July 7, 2015 — The 7th U.S. Circuit Court of Appeals on Wednesday rejected an Illinois-based evangelical Christian college's request for an exemption from an accommodation in the federal contraceptive coverage rules for not-for-profit organizations that hold themselves out as religious, the Washington Times reports (Howell, Washington Times, 7/2).
Not-for-profits that hold themselves out as religious are able to receive accommodations for meeting the Affordable Care Act's (PL 111-148) contraceptive coverage rules for employers. The accommodation enables such not-for-profits to notify their insurer or third-party administrator of their objection so the insurer or third-party administrator can facilitate contraceptive coverage for members of their health plans.
Wheaton College objected to filling out the accommodation form, arguing that doing so would violate its constitutional rights.
Last year, the Supreme Court in a split decision granted an injunction to Wheaton College that prevented the federal government from enforcing the contraceptive coverage rules for the school while its case was pending in lower courts. Under the decision, Wheaton would not have to file the form and could instead tell HHS that it has a religious objection and not offer the coverage. The justices in the majority stressed that their decision to grant the injunction was not a statement on the merits of the case (Women's Health Policy Report, 7/7/14).
In the ruling last week, Circuit Judge Richard Posner wrote the accommodation "is hardly a burdensome requirement; nor does it leave the provider -- the opt out -- with any residual involvement in the coverage of drugs or devices of which it sincerely disapproves on religious grounds."
According to the Times, the ruling denies Wheaton a preliminary injunction against the rules.
Implications for Supreme Court Review
According to the Times, not-for-profit organizations that hold themselves out as religious and that have challenged the accommodation have lost all five of their cases in circuit courts, meaning no discrepancies exist that would make the cases ripe for review by the Supreme Court.
Further, attorneys for the Department of Justice have cited the circuit court decisions in their filings in a similar case before the 10th U.S. Circuit Court of Appeals. "Four circuits now reject the [Religious Freedom Restoration Act of 1993 (PL 103-141)] argument plaintiffs make here, and no circuit has held to the contrary," they said.
However, groups opposed to the accommodation have said they will continue to push for Supreme Court review.
According to some legal experts, the Supreme Court might consider one of the cases, regardless of whether a split among the lower courts exists. Holly Lynch, a bioethics expert at Harvard Law School, said she thinks the Supreme Court justices likely would uphold the accommodation in such a case (Washington Times, 7/2).
Notre Dame Asks for Full 7th Circuit Review
In related news, the University of Notre Dame has asked the full 7th U.S. Circuit Court of Appeals to review a decision from a three-judge panel denying the university an injunction against the federal contraceptive coverage rules, Politico Pro reports (Villacorta, Politico Pro, 7/6).
Notre Dame also objects to the rules' accommodation for not-for-profits that hold themselves out as religious and oppose contraception.
In February 2014, a three-judge panel of the 7th Circuit in a 2-1 decision rejected Notre Dame's request for a preliminary injunction against the federal contraceptive coverage rules. The 7th Circuit in May 2014 also rejected the university's request for a full-panel hearing.
In October 2014, Notre Dame asked the Supreme Court to review the case in light of the Hobby Lobby decision. The high court in March vacated the 7th Circuit's ruling and ordered the circuit court to reconsider its ruling in light of the Hobby Lobby decision.
In May, a three-judge panel of the 7th Circuit for the second time rejected Notre Dame's request for an injunction. The 7th Circuit said Notre Dame had not sufficiently demonstrated that a preliminary injunction against the rules is necessary while the university continues its legal challenge (Women's Health Policy Report, 5/20).