Notre Dame’s third request for relief from the Department of Health and Human Services (HHS) mandate requiring the University’s insurance plan to cover contraception was denied Feb. 21, but the Supreme Court heard oral arguments March 25 on other cases against Kathleen Sebelius, U.S. Secretary of the Department of HHS.
The Court will rule on Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius, two consolidated cases brought by companies owned by Christian families.
Like Notre Dame’s lawsuit, these two cases center on contraceptive coverage and religious liberty. Currently, the University must provide contraceptive coverage under an “accommodation” that allows it to use its third-party health care administrator Meritain Health.
In its most recent request for relief in the U.S. Court of Appeals for the Seventh Circuit, Notre Dame argued that this agreement with Meritain Health regarding the University providing birth control is against its Catholic beliefs.
Notre Dame law professor Richard Garnett, who specializes in freedom of religion and constitutional law, said the University and the companies fall under different rules due to their institutional differences.
“Notre Dame is obviously a ‘religious’ institution and a non-profit, while Hobby Lobby is a for-profit business operating in the commercial sector,” he said. “The ‘accommodation’ that Notre Dame is currently subject to is different in form from the rule that applies to Hobby Lobby.”
Because Hobby Lobby is not presently eligible for the accommodation Notre Dame has, Garnett said the company is seeking a different exemption under the Religious Freedom Restoration Act (RFRA).
“Hobby Lobby is seeking an exemption, under RFRA, from the requirement that they include certain contraceptives — not all, in Hobby Lobby’s case — which Hobby Lobby believes can operate as abortifacients,” he said.
Garnett said while the Constitution, as the Court has interpreted it, “almost certainly does not entitle Hobby Lobby to an exception,” RFRA was enacted by Congress precisely for the purpose of providing more generous accommodations to religious objectors than the Constitution requires.
Accommodating religion by statute is more flexible, he said, but if the Court rules in favor of Hobby Lobby, Congress has the chance to respond and change the final outcome.
“If the Court rules for Hobby Lobby and Congress disagrees with that result, it has the authority to revise RFRA and, say, exclude business corporations from the Act’s coverage,” Garnett said.
The parallels between Notre Dame’s case and Hobby Lobby’s center on the institutions’ understanding of their “religious exercise” rights, he said.
“In all of these cases, the employers are saying that it would burden their legally protected ‘religious exercise’ rights to apply the relevant preventative-services-coverage provision to them,” he said.
A February statement from Paul Browne, University vice president for public affairs and communications, maintained that Notre Dame is “concerned that if government is allowed to entangle a religious institution of higher education like Notre Dame in one area contrary to conscience, it’s given license to do so in others.” Garnett said this concern is “certainly legitimate.”
“Of course, to say that the concern is legitimate is not to say that other burdensome regulations that interfere with or burden Notre Dame’s Catholic character are guaranteed, or to predict what form they will take,” he said. “But, the logic of the government’s argument in the HHS mandate context is one that underemphasizes and underappreciates the extent to which the University of Notre Dame does ‘exercise religion,’ and does have a religious-liberty right to pursue a distinctive vision and mission, animated by a distinctive charism.”
Browne told The Observer on Tuesday that Notre Dame’s attorneys “are engaged in a review of options available to us” concerning the case.
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