the university also throws the entire administrative and financial burden of providing contraception on the health insurer and third-party admistrator, which are secular organizations that unlike the university have no aversion to providing contraception coverage. The result is to lift a burden from the university’s shoulders.
Posner outright rejects Notre Dame’s claim that filling out a form to claim the accommodate is somehow a “trigger” for the provision of contraception, noting that “it is federal law, rather than the religious organization’s signing and mailing the form, that requires health-care insurers … to cover contraception services.”
Finally, in response to the Supreme Court’s direction that the Seven Circuit reexamine Notre Dame’s petition in light of Hobby Lobby, Posner notes that in Hobby Lobby, the justices indicated that the very exemption to which Notre Dame objects was a reasonable accommodation to balance religious liberty claims and the government’s interest in ensuring women have access to contraception. He questions what better accommodation could be designed that would balance the same interests and proceeds to dismiss each of the five alternatives proposed by Notre Dame (most of which leave women on their own to find contraception coverage) as unworkable or not meeting the government’s interests:
[W]e have no basis for concluding that any of the university’s proposed alternatives would avoid imposing an unreasonable cost either on the government or on Notre Dame’s students and employees. … Does Notre Dame expect the government to establish a federal contraception agency to which Notre Dame women should send the bills for the contraceptives they buy? Alternatively, must every woman who wants reimbursement of contraceptive costs pick a health insurance company, maybe on the basis of a Google search, to contract with?
As for Notre Dame’s fifth proposed solution, that it and other Catholic nonprofits be allowed to comply with the mandate by providing coverage for Natural Family Planning training and materials, Posner notes witheringly that this option “is not contraception at all.”
In conclusion, Posner writes:
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.
Posner may have had the best word to date in term of pure incredulity regarding religious liberty objections to the mandate/accommodation, but with most of the appeals courts rejecting these claims and the Supreme Court seemingly determined to revive them, it remains to be seen if he’s had the last word.
