As we noted in our last bulletin, a new lawsuit has been filed claiming that Notre Dame hasn’t gone far enough in scuttling its long-standing policy against providing contraceptives to employees and students. With the University’s having repudiated its sworn protestations to the court that it couldn’t in conscience do what it is now doing, it is perhaps unsurprising that pro-abortion and anti-religious liberty organizations have come after Notre Dame, insisting it comply fully with the Obamacare contraceptive mandate.
But not to worry. The University has declared plaintiffs’ allegations “maliciously and preposterously false.”
For readers with limited confidence in such extravagant assurances, however, here are the facts:
The lawsuit was filed against the government and Notre Dame by the National Women’s Law Center, Americans United for Separation of Church and State, and the Center for Reproductive Rights. The plaintiffs are Irish4 Reproductive Health, the student group that, as we reported, distributed over a thousand condoms on campus recently during Junior Parents’ Weekend; several anonymous graduate students and dependents of employees; and Natasha Reifenberg, the dependent daughter of faculty members and recent graduate who was a prominent reproductive rights advocate at Notre Dame. (The College of Arts and Letters celebrated her “outstanding undergraduate career that includes internships at the Global Fund for Women,” an influential pro-abortion organization.)
If this seems like déjà vu all over again, that’s because it is — but in a new and tangled legal setting.
Without the benefit of the government’s and Notre Dame’s responses, it’s hard to tell whether this move will flame out or launch another protracted slog through the courts.
But one thing is clear: The lawsuit shows the Indiana district court it was right in questioning the University’s sincerity when it swore to the court that it could not in conscience have anything to do with supplying contraceptives to employees and students.
Here’s what’s happened so far:
Background I: The Supreme Court Call for Negotiation
The scores of cases in which religious organizations including Notre Dame objected to the contraception mandate reached the Supreme Court in 2016. Instead of deciding, however, the Court directed the plaintiffs and the government to try to work out their differences. The direction contained the unsettling proviso that any agreement should “ensure” that women “receive full and equal health coverage, including contraceptive coverage.”
Unsurprisingly, the parties could not agree while Obama was President; but that changed when Trump took his place.
Background II: The Trump Pivot
The Trump administration’s attempt to roll back the mandate for religious organizations took two forms:
First, the administration broadened the exemption for churches to include organizations with either a religious or a moral objection to the mandate. Reversing the Obama administration, the Trump administration ruled that these conscience claims were protected under the Restoration of Religious Freedom Act.
Second, in the negotiations ordered by the Supreme Court, the Trump administration last October entered into an agreement with Notre Dame and other plaintiffs in which it declared it would “treat plaintiffs as exempt from the Regulation.” The government and the plaintiffs thereupon secured dismissals of the lawsuits.
But the expanded religious liberty regulations have been blocked by Federal district courts in California and Pennsylvania. Another round of lengthy litigation, which may include Notre Dame, is in prospect.
(Curiously, the settlement agreements were held confidential for some so far undisclosed reason. Notre Dame’s counsel refused us a copy. Plaintiffs’ counsel resorted to a Freedom of Information request.)
Notre Dame and the Government Agreement
If the University had meant what it said to the court and the government – that its “Catholic beliefs prohibit it from paying for, facilitating access to, and/or becoming entangled in the provision of contraceptives” — it would have stopped its insurers from paying for contraceptives for students and employees as soon as possible after the agreement. (Notre Dame’s insurers had been providing coverage directly under the mandate’s “accommodation” for religious organizations because the courts had turned down Notre Dame’s objection to the mandate.)
But the University did nothing of the sort. Instead, in a very public and very embarrassing display of stumbling irresolution, the University lurched from (1) telling employees and students they would continue to receive abortifacients and contraceptives from its insurance companies, to (2) telling them that they would not, to (3) telling them they would after all, to (4) telling them the university itself would cover contraceptives (though not abortifacients).
Coverage began on July 1 for employees and will commence for students next month, unless the University Trustees re-establish the University’s long-standing policy against providing contraceptives. (Our petition to the Trustees to do just that remains open for signatures.)
And unless the Trustees step in, the University will have broken its word to the Government just as it has to the courts. (See the Letter to Father Jenkins by 115 Notre Dame alumni attorneys listing what appear to be “a collection of flat-out misrepresentations” by the University to the court.”) The settlement agreement opened with a recitation of Notre Dame and other plaintiffs’ “objection on religious grounds” to “facilitating the provision of contraceptives.” As matters stand, that was simply untrue.
But the University’s capitulation has not been complete, and hence the lawsuit. The University’s plans require copays by beneficiaries and do not cover abortifacients..
Given this remarkable history of irresolution and conditional surrender, it is unsurprising that the pro-abortion and anti-religious liberty organizations behind this lawsuit targeted Notre Dame among the many organizations that settled their lawsuits.
Plaintiffs focus on the exclusion of abortifacients and the requirement of copays, neither of which would be permissible if the mandate applies. Plaintiffs say that it does apply because (1) the Trump amendments to the regulation are unlawful and have been blocked by two federal courts and (2) because the government cannot foreclose employees and students from judicial relief simply by agreeing with Notre Dame that it should be exempt — especially since both the Indiana district court and the Court of Appeals rejected Notre Dame’s claims in the first round of litigation.
Notre Dame’s less than measured response so far has been that the allegations are “maliciously and preposterously false.”
It is true that the complaints are festooned with radical feminist and anti-religious liberty rhetoric doubtless designed for public consumption. But the district court may not be as quick as the University spokesperson to disregard both its prior decision against Notre Dame and the decisions of two federal courts against the Trump administration regulations. (We think all those decisions were wrong, but unhappily that doesn’t count.)
Moreover, we will have to wait to see what the government says about Notre Dame’s charging copays. Had the government known the University really had no moral objection to providing contraceptives, no doubt it would have limited the agreement to abortifacients. And having abandoned any religious liberty objection to paying 80% of the costs, such an objection to paying the last 20% would be, let us say, rather thin.
The lawyers for the government and Notre Dame may demonstrate that these complaints are, if not “preposterous,” at least meritless. Stay tuned.
In any case, we hope the lawsuit prompts those in governance of the University to restore Notre Dame’s integrity by honoring, rather than repudiating, the University’s pledge to the courts and the government that “its Catholic beliefs prohibit it from facilitating access to contraceptives.” As matters stand, the University’s evident dissimulation will likely do it no good.
Join Our Petition Opposing Father Jenkins’s “Contraceptive Culture.”
This is the fourth time Fr. Jenkins has publicly brushed off the objections of his and the University’s bishop. Recall The Vagina Monologues and Queer Film Festival and the honoring of President Obama and Vice President Biden. It is time for all alarmed by the growing breach between Notre Dame and the Church to speak up.
We invite all members of the Notre Dame community – alumni, students, family, faculty, staff – and all concerned Catholics to join the petition we have prepared urging the Fellows and the Trustees to maintain the existing exclusion of contraceptives from Notre Dame’s policies and to end promptly the provision and subsidy of abortifacients.
SIGN THE PETITION
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