Deciding the case on remand from the Supreme Court (see
prior posting), the U.S. 7th Circuit Court of Appeals in a 2-1 decision in
University of Notre Dame v. Burwell, (7th Cir., May 19, 2015), refused to grant a preliminary injunction to Notre Dame University in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits. Federal regulations allow religious non-profits to file a form notifying their insurer or plan administrator of their objection to providing contraceptive coverage. When that is done, the insurer or administrator must provide coverage directly. Judge Posner's majority opinion says in part:
Notre Dame claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain ... to provide any contraceptive coverage to Notre Dame students or staff.... It regards its contractual relationship with those companies as making the university a conduit between the suppliers of the coverage and the university’s students and employees....
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.
Judge Hamilton wrote a concurring opinion focusing on the Supreme Court's favorable discussion of the accommodation for religious non-profits in its
Hobby Lobby opinion. Judge Flaum wrote a dissenting opinion arguing that "the law turns Notre Dame into a conduit for the provision of cost-free contraception."
Wall Street Journal reports on the decision.
