Timothy Bradley, Politics and Economics Editor

 

Notre Dame renewed litigation against the HHS mandate on December 3, 2013, by filing a lawsuit in US District Court for the Northern District of Indiana. On December 20, Judge Philip Simon denied Notre Dame’s appeal for a preliminary injunction, ruling that Notre Dame’s case is likely to fail on its merits. Due to the late filing of Notre Dame’s lawsuit relative to the promulgation of the final revised rules comprising the contraceptive mandate, Simon also called into question, “…Notre Dame’s own view of the injury it faces under the regulation.”

Notre Dame appealed the case to the US Seventh Circuit Court of Appeals. Vice President of Public Affairs and Communications Paul Browne stated in response to Judge Simon’s December 20 ruling, “We continue to believe that the challenged mandate is an impermissible infringement on Notre Dame’s religious rights.” On December 31, a panel of the Seventh Circuit denied the university’s motion for an injunction pending appeal. The panel also ordered that briefing and oral argument be expedited in order to decide the case as soon as possible, likely before the end of February.

The regulations of the Affordable Care Act went into effect for Notre Dame on January 1, 2014, the beginning of Notre Dame’s self-insured health-care plan year. The ruling of the Seventh Circuit left Notre Dame without temporary protection from these regulations. In addition, the Obama administration has refused to provide temporary accommodation for religious institutions as it has for other groups. In a letter to President Obama on December 31, 2013, Archbishop Joseph Kurtz of Louisville, president of the US Conference of Catholic Bishops, wrote that the Affordable Care Act “exempts small employers from the mandate to offer health coverage, and you have suspended this mandate for all employers through 2014.”

Kurtz noted that one group of Americans has been given the cold shoulder relative to the generally accommodative stance that the Administration has taken during the implementation of the plan, namely, “Those who, due to moral and religious conviction, cannot in good conscience comply with the HHS regulation requiring coverage of sterilization and contraceptives.” Kurtz highlighted the inconsistencies in enforcement of the ACA. In 2014, no employer is required to offer a health plan, and no employer will face penalties for cancelling health plans and forcing employees to purchase a personal plan in the open market. However, an employer who chooses, “to provide and fully subsidize an excellent health plan for employees—but excludes sterilization or any contraceptive drug or device—faces crippling fines of up to $100 a day or $36,500 a year per employee.”

The ruling of the federal courts and the refusal of the Obama administration to offer temporary relief to conscientious objectors to the contraceptive mandate left Notre Dame with few choices. The university could refuse to certify its conscientious objection, which would render it responsible for either providing the objectionable services (which it cannot in good conscience do) or paying substantial fines imposed by the Obama administration for failing to provide the services. In any event, the university could not feasibly refuse to certify its objection because to do so would be to imply that it does not have any objection to contraceptive and abortifacient products. Alternatively, the university could certify its objection, thereby authorizing its third-party administrator to provide the objectionable services. This was the university’s choice, even though it served to trigger provision of immoral services.

Shortly before the new healthcare plan year began, Paul Browne released an official statement: “Having been denied a stay, Notre Dame is advising employees that pursuant to the Affordable Care Act, our third party administrator is required to notify plan participants of coverage provided under its contraceptives payment program. As part of an ongoing legal action, however, the program may be terminated once the university’s lawsuit on religious liberty grounds against the HHS mandate has worked its way through the courts.”

While the university will comply with the regulations of the Affordable Care Act at least until the matter is settled in the courts, the details of the case have been amended. On January 14, the Seventh Circuit Court of Appeals in Chicago ruled that three anonymous students at the university (labeled Jane Doe 1, 2 and 3 for court purposes) can intervene in the university’s lawsuit. The motion brought by the students argues in favor of forcing Notre Dame to provide contraceptives, sterilization procedures and products that destroy human life in the womb as part of its student health plan. This new development is unlikely to influence the outcome of the case, as any arguments these students can make are arguments already put forth by the Obama administration.

In a statement to the Rover, Browne maintained, “This case is fundamentally about the mandate’s unconstitutional impingement on religious liberty, and only incidentally about contraceptive services. If government is allowed to entangle a religious institution in one area contrary to conscience, it’s given license to do so in others.”

For now, the university’s legal team is filing briefs and preparing for oral arguments before the Seventh Circuit of Appeals panel, which will then rule on the merits of Notre Dame’s case. As the university has stated, it may alter certain aspects of its current health-care plan if the ruling is favorable. If the panel rules against Notre Dame, expect the case to be appealed further.

Tim Bradley is a sophomore studying economics and theology. He lives in St. Edward’s Hall. Contact him at tbradle5@nd.edu.