In a split 2-1 decision Friday, the U.S. Court of Appeals for the Seventh Circuit upheld a ruling that Notre Dame must comply with a Department of Health and Human Services (HHS) mandate requiring the University’s insurance plan to cover contraceptives, according to a report in the South Bend Tribune.
In its third request for relief from the mandate, which is part of the Affordable Care Act, Notre Dame argued that the school’s agreement with its third-party health insurance administrator, Meritain Health, involves the University with providing birth control against its Catholic beliefs. The University based its appeal upon a decision by the U.S. Supreme Court in January that the Little Sisters of the Poor and other similar religious groups did not have to cover contraceptives in their health plans until the Sisters’ litigation was resolved.
Notre Dame’s most recent motion for appeal, filed in January, states that “there is no legitimate basis upon which an injunction could be granted to the Little Sisters of the Poor but denied to Notre Dame,” according to a report in the Tribune in January.
Last summer’s revisions to the Affordable Care Act enable religious nonprofit organizations to shift the cost for contraceptives to the government or a third-party administrator by submitting an opt-out form.
“The delivery of the form to Meritain reminds it of an obligation that the law, not the University, imposes on it — the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it,” Judge Richard Posner wrote in the Court’s decision Friday, according to the Tribune report.
Paul Browne, Notre Dame’s vice president for public affairs and communications, maintained the University’s objection in a statement.
“Our lawyers are reviewing the decision and contemplating next steps,” he said. “Meanwhile, we remain concerned 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.”
Posner’s written decision questions what remedy the University wants, since it already submitted the required opt-out form, according to the Tribune.
“We imagine that what the University wants is an order forbidding Aetna [which provides coverage to students] and Meritain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court,” Posner wrote. “But we can’t issue such an order; neither Aetna nor Meritain is a defendant … 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.”
The Tribune reported that in his dissent, Judge Joel Flaum said Notre Dame is the only plaintiff to be denied an injunction, out of the 19 previous cases challenging the application of the HHS mandate to religious nonprofit organizations.
“Notre Dame tells us that Catholic doctrine prohibits the actions that the government requires it to take,” Flaum wrote, according to the Tribune. “So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.”
