Today, Notre Dame reportedly alerted faculty and employees that a third party administrator would be in touch to outline provisions of the HHS contraception mandate. Apparently, co-pay free contraceptives, sterilization and abortifacient drugs and devices will now be available in the employee health plan for "Our Lady's University." Here's an update on Bench Memos from Gerard Bradley, a professor of law at Notre Dame:
Two days ago I reported here that the Seventh Circuit denied Notre Dame’s motion for a stay of enforcement, pending appeal of the District judge’s decision to force the university to comply with the “contraception” mandate starting with the new health plan year. That year started yesterday. Today the university advised employees — myself included — that its third party administrator (Meritain Health) would be in touch about the “free” services – which include abortifacient drugs and devices.
Two days ago I wrote, too, that the university could refuse to “certify” its conscientious objection to the TPA, thus holding back on the trigger necessary for Meritain to initiate coverage. The reasons for doing so would be, as Notre Dame asserted in its formal complaint in the local federal court, that so “triggering” the coverage would be tantamount to facilitating abortions in violation of the University’s Catholic beliefs. Today’s announcement implies that the University has indeed pulled that trigger. The announcement further stated that the coverage “may be terminated once the University’s lawsuit on religious liberty grounds . . . has worked its way through the courts.”
While many religious plaintiffs in HHS mandate lawsuits still have time before their new healthcare plan kicks in, Notre Dame's deadline was Jan. 1, 2014. Here is the relevant passage from Notre Dame's announcemen, as reported in the newsletter of the Sycamore Trust, a Notre Dame alumni organization that seeks to strengthen the university's Catholic identity:
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.
It is not clear why the university used the word "may in the above sentence, rather than "will."
Meanwhile, the Cardinal Newman Society provides further coverage of the university's legal battle here, and also reminds us of the controversy generated by Notre Dame 's decision to invite President Obama to its 2009 commencement. At the time, many criticized the university's decision to honor a president with a legacy of support for abortion rights. But Obama reassured the assebled faculty, parents and students that he embraced "easonable conscience" rights.
As Bradley notes, Notre Dame still hopes to obtain relief from the courts. But for now, it has acquiesced to the adminstration's policy, rather than be forced to pay massive penalties. And if the White House refuses Archbishop Kurtz's request for a temporary injunction for other Catholic plaintiffs seeking relief from the courts, these orgagnization will have to make the same choice: Do they "pull the trigger" or accept the consequences?