5 Things To Know About Notre Dame’s Contraceptives Lawsuit

Notre Dame University refiled a lawsuit this week, arguing the Affordable Care Act's mandate on contraceptive coverage is a violation of religious liberties.

the pill

Photo: Amber McNamara

Notre Dame University says providing contraceptives would go against the beliefs held by the Catholic Church.

Notre Dame University refiled a lawsuit Tuesday against the Obama administration for a portion of the Affordable Care Act that requires businesses to provide insurance that includes free contraceptives to their employees.

Religious institutions are exempt, but the health care law still requires religiously-affiliated organizations such as hospitals and universities to provide coverage, albeit with some accommodations.

The case is a bit complicated, so here are five things that should help to clear some things up:

1. This is the second time Notre Dame has filed the lawsuit.

A federal judge dismissed the university’s first lawsuit in January, saying it was premature. As The National Catholic Register reports, the Obama administration was preparing to make accommodations for religiously-affiliated institutions.

Pointing to the government’s promise to change the mandate for objecting religious employers, Miller dismissed the case, saying that “Notre Dame faces no penalty or restriction based on the existing regulatory requirement.”

That promise, the New York Times reports, was kept by the Obama administration saying groups like Notre Dame did not have to provide contraceptive coverage directly.

In such cases, the administration said, female employees and students will still have access to free coverage of contraceptives.

The coverage will be provided by the companies that review and pay claims — “third-party administrators” — or by “some other independent entity,” it said.

Kathleen Sebelius, the secretary of health and human services, said the government would guarantee women access to contraceptives “while accommodating religious liberty interests.”

2. Notre Dame argues that requiring contraceptive coverage through a third party still violates religious liberty.

Notre Dame says its officials have been in negotiations with Obama administration officials for a year.

“We have concluded, however, the government’s accommodations 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,” Notre Dame President Rev. John Jenkins said in a statement released Tuesday. “In these ways, we contend, the regulations compel us to violate our religious beliefs.”

The government, however, is arguing there is a compelling reason to provide women coverage, partly as a sexual equality issue.

“Basically, the government is saying here, number one you don’t have a religious liberty objection, it’s too attenuated. You don’t have to provide the coverage yourself,” says Indiana University Maurer School of Law Professor Daniel Conkle. “Number two, even if you do, we have an important, or as the law would say, a compelling interest in providing women with contraception coverage under their insurance policies. They may not share your Catholic faith, even though they’re employed by Notre Dame. We ought to be able to, in essence, permit them to have this free contraception coverage, even if you object to it.”

3. The U.S. Supreme Court is set to rule a similar case next year.

The U.S. Supreme Court announced last month it would hear a case Hobby Lobby  and three dozen other companies are bringing against the Affordable Care Act. The lawsuit argues for profit-companies cannot be required to provide contraceptive coverage in health insurance plans.

NPR reports Hobby Lobby is the lead plaintiff in the case.

The owners are conservative Christians who object to some forms of birth control and contend that the mandate thus abridges their religious rights in violation of both the Constitution and federal law.

David Green, founder and CEO of Hobby Lobby, appeared in an online video to explain his company’s position. “We do everything we possibly can to be a help to our employees of how that they can structure their life based on biblical principles,” he says.

4. There are some key differences between the Hobby Lobby and Notre Dame cases.

Conkle says the main difference is that Hobby Lobby is a for-profit company and is not directly affiliated with a religious organization.

“The Obama administration is in part arguing that a profit-making corporation is not an entity that can even advance a religious liberty claim at all,” Conkle says. “That argument, which would cut against Hobby Lobby’s claim, clearly does not apply to Notre Dame.”

So if the Supreme Court rules against Hobby Lobby, Notre Dame still could have a case.

“On the other hand, in the Hobby Lobby case, the companies are in fact themselves required to provide the insurance coverage for their employees. There is no accommodation. There is no special provision for profit making companies that object on religious grounds,” Conkle says referring to the fact that Notre Dame does not have to provide contraceptive coverage directly but through a third party. “And to that extent, the Notre Dame claim is weaker, because Notre Dame is being accommodated.”

5. It’s hard to tell how the court will rule.

Courts are often reluctant to rule against religious organizations when it comes to religious liberty issues.

However, because the issue is being seen by some as a gender equality issue, and the fact that the government has tried to make accommodations for religious institutions, that could make the courts more likely to rule in favor of the Affordable Care Act mandate.

“It really could go either way,” Conkle says.

Is there anything we missed or that is still unclear? Ask us in the comments section below and we’ll try to answer your questions.

Gretchen Frazee

Gretchen Frazee is a reporter/producer for WFIU and WTIU news. Prior to her current role, Frazee worked as the associate online content coordinator for WFIU/WTIU. She graduated from the University of Missouri-Columbia where she studied multimedia journalism and anthropology. You can follow her on Twitter @gretchenfrazee.

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