In a split 2-1 decision late Friday afternoon, a federal appeals court upheld a U.S. District judge’s ruling denying the University of Notre Dame a preliminary injunction from complying with a provision of the Affordable Care Act requiring the university’s health plans to cover contraceptives.
Attorneys for Notre Dame argued in the U.S. Court of Appeals for the 7th Circuit that the school’s contractual agreement with Meritain Health Inc., a third-party health insurance administrator for the employee plan, involves the university in the process of providing birth control against university’s Catholic beliefs.
Affordable Care Act regulations revised last summer provided religious institutions with a means to opt out of paying for the contraceptives and shift the cost to the government or a third party administrator like Meritain 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 A. Posner wrote. “Meritain must provide the services no matter what; signing the form simply shifts the financial burden from the university to the government.”
The university late Friday maintained its objection through a statement from Paul Browne, vice president for public affairs and communications.
“Our concern remains 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,” Browne said.
Posner questioned precisely what remedy the university wanted since the school had already submitted the required form.
“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 (the university’s failure to join them as defendants puzzles us), 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.”
As part of his dissent, Judge Joel M. Flaum noted in the 19 previous cases challenging the application of the mandate to religious nonprofits every plaintiff except Notre Dame has been granted an injunction. He also noted he would grant such a request.
Flaum also notes Notre Dame’s argument that filling out the form makes it ‘complicit in a grave moral wrong.’
“The majority has trouble accepting this position, in part due to the university’s statement that its signature will “trigger” contraceptive coverage, because the majority understands federal law to require contraceptive coverage regardless of what Notre Dame signs or does not sign,” Flaum wrote. “Yet we are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith.
“Notre Dame tells us that Catholic doctrine prohibits the actions 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.”
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