Timothy Bradley, Politics and Economics Editor

On December 3, Notre Dame announced that it has refiled its lawsuit to seek judicial protection relief from the Department of Health and Human Services (HHS) insurance mandate that would require Notre Dame to provide, either through its insurance plans or a third party administrator, various drugs and products which the government describes as “contraceptive,” but which include abortifacients (such as Ella and the IUD).

In a Tuesday university press release, University President Reverend John I. Jenkins, CSC, said that Notre Dame’s “abiding concern in both the original filing of May 21, 2012, and this re-filing has been Notre Dame’s freedom—and indeed the freedom of many religious organizations in this country—to live out a religious mission.”

Notre Dame and the Mandate

The HHS mandate, issued as a regulation under the Affordable Care Act on August 3, 2011, requires employer health insurance plans to provide free access to contraceptives, sterilizations and abortifacients. The mandate initially contained an exemption for religious institutions that serve and employ primarily members of their own faith (such as houses of worship), but many religious schools, universities, hospitals and charities were made subject to the mandate without exemption.

After widespread outcry for this departure from tradition in federal law, President Obama announced on February 10, 2012, that the regulation would be revised to accommodate the concerns of these non-exempt religious organizations. On March 16, 2012, the revised rule was issued for comment. It contained no significant proposed changes that would allay the concerns of objecting religious institutions.

On May 21, 2012, the University of Notre Dame joined dozens of other for-profit and non-profit businesses and institutions by filing a lawsuit in US District Court for the Northern District of Indiana against the mandate. In an accompanying statement released the same day, Fr. Jenkins wrote: “We simply ask that the Government not impose its values on the University when those values conflict with our religious teachings.”

Notre Dame’s lawsuit was dismissed on December 31, 2012 by Judge Robert L. Miller, Jr., on the technical ground that the university’s complaint was not yet “ripe,” given that the Obama administration had promised to amend the rule to accommodate non-exempt institutions such as Notre Dame. HHS Secretary Kathleen Sebelius issued a revised rule on February 1, 2013, which became final in June. As of January 1, 2014, this revised rule would go into effect for Notre Dame’s employee health insurance plans.

In refiling its lawsuit, Notre Dame joins Cardinal Donald Wuerl and the Archdiocese of Washington, Catholic University of America, and other institutions whose initial suits were dismissed on technical grounds that have renewed their formal complaints against the mandate or asked for relief from the mandate’s injunctions.

Religious liberty concerns and the Catholic response

The “accommodation” provided under the revised, and now final, rule provides no substantial changes that would allow a religious institution such as Notre Dame to comply with the mandate in good conscience. The United States Conference of Catholic Bishops (USCCB) issued a “Special Message” regarding the health care reform at the conclusion of its fall General Assembly this November in Baltimore.

The bishops wrote in this statement that “[w]ith its coercive HHS mandate, the government is refusing to uphold its obligation to respect the rights of religious believers. As the government’s implementation of the mandate against us approaches, we bishops stand united in our resolve to resist this heavy burden and protect our religious freedom.”

Richard Garnett, Professor of Law at Notre Dame Law School, told the Roverthat, “The argument that the contraception-coverage mandate undermines the religious character, mission and integrity of institutions like the University of Notre Dame, and therefore violates the federal Religious Freedom Restoration Act, is—as some recent court rulings appear to confirm—a strong one.”

Garnett added that, “When thinking about the mandate’s legality, we should not simply ask whether the mandate would require religious institutions to culpably cooperate with wrongdoing or whether it would be morally permissible for such institutions to submit to the requirement. The ‘religious exercise’ that federal law protects includes more than the right not to be compelled to do wrong; it includes the freedom of an institution to operate with integrity, in accord with an animating mission and character.”

