Court won’t exempt Notre Dame from birth control provision

SOUTH BEND, Ind. (AP) — A federal appeals court has rejected the University of Notre Dame’s request to temporarily be exempt from a provision in the Affordable Care Act that requires the Catholic school’s insurance providers to cover the costs of contraceptives for students and staff.

The 7th U.S. Circuit Court of Appeals ruled 2-1 on Tuesday that an exemption provided by President Barack Obama’s administration allows Notre Dame to avoid directly paying for contraceptives, and therefore doesn’t force the school to violate its religious beliefs. Notre Dame contends that the law forces it to violate Catholic doctrine, which bars most forms of birth control, by becoming conduits to purchasing contraceptives.

The three-judge panel didn’t rule on the merits of the case; it only refused to allow the university to opt out of the provision as its lawsuit makes its way through the courts. Judge David Hamilton noted that granting the school’s requested preliminary injunction would “temporarily cut off contraceptive coverage for hundreds or thousands of women.”

“What this case needs now is a trial on the merits where the relevant factual issues can be explored in depth,” he wrote.

Judge Richard Posner also opposed the injunction, writing: “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.”

In his dissent, Judge Joel Flaum wrote that the law forces the school to “act in ways it says violate its religious beliefs.” He also said the “government has the burden of demonstrating that the challenged accommodation is the least restrictive means of serving a compelling interest.”

Notre Dame spokesman Paul Browne said Wednesday that the university was reviewing the 50-page opinion and “weighing our options.” The university self-insures its employees, but the school uses Meritain Health Inc. to administer the plan and Aetna Inc. to provide health insurance to students and staff.

Notre Dame is among more than a dozen schools and religious nonprofits that have challenged the government’s accommodation provision that allows the groups to shift payment of contraceptives elsewhere.

The university contends that even if it doesn’t have to pay the cost for the health insurance provider covering the costs of the contraceptives, the regulation imposes a substantial burden on the school by forcing it to “identify and contract with a third party willing to provide the very services Notre Dame deems objectionable.”

The 7th Circuit previously rejected Notre Dame’s request for a preliminary injunction in February 2014. The U.S. Supreme Court ordered the appeals court to reconsider the case in March, after the high court ruled that arts-and-crafts giant Hobby Lobby and other corporations could hold religious objections that allow them to opt out of the contraceptives requirement.

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