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Contraception Injunction Denied to Notre Dame

CHICAGO (CN) - Filling out a two-page form "is the opposite of cumbersome," the 7th Circuit ruled, finding that seeking a religious exemption from the contraception mandate of health care reform does not impose a burden on Notre Dame.

As a Catholic institution, Notre Dame qualifies for the religious-employer exemption under a provision of the Patient Protection and Affordable Care Act that requires coverage of employees or insured students' contraceptive needs.

To opt out of paying for contraceptive coverage an employer must fill out a short form certifying that it is a religious organization and that it objects to providing such coverage for religious reasons.

In addition to mailing this form to the government, it must also provide its insurer and insurance administrator with a copy.

Notre Dame sought a preliminary injunction against this certification requirement, arguing that "no compelling governmental interest" justified the burden of filling out the form.

Because the university waited so long to file suit, however, it was unable to obtain an injunction before penalties set in at the beginning of the year.

Notre Dame signed the form and sent copies to its insurer on Dec. 31, 2013.

A federal judge in South Bend, Ind., declined to grant a preliminary injunction, and the 7th Circuit affirmed, 2-1, Friday.

"The process of claiming one's exemption from the duty to provide contraceptive coverage is the opposite of cumbersome," Judge Richard Posner wrote for the majority. "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. Otherwise there would have been no need for Congress in the Religious Freedom Restoration Act to prefix 'substantial' to 'burden.'"

The form is only two pages long, and would take no more than five minutes to fill out, according to the 30-page judgment.

Further, even if Notre Dame had not submitted the form and instead chose to pay the substantial penalties, its insurer would still be required by federal law to provide contraceptive services to the university's employees and students.

"The delivery of a copy of the form to [plan administrator] Meritain reminds it of an obligation that the law, not the university, imposes on it - the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it," Posner wrote. "Meritain must provide the services no matter what; signing the form simply shifts the financial burden from the university to the government."

Posner analogized Notre Dame's argument to that of a Quaker who is excused from the selective-service draft based on a conscientious objection to war, then claims that the government burdens his religious beliefs by drafting someone else.

"That seems a fantastic suggestion," the opinion states. "Yet confronted with this hypothetical at the oral argument, Notre Dame's counsel acknowledged its applicability and said that drafting a replacement indeed would substantially burden the Quaker's religion."

Writing in dissent, Judge Joel Flaum said that Notre Dame had a strong case that the certification requirement was burdensome.

"I do not question that the accommodation is the government's good-faith attempt to meet religious objectors halfway, and it makes this a somewhat closer case than Korte," Flaum wrote, referring to Korte v. Sebelius . "Nevertheless, by putting substantial pressure on Notre Dame to act in ways that (as the university sees it) involve the university in the provision of contraceptives, I believe that the accommodation still runs afoul of RFRA [Religious Freedom Restoration Act]." (Parentheses in original.)

Flaum also compared Notre Dame's case to that of Little Sisters of the Poor Home for the Aged, a group of nuns who also claim an undue burden in the process of applying for an exemption to so-called Obamacare. The Supreme Court granted the nuns an injunction to remain in force until the 10th Circuit rules on the merits.

"Notably, the burden on the plaintiffs in Little Sisters appears less significant than the one on Notre Dame," Flaum wrote.

"I am well aware that the order in Little Sisters 'should not be construed as an expression of the court's views on the merits,'" Flaum added "However, I believe the court's action strengthens the case for a preliminary injunction here, where the burden is, if anything, more concrete."

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