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SCOTUS Sends Notre Dame Contraception Case Back to 7th Circuit for ‘Further Consideration’

— April 1, 2015

On March 9, SCOTUS not surprisingly vacated a decision by the U.S. Court of Appeals for the Seventh Circuit that denied an injunction against the federal health care law’s contraception requirement for the University of Notre Dame. The one-paragraph order remanded the case back to the Seventh Circuit for “further consideration in light of Burwell v. Hobby Lobby Stores, Inc.

The contraception requirement under fire would force the Catholic university to offer insurance coverage for contraceptives to its employees or face a fine. This, of course, flies in the face of Notre Dame’s deeply held religious beliefs. This is also an issue on which the Court previously ruled in June, 2014, namely Burwell v. Hobby Lobby Stores, Inc.”

That ruling exempted closely held, for-profit corporations from obeying laws the owners felt violated their religious beliefs as long as a less restrictive means of furthering the law’s interest was available. Apparently, the Seventh Circuit missed that memo.

Notre Dame rightly argues that providing contraceptive coverage (including procedures and drugs) to its employees violates the university’s religious beliefs. SCOTUS obviously agrees; to date, more than 750 plaintiffs in nonprofit cases have been exempted from the contraceptive mandate.

According to Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which filed an amicus brief:

The University’s pursuit of higher education is defined by its religious convictions. Its mission statement reads: “A Catholic university draws its basic inspiration from Jesus Christ as the source of wisdom and from the conviction that in him all things can be brought to their completion.” Its fight to stay true to its beliefs has brought it all the way to the Supreme Court – and back to the Seventh Circuit Court of Appeals.

SCOTUS’ one-paragraph remand order slaps the government’s mandate squarely in the face. It also sends a not-so-subtle message that SCOTUS isn’t going to allow the government to get away with too narrow a view of religious freedom.

I understand Notre Dame’s argument. I actually agree with the university despite disagreeing with its views on contraceptives. I can also see the government’s viewpoint that some employees might like access to contraceptive coverage. Some of these employees may be Catholics who pick and choose the doctrines they follow and some may not be Catholic at all. Both are a matter of personal choice.

However, they also chose to become employees of an organization that is Catholic-based. They knowingly accepted these terms when they showed up for their first day of employment. In effect, they chose to forego contraceptive coverage for a paycheck. It is not within the government’s purview to control individual choices such as I just described.

On the surface, this may seem contrary to my opinion on the RFRA in Indiana. However, it is not. The RFRA gives business owners the right to refuse service if doing so violates their religious beliefs. It fosters discrimination by being overbroad and allowing people, not choices to be turned away.

Notre Dame is asking for protection that would allow it to deny supporting a choice made by certain employees, namely contraceptive use. It is not seeking the right to terminate their employment. Nor is it seeking the right to refuse education to those who use contraception. At the most basic level, the university is saying, “Look, we don’t agree with this choice. You’re free to make it, but we shouldn’t have to help you do it.”

The RFRA, on the other hand, allows business owners to say, “Look, we don’t agree with the fact that you’re Muslim/Jewish/homosexual/whatever. Based on that, you’re not welcome here.” There is no choice; no one surrendered the expectation being treated as a human being by walking in the door, as do Notre Dame’s employees regarding contraceptive coverage.

Do you see the difference? I will admit it’s a fine line and one easily blurred. I would not expect to be turned away from a generic florist or baker based on the fact that my mere existence is an affront to their beliefs. However, I would most certainly expect to be denied contraceptive insurance coverage by a Catholic employer.

The government should protect all people against discrimination, not personal choices.



U.S. SC vacates Seventh Circuit’s decision in Notre Dame’s contraception mandate case

Supreme Court to lower court: Reconsider decision against Notre Dame

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