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Notre Dame appeals to Supreme Court on birth control case

By Irin Carmon

The next Hobby Lobby just got a little closer to reality, as the University of Notre Dame asked the nation’s highest court to intervene in its case against the Obama administration over the coverage – or non-coverage – of contraception. The case represents the next front in the battle over contraceptive insurance coverage.

 

All insurance plans have to cover contraception under the Affordable Care Act, except for, as of the Supreme Court decision in Burwell v. Hobby Lobby, for-profit companies with religious objections. Houses of worship are already exempt. As a religiously-affiliated non-profit that employs and enrolls people of all faiths, Notre Dame falls into another category entirely. The administration asked religiously-affiliated nonprofits that object to contraception to either fill out a form or write a letter, after which their insurer will cover the contraception directly. Notre Dame, along with plaintiffs in over 50 other lawsuits, says that a letter or form is still a “substantial burden,” violating their rights under the Religious Freedom Restoration Act. 

“Under the accommodation, religious organizations must take actions that they believe make them complicit in the delivery of the very coverage they find objectionable,” attorneys for the university wrote in their petition. 

Because Notre Dame twice lost in the lower courts, it has actually already filled out the form in question, and students and employees are now already getting the coverage. If the Supreme Court takes the case and says simply notifying one’s objection counts as a substantial burden – part of the test under the Religious Freedom Restoration Act – those members of the Notre Dame community will lose that coverage. 

 

The petition filed by Notre Dame is known as a GVR (which stands for grant, vacate, and remand). Rather than asking for a full hearing and opinion by the court, it is asking for the court to require that the lower courts reconsider Notre Dame’s case in light of the Hobby Lobby decision.  

 

In July, the Supreme Court allowed Wheaton College, which is under the same federal appeals court circuit as Notre Dame, to skip the form for the time being, an unusual move that was excoriated by Justice Sonia Sotomayor and the two other female justices.

 

“Just as a Mormon might refuse to hire a caterer that insisted on serving alcohol to his wedding guests, or a Jew might refuse to hire a caterer determined to serve pork at his son’s bar mitzvah, it violates Notre Dame’s religious beliefs to hire or maintain a relationship with any third party that will provide contraceptive coverage to its plan beneficiaries,” according to the petition. 

The third party in question is the insurer. Of course, Notre Dame could choose not to offer any insurance at all and simply pay a fine instead. It anticipated that objection: “Notre Dame’s provision of health coverage is itself an exercise of religion.” (The Hobby Lobby majority endorsed that view.) 

The university also argues that contraceptive coverage does not actually serve a compelling public interest. The Hobby Lobby majority opinion did not go as far as that, possibly because Justice Anthony Kennedy, the crucial fifth vote in that case and others, would be unwilling to sign onto such an argument. He wrote a concurrence in that case, saying, “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”

 

If Notre Dame or a similar plaintiff prevails, it could radically broaden the scope of religious exemptions. The 7th Circuit Court of Appeals ruled against the university, saying the form was not a substantial burden – including noting that it was only two pages long – and that “substantiality … is for the court to decide.” But Notre Dame argues that it is substantially burdened just by the form because if it doesn’t sign it, the university will have to pay millions of dollars. Under such logic, not an impossible jump from Hobby Lobby, anything can be a substantial burden if the plaintiffs say it is. 

“What may seem like an ‘administrative’ burden to a court may mean much more to a believer,” Notre Dame’s attorneys wrote.