Given the range of horrible and ridiculous things that happened last week, we were due for something sensible. On Friday, the 7th Circuit Court of Appeals denied the University of Notre Dame’s request for a preliminary injunction against the birth control benefit. The decision [PDF], written by Judge Posner and joined by Judge Hamilton, affirmed the district court’s earlier denial of relief.
Notre Dame wanted to get out of signing a form that tells its insurer that it has religious objects to birth control, claiming it was a substantial burden on its religious exercise. Note that if Notre Dame got the relief it was asking for, that could mean all of the women and the female dependents with Notre Dame health insurance would no longer have any access to birth control, even where third parties provide that access. To summarize: Notre Dame isn’t satisfied that it got out of the requirement to cover birth control in its health plan, but wants to make sure others don’t provide that access either.
So, it looks more like Notre Dame wants to interfere with the personal health care decisions of its students and employees rather than stay out of them. But, as the 7th Circuit explains, while a religious institution like Notre Dame may refuse 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.”
While the decision focuses on the holding that the accommodation does not impose a “substantial burden” on Notre Dame, the opinion opens with an explanation of the importance of the birth control benefit for women and a recognition that the birth control benefit aims to promote women’s health and gender equality. He notes: “Because out-of-pocket expenditures on female contraceptives can be substantial for many women . . . the provision of such contraceptives without cost to the user can be expected to increase contraceptive use and so reduce the number of unintended pregnancies and abortions.” In addition, he recognizes, women who have access to birth control can plan and space their pregnancies. They are, in turn, more likely than others to have educational and employment opportunities and to participate fully in society. As the court acknowledged by allowing three female students to intervene, the students’ access to birth control to which the Affordable Care Act entitles them—and their important interests health and equality–are at stake in this case.
This is a decision that gets it. These are the same points the Law Center makes in its amicus brief to the Supreme Court as it considers two for-profit challenges to the birth control benefit brought by the arts and crafts store Hobby Lobby and the wood furniture manufacturer Conestoga Wood Specialties.
The case will now continue in the district court, in front of the Indiana judge who initially denied Notre Dame the temporary relief it sought. We’ll keep you updated on what happens, but until then remember there are many other bosses out there trying to take away this right!