SOUTH BEND, Ind. — In May 2012, the University of Notre Dame filed a legal challenge to the Health and Human Services’ contraception mandate, lending the weight of its institutional prestige to the U.S. bishops’ campaign against the controversial federal law.
“This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives,” said Notre Dame’s president, Holy Cross Father John Jenkins, in a statement that marked the university’s decision to join a slew of Catholic institutions that filed lawsuits in courts across the nation.
But on Jan. 2, 2014, Notre Dame told faculty and staff that a third-party administrator would notify them about access to “free” contraception and other mandated provisions of the federal law. The news marked the university’s failure to obtain emergency relief from the 7th Circuit Court of Appeals in Chicago, after a U.S. district court refused to issue a temporary injunction before the Jan. 1 deadline.
“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,” said Paul Browne, Notre Dame’s vice president for public affairs and communications, in a Jan. 2 statement to university employees that was reported by radio station WNDU.
Browne’s statement noted that employees’ access to the mandated provisions could be reversed at a later date, subject to the outcome of Note Dame’s legal challenge.
“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,” said Browne.
News Dismays Notre Dame Community
The news, which came amid a flurry of 11th-hour reprieves for many other HHS plaintiffs that also faced a Jan. 1 deadline, dismayed members of the Notre Dame community who had supported the decision to file the legal challenge.
“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,” noted Gerard Bradley, a professor at the Notre Dame School of Law, in a post on National Review’s Bench Memos.
“[T]he university could refuse to ‘certify’ its conscientious objection to the TPA, thus holding back on the trigger necessary for Meritain to initiate coverage,” said Bradley, who expressed regret with the university’s apparent decision to sign the self-certification form authorizing a third-party administrator (TPA) to provide the mandated services.
“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,” added Bradley, who noted that the Jan. 2 announcement “implies that the university has indeed pulled that trigger.”
While the university had originally filed its legal challenge to the mandate in 2012, a U.S. district court ultimately dismissed the lawsuit as premature, as religious nonprofits had been given a one-year extension by the government before they were required to comply with the mandate.
Rejection of Coercive State Power
When the university refiled the lawsuit on Dec. 3, 2013, Father Jenkins made it clear that the action underscored the need to defend the free exercise of a Catholic university like Notre Dame.
“For if we concede that the government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately will undermine those institutions,” Father Jenkins said in a Dec. 3 statement.
Father Jenkins said the university concluded that the mandate’s rules would “require us to forfeit our rights, to facilitate and become entangled in a program inconsistent with Catholic teaching and to create the impression that the university cooperates with and condones activities incompatible with its mission.”
He suggested that Notre Dame’s legal challenge should be viewed as a rejection of coercive state power.
“For if one presidential administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power.”
But despite the strong language that accompanied Notre Dame’s decision to refile the lawsuit, some critics questioned whether it has shown sufficient commitment to fight against the mandate.
Holy Cross Father Bill Miscamble, a professor of history at Notre Dame, told the Register that he was disappointed “with the tepid way in which Notre Dame has acquiesced with the Obamacare provisions and authorized its health-insurance administrator to implement the HHS mandate.”
Father Miscamble suggested that Father Jenkins should be a national leader in the fight for a broad religious exemption to the federal law and should step forward now to back “Archbishop [Joseph] Kurtz’s call on President Obama to use his executive authority to defer any application of these offensive mandate provisions until the legal issues are finally settled.”
Father Miscamble also targeted the university’s decision to refile its lawsuit just one month before the Jan. 1, 2014, deadline, “after making preparations early in the fall to comply with the mandate provisions.”
In his Dec. 20, 2013, decision denying Notre Dame relief, U.S. district Judge Philip Simon said the legal challenge was unlikely to succeed on the merits, but he also noted the late filing date and expressed skepticism about Notre Dame’s claims.
“The [allegedly] offending regulations were published in July 2013 and are set to go into effect on Jan. 1, 2014,” stated Judge Simon, “yet Notre Dame chose to wait until December to file this lawsuit. … It then waited another six days … to ask for a preliminary injunction. All of which raises a question of Notre Dame’s own view of the injury it faces under the regulation.”
Asked to comment on suggestions that Father Jenkins could have done more to speak out on the issue, Notre Dame’s Paul Browne defended the university president’s record of addressing the threat posed by the mandate.
“I can’t account for why the media isn’t paying much attention, but his statement for filing the suit was given broad distribution,” said Browne.
On the subject of the refiling date, Browne told the Register, “As Father Jenkins has indicated, there were good-faith negotiations to reach an accord; regrettably, that didn’t happen.”
Father Jenkins acknowledged in a Dec. 2, 2013, published interview that the decision to refile was a “tough” call.
“It was a tough decision. Many people in the [Obama] administration worked with us. In the end, I wasn’t comfortable with where it placed Notre Dame.”
Father Jenkins added, “What I couldn’t get around was that a right found in the Constitution and in prior legislation is now being granted as an accommodation to us at the discretion of the administration. That diminishes our religious freedom.”
In its Dec. 3 statement that announced its decision to return to court, the university administration confirmed that “Notre Dame and government administration officials have been in conversation for more than a year to resolve the matter.”
The failure of those negotiations marked a low point in relations between the Obama administration and Notre Dame, which had ignited a firestorm after it invited President Obama to its 2009 commencement. Many Church leaders, university alumni and pro-life activists publicly opposed the decision to honor a political leader with a record of strong support for abortion rights.
During his address before the graduates, President Obama vowed to accommodate conscience rights on sensitive policy decisions dealing with abortion.
“Let’s honor the conscience of those who disagree with abortion and draft a sensible conscience clause and make sure that all of our health-care policies are grounded in clear ethics and sound science, as well as respect for the equality of women,” Obama stated.
Five years later, the university and its legal team are preparing for the full hearing of their appeal by the 7th Circuit.
The appellate court will convene an “expedited briefing and argument schedule,” reported Notre Dame’s Bradley, “so that a full consideration of Notre Dame’s appeal is likely due before the end of February.”
Joan Frawley Desmond is the Register’s senior editor.