Most Reverend Bishop Kevin Rhoades of the Diocese of Fort Wayne-South Bend echoed the importance of continuing to fight the contraceptive mandate in the courts and Notre Dame’s important role in that fight. He issued the following statement to the Rover:

I and my brother bishops remain united in our opposition to the HHS mandate which seeks to compel us and our ministries to violate our deeply-held religious beliefs. It is a very serious intrusion into our religious liberty. The severe penalties threatened against those who do not comply with the mandate threaten the very survival of these ministries. I am very grateful to all the Catholic institutions, including Notre Dame, that have joined in filing lawsuits against this unjust mandate. I hope and pray that we will be victorious in the courts, since we have not been successful with the executive and legislative branches in fighting this injustice.”

I believe we have an obligation to do all we can to resist this intrusion into our religious liberty,” Bishop Rhoades continued. “We must resist this attempted reduction of religious freedom to freedom of worship. We should not be compelled to act against our own teachings as we seek to serve our neighbors and the common good. I am proud of Notre Dame’s fidelity to its Catholic mission in its efforts to protect our religious freedom by its lawsuit against the HHS mandate. We are stronger through this unity, here in our diocese and throughout our country, in our efforts to protect our religious freedom.”

Moral questions concerning potential compliance

Should Notre Dame lose its renewed litigation, must the university suffer the imposition of massive financial penalties, because it could not comply with the mandate? Or could the university morally comply with a coercive law of this nature?

The principles of moral theology to which one must have recourse in answering these questions are difficult to apply to particular situations and circumstances, since some of the principles depend upon knowledge of the intent of the cooperating actor (in this case, Notre Dame), the causal proximity between the principal and cooperating agents (whoever would be forced to provide the objectionable services to eligible Notre Dame employees, and the university) and a prudential comparative judgment of the goods to be gained (avoidance of the incursion of massive and potentially crippling fines) and the evils to be avoided (provision of the objectionable services). Thus, short of omniscience of all relevant circumstances, judgments concerning the moral licitness of compliance are difficult to establish.

Partially for that reason, the USCCB has not made any formal declarations on whether Catholic universities can morally comply with the mandate, should a compulsory situation arise.

Furthermore, as Fr. Jenkins noted in his statement accompanying Notre Dame’s initial decision to sue, complying with the mandate would encourage the federal government to continue violating religious liberty by reducing religion to an act of worship rather than an integrated commitment to deeply-held truths that permeate, affect and integrate every facet of one’s public and private life.

What happens in the meantime?

On October 18, Notre Dame’s Faculty Senate reported that Meritain would be offering free contraceptives starting January 1, 2014. Additionally, the official university employee benefits handbook indicated that Meritain would begin offering contraceptives to eligible employees as part of their health insurance coverage beginning in January.

However, in a press release signed by Vice President for Human Resources Robert K. McQuade and emailed to all university faculty and staff on Tuesday, the university explained that while it “believed initially that it would find a way to accommodate its institutional values within the provisions of the mandate…it became clear that the University would be entangled with the provision of drugs and services inconsistent with Catholic teaching, and it felt that it needed to defend its religious rights by asking the courts for relief.” Therefore, the university “will be guided by the courts, which are reviewing a number of challenges to the mandate in addition to Notre Dame’s challenge. At a minimum, however, the University will continue to provide coverage for contraceptives when medically necessary for reasons other than contraceptive purposes.”

That same email references page 17 of the university’s 2014 Plan Summary for Medical/Dental/Vision, which continues to stipulate that “no payment will be made under the University medical plan for expenses incurred for oral contraceptive or contraceptive devices, except when specifically requested by a physician based on medical necessity and for purposes other than contraception. Contraceptive implants, such as Norplant, are not considered Covered Prescription Drugs.”

The same plan also states that “no payment will be made for expenses incurred for oral and injectable fertility drugs administered in conjunction with artificial insemination in-vitro fertilization (IVF), GIFT, ZIFT or any other treatment designed to replace normal reproductive processes to achieve pregnancy.”

As the bishops have said, encouraging signs of progress in other litigations against the mandate give hope that Notre Dame will not have to face the difficult decision of whether to comply with the coercive mandate at all. By renewing its lawsuit against the mandate, Notre Dame has lent its public witness to the paramount cause of religious liberty and is poised to avoid compromising its institutional integrity.

Tim Bradley is a sophomore studying economics and theology. Contact him at tbradle5@nd.edu.