On Feb. 21, a Chicago-based federal appeals court handed a defeat to the University of Notre Dame on an Obamacare regulation, the HHS contraception mandate. But that defeat may be a temporary one, as the Supreme Court will review challenges to that regulation next month.
Notre Dame is challenging the mandate, which Breitbart News has extensively reported was issued by HHS Secretary Kathleen Sebelius and requires employers to provide birth control-related coverage, including drugs that cause abortions. Polls show it is unpopular with the American people, and Obama-appointed Justice Sonia Sotomayor has occasionally sided with Catholics against the Obama administration on this issue.
As a Roman Catholic university, Notre Dame objects to being complicit in birth control and abortion. It challenged the regulation in federal court, in which a federal district court denied a preliminary injunction while the case is ongoing.
On Feb. 21, the U.S. Court of Appeals for the Seventh Circuit ruled 2-1 to affirm the lower court’s denial of an injunction. Judge Richard Posner’s opinion called it an “initial puzzle” that “the university hasn’t told us what exactly it wants enjoined at this stage in the litigation.”
Posner noted that violations of the contraception mandate would cost Notre Dame an astounding $250 million per year; dropping all healthcare coverage would carry a penalty of $10 million per year for the school. However, Notre Dame signed a form for religious institutions that removes those dangers. Posner says, “The university has thus complied with the statute, albeit under duress.”
Notre Dame’s objection is that having to sign that form facilitates a third-party healthcare carrier to still provide the contraception, which makes the school complicit. “Not so,” wrote Posner.
“But here we need to remind the reader that the only issue before us is whether Notre Dame is entitled to a preliminary injunction,” he continued. There are factors courts must consider beyond simply whether a plaintiff is correct on the merits of the case. “As we cannot figure out what Notre Dame wants in the way of preliminary relief, we cannot make a determination that it will suffer irreparable harm if we affirm the denial of such relief.”
The appeals court rejected Notre Dame’s argument that signing the form is illegal as a religious liberty violation that “makes the university an accomplice in the provision of contraception, in violation of Catholic doctrine, which in the name of avoiding ‘scandal’ forbids the encouragement (equivalent to aiding and abetting) of sinful acts.”
But the appellate court also had words critical of the Obama administration, faulting HHS’s lawyer for using a footnote in an official commentary on the regulation implying that Notre Dame’s urging of coverage providers not to cover contraceptive violates a no-influence provision in the regulation. It added that such influencing “cannot be prohibited without infringing freedom of speech.” Posner added:
We’re troubled by the seeming vagueness of the regulation as drafted and as further muddied by the footnote in the commentary (why isn’t it in the regulation itself?), and we fear that it may have pernicious consequences if understood to forbid or inhibit the kind of discussion between the university and the contraceptives providers sketched in the preceding paragraphs.
Nonetheless, Posner ruled for HHS, joined by Judge David Hamilton. Several conservative Catholic legal experts, such as Ed Whelan, have criticized the ruling.
Judge Joel Flaum dissented. He would have sided with Notre Dame on the procedural issue before the court and also granted a preliminary injunction to protect Notre Dame during the appeal.
On Mar. 25, the Supreme Court will hear two challenges to the contraception mandate on which Breitbart News previously reported, which could very well result in the regulation being struck down: Hobby Lobby and Conestoga.
Ken Klukowski is senior legal analyst for Breitbart News and a 1998 graduate of the University of Notre Dame. Follow him on Twitter @kenklukowski.