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Notre Dame law experts compare Hobby Lobby, Notre Dame cases

| Wednesday, July 9, 2014

The June 30 Supreme Court ruling in favor of  Hobby Lobby’s decision not to provide certain types of birth control in its health insurance plan has been the subject of much national attention, but extrapolating predictions from that decision onto Notre Dame’s pending lawsuit against the Department of Health and Human Services is a complicated process.

O. Carter Snead, director of Notre Dame’s Center for Ethics and Culture and a professor in the University’s law school, wrote an essay for SCOTUS blog exploring what Burwell v. Hobby Lobby Stores, Inc. might mean for religious nonprofits (such as Catholic universities, hospitals and social service agencies) seeking relief from the HHS contraceptive mandate, concluding that the outlook was for Notre Dame’s ongoing lawsuit.

Hobby Lobby offers a great deal of hope to religious nonprofits that soon they will be free once again to care for the poor, feed the hungry, minister to the sick, visit the prisoner, welcome the immigrant and educate the young without being forced by the government to violate their deeply held principles,” he wrote in the essay, which was published Thursday.

The Court’s ruling “simply means that the mandate cannot be applied to require Hobby Lobby to provide coverage to the drugs to which they object,” said Rick Garnett, a professor at the law school who specializes in freedom of religion and constitutional law.

Notre Dame is eligible for an accommodation that provides contraception through a third party insurer, but the University and several other religious non-profits argue that this violates its Catholic beliefs as well.

Hobby Lobby, unlike Notre Dame, objected to only four kinds of birth control that act as abortifacients, but was willing to continue providing the other 16 contraceptives approved by the FDA.

“Hobby Lobby is not (yet) technically ‘eligible’ for the revised mandate that applies to Notre Dame,” Garnett said in an email last week. “Instead, that revised mandate was used by the Court as an illustration of the fact that ‘less restrictive means’ are available to the government.

“Hobby Lobby and Notre Dame both have equal status with respect to the Act — that is, they are both entitled to invoke its protections. But again, the revised mandate has not (yet) been technically applied to Hobby Lobby, and it is still an open question whether the revised mandate violates the Act as applied to Notre Dame and other religious employers.”

Notre Dame currently provides contraceptive coverage through its third party insurer, Meritain Health. It first filed suit in May 2012, re-filed in December 2013, requested emergency appeal before the mandate took effect Jan. 1 of this year and has since had repeated appeals denied in the U.S. Court of Appeals for the 7th Circuit.

Paul Browne, Notre Dame’s vice president for public affairs and communications, said in a statement last week that “while our attorneys are still assessing it, the decision is an important and encouraging victory for religious liberty, which is at the heart of our lawsuit.”

Snead echoed this sentiment in his essay, writing that the Supreme Court decision “follows from the most natural and straightforward reading of [the Religious Freedom Restoration Act], given both its text and the jurisprudence in which it is situated.”

The Court explicitly did not rule on the question posed by Notre Dame and other religious institutions, of how RFRA should apply to the revised mandate accommodation, but rather determined simply that there was “a less restrictive means of accomplishing the government’s goals than a simple mandate to provide an insurance policy that directly covers the four objectionable drugs and devices,” he wrote.

The non-profit accommodation was cited as a less restrictive means than the “blunt mandate,” Snead said, and once that single alternative was identified, “the government’s case was doomed under RFRA.”

“But this finding does not resolve the challenges made by religious non-profits,” he wrote. “Less restrictive is not the same as least restrictive. Even more encouraging for religious non-profits is the Court’s discussion of the strong deference owed to the faithful’s judgments about what their religion forbids in terms of complicity in wrongdoing and requires by way of integrity of witness.”

Garnett said that it is not an intrusion for Courts to inquire about the sincerity of a claimed religious belief as long as they do not “confuse sincerity with correctness or reasonability or orthodoxy.” He said he was not surprised by the ruling because the RFRA questions of whether Hobby Lobby counted as a person under the Act were “relatively straightforward.”

“RFRA is a statute that goes beyond (that is, provides more protection than) what the Constitution itself requires,” he said. “Congress could repeal the law if it wanted to, though President Obama has said he opposes repeal. Because it is a statute, Congress can amend it by passing a new law. It could, for example, say ‘For the purposes of this Act, a for-profit business is not a ‘person.’’”

In his essay, Snead noted that several federal courts temporarily enjoined the HHS mandate — with accommodation — for multiple religious nonprofits shortly following the decision in Hobby Lobby. He mentioned Judge William Pryor’s opinion on the U.S. Court of Appeals for the 11th Circuit’s decision to enjoin the accommodation as applied to Eternal Word Television Network as an especially important argument for the religious nonprofit question.

“Judge William Pryor cited the Supreme Court’s warning that neither the government nor the court shall substitute its own judgment for EWTN’s regarding the ‘substantial burden’ of the HHS mandate in light of Catholic teaching on cooperation and scandal,” Snead wrote. “. . . The accommodation in this context forces the religious employer to say ‘no’ in a manner that functions as a legally operative ‘yes.’ Judge Pryor is the first court of appeals judge to explain this mechanism so clearly and forcefully.”

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.

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