Supreme Court order for Notre Dame could help other nonprofits

In a victory today for nonprofits challenging the Obamacare contraceptive mandate, the Supreme Court tossed out the 7th U.S. Circuit Court of Appeals ruling against the University of Notre Dame. The high court ordered the 7th Circuit to reconsider Notre Dame’s case in light of Hobby Lobby v. Burwell, the decision that granted protection to businesses with religious objections to the mandate.

The 7th Circuit’s ruling in February 2014 (pre-Hobby Lobby) was the only ruling against a nonprofit in the many cases challenging the contraceptive mandate around the country. Other courts subsequently cited the ruling in denying injunctions to other nonprofits. Most recently in February, the 3rd Circuit cited the Notre Dame decision multiple times in its ruling denying an injunction to Geneva College.

“This type of analysis remains good law after Hobby Lobby,” the 3rd Circuit wrote.

The Supreme Court disagrees, per today’s order. Though it issued no comment with its order, it told the 7th Circuit to rehear the case with Hobby Lobby in mind. The order doesn't guarantee the 7th Circuit will rule in favor of Notre Dame this time, particularly if the three-judge panel hearing the case includes Judge Richard Posner, who ferociously opposed Notre Dame in oral arguments.

Posner wrote the 2-1 opinion issued by the 7th Circuit last year and refused to acknowledge the mandate requirements for objectors–signing a form authorizing the insurer to provide contraceptives to employees–could burden religious freedom. He called the process “the opposite of cumbersome.”

The 7th Circuit is currently handling several other nonprofit cases challenging the mandate. Wheaton College, which received a temporary injunction from the Supreme Court in its challenge, will have its case before the circuit court. And the 7th Circuit should also issue a ruling in the next few months on a similar case from Grace Schools and Biola University.

Notre Dame’s case has had a winding history, with a strange pattern of legal strategies and accusations that the school was not consistent or sincere in its objections to the mandate. Perhaps in recognition that the case was not the ideal vehicle for a Supreme Court argument on nonprofits’ objections to the mandate, the school did not ask the Supreme Court to take up the case. Instead, it asked the court to vacate the 7th Circuit’s ruling and remand the case for further proceedings. The court obliged.