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Professor analyzes Hobby Lobby case

| Tuesday, April 1, 2014

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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About Ann Marie Jakubowski

Senior News Writer, formerly Editor-in-Chief. English and Spanish double major, minor in journalism, ethics and democracy. Grand Rapids, Mich., native. Notre Dame Class of 2015.

Contact Ann Marie
  • Freddy

    Thank you. Lucidly reported.
    But my objection is more fundamental. What about my basic right to stay out of your bedroom–whoever you are! I want no part of that. I don’t even want you to be able to take my wallet into your bedroom–whoever you are.
    I am a physician. But I don’t need to be one to state the obvious: This is not medical care. There is no disease being treated or prevented. This presumtion- this encroachment- is mind boggling.

    This is a sad indictment on all of us. If the argument is fundamental, how did we allow it to become passe’?

    • You’re a physician? Then you should know that for many women (with endometriosis, severe menstrual periods, severe acne, etc.), access to birth control pills IS most certainly a medical issue.

      • Freddy

        Wrong argument. Hormone therapy is medical treatment whether for prostate cancer or endometriosis. Who is arguing with hormone therapy?

        Just pay for your own nonmedical bedroom adventures.

        • Amber Abbigail Barbara

          Hormone therapy is given in the form of birth control. It’s my medication for PCOS. So contraceptives are treating my medical condition.

          • fred

            No,hormone therapy is treating your medical condition. It’s not a semantic argument. As you know, hormones are never given to persons with polycystic ovaries for “birth control”. They are good and often helpful treatment and I hope they are helping you.
            You can even have my wallet for that.
            But your elective plastic surgery, inserts for your running shoes, piercings, yoga classes, cigars, gas for your car, and your birth control should be paid for by you.

          • Amber Abbigail Barbara

            Whether or not contraception is the reason it’s prescribed, it’s the same pill. If your insurance doesn’t cover contraceptives, it’s not gonna be covered.

    • Mind Boggled

      I think it’s rather mind-boggling for a physician to claim that there’s no disease being prevented. It’s well demonstrated that properly planning and spacing pregnancies reduces both maternal and infant mortality.

      • fred

        Sorry, Mind Boggled. Your great grandmother 2 million years ago and all of her progeny– and I–cannot think of you as a disease to be prevented.

  • NDaniels

    When the Obama Administration argued in Hosanna-Tabor that Cheryl Perich was not a minister and therefore the ministerial exception did not apply, rather than argue that Cheryl Perich was a person of Faith who the Church had selected to minister to the students of Hosanna-Tabor, who had been unjustly let go due to a disability, it was clear that the Obama Administration had changed the nature of the debate in an attempt to redefine Religious Liberty by limiting the number of people who qualify as “ministers”, and are thus entitled to have their Religious Liberty secured and protected. Having failed at redefining Religious Liberty through The Hosanna-Tabor Case, the Obama Administration is attempting, through the contraception mandate that was added after the Affordable Health Care Act was passed, to redefine Religious Liberty through an Administration Agency. Not only does an Administrative Agency not have the authority to determine who is and is not religious enough to have their Right to Religious Liberty secured and protected, but this Administrative Agency has placed an obscene fine of 36,500 per employee for providing Health Insurance that does not include contraception coverage, when the fine for failing to provide Health Insurance is only 2,000 dollars per employee, clearly a violation of the principle of proportionality and thus The Eighth Amendment as well as The First.

  • NDaniels

    Corporations consist of mature persons with an intellect and a will, who are capable of governing themselves; mature places and mature things are not capable of governing themselves.

    Our inherent Right to practice Religious Liberty exists for individual persons as well as groups of persons, in private, as well as in public, and does not depend on whether one is conducting business for profit, or not for profit, or whether a company is a closely held corporation or not so closely held. Employers have the right to conduct their business without violating a tenet of their Faith.While our Constitution does not recognize an inherent Right to receive contraception as part of one’s Insurance Plan, it does serve to protect our inherent Right to Religious Liberty.

    When our Constitution no longer serves to protect our inherent Right to Life, to Liberty, and to The Pursuit of Happiness that Has been endowed to us from God, the purpose of which can only be what God intended, having removed God from the equation and thus our Judeo-Christian founding principles, we end up with atheistic materialism, a nature that denies Nature’s God.

    Only The True God can endow us with our inherent Rights; contraception is the means that is being used to end our Right to Religious Liberty.

  • NDaniels

    Atheistic Materialism serves to deny the Dignity of the human person created in The Image and Likeness of God by recreating personhood. Atheistic Materialism objectifies the human person, denying that from the moment of conception, every son or daughter of a human person can only be a human person, while claiming that human persons have been ordered to live their lives in relationship as objects of sexual desire.

    God Has Revealed that we are, and have always been, from the moment of our creation, sons, daughters, brothers, sisters, husbands, wives, fathers, mothers. From the moment of conception, you have been you, and I have been me, and even if never the twain shall meet, in Time, our Life is a continuum.