Notre Dame's bogus birth control challenge smacked down: Federal court rejects university's bizarre claim

Notre Dame is trying to bar private insurers from doing business with students who want birth control coverage

Published May 20, 2015 7:48PM (EDT)

                                           (<a href=''>bogdan ionescu</a>, <a href=''>Jacob Kearns</a> via <a href=''>Shutterstock</a>/Salon)
(bogdan ionescu, Jacob Kearns via Shutterstock/Salon)

A federal court on Tuesday denied the University of Notre Dame’s challenge to the Affordable Care Act, finding that the current accommodation is sufficient to address the university’s stated religious objections to birth control and that it can't prevent private insurers from doing business with students. In other words, the court found once again that allowing a third-party insurer to provide birth control coverage to its employees and students does not violate Notre Dame’s sincerely held beliefs.

A brief refresher for those who have lost track of the dizzying number of Hobby Lobby-style challenges against the new healthcare law: the Affordable Care Act requires some employers to include comprehensive contraceptive coverage in insurance plans to employees. The coverage, like any other earned benefit, is part of a worker’s wages. It isn’t some gift from your super generous boss.

But there are exceptions. Churches and houses of worship don't have to comply, and religiously affiliated nonprofits don’t have to directly provide coverage. Under the original accommodation, if a religiously affiliated nonprofit, like, say, Notre Dame, wanted to opt out of covering birth control, all it had to do was sign a form that would trigger a third-party insurer to pay for and provide the coverage. But many of these nonprofits argued that this accommodation wasn’t sufficiently, uh, accommodating.

Which led to the Obama administration to introduce a “fix” in 2014 -- an accommodation to the accommodation. Instead of filling out a form, the new policy allows these nonprofits to directly notify the Department of Health and Human Services of any religious objections they have to birth control and then HHS will arrange for the coverage.

But if you can believe it, Notre Dame stayed resolute in its challenge to the law, arguing that, even with the new accommodation, the law still violated its beliefs. It also, in effect, wanted the court to force the insurers providing contraceptive coverage to stop doing it. Because under Notre Dame's logic, doing anything at all that may result in people accessing birth control -- even if it’s just notifying the government that you have an objection or staying out of a business relationship between third-party insurers -- is an undue burden.

The court didn’t buy it. As the Wall Street Journal reported, in a 2-1 ruling, a three judge panel of the Seventh U.S. Circuit Court of Appeals in Chicago said that Notre Dame had failed to demonstrate why it was entitled to a preliminary injunction. It also found that the Obama administration had hit the correct balance between religious liberty and access with the accommodation.

“The very word ‘accommodation’ implies a balance of competing interests; and when we compare the burden on the government or third parties of having to establish some entirely new method of providing contraceptive coverage with the burden on Notre Dame of simply notifying the government that the ball is now in the government’s court, we cannot conclude that Notre Dame has yet established its right to the injunctive relief that it is seeking before trial,” wrote Judge Richard Posner.

Posner also pointed out the bizarre nature of Notre Dame’s claim:

We now have (we think) a clearer idea of what the university wants. It wants us to enjoin the government from forbidding Notre Dame to bar Aetna and Meritain from providing contraceptive coverage to any of the university’s students or employees. Because of its contractual relations with the two companies, which continue to provide health insurance coverage and administration for medical services apart from contraception as a method of preventing pregnancy, Notre Dame claims to be complicit in the sin of contraception.

It wants to dissolve that complicity by forbidding Aetna and Mertain — with both of which, to repeat, it continues to have contractual relations — to provide any contraceptive coverage to Notre Dame students or staff. The result would be that the students and staff currently lacking coverage other than from Aetna or Meritain would have to fend for themselves, seeking contraceptive coverage elsewhere in the health insurance market.

But this isn't the final word on the case, and the religious objectors will live to fight another day. “The Seventh Circuit’s decision today does not do justice to Notre Dame,” said Eric Rassbach, senior counsel of the Becket Fund for Religious Liberty, the group that represented Notre Dame in court as is supporting several other organizations in similar legal challenges. “The cases will continue as they have. Every time these issues have reached the Supreme Court, the government has lost and the religious plaintiffs have been granted relief.”


By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at

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Birth Control Church And State Hobby Lobby Religious Liberty Reproductive Rights