HHS mandate reversal

In 2013, the University of Notre Dame filed a lawsuit against the Obama Administration over the so-called ‘contraceptive mandate’ of the Department of Health & Human Services, which requires employers to cover contraceptive and abortifacient drugs under their insurance plans at no cost to employees.

Though Notre Dame was granted an accommodation by the Obama Administration, it filed suit against the Obama Administration, arguing that the accommodation was not sufficient. Abortion and contraceptives were so morally reprehensible, Notre Dame argued, that it was inconsistent with its Catholic identity to provide contraceptive or abortion inducing drugs, even through their third party provider, Meritain.

While Notre Dame’s lawsuit was ultimately unsuccessful, just last month, President Trump expanded the religious freedom accommodation, relieving the University of Notre Dame and other similar organizations from the contraceptive mandate.  Upon President Trump’s expansion, Notre Dame sent an email to faculty, staff and students announcing that they would no longer cover contraceptives under the university health plan.

However, within a week, the University reversed that announcement. In a statement to NPR, the administration explained Notre Dame’s decision, “recognizing, however, the plurality of religious and other convictions among its employees, it [Notre Dame] will not interfere with the provision of contraceptives that will be administered and funded independently of the University.”

This reversal has left many dumbfounded—shocked that after a long and costly lawsuit in which Notre Dame asserted that it was against its Catholic values to play any part in providing contraceptives and abortifacients to employees and students, it would abruptly reverse course and willingly participate in such action.

Below, we have attached several selections from a sworn affidavit of Notre Dame’s Executive Vice President John Affleck-Graves in its 2013 appeal to the Supreme Court, University of Notre Dame v. Burwell. In his affidavit, Affleck-Graves argued that the Catholic character of Notre Dame prevented it from providing contraceptive and abortifacients because to do so would compromise its Catholic values. In the affidavit, Affleck-Graves wrote that “if I [Affleck-Graves] were called upon to testify to them, I [Affleck-Graves] could and would competently do so.”

Four years later, the Rover calls upon President John Jenkins, CSC, Affleck-Graves, and the administration to respond to Affleck-Graves’ 2013 statements. Do Jenkins, Affleck-Graves, and the administration now claim that these same statements are untrue? Is Notre Dame no longer committed to the Catholic values that it testified to holding?

From the affidavit of John Affleck-Graves:

I, John Affleck-Graves, being duly sworn, declare and state as follows:

10. Notre Dame provides a distinctive voice in higher education that is at once rigorously intellectual and unapologetically committed to the moral principles and ethics of the Catholic Church.

12. In accordance with the Ex Corde Ecclesiae, Notre Dame believes and teaches that “besides the teaching, research and services common to all Universities,” it must “bring[] to its task the inspiration and light of the Christian message.” “Catholic teaching and discipline are to influence all university activities,” and “[a]ny official action or commitment of the University [must] be in accord with its Catholic identity.” “In a word, being both a University and Catholic, it must be both a community of scholars representing various branches of human knowledge, and an academic institution in which Catholicism is vitally present and operative.”

14. One outgrowth of belief in human life and dignity is the Church’s well – established belief that “[h]uman life must be respected and protected absolutely from the moment of conception.” CCC 2270. As a result, the Church believes that abortion is prohibited and that it cannot facilitate, endorse, or appear to endorse the provision of abortion-inducing products. CCC 2271 – 72.

17. It is a core tenet of Notre Dame’s religion that abortion, contraception, and sterilization are serious moral wrongs.

18. Notre Dame’s religious beliefs regarding the sanctity of human life and the dignity of all persons are deeply and sincerely held.

19. Additionally, the Catholic moral tradition forbids “scandal,” which in the theological context is defined as encouraging by words or example other persons to engage in wrongdoing. “Scandal is an attitude or behavior which leads another to do evil. The person who gives scandal becomes his neighbor’s tempter.” CCC 2284. Scandal is particularly grave when associated with those “who by nature or office are obliged to teach and educate others.” CCC 2285. Scandal in this sense can be caused not only when an individual or institution deliberately acts to commit or condone some wrongdoing, but also when it appears to do so through its actions. It is Notre Dame’s sincerely held religious belief that it cannot become entangled with, or appear to facilitate, endorse, or accept, that which it believes to be contrary to Catholic faith.

20. Notre Dame’s Catholic beliefs, therefore, prohibit it from paying for, facilitating access to, and/or becoming entangled in the provision of abortion-inducing products, contraception, sterilization, or related counseling (the “objectionable products and services”).

42. Thus, the U.S. Government Mandate, even in its revised form, forces Notre Dame to violate its religious beliefs by making Notre Dame the vehicle by which “free” abortion-inducing products, contraception, sterilization, and related counseling would be delivered to Notre Dame’s employees and students. The U.S. Government Mandate violates Notre Dame’s right of conscience by forcing it to participate in an employer – based scheme to provide insurance coverage to which it strenuously objects on moral and religious grounds.

46. Some have argued that the accommodation in the Final Rule does not compel Notre Dame to act against its beliefs because third parties are purportedly “arranging” the “payments.” However, what is germane is that in both scenarios, Notre Dame’s decision to provide a group health plan, and execution of the self – certification, triggers the provision of “free” objectionable coverage to Notre Dame’s employees in a manner contrary to its beliefs. The provision of the objectionable products and services is directly tied to Notre Dame’s insurance policies and Notre Dame’s self – certification, and the objectionable “payments” are available only so long as an employee or student is on Notre Dame’s health plans. Thus, Notre Dame’s employee and student health plans are the vehicle by which “free” abortion-inducing products, contraception, sterilization, and related counseling would be delivered to Notre Dame’s employees and students.

47. Moreover, the Final Rule compels Notre Dame to pay for, facilitate access to, and/or become entangled in the provision of objectionable drugs and services in ways that will lead many to think Notre Dame condones these services, and hence undermines the role of Notre Dame, a Catholic educational institution, to educate others on a matter of religious and moral significance. It is incumbent upon Notre Dame to extricate itself from any process that leads others to violate the faith. The accommodation does not extricate Notre Dame from the process. The Mandate and its “accommodation” would thus involve Notre Dame in scandal in a manner that would violate its religious beliefs.

50. Similarly, to avoid scandal, Notre Dame cannot appear to endorse the litany of concepts that underlie the U.S. Government Mandate and that are contrary to its religious beliefs: e.g. , (i) that it is a moral societal goal to encourage a reduction in the overall cost of health care by reducing the number of mothers or children who may require expensive post childbirth care, (ii) that pregnancy is a condition for which there should be “preventive services”, and (iii) that increased access to contraception, sterilization, and/or abortion – inducing drugs as proposed by the Government necessarily improves public health.

51. It is Notre Dame’s sincerely held religious belief that it cannot become entangled with, or appear to facilitate, endorse, or accept, that which it believes to be contrary to the Catholic faith. The U.S. Government Mandate requires Notre Dame to subsidize the objectionable products and services and directly participate in a way that causes scandal. Thus, Notre Dame believes that its participation in the U.S. Government Mandate would cause scandal and therefore Notre Dame cannot comply with the Mandate consistent with its religious beliefs.

54. Because of its religious beliefs, Notre Dame believes that it may not pay for, facilitate access to, and/or become entangled with the provision of contraception, sterilization, abortion, or related counseling, including by contracting with a third party that will, as a result, provide or procure the objectionable products and services for Notre Dame’s employees and students.

57. The U.S. Government Mandate, therefore, imposes a substantial burden on Notre Dame’s religious beliefs.

/s/ John Affleck Graves




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