The 7th Circuit Court of Appeals upheld a lower court’s refusal to grant a preliminary injunction in the University of Notre Dame’s lawsuit challenging the ACA’s contraception mandate. ND is arguing that even though they are exempt from having to include contraception in their group insurance policy, the act of having to claim that exemption is itself a violation of their religious freedom. The ruling, written by the legendary Judge Posner, almost mocks that argument:
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. 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)….. Furthermore, while a religious institution has a broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution..
If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to “trigger” the provision of female contraceptives….
The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. United States law and public policy have a history of accommodating religious beliefs…. What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. The closest analogues we have found are cases in which churches seeking rezoning or variances claim that the process for obtaining permission is so cumbersome as to constitute a substantial burden on religious practice….
The process of claiming one’s exemption from the duty to provide contraceptive coverage is the opposite of cumbersome. It amounts to signing one’s name and mailing the signed form to two addresses. Notre Dame may consider the process a substantial burden, but substantiality—like compelling governmental interest—is for the court to decide
It’s just such an absurd position and it’s the same one being taken by many other non-profit organizations (for-profit corporations like Hobby Lobby who are challenging the mandate are making a different argument because they aren’t exempted). You can read the full ruling here.