7th Circuit: No Preliminary Injunction for Notre Dame on Contraception Challenge

I’m not sure I’ll get to a full review of the 7th Circuit’s decision in Notre Dame v. Sebelius (pdf), but the first few pages were good reading.

The ACA gives Notre Dame a route for opting out of providing contraception or paying for contraception for its students and employees. If it fills out a form saying:

“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.”

then it gets an exemption. The oral argument I heard seemed to have Notre Dame’s counsel indicating that filling out the form violated its religious beliefs. However, the real objection seems to be that its students and employees would still have access to birth control. In the case of students, the insurer, Aetna would provide it; and in the case of employees, its third party administrator, Meritain would provide it. The federal government would reimburse Meritain up to 110% of its costs. As for Aetna, per the court:

Aetna can expect to recoup its costs of contraceptive coverage from savings on pregnancy medical care, since there will be fewer pregnancies if contraception is more broadly available, at no cost, to Notre Dame’s female employees and students, as well as from other regulatory offsets.

Neither Aetna nor Meritain have religious objections to contraception.

Judges Posner and Hamilton did not see a preliminary injunction being justified as they don’t appear to believe that filling out the form described above constitutes a religious burden and (I suppose – I haven’t finished reading the case) the subsequent imposition of a burden on Aetna and Meritain isn’t Notre Dame’s to complain about.