Appeals courts order Catholic groups to ‘accommodate’ contraception, abortifacients

Priests for Life, the archdiocese of Washington, and Notre Dame University all lost in court last week.
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Drew Belsky By Drew Belsky

Drew Belsky By Drew Belsky

WASHINGTON, D.C., May 28, 2015 ( -- Last week saw multiple disappointments for religious organizations seeking relief from a government that hopes to impose gravely sinful behavior on them – namely, by forcing these organizations to cooperate in the dispersal of contraceptives and abortifacient drugs via health insurance plans.

Two of the organizations, Priests for Life and the archdiocese of Washington, were denied relief on Wednesday from the Health and Human Services (HHS) Department's contraception mandate by the U.S. Court of Appeals for the District of Columbia.  The other, Notre Dame University, received its denial from the Seventh Circuit Court of Appeals on Tuesday.

All three organizations are Catholic, and thus bound by the Catholic Church's condemnation of all forms of contraception as "intrinsically evil" (Catechism of the Catholic Church, ¶2370).  But the D.C. Circuit and the Seventh Circuit both ruled that an "accommodation" from the Obama administration, where businesses sign a form stating their objections but still must cooperate with insurance companies dispensing contraceptives and abortifacients, is sufficient to alleviate such businesses' concerns.

In a fundraising email, Fr. Frank Pavone, Priests for Life's national director, claimed that "Barack Obama and [Senate minority leader] Harry Reid succeeded in packing this particular Appeals Court with Far Left judicial activists."  The archdiocese of Washington, meanwhile, released a statement declaring, "The archdiocese and its affiliates remain committed and determined to serve others freely in accordance with the Catholic faith."

The archdiocese of Washington in its statement highlighted the discrepancy between the D.C. court's ruling, which "conflicted with judicial precedent," and the Supreme Court's June 2014 decision in Burwell v. Hobby Lobby.  As Supreme Court justice Samuel Alito wrote at the time, "We must next ask whether the HHS contraceptive mandate 'substantially burden[s] the exercise of religion.  We have little trouble concluding that it does."

However, D.C. Circuit Court judge Cornelia T.L. Pillard, appointed by Barack Obama in 2013, argued in denying relief to both organizations that Hobby Lobby's reasoning "is inapplicable here.  The dispute between the government and the Plaintiffs ... is not about religious implications of ... support for contraceptive use; the parties disagree here about how the law functions, and therefore whether there is any causal connection at all between employers' opt-out notice and employees' access to contraception.”  Pillard further called Priests for Life's assertions – i.e., that even with an "opt out" notice, the organization would be forced by HHS to participate in a grave evil – "legally inaccurate.”

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Judge Janice Rogers Brown, a George W. Bush appointee, disagreed with Pillard's assessment: "Whether the government imposes a substantial burden on religious exercise and labels it an 'accommodation,' that burden is surely as distressing to adherents as it would be if imposed without such a designation.”  Furthermore, "this Court is neither qualified nor authorized to so scrutinize any religious belief.  The panel trespassed into an area of inquiry Supreme Court precedent forecloses.”

Both Priests for Life and the archdiocese of Washington intend to appeal the D.C. Circuit Court's decisions to the U.S. Supreme Court.

In Notre Dame's case, Judge Richard Posner, writing for the Seventh Circuit, concluded that "it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate [Notre Dame's] beliefs.”  Posner further lambasted Notre Dame's "delay in suing" in a separate but related 2014 case, in which he ruled similarly.  He called Notre Dame's timing "awkward," since the regulations were to take effect with respect to the employee health plan – and did take effect – on January 1, 2014,” less than a month before the suit was filed.

Posner, who is notorious for his acerbic and freewheeling opinions, made headlines in September 2014 for his ruling demanding the redefinition of marriage in Indiana and Wisconsin.  Shortly after, Ethics and Public Policy Center president Ed Whelan released a four-part series at National Review Online decrying Posner's "sloppy sophistry" in that case; Whelan had also noted previously that "a number of appellate lawyers who follow the Seventh Circuit have conveyed to me their astonishment at how sloppy Posner is as a judge."

Regarding Posner's latest decision, Notre Dame said in a statement that they are “reviewing the opinion and weighing our options."

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