Notre Dame, Focus Lawsuits Challenge HHS Contraception Mandate

Notre Dame’s president warned that the government forcing religious institutions to violate their beliefs would mark 'the end of genuinely religious organizations.'

The University of Notre Dame
The University of Notre Dame (photo: Kahunapule Michael Johnson via Flickr)

SOUTH BEND, Ind. — Lawsuits from the University of Notre Dame and the Fellowship of Catholic University Students (Focus) are challenging the HHS mandate for forcing them to violate Catholic teaching or face crippling fines.

Notre Dame’s president, Holy Cross Father John Jenkins, said the university’s lawsuit is about the freedom to “live out a religious mission” with broader significance than a debate about contraception.

“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.

John Zimmer, Focus vice president of training and formation, said his student missionary organization works to provide “just and affordable health care for its employees” in accord with Catholic principles.

However, the federal mandate requiring organizations to provide employees access to health coverage for sterilization and contraception, including abortion-causing drugs, would force the organization to violate “our most sincere religious convictions” and participate in actions that it considers “gravely immoral.”

“If we resist these demands, we face exorbitant fines that would severely cripple, if not destroy, our organization and its missionary activities,” he said in a Dec. 3 blog post on the Focus website.

The mandate, issued by the Department of Health and Human Services (HHS) under the 2010 Affordable Care Act, requires Notre Dame, Focus and similar religious organizations to provide the controversial coverage in insurance plans or through third-party administrators. The mandate’s narrow religious exemptions apply only to houses of worship and not religious nonprofit ministries, schools, hospitals or charities.

Notre Dame has refiled its May 2012 lawsuit, which had been dismissed in December 2012, on the grounds it was premature. Its new filing asks the U.S. District Court for the Northern District of Indiana to declare that the HHS mandate violates the university’s rights under the First Amendment and the federal Religious Freedom Restoration Act.

The Washington-based Alliance Defending Freedom (ADF) is representing the Colorado-based Focus pro bono. It filed its suit in the U.S. District Court for the District of Colorado on Dec. 3.

“Faith-based organizations should be free to live and operate according to the faith they teach and live,” said Mike Norton, ADF senior counsel. “If the government can fine Christian ministries out of existence because they want to uphold their faith, there is no limit to what other freedoms it can take away.”


‘Forfeit Our Rights’

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 said that if one presidential administration can override Notre Dame’s religious purpose and “use religious organizations to advance policies that undercut our values,” then so can other presidential administrations on other policies for the sake of following “some concept of popular will or the public good.”

This would mean that religious organizations “become mere tools for the exercise of government power, morally subservient to the state and not free from its infringements.”

Should this happen, the university president warned, it will be “the end of genuinely religious organizations in all but name.”

Zimmer said Focus was resolute, noting the Catholic saints and martyrs who resisted unjust laws.

“We fight not just for ourselves, but for the hundreds and thousands of other organizations that are opposed to this mandate but do not have the resources or capacity to stand up for religious freedom,” he said.

At least 87 cases representing 200 plaintiffs, including Protestant-owned institutions and businesses, have challenged the HHS mandate in court, the Becket Fund for Religious Liberty reports.

Father Jenkins said the university believes its discussions with the Obama administration were “in good faith.” He expressed gratitude for “its efforts to accommodate its concerns.”

However, other lawsuits challenging the mandate suggest that the administration never intended to revise the mandate in response to Catholic concerns.

EWTN Global Catholic Network’s October 2013 lawsuit against the mandate noted that HHS Secretary Kathleen Sebelius spoke about the rule in an April 8 presentation at Harvard University in a way that indicated that concerns voiced during the mandate comment period from Feb. 1 to April 8, 2013, would not be addressed. Sebelius told her audience that “every employer,” including Catholic universities, will follow the mandate, with the exception of churches and church dioceses beginning Aug. 1.

“It is clear from the timing of these remarks that defendants gave no consideration to the comments submitted,” the EWTN lawsuit said.

Zimmer said the HHS mandate “left us no choice,” and he called for Catholics’ spiritual support.

“We call upon you for your prayers,” he said. “We ask you to intercede for our apostolate and for the cause of religious liberty for a nation that was founded upon these important principles.”