Notre Dame and the HHS Mandate
An update on recent developments in Notre Dame’s battle with the contraceptive mandate
On December 3, 2013, Notre Dame refiled its lawsuit seeking judicial relief from the Department of Health and Human Services (HHS) mandate, which places Notre Dame under a legal obligation to provide, either through its insurance plans or a third party administrator (TPA), various drugs and products which the government describes as “contraceptive,” but which include abortifacients (such as Ella and the IUD).
After District Court Judge Philip Simon denied Notre Dame’s appeal for a preliminary injunction on December 20, the university appealed the case to the US Seventh Circuit Court of Appeals. Notre Dame sought a temporary injunction to protect itself from enforcement of the mandate while the case was in appeal, but this petition was denied by a panel of the Seventh Circuit on February 21. Notre Dame subsequently chose to comply with the mandate with respect to its employee healthcare plan, administered by Meritain, while waiting for a decision from the appeal panel.
After being denied relief by both the circuit and appeal courts, Notre Dame has effectively postponed the trial while considering pursuit of a review by the Supreme Court.
Revised Rules, Employee Health Care Status, and Hobby Lobby
On August 22, the Obama administration released its 8th revision to the mandate. This represents the latest evolution in a prolonged engagement on the part of the Administration with the issues of religious freedom and accommodation.
Initially, only houses of worship that employed and served people who shared the same religious beliefs as that house were eligible for an exemption from the mandate. Now, after a series of revisions, the Administration has expanded a niche for schools, hospitals, and religious nonprofits to claim an “accommodation” from the mandate (while only churches and their integrated auxiliaries are wholly exempt from the mandate). The latest revised rules alter the mechanism of this accommodation without substantively addressing the conscientious objections of those institutions who cannot, in good conscience, comply fully with the contraceptive mandate.
Prior to the release of this “interim final rule,” those groups claiming the accommodation offered by the administration were instructed to sign a form, certifying their objection to providing coverage of objectionable services. Signing said form then triggered the coverage of said services by the objecting parties’ insurance carrier or, as in the case of Notre Dame, its TPA of a self-insured plan. The revised rule, on the other hand, instructs religious nonprofits (such as Notre Dame) to register their objection with the government itself, with government administrators then informing the objecting party’s insurance carrier or TPA that they must provide the objectionable coverage.
There are currently 102 lawsuits filed against the administration on account of the mandate (53 nonprofit, 49 closely held for-profit), and while many of these litigants are still in the process of analyzing the full implications of these revisions, Archbishop Joseph Kurtz of Louisville, president of the United States Conference of Catholic Bishops, offered an initial response to the new regulations.
“On initial review of the government’s summary of the regulations, we note with disappointment that the regulations would not broaden the ‘religious employer’ exemption to encompass all employers with sincerely held religious objections to the mandate. Instead, the regulations would only modify the ‘accommodation,’ under which the mandate still applies and still requires provision of the objectionable coverage. Also, by proposing to extend the “accommodation” to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom.”
As noted by Archbishop Kurtz, the Supreme Court on June 30 ruled 5-4 in favor of Hobby Lobby in its lawsuit seeking relief from the mandate. While this decision can be counted as a victory for religious liberty by opponents of the mandate—as Hobby Lobby will no longer be required to pay for coverage for the specific drugs to which they objected—it is not clear how the ruling will bear on cases such as Notre Dame’s, if at all. Hobby Lobby is a closely held for-profit company, and while for-profits and nonprofits have equal status with respect to the Religious Freedom Restoration Act (RFRA) in that both are entitled to invoke its protections, the revised rules of the Affordable Care Act (ACA) apply in Notre Dame’s case whereas Hobby Lobby had technically not been eligible for the revised mandate when its case was decided.
Besides, the main effect of the Court’s decision is to relieve Hobby Lobby of the obligation to pay for products and services that it contended violated its religious commitments, by and through the corporation’s maintenance of a group health plan. But the “accommodation” in effect for Notre Dame and other religious nonprofits already permits Notre Dame to shift the cost to the TPA. The “accommodation” law also stipulates that the “contraception” coverage be held separate from Notre Dame’s health insurance plan itself.
