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Deja Vu: 7th Again Denies Injunction in Notre Dame ACA Case

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By Casey C. Sullivan, Esq. on May 20, 2015 3:55 PM

Notre Dame has again been denied injunctive relief in its challenge to Obamacare's contraceptive mandate. The Catholic university had claimed that being connected in even the most minor way to the provision of birth control to its faculty and students violated its religious beliefs.

Last March, the Seventh Circuit refused to grant Notre Dame an injunction protecting it from the Affordable Care Act's mandate, prompting the Supreme Court to send the case back for reconsideration in light of Burwell v. Hobby Lobby. The Seventh reconsidered and announced yesterday that it was right the first time around.

The Trigger That Has Already Been Pulled

The ACA allows religious non-profits to opt out of the Act's contraception mandate. When they do, they must send a form to their plan's administrator, who then covers the contraception costs. Notre Dame's objection is based on the theory that even opting out is asking too much. Sending that brief form "triggers" their participation in birth control, their argument asserts, which in turn violates their religious beliefs.

Judge Posner rejected that argument before and did so again yesterday. The use of a form is a reasonable means of advancing the government's interests and does not place any significant burden on the university's religious freedom. What's more -- the form has already been sent. The court notes with frustration that Notre Dame is arguing for relief from an act it's already taken. The parties who would actually have to change their behaviors, Notre Dame's plan administrators who provide contraception, weren't even before the court.

Hobby Lobby Doesn't Change Things

The Seventh Circuit first rejected Notre Dame's trigger argument before the Supreme Court had ruled in Burwell v. Hobby Lobby. That case found the owners of privately held corporations could have their religious beliefs violated by ACA requirements and thus were entitled to "accommodation." That necessary accommodation is already established, the Seventh notes -- it's the very opt-out system that Notre Dame objects to.

The court analogized Notre Dame to Stephen Roy, who sued the government because he thought the use of a Social Security number for his daughter "robbed her spirit" and burdened his religious belief. He wanted to be free from providing the number on government applications and to stop the government from using it in its internal administration. The Supreme Court, wisely, said no. As the Seventh noted, any religious accommodation must be reasonable, established by balancing competing interests, and Notre Dame has not shown any burden that would justify the cumbersome systems it proposed as alternatives to the government's accommodation.

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