The Indiana Lawyer.com by Marilyn Odendahl

A split 7th Circuit Court of Appeals has upheld its own precedent, finding a contraception provision does not violate religious freedom. But the ruling drew a sharp, 35-page dissent from one judge.

In this latest challenge to the Patient Protection and Affordable Care Act’s accommodation for providing birth control, religiously based non-profits in Fort Wayne argued the contraception mandate violates the federal Religious Freedom Restoration Act by substantially burdening their free exercise of religion.

The accommodation excuses eligible organizations, like the Fort Wayne plaintiffs, from contracting, arranging, paying or referring for contraceptive coverage to which they have religious objections.

In federal court, the plaintiffs reiterated the unsuccessful arguments made by the University of Notre Dame that the opt-out accommodation still requires them to facilitate the objectionable services for their employees. Notre Dame presented this assertion twice before the 7th Circuit and lost both times.

Still the U.S. District Court for the Northern District of Indiana granted a preliminary injunction which prevented the federal government from enforcing the mandate.

The 7th Circuit reversed the preliminary injunction in Grace Schools, et al., and Diocese of Fort Wayne-South Bend, Inc., et al. v. Sylvia Mathews Burwell, et al., 14-1430 and 14-1431.

As it had in the Notre Dame cases and the appeal from Wheaton College, the Chicago panel ruled the opt-out provision shifted the legal responsibility to provide contraception coverage from the plaintiffs to their insurers. This, in turn, relieved, rather than burdened, their religious exercise.

“The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptive services,” Judge Ilana Rovner wrote for the majority. “As we noted above, 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.”

Joining Rovner was Judge David Hamilton, who sided with the majority in both of the Notre Dame actions.

Judge Daniel Manion made a strong dissent, claiming the majority only undertook a perfunctory examination of the “long and winding extension cord the government uses to power its contraceptive mandate.”

He contended a thorough examination “reveals that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work.”

Manion did not agree the accommodation removed the nonprofits from providing contraception. Instead, he maintained, it did violate protections on religious freedom but he saw a simple solution.

“Aside from the fact that the government desires to substantially burden the nonprofits’ religious exercise in furtherance of an exaggerated, misnamed, and misdirected interest, there are, no doubt, less restrictive means of furthering its interest. But why even go there?” Manion wrote. “The government certainly has no compelling interest in forcing contraceptive coverage into the nonprofits’ otherwise wanted and needed health plans when they unanimously assert they don’t want the coverage and don’t need it.

“The obvious solution for these plaintiffs is for the government to extend the religious employer exemption to all religious nonprofits that object to the coverage,” he concluded.

The plaintiffs in this case included the Diocese of Fort Wayne-South Bend Inc.; Catholic Charities of the Diocese of Fort Wayne-South Bend Inc.; Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc.; Franciscan Alliance Inc.; Specialty Physicians of Illinois LLC; University of Saint Francis; Our Sunday Visitor Inc.; Biola University Inc; and Grace Schools.

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