Federal appeals court refuses to grant Notre Dame an exception from birth control mandate
- Mon Feb 24, 2014 19:05 EST
Notre Dame’s lawsuit challenged the so-called “compromise” offered by the Obama administration after Roman Catholic and other religious institutions cried foul over Obamacare’s requirement that all health insurance plans provide contraceptive drugs and procedures to females without a co-pay. Contraceptives, sterilization and abortion are all considered gravely sinful by the Catholic Church.
The “compromise” plan allowed certain religious institutions, including Notre Dame, to refuse to directly pay for the offending drugs and procedures, provided they sign authorizations allowing their insurance companies to pick up the tab instead.
Under heavy pressure from the Obama administration, the university signed the form late last year in order to avoid crippling fines of $100 per day per employee and student. The move earned them sharp rebukes from Catholic observers. But they also advised students and employees that they would continue to fight the mandate in the courts, and hoped that coverage for contraceptives or sterilizations would only be temporary.
Notre Dame’s attorneys argued that forcing the school to sign the authorization was a violation of their first amendment rights, because they are effectively being compelled to condone the provision of religiously illicit materials and actions.
In a 2-1 decision, the Seventh Circuit said that while they were withholding judgment on the merit of Notre Dame’s religious liberty arguments, they could not grant the university the exception they were seeking without ordering the Aetna and Meritain health insurance companies to break the law.
“We imagine that what the university wants is an order forbidding Aetna and Meritain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court,” Judge Richard A. Posner wrote. “But we can’t issue such an order; neither Aetna nor Meritain is a defendant (the university’s failure to join them as defendants puzzles us), so unless and until they are joined as defendants they can’t be ordered by the district court or by this court to do anything.”
Posner also 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.”
Posner was joined by Judge David Hamilton in his decision, but Judge Joel Fraum dissented, saying he would have granted Notre Dame the injunction.
“By putting substantial pressure on Notre Dame to act in ways that (as the university sees it) involve the university in the provision of contraceptives, I believe that the accommodation … runs afoul of [the Religious Freedom Restoration Act],” Fraum wrote. “We are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith. Notre Dame tells us that Catholic doctrine prohibits the action that the government requires it to take. So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.”
A phone call to Notre Dame University by LifeSiteNews seeking comment was not immediately returned. But Notre Dame spokesman Paul Brown told the South Bend Tribune in a statement that the “concern remains that if government is allowed to entangle a religious institution of higher education like Notre Dame in one area contrary to conscience, it’s given license to do so in others.”