SCOTUS throws out Notre Dame contraception mandate ruling

Last year the Seventh Circuit Court ruled against Notre Dame in a case where the university objected to the contraception mandate in Obamacare. It appeared to be a bit of a side step at the time, not speaking directly to the constitutionality of the mandate, but rather arguing simultaneously that Notre Dame had failed to show sufficient burden or damages from the mandate and that the actual parties providing the services in question were not part of the suit.

Judge Richard Posner, author of the majority, wrote that since Notre Dame is not directly responsible for providing the preventive services they are burdened by the mandate.

“We imagine that what the university wants is an order forbidding Aetna and Meritain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court,” wrote Judge Posner.

“But we can’t issue such an order; neither Aetna nor Meritain is a defendant (the university’s failure to join them as defendants puzzles us), so unless and until they are joined as defendants they can’t be ordered by the district court or by this court to do anything.”

Today, responding to an appeal of the ruling, the Supremes stepped into the fight and overturned their decision, sending the Seventh Circuit back to reconsider their call.

The justices asked the 7th U.S. Circuit Court of Appeals to reconsider its decision in favor of the Obama administration in light of the June 2014 Supreme Court ruling that allowed closely held corporations to seek exemptions from the provision.

The reference in their decision was, of course, to the Hobby Lobby ruling which has been written about here extensively. Once that one was in the books there were a number of lower court rulings which were bound to receive a fresh look or be changed entirely. That process already began in the fall when the Hitching Post case was essentially tossed down the memory hole without even fighting it in court, with the involved parties all citing Hobby Lobby in their decision.

This doesn’t end the case, of course, since the Seventh Circuit still has to actually comply with the order and go back to the drawing board. But given that the pressure here is from above them on the food chain rather than below, I’d expect a full retraction some time in the near future. Revise the scoreboard to read Notre Dame 2 – Obamacare 1.

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David Strom 8:31 AM on October 02, 2022