Christian Schools Lose Obamacare Appeal

CHICAGO (CN) - An Indiana seminary and a California school for evangelical Christians lost their Seventh Circuit challenge to contraception provisions of federal health care reform.

Indiana's Grace College and Seminary brought the challenge with California's Biola University to a provision of the Patient Protection and Affordable Care Act that requires employers to include contraception and sterilization procedures as part of the health insurance policies they must offer.

Upon announcing the suit in 2013, Biola President Barry Corey wrote: "The Obama administration's mandate forces us to act against our own doctrinal statement, which upholds the sanctity of human life. It unjustly intrudes on our religious liberty as protected under the U.S. Constitution and makes a mockery of our attempts to live our lives according to our faith convictions, time-honored and long protected."

Though the government voluntarily exempted churches from this mandate, the Supreme Court indicated in Hobby Lobby that some closely held corporations might qualify for exemption as well, prompting a federal judge to grant Grace College and Biola a preliminary injunction.

Their relief came into question earlier this year, however, when the Seventh Circuit ruled against challenges brought by Notre Dame and Wheaton College, both Christian schools with the same objection to the so-called contraception mandate.

Followed its own precedent, the federal appeals court ruled 2-1 against Biola University and Grace College on Friday.

The majority opinion notes that the record in Notre Dame's case "contained no evidence to support a conduit theory."

"Nor is it within our usual practice to enjoin non-parties such as Notre Dame's insurer and third-party administrator," Judge Illana Rovner wrote for the majority. "We also rejected Notre Dame's claim that the regulation requiring employers to provide Form 700 to its insurers was the cause of the provision of contraceptive services; rather the services are provided because federal law requires the insurers to provide them."

"Obamacare" grants an accommodation to religious entities seeking to avoid the mandate by letting them offer insurance that does not include contraception, as long as they send in a form to register their objection with the Department of Health and Human Services.

In such cases, the insurer will be compelled to pay for such services itself, which will still allow employees access to contraception.

While the plaintiff schools "sincerely believe that the required actions render them complicit in grave moral wrong because their insurance contracts serve as conduits for the provision of objectionable services," this does not rise to the level of a substantial burden on their religious exercise, the panel ruled.

The 10th Circuit made a similar decision in July, when it ruled that the government may lawfully require a chapter of Catholic nuns, Little Sisters of the Poor, to fill out and send in the form to opt-out of providing contraceptive services to their employees.

Similarly, the Third Circuit rejected a challenge to the same ACA requirements brought by Geneva College and the Roman Catholic Diocese of Pittsburgh and Erie, Pa.

"It is the operation of federal law, not any actions that the plaintiffs must take, that causes the provisions of services that the plaintiffs find morally objectionable. The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptive services," Rovner said. "Every other circuit court to consider the issue of whether the mandate imposes a substantial burden on religious exercise has come to the same conclusion."

Judge Daniel Manion, who attended Notre Dame, dissented. His 35-page opinion uses the same metaphor employed by government attorney Patrick Nemeroff at oral arguments , describing the ACA's accommodation as an extension cord.

"The HHS accommodation is the long and winding extension cord the government uses to power its contraceptive mandate," Manion said. "A thorough examination reveals that the accommodation's tangled mess is hiding the fact that the extension cord gets its power from the nonprofits' health plans and must be plugged in before it will work. It also exposes the fact that the government is forcing the nonprofits to plug in the accommodation themselves by signing the self-certification or providing the alternative notice."

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