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Contraception advocacy groups sue University, cabinet agencies on behalf of Notre Dame health care plan beneficiaries

| Wednesday, June 27, 2018

Updated Wednesday at 10 p.m.

A lawsuit challenging recent changes in University policy regarding birth control was filed in the U.S. District Court for Northern Indiana, the National Women’s Law Center (NWLC) announced in a press release Tuesday.

The suit — filed by NWLC, Americans United for Separation of Church and State and the Center for Reproductive Rights — centers on the constitutionality of the University’s recent decision to make community members covered by its health plan pay for birth control, the press release said. It was filed on behalf of Irish 4 Reproductive Health (I4RH), an independent student group that advocates for contraception access on campus, and others insured by Notre Dame health plans.

The release said the lawsuit claims the University reached an “unlawful settlement agreement” with President Donald Trump’s administration, allowing it to “deny students, employees and their dependents insurance coverage of birth control guaranteed to them by the Affordable Care Act (ACA).”

In a statement to The Observer on Wednesday, I4RH said in a statement that it was filing the lawsuit because its members felt the University’s contraceptive coverage policies undermined their reproductive health care rights.
“I4RH believes no boss, CEO, or University president should be able to control the personal decisions that we make about our bodies and lives,” I4RH said in a statement. “The Affordable Care Act protects people’s right to make these decisions about their reproductive health through the birth control benefit, which ensures that all eighteen methods of FDA-approved birth control are covered by insurance and accessible without any out-of-pocket costs.
“Notre Dame’s recent settlement with the Trump-Pence Administration undermines this law, restricting student and employee birth control access. In collaboration with the National Women’s Law Center, Americans United, and the Center for Reproductive Rights, I4RH intends to defend the right of the Notre Dame student body, faculty, and staff to make their own decisions about reproductive healthcare, without the intrusion of their educator or employer.”

Paul Browne, vice president for public affairs and communications, said the “assertions on the face of [the lawsuit] are maliciously and preposterously false” in a statement sent to The Observer on Tuesday. A full list of contraceptive methods covered by the University can be found on its website.

According to the suit, University faculty and staff will have to start paying a birth control copay this Sunday, whereas students will need to do so beginning in August. The purpose of the lawsuit is to prevent that outcome, according to a post on the NWLC website.

Aside from I4RH, the plaintiffs listed are Natasha Reifenberg — who graduated May 20 but is still on a University health plan because her parents are Notre Dame faculty members — and three women listed as “Jane Does 1-3.”

According to the lawsuit, the “Jane Doe 1” is a graduate student, “Jane Doe 2” is an undergraduate student and “Jane Doe 3” is a woman dependent on the University’s faculty and staff health plan despite not being a student, faculty member or staff member.

The Department of Health and Human Services, the Department of Labor and the Department of the Treasury are listed along with the University as defendants in the suit. Alex Azar, Alexander Acosta and Steven Mnuchin, the three respective secretaries of the agencies, round out the list of seven defendants.

Because the ACA required organizations to provide contraception as part of insurance plans, Notre Dame employees have had access to free birth control and related services through the University’s federally-funded third-party administrator Meritain Health and OptumRx, the University’s prescription-benefit manager, for the past several years. This arrangement allowed Notre Dame health plans to provide contraception despite the University’s religious objections to the mandate.

Last fall, the University administration joined a lawsuit challenging the contraception requirement, a decision University President Fr. John Jenkins said arose from the fact that the federal plan covered “abortifacients,” or drugs that induce abortions. Notre Dame settled that case last October when the Trump administration agreed to eliminate the mandate.

“As I have said from the start, the University’s interest has never been in preventing access to those who make conscientious decisions to use contraceptives,” Jenkins said in his address to the faculty senate Nov. 7. “Our interest, rather, has been to avoid being compelled by the federal government to be the agent in their provision.”

Although this development granted the University an exemption from providing contraception and contraceptive services as part of its health plans, Jenkins announced during the faculty senate address that it would continue to allow employees to receive free birth control directly from third-party providers without Notre Dame’s involvement. Those providers — Meritain and OptumRX — decided to stop charging plan members for contraception.

This is the second lawsuit regarding the contraception issue that NWLC and Americans United for Separation of Church and State have filed against the Trump administration on behalf of Notre Dame community members. Graduate student Mary Shiraef and two other anonymous Notre Dame students  were listed as plaintiffs in a complaint against Acosta, Mnuchin and former acting secretary of Health and Human Services Eric Hargan — as well as their respective departments — filed Oct. 31, prior to Jenkins’s announcement in his address to the faculty senate.

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