The U.S. 7th Circuit Court of Appeals in Chicago upheld a federal judge's earlier ruling that denied the Roman Catholic school's request for a preliminary injunction that would prevent it from having to comply with the birth control requirement as the university's lawsuit moves forward.
The lawsuit challenges a compromise in the Affordable Health Care Act offered by the Obama administration that attempted to create a buffer for religiously affiliated hospitals, universities and social service groups that oppose birth control. The law requires insurers or the health plan's outside administrator to pay for birth control coverage and creates a way to reimburse them.
Notre Dame, located in South Bend, Ind., contends the law violates its freedom to practice religion without government interference.
In its 2-1 decision, the court noted that Notre Dame had already notified the administrator of its employee plan, Meritain Health Inc., and the insurer for students, Aetna Inc., that the university would not pay for contraception, as required under the compromise. However, Aetna and Meritain still must cover contraception.
"We imagine that what the university wants is an order forbidding Aetna and Meritain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court," Judge Richard A. Posner wrote. "But we can't issue such an order; neither Aetna nor Meritain is a defendant (the university's failure to join them as defendants puzzles us), so unless and until they are joined as defendants they can't be ordered by the district court or by this court to do anything."
In his dissent, Judge Joel M. Flaum noted that other religious groups have been granted injunctions when they have challenged the law.
"Notre Dame tells us that Catholic doctrine prohibits the actions that the government requires it to take. So long as that belief is sincerely held, I believe we should defer to Notre Dame's understanding," Flaum wrote.
In a statement provided to the South Bend Tribune, Notre Dame spokesman Paul Brown said the university's "concern remains that if government is allowed to entangle a religious institution of higher education like Notre Dame in one area contrary to conscience, it's given license to do so in others."