SOUTH BEND, Ind. — A lawsuit to force the University of Notre
Dame to provide free contraceptives and abortifacient drugs in its health plans
will proceed after receiving a green light from a federal district court in
South Bend.
Judge Philip Simon of the U.S. District Court for the Northern
District of Indiana denied motions by Notre Dame and the federal government to
dismiss the case, Irish 4 Reproductive Health v. Department of Health &
Human Services et al. He issued the ruling Jan. 16.
The lawsuit originally was brought in 2018 against the U.S.
departments of Health and Human Services, Labor and Treasury, and Notre Dame by
a handful of women students calling themselves Irish 4 Reproductive Health, or
I4RH.
The suit was filed for them by the National Women's Law Center,
the Center for Reproductive Rights and Americans United for Separation of
Church and State. The latter organization will honor the I4RH in March as
"2020 Students of the Year."
The lawsuit alleges that the university had reached an
"unlawful settlement" with the federal government that allowed it to
"deny students, employees and their dependents insurance coverage of birth
control guaranteed to them by the (2010) Affordable Care Act," better
known as Obamacare.
President Barack Obama had promised conscience protection in his
health plan, but when his Health and Human Services Department issued specific
rules in 2011, only houses of worship were given an exemption from the mandate
for employers to provide contraceptives in their employee insurance plans.
Religiously affiliated schools, hospitals and other social service institutions
were not included in that exemption.
Some Catholic entities, namely the Little Sisters of the Poor,
refused to obey the mandate and have been fighting court battles ever since.
Notre Dame did initially challenge the Obama-era mandate in two different
lawsuits, but neither were successful. The university provided the mandated
insurance to employees and students.
After President Donald Trump took office, he directed the
secretaries of Treasury, Labor, and Health and Human Services to draft amended
rules to address conscience-based objections to the Obamacare contraceptive
mandate. In October 2017, the departments did so, issuing interim final rules
that went into effect while public input was invited.
Those rules granted exemption from the mandate to entities with
"sincerely held religious beliefs" and to nonprofits and small
businesses with nonreligious moral opposition.
Initially, Holy Cross Father John Jenkins, president of Notre
Dame, joined other Catholic leaders in praising the action and informed
university employees Oct. 27, 2017, that the previously mandated contraceptive
coverage would end Dec. 31 of that year.
Some small campus groups such as the Notre Dame Graduate Workers
Collective and the ACLU of Notre Dame made their objections known, citing
religious differences on campus. It is not clear how much these demonstrators
influenced Notre Dame leaders, but just 10 days later, the university informed
employees and students that a third-party health plan administrator would
continue to provide the services free of charge.
A Notre Dame spokesman explained at the time that the
administration reversed course after learning that the insurers would continue
the coverage at no cost, so the university chose not to "interfere."
This action brought immediate objection from Bishop Kevin C.
Rhoades of Fort Wayne-South Bend, who said he would continue to dialogue with
Notre Dame leaders "in the context of fidelity of Notre Dame's Catholic
mission."
Other objections came from the Notre Dame Chapter of University
Faculty for Life, as well as many students and alumni, who noted particularly
the availability of abortifacient drugs in the plan.
Three months later, on Feb. 7, 2018, Father Jenkins informed the
campus community that after further thought and with additional information,
the university would take steps "based on Catholic principles that
nevertheless provide access to some coverage that members of our community
seek." He said that the university would stop the government-funded range
of drugs and instead provide coverage for "simple contraceptives (i.e.,
drugs designed to prevent conception)."
Bishop Rhoades at that time praised the decision to stop the
government-funded insurance, but "strongly" disagreed with the
decision to continue the birth control coverage, writing in a statement:
"The Catholic Church clearly teaches that contraception is an immoral
action that contradicts the truth of marital love."
Nevertheless, the new Notre Dame insurance was scheduled to go
into effect in July 2018 for employees and in August for students.
On June 27, 2018, the I4RH filed suit against Notre Dame for
terminating coverage for abortifacient drugs and for charging a co-pay for
birth control pills. The group also included the federal government in the
suit, claiming the HHS final rules are illegal.
Notre Dame and the federal government filed for dismissal of the
lawsuit, but Judge Simon denied the motions to dismiss. He allowed five counts
in the complaint to go forward, but did dismiss two counts, writing that the
Constitution provides no "established" or "fundamental"
right to subsidized contraceptives, as the I4RH claimed.
The five claims allowed to proceed all involve the legality of
the HHS final rules. Those claims are similar to claims in two lawsuits against
the Little Sisters of the Poor, who had appealed lower court decisions on those
cases to the Supreme Court.
Ironically, on Jan. 17, the day after Simon refused to dismiss
the "Irish 4" lawsuit, the Supreme Court agreed to hear the Little
Sisters' appeal.
Depending on how the Supreme Court rules this summer on the
Little Sisters' case, the lawsuit against Notre Dame could fall apart.
Carey writes for Today's Catholic, newspaper of the
Diocese of Fort Wayne-South Bend.