- The Washington Times - Wednesday, May 20, 2015

For a second time, a federal appeals court has rejected Notre Dame University’s plea for relief from Obamacare’s mandate requiring employer health plans to cover birth control.

The U.S. Court of Appeals for the Seventh Circuit said the administration’s efforts to accommodate religious nonprofits made it unreasonable for them to grant a preliminary injunction that would shield the Catholic university in South Bend, Indiana, from the rule while the institution pursued the merits of its claims.

“Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs,” wrote Judge Richard A. Posner, a Reagan appointee, joined in a concurring opinion by Judge David Hamilton, an Obama appointee.

The 2-1 decision posted late Tuesday revisited Notre Dame’s distaste for an “accommodation” the administration offered to faith-based hospitals, universities and charities that have objected to the contraception mandate in the Affordable Care Act of 2010.

Under the compromise, religious nonprofits can either let their insurers or third-party administrators know that the institution objects to insuring the contraceptives, or they can write to the Health and Human Services Department to opt out. From there, insurers or third-party administrators will be responsible for managing and paying for coverage for affected employees.

Many nonprofits have rejected the accommodations, saying the opt-out forms still make them complicit in offering contraceptives they object to, notably morning-after pills they equate with abortion.

Judge Posner said the university’s objections were not convincing, as Notre Dame simply must notify the government that the “ball is now in the government’s court.”

This was the second time the Seventh Circuit denied Notre Dame’s request.

Earlier this year, the Supreme Court told the circuit to revisit its earlier decision in line with its relevant opinion in last year’s “Hobby Lobby” decision, which held closely held corporations did not have to insure contraceptives that violated their religious or moral beliefs.

Religious nonprofits complain that for now, they are treated more stringently than for-profit entities, who must do nothing to opt out of coverage as HHS rewrites regulations in line with “Hobby Lobby.”

Dissenting Judge Joel Flaum, a Reagan appointee, said because of the Supreme Court’s decision in that case, the government “has the burden of demonstrating that the challenged accommodation is the least restrictive means” of achieving its aim in making contraception more accessible.

“In my view, the government has not satisfied that charge,” he wrote.

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