The Observer is a Student-run, daily print & online newspaper serving Notre Dame & Saint Mary's. Learn more about us.



ND sues for relief from HHS mandate

Marisa Iati | Wednesday, December 4, 2013

Notre Dame re-filed a lawsuit Tuesday for relief from a mandate of the Department of Health and Human Services (HHS) that the University claims violates its right to religious freedom.

The mandate requires employers, including Notre Dame and similar religious organizations, to provide contraceptives through their insurance plans or through third-party administrators. 

The complaint, filed in U.S. District Court for the Northern District of Indiana, calls on the court to rule that the HHS mandate violates the First Amendment, the Religious Freedom Restoration Act and other laws. The lawsuit names HHS Secretary Kathleen Sebelius, Secretary of Labor Thomas Perez, Treasury Secretary Jacob Lew and their respective departments as defendants.  

“What’s at stake is this fundamental right of religious organizations to be exempt from government interference in their religious practice,” University President Fr. John Jenkins told The Observer on Tuesday. “So, really, for me, it’s not about the contraceptive services or any particular thing. It’s about that larger issue of the fundamental right of any religious organization, whatever the religion, to live out its mission without government interference.”

The University initially filed a lawsuit challenging the mandate in May 2012. A federal judge dismissed the lawsuit in January, ruling that Notre Dame’s claim was not yet “ripe,” meaning it was not ready to be litigated because the University had not incurred any damages as a result of the mandate. 

A University press release published Tuesday stated the University now seeks relief from the courts because the mandate will take effect Jan. 1, 2014. 

Under the final iteration of the mandate, which the Obama administration announced July 2, an organization that objects to providing contraceptives on religious grounds can offer employees a plan that does not provide contraceptive coverage. The health insurer administering the plan then enrolls employees in a separate, individual, private policy that only covers contraceptives at no extra cost.

Notre Dame is self-insured. A self-insured organization that objects to providing contraceptives can notify its third-party healthcare administrator that it objects. 

The administrator then “notifies enrollees in the health plans that it is providing or arranging separate no-cost payments for contraceptive services for them for as long as they remain enrolled in the health plan,” according to the HHS website.

“What we have to do is we have to write a letter saying we object to these services, and then this third-party administrator is obligated by the government to provide them,” Jenkins said. “So, we have to cooperate in that, and our objection is with the cooperation.” 

Jenkins said the lawsuit is not specifically about contraceptives, but about Notre Dame’s right to practice the Catholic faith. 

“What it is about is the fundamental right of a religious organization to live out its mission, to follow its own teaching, rather than the government mandate of the day,” he said. “We feel we have a right grounded in the Constitution and in standing legislation to be exempt from [the HHS mandate], … and we want that right recognized. 

“Now, if the government wants to provide those [contraceptive] services another way, that’s their business. We’re not trying to prevent that. We’re just saying, ‘Let us live out our mission.'” 

An email the Office of Human Resources sent to faculty and staff Tuesday stated “the University will continue to provide coverage for contraceptives when medically necessary for reasons other than contraceptive purposes.” 

The University engaged in discussions about the mandate with the Obama administration, but the groups were unable to reach a mutually satisfactory agreement, Jenkins said. 

“I thought it would work. In the end, it didn’t work,” he said. “But what is in question is the scope of our rights as a religious organization. … The courts will decide that, but this dialogue will continue. 

“We’re not going to take our ball and go home. We understand the government has concerns. We’ll continue to work with them to try to find a way in which we can retain our rights.” 

Managing Editor Meghan Thomassen contributed to this report. 

Contact Marisa Iati at miati@nd.edu