Court orders review of Notre Dame's case on contraceptive mandate

Patricia Zapor

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The Supreme Court on Monday ordered the 7th U.S. Circuit Court of Appeals to reconsider its previous ruling and review -- in light of the June Hobby Lobby decision -- whether the University of Notre Dame must pay for coverage of contraceptives in employee and student health insurance plans.

The Supreme Court on June 30 said Hobby Lobby, a chain of arts and crafts stores, and Conestoga Wood Specialties, which also sued, need not comply with a federal mandate to include a full range of contraceptives in employee health insurance.

The Affordable Care Act includes provisions requiring employee health insurance to cover contraceptives. While there are exemptions for certain types of religious institutions, the circumstances are limited as to which employers may claim a religious exemption. The Hobby Lobby case dealt strictly with certain types of for-profit employers.

In that case, the court said the federal government could have chosen ways to provide uniform access to contraceptives that were less of an infringement on the religious rights of the owners of the businesses. It said under the Religious Freedom Restoration Act such "closely held" companies can assert religious views that protect them from the mandate.

There are many gray areas for how to determine what types of employers qualify for provisions that exempt or accommodate religious institutions whose owners say use of contraceptives violates the teachings of their faiths.

The mandate -- under rules issued by the U.S. Department of Health and Human Services -- requires nearly all employers to cover contraceptives, sterilizations and some abortion-inducing drugs in employee health insurance plans. It includes a narrow exemption for some religious employers that fit certain criteria. Religious employers that are not exempt can comply with a third-party accommodation.

Dozens of lawsuits in process around the country raise questions related to compliance with the law for schools, private employers, religious orders, faith-based media companies and others. Some of those lawsuits are based on the employers' objections to the process required to seek an accommodation or exemption.

In its lawsuit, Notre Dame argued that the mandate's purpose "is to discriminate against religious institutions and organizations that oppose abortion and contraception."

In the original 7th Circuit ruling, Judge Richard Posner, joined by Judge David Hamilton, said Notre Dame has the option of following the accommodation that says employers who object to the coverage on moral grounds can fill out a form and direct a third party to provide the coverage to their employees.

Posner wrote: "If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame's authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to 'trigger' the provision of female contraceptives."

The Supreme Court's order Monday simply vacated the 7th Circuit's judgment and told it to reconsider the case in light of the Hobby Lobby ruling.

In a statement, Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty, which represents many plaintiffs who are challenging the mandate, described the Supreme Court's remand order as "a major blow to the federal government's contraception mandate."

The Becket Fund statement said the 7th Circuit ruling had made Notre Dame "the only nonprofit religious ministry in the nation without protection from the HHS mandate. The federal government has relied heavily on that decision in courts around the country, arguing that it should be able to impose similar burdens on religious ministries like the Little Sisters of the Poor."

The Becket Fund said more than 750 plaintiffs in other nonprofit cases have been granted protection from the mandate. Substantial fines apply if institutions refuse to comply with the contraceptive mandate.

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