WASHINGTON — The U.S. Supreme Court has ordered an appeals court to reconsider its denial of an injunction to a prominent religious university that had challenged the abortion pill mandate in Obamacare.
The University of Notre Dame had sued the Obama administration in federal court in 2013, stating that its mandate violated the Catholic institution’s right to religious freedom, including a new compromise that would require the university to submit exemption forms so that the insurance company could pick up the tab. It sought an injunction against the requirement, but was denied.
The ruling was then appealed to the 7th Circuit Court of Appeals, but it too denied the injunction 2-1.
“If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those [insurance] companies, which under federal law are obligated to pick up the tab, could be thought to ‘trigger’ the provision of female contraceptives,” Judge Richard Posner, appointed to the bench by then-president Ronald Reagan, wrote in Feb. 2014.
Judge Joel Flaum was the lone dissenter.
“I do not question that the accommodation is the government’s good-faith attempt to meet religious objectors halfway,” he said. “Nevertheless, by putting substantial pressure on Notre Dame to act in ways that (as the university sees it) involve the university in the provision of contraceptives, I believe that the accommodation still runs afoul of RFRA (the Religious Freedom Restoration Act).”
In June of last year, the U.S. Supreme Court ruled in favor of of the popular craft chain Hobby Lobby, along with the Mennonite cabinet manufacture Conestoga Wood Specialties Corp., as they both had objected to the Obamacare mandate on religious grounds.
“The government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest,” the court held in a 5-4 decision.
Therefore, in October, Notre Dame appealed the 7th Circuit denial to the Supreme Court, hoping that it would overturn the lower court ruling in light of the Hobby Lobby and Conestoga decisions. On Monday, the court sent the case back to the 7th Circuit, ordering it to reconsider its decision in light of the high court’s 2014 opinion—which came after the 7th Circuit originally ruled.
Louise Melling, deputy legal director for the American Civil Liberties Union, told reporters that Notre Dame’s fight against the requirement is tantamount to “discrimination.”
“It’s absurd to assert that simply filling out a form stating an objection violates religious freedom,” she said. “What Notre Dame and others really object to is women getting the contraceptive coverage they need. That’s discrimination, plain and simple.”
But Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty, said that he thinks the case might still have to go back to the Supreme Court as the 7th Circuit still might deny the injunction.
“It’s really not for the government to decide that signing the form isn’t so bad,” he stated. “I think, realistically, the Supreme Court is likely to take this issue up again, hopefully one last time.”