Federal Judges Shoot Down Notre Dame’s Appeal on Contraception Mandate

Circuit Judge Richard Posner authored the main opinion in the 2-1 decision against the university, saying it failed to show it was entitled to a preliminary injunction.

SOUTH BEND, Ind. — A federal court has again denied the University of Notre Dame’s request for a preliminary injunction against the federal mandate it says violate its religious freedom, though a trial can still go forward.

“We are reviewing the opinion and weighing our options,” the University of Notre Dame’s vice president for public affairs and communications said in a statement provided to CNA.

The 7th Circuit Court of Appeals denied the request for a preliminary injunction on May 19.

In February, the same court also rejected the university’s request for an injunction, upholding the decision of a lower court.

In March, the U.S. Supreme Court nullified the decision and returned the case to the federal appeals court, instructing the court to take into account the Supreme Court’s 2014 decision that ruled the federal Religious Freedom Restoration Act protects the evangelical-Christian owners of Hobby Lobby from mandates that required their company to cover contraceptives in their employee health plans.

The Department of Health and Human Services’ mandate requires non-exempt employers to provide health-care plans covering contraception, sterilization and some drugs that can cause early abortions — drugs and procedures whose use Catholic teaching recognizes as immoral. The government has developed a provision it considers a sufficient accommodation for objecting employers. Objecting employers must send a notice of their objection to a third party, which would then offer the coverage to employees.

Notre Dame and other objecting organizations have said this form of the mandate still forces them to violate their religious convictions, which bar complicity in providing such coverage.

Refusal to comply with the mandate could result in heavy fines.

Circuit Judge Richard Posner authored the main opinion in the 2-1 decision against the university, saying it failed to show it was entitled to a preliminary injunction.

He noted the university’s “awkward” delay in challenging a later version of the accommodation, adding that little evidence had been presented to the court. He rejected claims that the mandate forced the university to serve as a conduit for coverage it deemed morally unacceptable. He also noted that the university initially complied with the accommodation, albeit under protest.

Posner said it wasn’t clear that the federal government was forcing the university to do business with an entity that provides objectionable services. He said that the effort to secure an injunction would enjoin “nonparties” to the lawsuit, namely the university’s insurance companies.

Circuit Judge Joel Flaum dissented from the Tuesday decision, saying he would have granted an injunction. He called the mandate is a substantial burden on the university’s rights and would turn Notre Dame into a “conduit for the provision of cost-free contraception.” The mandate would compel it to contract with insurance companies in a way that the university believes would make it “complicit in moral wrong.”

Flaum said the government has the legal burden of proving that the accommodation is the “least restrictive means of serving a compelling interest.”

His dissent noted that the mandate engages a Catholic university like Notre Dame in a process that the law itself exempts the Catholic Church from.