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Notre Dame Denied Injunctive Relief in Contraception Mandate Case

By Gabriella Khorasanee, JD | Last updated on

In the ongoing legal saga that is made up of multiple legal challenges to the Patient Protection and Affordable Care Act's contraception mandate (with 93 pending cases and counting), the Seventh Circuit has added its two cents again.

Back in November the Seventh Circuit weighed in on the issue of the contraception mandates applicability to for-profit, secular businesses, and came out on the side of business owners when it granted an injunction pending appeal, stating that "compelling [business owners] to cover those services substantially burdens their religious exercise rights."

A few weeks ago, the Seventh Circuit issued an opinion in another case challenging the mandate, only this time, it's regarding self certification Form 700 that allows religiously affiliated institutions to exempt themselves from carrying out the contraception mandate.

Form 700's Substantial Burden

The challenge in the Seventh Circuit was made by University of Notre Dame, a catholic university. The problem lies in that the self certification form is forwarded to a third party administrator -- who carries out the contraception mandate in the University's stead. Notre Dame (and others similarly situated) argues that they want no role in the contraception mandate, and though they themselves are not providing the contraception, the process of filling out Form 700 gets the ball rolling.

Interestingly, Notre Dame waited until the very last minute to initiate a challenge, which didn't help its legal cause. In the end, to avoid heavy penalties for not complying, the school ended up filing Form 700, yet still made legal objections. In true Posner style, Judge Posner asked, "what does Notre Dame want us to do?"

Practical questions aside, Judge Posner went on with his analysis regarding whether the University was entitled to a preliminary injunction -- he held that it was not. He was not persuaded by the University's "trigger" theory, and stated that though the University was not required to do anything contrary to the "tenets of its faith" the University had "no right to prevent other institutions, whether the government or health insurance company, from engaging in acts that merely offend the institution."

Judge Flaum's Dissent

Judge Flaum disagreed with the majority opinion on two counts: (1) it would have dismissed the appeal; and (2) he believed that self certification "runs afoul of the RFRA." That is, he didn't agree with Posner's "triggering" analogy, and instead stated, "this is not a question of legal causation but of religious faith." He went on, "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."

Headed to SCOTUS?

Um, it's just a matter of time. The Supreme Court has already agreed to hear three related cases regarding the application of the contraception mandate to secular, for-profit organizations. With the increasing number of challenges to filling out the Form 700 self certification, we think that the Supreme Court will have no choice than to have to weigh in, and clarify the law, and just how far one's religious beliefs can go to affect other people's lives.

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