Plaintiffs have won 90 percent of cases on this issue, according to the Becket Fund for Religious Liberty, including Hobby Lobby and two orders from the Supreme Court in the case of the Little Sisters of the Poor and Wheaton College. This track record would bode well for Notre Dame’s lawsuit, except for the fact that the Notre Dame case has seen different results thus far than almost every other lawsuit. Out of the 53 nonprofit lawsuits, judges have denied injunctions in only three instances. Notre Dame is one of those three.
From the outset, Notre Dame’s case has appeared weaker than those of most other religious nonprofits. District Court Judge Philip Simon questioned Notre Dame’s sincerity about the extent of the injury it faces with respect to the mandate. Judge Richard Posner of the Seventh Circuit continued in this vein, engaging in a line of questioning during briefing that served mainly to belittle Notre Dame’s institutional commitments and sincerity.
Other recent developments also threaten to weaken the strength of Notre Dame’s lawsuit, notably the appointment to the university’s Board of Trustees of Katie Washington, valedictorian of the Class of 2010. This appointment is concerning due to published remarks critical of any group or institution that opposes the ACA of which Washington is a signatory. At a time when the university is engaged in a lawsuit concerning a matter that threatens to implicate the university in scandal, as argued by university counsel in district court, the appointment to the Board of Trustees (a body which is called to be committed to the practical implications of the university’s Catholic identity, as laid out in the US Bishop’s Application of Ex Corde Ecclesiae for the United States) of a member who has publicly opposed the university’s official position will certainly do nothing to help the university’s legal case.
Another incident that calls into question the university’s sincerity in this lawsuit was a comment offered by University President Father John Jenkins, CSC, in a town hall meeting on February 24. Father Jenkins responded to a question regarding Notre Dame’s plan of attack with respect to its legal battle against the mandate in light of Posner’s dubiousness regarding Notre Dame’s sincerity. “Our complicity is not an evil so grave that we would compromise our conscience by going along,” said Jenkins. “I don’t see this as a scandal because we are not giving out contraceptives.”
The current status is that the university’s TPA is providing coverage for contraceptives and abortifacients to employees free of charge, while the university considers the recently revised rules and deliberates on the best path forward.
Student Health Plan
Included in the university’s lawsuit were both the employee and student health plans. The rules of the ACA went into effect for employee health care plans on January 1 of this year, whereas the student health care plan for 2013-2014 did not expire until August 14. Thus, all of the legal action to date has dealt with Notre Dame’s employee healthcare plan rather than the student plan.
Notre Dame is not required to offer health insurance to students, but if it does, the plan is subject to the rules of the ACA, including the contraceptive mandate. However, self- insured student plans are not subject to enforcement of the mandate. Notre Dame had two options to avoid the complications of the mandate with respect to student plans: first, it could choose not to provide insurance to students at all, which would result in most students remaining on their parents health care plans (as they are eligible to do until the age of 26), or second, it could choose to self- insure. The latter option would not require Notre Dame to contract with a new insurance organization, since the university’s TPA for the employee plan, Meritain, is a subsidiary of the student plan insurer, Aetna.
As first reported by Sycamore Trust, the university has chosen neither of the above options and is offering the insured plan, subject to the provisions of the ACA. Students enrolled in the plan are eligible for free coverage of contraceptives and abortifacients, and as noted by Sycamore Trust, graduate and foreign students are automatically enrolled in the student plan unless they can show that they have another plan that meets Notre Dame’s requirements.
Confirmation that students are now eligible for free coverage of these drugs did not come from the university itself. An inquiry directed to Constance Morrow, Assistant Director of Office Operations at University Health Services, was forwarded to Sharon McMullen, Director of University Health Services. McMullen said that Dennis Brown, University Spokesman, would respond to the inquiry. Brown responded that the university “won’t be responding to inquiries on this topic while it is in litigation.”
However, a reporter for the Rover spoke with a representative from Aetna on August 12 who confirmed that Notre Dame had certified its religious objection and therefore Aetna was required to provide the objectionable services to students free of charge. All female students enrolled in the insurance plan are automatically given a new insurance ID number which allows them to obtain contraceptives at no cost to them, without demonstrating any legitimate medical need for the drugs. None of this information was made public by either the university or Aetna.
Tim Bradley is a junior majoring in economics and theology. Contact him at firstname.lastname@example.org.