Showing posts with label Notre Dame. Show all posts
Showing posts with label Notre Dame. Show all posts

Friday, August 13, 2021

Court Dismisses Challenge To Contraceptive Mandate Exemption for Notre Dame

In Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Aug. 12, 2021), an Indiana federal district court dismissed a suit challenging rules, as well as a settlement agreement, exempting Notre Dame University from the contraceptive coverage mandate of the Affordable Care Act. The court said in part:

With the Rules having been upheld by the Supreme Court, I can’t really say that the Settlement Agreement itself is causing injury to the Plaintiffs because the same result the Settlement Agreement provides Notre Dame (exempting it from the contraceptive coverage mandate) is equally provided by the Rules (the validity of which were upheld). The challenge to the Settlement Agreement “is not ripe for adjudication [because] it rests upon contingent future events that may not occur” - i.e., the speculative possibility that the exemption might be invalidated at some point in the future.

The court, relying on the Supreme Court's Little Sisters of the Poor decision and a Massachusetts federal district court case, also held that the rules creating religious exemptions from the contraceptive coverage mandate do not violate the Establishment Clause.

Thursday, June 18, 2020

Notre Dame Launches Religious Liberty Clinic

Notre Dame Law School announced yesterday that it is creating the Notre Dame Religious Liberty Clinic.  Prof. Stephanie Barclay will head the new initiative.  She comes to Notre Dame from the faculty of Brigham Young University’s J. Reuben Clark Law School.

Sunday, January 19, 2020

Claims Against Notre Dame and Feds Over Contraceptive Coverage Move Ahead

Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Jan. 16, 2020), is the latest installment in the dispute over the extent to which Notre Dame University must provide contraceptive coverage in its health insurance plans for employees and students. As described by the Indiana federal district court:
There are really two separate disputes at play here. The first involves a challenge to regulations that would allow Notre Dame to declare itself exempt from the Women’s Health Amendment of the Patient Protection and Affordable Care Act (“ACA”)....
The second part of this case presents a [new] wrinkle.... [A] week after issuing the interim final rules..., the Federal Defendants executed a private settlement agreement with Notre Dame exempting the university from all existing and future requirements with respect to contraceptive coverage. Notre Dame did not seek input from its students or faculty before entering into the settlement agreement. The Plaintiffs in this case — Irish 4 Reproductive Health (an association of Notre Dame students), Natasha Reifenberg, and Jane Does 1-3 — claim this backroom deal is illegal and unconstitutional. 
The court refused to dismiss plaintiffs' claims that the settlement agreement and the exemptive rules violate the Administrative Procedure Act and the Establishment Clause of the 1st Amendment. However the court did dismiss due process and equal protection challenges. (See prior related posting.)

Wednesday, June 27, 2018

Notre Dame and HHS Sued Over Settlement of Contraceptive Mandate Coverage

Yesterday a group of Notre Dame undergraduate and graduate students filed suit in an Indiana federal district court against the University and the Trump Administration challenging a settlement entered last year with the University in its lawsuit over the contraceptive coverage mandate under the Affordable Care Act.  The complaint (full text) in Irish 4 Reproductive Health v. U.S. Department of Health and Human Services. (ND IN, filed 6/26/2018), contends that the settlement which exempts Notre Dame from furnishing contraceptive coverage to its students and employees where doing so would violate the University's religious tenets was entered in violations of the Administrative Procedure Act.  The settlement reflects the exemptions for religious non-profits which the Trump Administration adopted, but whose application has been enjoined nationwide by two other federal district courts.  The complaint also challenges the constitutionality of those now-enjoined rules.

According to the complaint, Notre Dame will provide some contraceptive coverage, but will require co-pays, and will refuse to cover certain IUDs and emergency contraceptives. Presumably this is an attempt to withdraw coverage of contraceptives that may prevent implantation of a fertilized egg.  Plaintiffs in the case are represented by Americans United for Separation of Church and State, the National Women’s Law Center (NWLC), the Center for Reproductive Rights and their co-counsel. NWLC issued a press release announcing the lawsuit.

