Notre Dame Asks Supreme Court to Vacate Lower Court’s Birth Control Ruling

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Notre Dame Asks Supreme Court to Vacate Lower Court’s Birth Control Ruling

Jessica Mason Pieklo

The University of Notre Dame has jumpstarted the efforts of religiously affiliated nonprofits to get the Roberts Court to weigh in on the accommodation to the birth control benefit.

Less than six months after the U.S. Supreme Court’s Hobby Lobby decision allowing some companies to opt out of complying with the birth control benefit in the Affordable Care Act, attorneys for the University of Notre Dame have asked the Roberts Court to wade back into the issue of contraception coverage and religious liberties.

On Friday, attorneys for the university petitioned the Roberts Court to intervene in their lawsuit arguing that the Obama administration’s accommodation process for religiously affiliated nonprofits who object on religious grounds to covering contraception violates the Religious Freedom Restoration Act (RFRA), a federal statute designed to protect individual religious practices. The Roberts Court ruled in Hobby Lobby that RFRA claims could apply to the birth control benefit in some situations.

Attorneys for the university have asked the Supreme Court to review a decision by the U.S. Court of Appeals for the Seventh Circuit that denied Notre Dame’s request for an injunction that would have allowed the university to avoid complying with the accommodation process but still deny insurance coverage for contraception to employees and students on its health plans, with no risk of incurring penalties from the Obama administration.

“Notre Dame continues to challenge the federal mandate as an infringement on our fundamental right to the free exercise of our Catholic faith,” Paul Browne, vice president of communications for Notre Dame, said in a statement following the filing. “In [this] filing, Notre Dame continues to challenge the federal mandate as an infringement on our fundamental right to the free exercise of our Catholic faith.”

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The Affordable Care Act requires some employers who provide health insurance coverage to offer plans that cover contraception as part of the package of preventive care services provided to employees at no additional cost or co-pay. The law includes an exemption for churches and other houses of worship, allowing them to not provide health insurance plans with contraception coverage. The law also contains an accommodation process for religiously affiliated nonprofits like Notre Dame that are not churches but maintain a religious objection to providing contraception coverage. That process allows the objecting employer to complete a form that notifies the administration of their religious objection and triggers a process whereby the insurance company contracts directly with the individuals who want contraception coverage with no additional cost or involvement for the objecting employer.

Religiously affiliated nonprofits like Notre Dame object to the accommodation process. They argue that the very act of notifying the administration by filling out the paperwork necessary to get the accommodation is too burdensome on their religious rights. Last summer, following the Roberts Court’s Hobby Lobby decision (which relied in part on the existence of the accommodation to rule for granting some for-profit companies a similar accommodation), the Supreme Court issued a temporary order in the Wheaton College case, a challenge to the accommodation brought by an evangelical college in Illinois. That order granted Wheaton College’s request for an injunction against the birth control benefit, on the grounds that the college was likely to succeed on the merits of its claim: that complying with the accommodation process violated its religious exercise rights.

In August, the Obama administration released a tweak to the birth control benefit in light of the Supreme Court’s temporary order in Wheaton College, to try and accommodate the objections of groups like the U.S. Conference of Catholic Bishops and others driving the contraception litigation. The tweak allowed those groups to simply notify the administration of their objection, while the administration takes on the task of coordinating coverage. Religiously affiliated groups like the Little Sisters of the Poor rejected that proposed fix, arguing that any process that allows their employees access to contraception coverage violates their religious rights.

Notre Dame’s petition does not ask the Roberts Court to intervene directly in its fight against the birth control benefit. Rather, it asks the Supreme Court to vacate the lower court decisions refusing its requests for injunctions and order the lower courts to reconsider the university’s claims in light of the Hobby Lobby decision.