Notre Dame professor discussed HHS mandate and future of religious freedom
The annual Constitution Day lecture was held on September 17, at Holy Cross College. Professor of Political Science and Rover faculty advisor Vincent Phillip Muñoz delivered the address “Notre Dame, the HHS Mandate, and the Future of Religious Freedom.”
“It’s sort of like Christmas for me,” Muñoz said of Constitution Day. “This [lecture] is your present.”
Muñoz began by explaining that the Department of Health and Human Services (HHS) mandate—implemented as part of the Obama administration’s Patient Protection and Affordable Care Act—requires all group health insurance plans to provide preventative services at no cost to the patient. These services range from contraceptives and abortifacient drugs to sterilization procedures.
All companies with more than 50 employees are required to provide health insurance plans. Religious institutions, such as Notre Dame, have objected to providing contraceptives and abortifacients, and several have filed lawsuits against the HHS, many of which are still in progress.
Some religious groups, such as churches and houses of worship, successfully lobbied the White House for a religious exemption, which excused them from providing these services at all. But this exemption does not cover a number of religious institutions, including schools.
Universities, for example, were given an accommodation rather than an exemption from the mandate. With the accommodation, the university’s insurance provider supplies contraceptives to employees rather than having them come directly from the university.
Muñoz noted that the mandate, in essence, requires employers to provide contraception. Notre Dame would be fined $10 million per year if it chose not to provide insurance of any kind to its employees. However, if Notre Dame simply refused to provide contraceptives to its employees, it would be fined $91 million per year.
“The fines are punitive if you don’t offer contraception,” Muñoz observed.
Muñoz provided a brief history of religious freedom in the United States, starting with a very narrow definition of what constitutes a religious exemption and culminating in the 1993 Religious Freedom Restoration Act (RFRA), which granted religious observers strong protection of their beliefs and practices.
Though the plaintiffs in the lawsuits against the HHS could argue the case under the U.S. Constitution’s First Amendment, Muñoz believes they will primarily argue their cases under RFRA.
Under this legislation, courts must decide if any “persons’” free exercise of religion is substantially burdened and, if so, determine whether or not the government is trying to achieve a compelling state interest by the least restrictive means possible. RFRA aims to protect persons from being burdened by the state. “Persons” in this context includes corporations, and thus religious institutions such as Notre Dame.
In late December 2013, the local federal trial court denied Notre Dame’s request for an injunction, which would prohibit enforcement of the mandate during the course of litigation. The judge denied this request, and in February 2014, the Seventh Circuit Court of Appeals affirmed that denial. The university has chosen to comply with the mandate while its lawsuit remains pending, in order to avoid paying huge penalties.
Judge Richard Posner asserted in the February decision that Notre Dame is not being substantially burdened because it no longer has to pay for the contraceptives, a responsibility that falls on the third-party insurance provider. If there is no burden, then the institution is offered no protection under RFRA.
In the dissent, Judge Joel Flaum argued that because Notre Dame claims it is being burdened, it is not the job of the judges to decide it is not. As long as Notre Dame has to do anything to facilitate the coverage of contraceptives, it is being coerced, Flaum explained.
Notre Dame argued that when it notifies the third-party insurer that it will not provide contraceptive coverage, the university directly facilitates the distribution of contraceptives, as this very notification is the trigger for coverage. Even though a third-party provider is technically providing the contraceptives, an employee has access to these devices as a result of his employment status with the university.
According to Notre Dame’s case, the government interest is not compelling because the mandate already provides exemptions for several groups, including institutions that employ fewer than 50 people. In addition, the plaintiffs claim the government is not using the least restrictive means possible—the government could provide contraceptives to people directly instead of forcing religious institutions to do so.
In light of the Supreme Court case Burwell v. Hobby Lobby in June 2014, which granted for-profit corporations religious freedom rights, and Wheaton College’s victory, in which the Supreme Court ruled the college could notify the government instead of the third party provider, the Supreme Court ordered the Seventh Circuit to review Notre Dame’s case.
However, in May, the same Seventh Circuit judges ruled as they had previously, refusing to grant Notre Dame the exemption. This appellate court returned the lawsuit to a lower court, for trial.
“My best guess is that Notre Dame will technically win its lawsuit, but Notre Dame won’t get what it wants,” Muñoz predicted. “I don’t think we’ll get the exemption. We’ll get the revised accommodation.”
According to Muñoz, this result would not satisfy Notre Dame’s request for an exemption.
“By virtue of your employment with Notre Dame you will get free contraception and abortifacients,” Muñoz said. “If you get fired from Notre Dame you will lose the benefit. So in what way are you not complicit?”
Muñoz posited that the Supreme Court would hear Notre Dame’s case or one of the similar cases. Alternatively, he suggested that the 2016 presidential election will determine the outcome because the new president would be able to eliminate the mandate, which was never approved by Congress.
“My hope is that this will be repealed legislatively,” said Muñoz. “I would put my hopes in the political process.”
Muñoz expressed his concern that exemptions will serve to protect religious liberty in the long run. “You can’t rely on the religious liberty exemption to protect religious liberty in the long run. You need to show that religion is a good thing,” he argued.
Notre Dame sophomore Shaun Evans agreed. “I appreciated Professor Muñoz’s point that lives … bear[ing] witness to the human good that arises from rightly-lived sexuality have the potential to change culture in a way that no court battle can,” Evans said.
Hailey Vrdolyak is a senior studying political science and theology. You can find her on the quad throwing a boomerang, but if you do, heads up! Contact her at firstname.lastname@example.org.