7th Circuit Again Upholds Contraceptive Mandate Accommodation For Religious Non-Profits

In Grace Schools v. Burwell, (7th Cir., Sept. 4, 2015), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, rejected a RFRA challenge to the Obama administration's accommodation under the Affordable Care Act for religious non-profits that object to furnishing contraceptive coverage under their health insurance policies. The majority, relying to a large extent on the Circuit's recent decisions in Notre Dame and in Wheaton College, held that the accommodation does not impose a substantial burden on the free exercise rights of various Indiana-based Catholic non-profit charitable, educational and health care institutions.  The majority said in part:

The accommodation does not serve as a trigger or a conduit for the provision of contraceptive services.... It is the operation of federal law, not any actions that the plaintiffs must take, that causes the provisions of services that the plaintiffs find morally objectionable. The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptive services. As we noted above, every other circuit court to consider the issue of whether the mandate imposes a substantial burden on religious exercise has come to the same conclusion.

However the majority maintained the district court's injunction in the case for 60 days to give the district court time to consider certain other arguments raised by plaintiffs.

Judge Manion dissented, saying in part:

The HHS accommodation is the long and winding extension cord the government uses to power its contraceptive mandate. It winds through regulations and additions and revisions. The court, through a perfunctory examination, interprets the accommodation’s twisted framework and holds that it frees the religious nonprofits from having to power the mandate themselves and, thus, does not violate the RFRA. The court is wrong: A thorough examination reveals that the accommodation’s tangled mess is hiding the fact that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work. It also exposes the fact that the government is forcing the nonprofits to plug in the accommodation themselves by signing the self‐certification or providing the alternative notice.