7th Circuit rejects second challenge at ACA contraception mandate

The 7th Circuit Court of Appeals has again rejected a college’s argument against having to give notification that it does not want to provide coverage for contraceptives as required under the Affordable Care Act.  

Wheaton College returned to the 7th Circuit in June after being previously denied a preliminary injunction in its lawsuit against the federal government currently pending in District Court. The college is claiming the ACA is violating its religious freedom and its First Amendment rights by making it complicit in providing emergency-contraception to its employees and students.

Again, in Wheaton College v. Sylvia Mathew Burwell, Secretary of Health and Human Services, et al., 14-2396, the 7th Circuit affirmed its denial of a preliminary injunction.
The University of Notre Dame also returned to the appellate court in April with much the same argument. However, while the South Bend school contended that birth control of any kind conflicts with its Catholic beliefs, Wheaton College only opposes “emergency contraception” and intrauterine devices that it believes destroys a fertilized ovum.

Religious objectors can get around the contraceptive mandate by either telling its insurers or the U.S. Department of Health and Human Services it does not want to provide coverage. At that point, the coverage will be provided to the women by the federal government.

Still, both schools asserted that having to exercise the opt-out process makes then involuntarily complicit in providing contraceptives. Their notification to the HHS serves as the trigger to the birth control coverage being offered.

The 7th Circuit was unconvinced. Pointing to its May decision in University of Notre Dame v. Burwell, 786 F.3d 606,614-15 (7th Cir. 2015), the panel reiterated to Wheaton College that the law, not any actions by the school, required the insurers to provide the coverage.

Judge Richard Posner wrote the majority opinion for the Notre Dame and Wheaton College decisions.

With Wheaton College, he took issue with the school’s contention that it health plans are being used by the federal government to distribute emergency contraceptive drugs.

Posner countered that the college’s characterization that it is being “forced” to allow the “use” of its health plans is wrong. It is just being required to notify insurers of the government that its health plan cannot be used to cover emergency contraception.

“Actually there are no efforts by the government to take over Wheaton’s health plans, as Wheaton contends. Acts cannot be enjoined that are neither actuality nor threat,” Posner wrote. “The contraception provisions of the federal Act and its implementing regulations do not alter or annex college or other institutional health plans that fail to provide coverage for some or all contraceptives.”


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