7th Cir: Notre Dame must submit form to avoid paying for contraceptives

The Seventh Circuit Court of Appeals affirmed the denial of Notre Dame's request for court-ordered exception to the contraception mandate under the Affordable Care Act. The case had returned from the Supreme Court after the high court decided Hobby Lobby v. Sebelius. Find the decision here.

Judge Richard Posner wrote the forty-page majority opinion, with Judge David Hamilton writing a concurrence. Judge Joel Flaum dissented.



Notre Dame argues that the federal requirement to fill out form EBSA Form 700 substantially burdens its religious exercise by making the university a "conduit" to the purchase of contraceptives. Notre Dame offers insurance coverage to its employees and students, but because Roman Catholic teaching prohibits contraceptives, the school's healthcare coverage did not include them. With the Affordable Care Act's implementing regulations came the requirement that health insurance cover contraception.

Religious organizations—that is, churches, synagogues, and other houses of worship—are automatically exempted from the requirement. But organizations organized as nonprofits are only eligible for the exemption if they verify that the organization has religious objections against providing coverage for contraceptives. Here is the language the court called "the meat" of the form: “I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.”

Notre Dame's argument focuses on its assertion that submitting this form to its health-insurance companies would "trigger" those companies' obligation to provide services that are objectionable to the Roman Catholic school. The majority rejected this argument, stating that the companies would be required to provide that coverage whether the school submitted the form or not. In other words, it is federal law that "triggers" the obligation, not the form.

Judge Hamilton's fourteen-page concurrence, which made clear that he joined Judge Posner's opinion in full, emphasized that Notre Dame cannot use its religious freedom to dictate to the government what its accommodation will entail. He stated that Notre Dame was basing its argument on an incorrect understanding of the law, stating that Notre Dame was insisting that "its religious belief can substitute for legal analysis regarding the operation of federal law." He compared Notre Dame's situation to a conscientious objector from a draft. The conscientious objector cannot insist that he will be morally culpable for his substitute's going to war and that the substitution will substantially burden his religious exercise.

Judge Flaum's nine-page dissent was based on Notre Dame's insistence that its entanglement in the process burdened its religious exercise. Once the school alleged the essential facts supporting its claims, the burden shifts to the government to show a compelling interest and the absence of a less restrictive means to advance that interest. Judge Flaum did not believe that requiring Notre Dame's completion of the form was the least restrictive means to accomplish the goal of making contraceptive generally available.

This is one of a great number of very similar cases around the country dealing with the same issues. While their importance to the overall picture for the Affordable Care Act is real, they also require careful consideration by courts of issues about what religious exercise entails and how far the federal Religious Freedom Restoration Act goes to protect religion. The Seventh Circuit's opinion is not surprising, especially in light of its earlier decision coming to very similar conclusions. Its holding is relatively narrow because it relies a great deal on the court's conclusion that Notre Dame's form actually did not trigger the contraception coverage. In other words, it was not that the court held that Notre Dame could not be forced to serve as a conduit in employees' and students' coverage for contraceptives. Instead, Notre Dame's actions simply didn't matter to whether that coverage was ultimately provided. To force a religious objector to verify that its objections are religious therefore did not result in anything beyond avoiding the fee.


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