Friday, February 09, 2018

Notre Dame Announces Another Change In Contraceptive Coverage

Notre Dame University on Wednesday announced another change in its policy regarding coverage for contraceptives by its employee health care plan.  Initially Notre Dame sued challenging the Obama administration's rule which required coverage, but allowed the coverage to be provided by the insurance company or third party administrator directly rather than by the University.  When the Trump administration broadened the exemption for religious non-profits so that Notre Dame could completely opt out of contraceptive coverage, the University chose to continue with the pre-existing coverage arrangement. This led to criticism from alumni and others. (See prior posting.)  Now in a letter to faculty and staff (full text), the University has announced a different approach-- one which makes a distinction between Catholic teaching regarding contraception and Church teaching regarding abortion (presumably including contraceptive drugs that prevent implantation of a fertilized ovum).  The letter from Notre Dame's president describes the policy as follows in part:
... [A]llowing the government-funded provision of drugs and services to continue through a third party administrator would provide access to contraceptives without University funding or immediate involvement. The government-funded program, however, includes the provision of abortion-inducing drugs, which are far more gravely objectionable in Catholic teaching. Stopping any access to contraceptives through our health care plan would allow the University to be free of involvement with drugs that are morally objectionable in Catholic teaching, but it would burden those who have made conscientious decisions about the use of such drugs and rely on the University for health care benefits.
I have reached the conclusion that it is best that the University stop the government-funded provision of the range of drugs and services through our third party administrator. Instead, the University will provide coverage in the University’s own insurance plans for simple contraceptives (i.e., drugs designed to prevent conception). The University will also provide in its plans funding for natural family planning options—options that do not use artificial contraceptives but employ natural methods for preventing conception. The University’s insurance plans (as opposed to the government-funded program) have never covered, and will not cover, abortion-inducing drugs.
In response to the new policy, Bishop Rhoades, Bishop of the Diocese of Fort Wayne-South Bend where Notre Dame is located, issued a statement yesterday (full text) welcoming parts of the new policy but strongly criticizing the University's decision to directly fund contraception coverage. [Thanks to Marty Lederman via Religionlaw for the lead.] 

Tuesday, January 09, 2018

Notre Dame Alums Object To University's Contraceptive Mandate Position

As previously reported, Notre Dame University is allowing its its health insurance providers to continue to furnish contraceptive coverage for university employees and students, even though Trump Administration rules now allow the university to opt out on religious grounds. Life Site News yesterday reported that 66 lawyers who are Notre Dame alumni have signed a letter (full text) to Notre Dame president Father William Jenkins strongly objecting to the University's decision. The letter objects that the university "now doing voluntarily precisely what it said it could not do in good conscience...." The letter goes on to charge that the school's assertions "now appears to be a collection of flat-out misrepresentations" in what amounts to "a pretend lawsuit."  The letter continues in part:
If, then, there is some explanation that will absolve the University from the charge of playing fast and loose with the courts or mitigate to some degree its blame, we urge you to provide it.
If there is not, then the matter seems to us to be quite serious enough to demand the attention of the Fellows and the Board of Trustees. It will be bought to their attention in due course. Remedial action should be taken, an accounting given to the Notre Dame community, and thoughtful consideration given to how amends might be made to the courts. ...
Finally, though we hope it does not come to it, Rule 11 of the Federal Rules of Civil Procedure does provide a means for federal courts to determine if there have been misrepresentations by litigants and, if so, what to do about it. A court can invoke the procedure on its own initiative. Given the wide publicity accorded the university's turnabout, Court of Appeals judges ... might think a Rule 11 hearing appropriate.

