A federal appeals court held on Tuesday that the Supreme Court’s decision limiting access to birth control in Burwell v. Hobby Lobby does not permit the University of Notre Dame to shut down their health plans that help the school’s students pay for contraceptive coverage — or, at least, the court held that Notre Dame cannot obtain a court order permitting them to do so right now. This is the latest of Notre Dame’s multiple trips to the United States Court of Appeals for the Seventh Circuit. Though the court held in 2014 that Notre Dame must comply with an extraordinarily modest obligation under federal law, the Supreme Court asked the Seventh Circuit to reconsider the case in light of Hobby Lobby. For now, the Seventh Circuit concluded, Hobby Lobby does not entitle Notre Dame to the relief that it seeks.
The relief Notre Dame seeks is a bit odd. Hobby Lobby held that a private business whose owners object to certain forms of contraception on religious grounds may refuse to comply with federal rules requiring them to include birth control in their employees’ health plan. Yet Hobby Lobby also relied on the fact that the government had offered non-profit employers with similar religious objections an alternative way to comply with the law. Under this alternative, which the Court strongly implied was acceptable, non-profit employers could fill out a form telling the government that it objected to birth control and provide this form to the company that administers its health plan. The government would then work directly with that company to ensure that the non-profit’s employees received a separate health plan that covered contraception. Many observers read Hobby Lobby to say that the government could not require employers to provide contraceptive coverage directly to their workers, but that the fill-out-the-form option was a valid alternative.
One of these observers was Justice Sonia Sotomayor, who nearly accused her conservative colleagues of lying in Hobby Lobby when they permitted another religious school, Wheaton College, to temporarily opt out of the fill-out-the-form option as well. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”
Notre Dame, however, seeks relief that is even more arcane than the issue in Wheaton College. Wheaton College concerns whether the law grants religious objectors such a sweeping right to refuse to follow the law that they can even refuse to fill out a form that the government provides in order to exempt religious objectors from having to follow the law. Notre Dame, by contrast, has already filled out the form, a fact that led the Seventh Circuit to express “puzzlement about what exactly the university wanted us to enjoin.”
In its opinion on Tuesday, the court offered its best guess at what Notre Dame is after: “It wants us to enjoin the government from forbidding Notre Dame to bar [its insurance administrator and provider] from providing contraceptive coverage to any of the university’s students or employees.” The university, the court explained, “claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain — with both of which, to repeat, it continues to have contractual relations — to provide any contraceptive coverage to Notre Dame students or staff.”
Notre Dame, in other words, wants the right to force private companies to stop conducting business with its students, presumably by telling those companies that it will refuse to continue to do business with them itself unless those companies agree to stop helping Notre Dame students pay for contraception. Notre Dame is quite literally seeking to impose its religious beliefs on other parties who do not share them.
Echoing other federal appeals courts that have sided with the Obama administration in similar cases, the Seventh Circuit strongly suggests that Notre Dame does not have this power in large part because the university is wrong to claim that it is somehow “complicit” in enabling its students to avoid pregnancy. “It is federal law,” the court explains, “rather than the religious organization’s signing and mailing the form, that requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services. By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be required to provide the services to the university’s students and employees.”
As Hobby Lobby focused so heavily on the question of whether alternative means existed to provide workers with birth control coverage without raising the same religious objections from some employers, the Seventh Circuit also examined whether Notre Dame had managed to propose alternatives of its own — and ultimately found those alternatives lacking. One of Notre Dame’s proposed alternatives, according to the court, “is not contraception at all,” while the others “involve cumbersome administrative machinery and at the same time impose a burden on Notre Dame’s female students and employees who want to obtain contraceptives.”
The court closes by emphasizing “the tentative character of the analysis in this opinion.” As the case is only in a preliminary stage, a full trial might reveal new facts that could bolster Notre Dame’s claims, or that could potentially uncover that a viable alternative to the fill-out-the-form option does exist. It is likely, however, that the Supreme Court will take up this or a similar case before that trial can play out.
As the Wheaton College order suggests, a majority of the Supreme Court is open to the argument that permitting a religious objector to fill out a form that exempts them from the law can still be an impermissible burden on that objector’s faith. If the justices go this far, it is unclear that it will even be possible to prevent organizations like Notre Dame from cutting off their workers’ and students’ access to contraceptive health plans.