Tuesday, February 25, 2014

Notre Dame Loses as 7th Circuit Upholds ACA's Contraceptive Care Mandate

Employers who provide health insurance must include among the benefits FDA approved contraceptive care - without co-payment by patients.  This Affordable Care Act (Obamacare) mandate applies only to those who provide insurance.  The University of Notre Dame does but it objects.  Adhering to a papal mandate that Catholics widely ignore, the university refuses to be complicit in this "evil". Even signing a form that opts out is objectionable it is said - because that merely authorizes the objectionable benefit to be provided by their health insurer.

DHHS Secretary Sebelius is the named
defendant in Notre Dame's challenge
In an opinion by Judge Richard Posner the U. S. Court of Appeals for the Seventh Circuit has found (2-1) that Notre Dame's conscientious objection is sufficiently accommodated by the Department of Health and Human Services.  In a characteristically plain opinion Posner (over the dissent of Judge David Hamilton) begins with a discussion of the importance of the measure:
"The health concerns that motivated the inclusion of contraception in the guidelines on needs of women for preventive care begin with the fact that about half of all pregnancies in the United States are unintended, and 40 percent of them end in abortion and many others in premature births or other birth problems. Institute of Medicine, Clinical Preventive Services  for  Women:  Closing  the  Gaps  102–03 (2011)."

The court explains that "The [DHHS] regulations ...seek an accommodation between the secular interests that motivate the mandate to provide  contraceptive  services to women free of  charge and the interests of religious institutions that provide health services.  Accommodation  is  consistent  with  the  balancing act  required  by  the  Religious  Freedom  Restoration  Act (“substantial burden,” “compelling governmental interest,” “least restrictive means”)."

The form that Notre Dame is required to complete and file is not a substantial burden.  Nor can the court order its insurers not to provide the objectionable benefits:
"while a religious institution has a broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance  company, from  engaging in acts that merely offend the institution."
This appeal is from the denial of a preliminary injunction, so the case will go on.  But the 7th Circuit's conclusion that Notre Dame is unlikely to prevail on the merits is helpful to the United States in its defense of the ACA contraceptive benefit mandate which will be argued before the Supreme Court on March 25. - GWC

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