Wednesday, November 08, 2017

Notre Dame, In About Face, Will Continue Contraceptive Coverage Under Accommodation Rules

Reversing an announcement made last month (see prior posting), Notre Dame University yesterday told employees that they will continue to receive health insurance contraceptive coverage.  Under accommodation rules developed by the Obama Administration, the coverage is provided without cost by the insurance company directly to employees, without Notre Dame paying for it.  As reported by AP, the university thought that its insurer would end the no-cost coverage now that changes in Affordable Care Act rules allow religious non-profits to opt out of objectionable coverage. However the insurer has indicated that it will continue to provide the coverage.  A Notre Dame spokesman said:
Recognizing ... the plurality of religious and other convictions among its employees, [the University] will not interfere with the provision of contraceptives that will be administered and funded independently of the University.
In a similar reversal, Notre Dame also told students yesterday that after August they will still be able to obtain contraceptive coverage by electing it separately through their student health plan.

UPDATE: Since Notre Dame has a self-insured plan, references to "insurer" should be read as a reference to the third party administrator and benefits manager.  Sycamore Trust, an alumni group dedicated to preserving Notre Dame's Catholic identity strongly criticized the university's action.

Wednesday, November 01, 2017

New Contraceptive Coverage Rules Challenged As Notre Dame Plans To End Coverage

As previously reported, the Trump Administration has issued Interim Final Rules that expand religious exemptions from the Affordable Care Act contraceptive coverage mandate.  The Administration has also settled many of the lawsuits challenging the contraceptive coverage requirement.  Indiana Public Media reports that Notre Dame University last week informed students and employees that after the end of the current plan year, health insurance policies obtained through the University will no longer cover contraceptives for birth control. Apparently plans will still cover contraceptives where necessary to treat medical conditions.

Yesterday, three Notre Dame students, an employee of an Illinois university and an employee of a church filed suit in an Indiana federal district court challenging the new Interim Rules.  The complaint (full text) in Shiraef v. Hargan, (ND IN, filed 10/31/2017), contends:
3. Bypassing the legally-required notice and comment process, the Rules were promulgated to take effect immediately and nullify existing regulations that took over six years to implement and involved no less than six rounds of notice-and-comment rulemaking, including consideration of over 725,000 comments.
4. The Rules and their issuance violate the Administrative Procedure Act, the Establishment Clause of the First Amendment to the U.S. Constitution, the Due Process Clause of the Fifth Amendment to the U.S. Constitution including equal protection guarantees and the right to liberty, and the ACA.
Americans United issued a press release announcing the filing of the lawsuit.

Wednesday, May 20, 2015

7th Circuit Denies Notre Dame Preliminary Injunction In Its Contraceptive Mandate Challenge

Deciding the case on remand from the Supreme Court (see prior posting), the U.S. 7th Circuit Court of Appeals in a 2-1 decision in University of Notre Dame v. Burwell, (7th Cir., May 19, 2015), refused to grant a preliminary injunction to Notre Dame University in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits.  Federal regulations allow religious non-profits to file a form notifying their insurer or plan administrator of their objection to providing contraceptive coverage.  When that is done, the insurer or administrator must provide coverage directly.  Judge Posner's majority opinion says in part:
Notre Dame claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain ... to provide any contraceptive coverage to Notre Dame students or staff.... It regards its contractual relationship with those companies as making the university a conduit between the suppliers of the coverage and the university’s students and employees.... 
Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs. As far as we can determine from the very limited record, the only “conduit” is between the companies and Notre Dame students and staff; the university has stepped aside. 
Judge Hamilton wrote a concurring opinion focusing on the Supreme Court's favorable discussion of the accommodation for religious non-profits in its Hobby Lobby opinion. Judge Flaum wrote a dissenting opinion arguing that "the law turns Notre Dame into a conduit for the provision of cost-free contraception." Wall Street Journal reports on the decision.

