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Supreme Court Sends Message to Lower Courts in Notre Dame Case: Pay Attention to Religious Liberty

On March 9, the Supreme Court vacated a 7th Circuit judgment against The University of Notre Dame, sending the case back to the lower court with instructions that the 7th Circuit reconsider it in light of the recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc.  Notre Dame, a Catholic university, is one of over 330 plaintiffs in 105 cases (and counting) challenging Obamacare’s contraceptive mandate as violating the right to religious liberty as protected by the Religious Freedom Restoration Act (RFRA).

A limited “accommodation” promulgated by the Department of Health and Human Services allows certain entities to opt-out of the coverage requirement for religious reasons, shifting the burden to the health insurance company itself to cover the cost, rather than the employer.  Notre Dame argued that this accommodation does not solve the problem, since contraceptives and abortifacients would still be paid for by a plan made possible by the University; simply adding a third party to the chain of causation does not break that chain.  Notre Dame would still effectively be forced to create access for contraceptives and abortifacients against its religious beliefs.

The 7th U.S. Circuit Court of Appeals rejected Notre Dame’s argument and denied the University’s request for an injunction barring enforcement of the contraceptive mandate based upon a religious objection.  By vacating this judgment against Notre Dame and remanding it to the lower courts for reconsideration, it appears that the Supreme Court has accepted Notre Dame’s argument.

“The judgment [1]is vacated and the case is remanded…for further consideration in light of Burwell v. Hobby Lobby Stores, Inc.”

What did the Supreme Court mean by this?  It appears the Supreme Court is instructing lower courts to apply the ruling and rationale in the recent Hobby Lobby [2] case to claims of religious freedom brought against Obamacare’s contraceptive mandate.  In Hobby Lobby, the Supreme Court held that it is unlawful under the RFRA for the federal government to require a for-profit, closely-held corporation to provide insurance coverage for abortifacients when such drugs violate the owners’ religious beliefs.

Hobby Lobby, a family-owned business, faced debilitating fines under the mandate that would have forced it to either shut down or to operate in a manner contrary to the religious faith of its owners.  The Supreme Court held that Americans do not forfeit the right to live according to their religious beliefs when they open a business.

Similarly, the Supreme Court in this instance seems to be telling lower courts that a Catholic university also has the right to operate in a manner consistent with the tenants of the Catholic faith, as stated by the university’s mission.

The Supreme Court is making a clear point that courts should not ignore Hobby Lobby when rendering judgment in similar cases.  Fortunately, some lower courts have been properly following the Hobby Lobby precedent.  Just last week, the U.S. District Court for the District of Colorado issued a permanent injunction against the government mandate in favor of Hercules Industries, a for-profit, family-owned business (Newland v. Burwell).  Similarly, in January, a Michigan district court ruled in favor of the Kennedy family, the Catholic family owners of a medical supply company (Autocam v. Burwell).  The courts ruled in these cases [3] that such American business owners have the right and freedom to do business in a manner fully consistent with their religious convictions.

What Does This Mean for Future Supreme Court Cases?

This decision by the Supreme Court could foretell how it will decide in other cases challenging Obamacare’s contraceptive mandate, such as the lawsuit brought by the Little Sisters of the Poor.  The 7th Circuit judgment against Notre Dame played a key role in the federal government’s arguments in this suit, and others, as the Obama Administration’s defense greatly relies on language from the 7th Circuit decision.  Now that the Supreme Court has vacated that judgment, the government is deprived of that language and can no longer use it for its defense. The Supreme Court has already granted the Little Sisters a temporary injunction against enforcement of the mandate while they are litigating their case, which is currently before the 10th Circuit Court of Appeals.

It is worth noting that despite this progress, there is another fundamental question that the Supreme Court has yet to address, and which could change everything: Does the government have a “compelling interest” in forcing employers to pay for abortifacients?  And further, is this interest compelling enough to outweigh the employers’ fundamental right to religious freedom under the RFRA?   The Hobby Lobby ruling did not reach this issue.  However, the Supreme Court’s recent action could be a strong signal that if and when the Court takes up this question, it may ultimately rule that the right to religious freedom trumps any government interest in providing coverage for abortifacients and contraceptives.

It is encouraging that the Supreme Court appears to support the cause of religious freedom when it comes to the Affordable Care Act’s contraceptive mandate.  We can only hope that the lower courts get the message and follow the Supreme Court’s lead.