Monday, March 09, 2015

Supreme Court GVRs Notre Dame's Appeal In Contraceptive Mandate Challenge

As previously reported, in October Notre Dame University filed a petition for certiorari with the U.S. Supreme Court in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits.  However instead of seeking full review of the 7th Circuit's decision, the petition asked the Court to issue a so-called GVR order. Today the Supreme Court did just that.  In University of Notre Dame v. Burwell, (Docket No. 14-392) (Order List), the Court issued the following order:
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014). 
[Thanks to Marty Lederman vial Religionlaw for the lead.]

Friday, February 27, 2015

3 Senior Faculty Attack Notre Dame's Granting of Benefits To Same-Sex Couples

Three senior faculty members at the University of Notre Dame earlier this week published an interesting attack on the decision by Notre Dame University and some other Catholic institutions to grant same-sex couples who are legally married the same employee benefits available to married heterosexual couples.  The statement (full text) by law professors Gerard V. Bradley and John Finnis and political science professor Daniel Philpott, published on the blog site Public Discourse, says in part:
[W]hen a university’s administration, knowing that “same-sex marriages” are in a Catholic understanding not truly marriages at all, nonetheless gives without legal coercion many signs and solid tokens of approving such commitments to non-marital sex acts, everyone can readily infer that the university actually does not regard any kind of sex acts between adults as grave matter, provided that these acts are consensual and, perhaps, linked to some notion of commitment. This inference and its logic apply to the vast majority of its students whose inclinations are heterosexual, and whose temptations—enhanced by the perceived indifference of the university—are rather to fornication (and pornography and self-abuse) than to sodomy....
The baneful effects of this structure of sin will be difficult to contain. It will be reinforced, for instance, if and when such a university accepts that an open commitment to an unchristian kind of sexual relationship is little or no impediment to being appointed to holding high office and high academic posts in it....
[B]y extending marriage benefits to same-sex couples, a university would directly cooperate in, encourage, and promote the grave injustices committed by those of its employees who, deeming themselves (and being legally deemed) married, will—usually in circumstances utterly remote from emergency rescue of orphans—adopt children. Even worse, some couples may use third-party reproduction to create children with the intent to bring them up motherless (if the couple is male) or fatherless (if the couple is female) and in a domestic educational context of active approval of intrinsically immoral sex. No Christian institution should ever cooperate with such gratuitous wronging of children....
Finally, institutions that assimilate civil same-sex “marriage” into the category of true marriage will lose their credibility in the fight to defend religious freedom against the federal judiciary, powerful currents of influence, and coercive laws.
[Thanks to Mirror of Justice for the lead.]

Monday, October 13, 2014

Notre Dame Asks For Supreme Court GVR In Contraceptive Coverage Challenge

On Oct. 3, a petition for certiorari was filed with the U.S. Supreme Court in University of Notre Dame v. Burwell, (Docket No. 14-392). In the case, the U.S. 7th Circuit Court of Appeals denied a preliminary injunction to Notre Dame in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits. (See prior posting.) As reported by MSNBC, the petition does not seek full Supreme Court review, but instead asks the Court to grant certiorari, vacate the 7th Circuit's decision and remand for reconsideration ("GVR") in light of the Supreme Court's Hobby Lobby decision. In the petition, Notre Dame argued:
Just as a Mormon might refuse to hire a caterer that insisted on serving alcohol to his wedding guests, or a Jew might refuse to hire a caterer determined to serve pork at his son’s bar mitzvah, it violates Notre Dame’s religious beliefs to hire or maintain a relationship with any third party that will provide contraceptive coverage to its plan beneficiaries,

Sunday, February 23, 2014

7th Circuit Affirms Denial of Preliminary Injunction to Notre Dame In Contraceptive Coverage Challenge

In University of Notre Dame v. Sebelius, (7th Cir., Feb. 21, 2014), the U.S. 7th Circuit Court of Appeals on Friday, in a 2-1 decision, denied a preliminary injunction to Notre Dame University in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits. Handing down its decision only 9 days after hearing oral arguments, the majority in an opinion by Judge Posner affirmed the district court, saying in part:
We imagine that what the university wants is an order forbidding Aetna and Meritain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court.  But we can’t issue such an order; neither Aetna nor Meritain is a defendant (the university’s failure to join them as defendants puzzles us)..... Furthermore, while a religious institution has a broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance  company, from  engaging in acts that merely offend the institution..
If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how  signing the form that declares Notre Dame’s authorized refusal to pay for  contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to “trigger” the provision of female contraceptives....
The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. United States law and public policy have a history of accommodating religious beliefs....  What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. The closest  analogues we have found  are  cases in which  churches seeking rezoning or variances claim that the process for obtaining permission is so cumbersome as to constitute a substantial burden on religious practice....  
The process of claiming one’s exemption from the duty to provide contraceptive  coverage is the opposite of cumbersome. It  amounts  to signing  one’s  name  and  mailing  the signed form to two addresses. Notre Dame may consider the process a  substantial burden, but substantiality—like  compelling  governmental  interest—is  for  the court  to  decide.
The majority also rejected Notre Dame's establishment clause challenge, and left its free speech challenge for further development in the district court.

Judge Flaum dissenting said in part:
Having to submit the EBSA Form 700, Notre Dame maintains, makes it “complicit in a grave moral wrong” by involving it with a system that delivers contraceptive products and services to its employees and students.
The majority has trouble accepting this position, in part due  to  the  university’s  statement  that  its  signature  will “trigger”  contraceptive  coverage, because the majority understands federal law to require contraceptive coverage regardless of what Notre Dame signs or does not sign.... Yet we are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith. Notre Dame tells us that Catholic doctrine prohibits the action that the government requires it to take. So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.
Wall Street Journal reports on the decision.

Thursday, February 13, 2014

7th Circuit Hears Oral Arguments In Notre Dame's Contraceptive Mandate Accommodation Challenge

The U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full arguments) yesterday in University of Notre Dame v. Sebelius.  In the case, an Indiana federal district court rejected Notre Dame's claim that its rights under RFRA and the 1st Amendment are infringed by applying the Affordable Care Act contraceptive coverage mandate accommodation to its self-insured employee plan and its health insurance policies offered to students.  (See prior posting.) The exchanges in yesterday's arguments between Notre Dame's counsel Matthew Kairis and Judge Richard Posner were particularly contentious. (Note-- there is no sound for the first 2:30 minutes of the audio.) Chicago Tribune reports on the oral arguments.  [Thanks to Stephen Blakeman for the lead.]

Thursday, January 16, 2014

7th Circuit Allows Notre Dame Students To Intervene In Appeal of Contraceptive Mandate Rule Challenge

The Chicago Tribune reported this week that the U.S. 7th Circuit Court of Appeals has granted a motion filed earlier this month by three female Notre Dame University students seeking to intervene anonymously in the appeal by Notre Dame of the ruling requiring it to comply with the Affordable Care Act contraceptive coverage mandate final rules relating to religious non-profits. (Memorandum supporting motion to intervene.) The 3 students say that their access to contraceptives turns on the outcome of the case.

Friday, January 03, 2014

Notre Dame Complies With Affordable Care Act Contraceptive Mandate Accommodation

In the flurry of decisions this week in suits by religious non-profits seeking protection from the Affordable Care Act contraceptive coverage accommodation, one institution that failed to obtain injunctive relief was Notre Dame University. (See prior posting.) According to WNDU, on Tuesday the University issued a statement saying:
Having been denied a stay, Notre Dame is advising employees that pursuant to the Affordable Care Act, our third party administrator is required to notify plan participants of coverage provided under its contraceptives payment program.
As part of an ongoing legal action, however, the program may be terminated once the university's lawsuit on religious liberty grounds against the HHS mandate has worked its way through the courts.
Meanwhile, at Balkinization blog, Marty Lederman has an excellent backgrounder on the non-profit contraceptive mandate cases, as well as this backgrounder on whether or not the broader mandate really involves a requirement to cover "abortifacients."