Notre Dame & others sue Obama administration over contraception mandate.
Apparently university president Fr. John Jenkins is done studying the proposed contraception-coverage accommodation, because Notre Dame has filed suit against HHS Secretary Kathleen Sebelius, Labor Secretary Hilda Solis, and Treasury Secretary Timothy Geithner, claiming the mandate violates the school’s religious freedom. (A total of forty-three plaintiffs have joined twelve suits throughout the country, including the Archdiocese of New York and the Franciscan University of Steubenville, which, as I previously reported, will not be subject to the mandate because its employee health plan is grandfathered.)
In a letter to the university community, Jenkins adopts the language of the U.S. Catholic bishops’ Ad Hoc Committee on Religious Freedom:
Today the University of Notre Dame filed a lawsuit in U.S. District Court for the Northern District of Indiana regarding a recent mandate from the U.S. Department of Health and Human Services (HHS). That mandate requires Notre Dame and similar religious organizations to provide in their insurance plans abortion-inducing drugs, contraceptives and sterilization procedures, which are contrary to Catholic teaching. The decision to file this lawsuit came after much deliberation, discussion and efforts to find a solution acceptable to the various parties.
Of course, Jenkins doesn’t want anyone to get the wrong idea: This isn’t about preventing women from accessing contraception. It’s about protecting the university’s conscience from government coercion.
For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.
You’ll recall that Jenkins’s initial response to the proposed accommodation was relatively positive. In March, the Obama administration released its proposed rule for accommodating the religious objections of non-exempt Catholic institutions, providing a ninety-day window for public comment. That window won’t close for another month. So why is Notre Dame suing now? Here’s how Jenkins explains it:
Although I do not question the good intentions and sincerity of all involved in these discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation provides little in the way of a specific, substantive proposal or a definite timeline for resolution.
That’s one way to read the proposed rule. Have a look yourself. The document offers several (admittedly byzantine) methods for shifting responsibility for providing contraception coverage from the employer to a third party.
Moreover, the process laid out in this announcement will last months, making it impossible for us to plan for and implement any changes to our health plans by the government-mandated deadlines.
Nonsense. The contraception mandate does not go into effect until August 2013. It doesn’t take a year to put together an employee health plan. So why sue before exhausting all other options?
Whatever the university’s reasoning, it certainly has made a media splash, given that its announcement comes just as forty-two other plaintiffs have gone public with their lawsuits. The list includes thirteen dioceses, including the Archdioceses of New York, Washington, and St. Louis; the Dioceses of Dallas, Ft. Worth, Rockville Centre, and others. Does anyone really believe a Catholic diocese will be subject to the contraception mandate? HHS doesn’t. From the most recent proposed rule:
In addition, we note that this exemption [that is, the full exemption, not the proposed accommodation] is available to religious employers in a variety of arrangements. For example, a Catholic elementary school may be a distinct common-law employer from the Catholic diocese with which it is affiliated. If the school’s employees receive health coverage through a plan established or maintained by the school, and the school meets the definition of a religious employer in the final regulations, then the religious employer exemption applies. If, instead, the same school provides health coverage for its employees through the same plan under which the diocese provides coverage for its employees, and the diocese is exempt from the requirement to cover contraceptive services, then neither the diocese nor the school is required to offer contraceptive coverage to its employees.
In other words, HHS will not require dioceses to pay for contraception coverage. Diocesan employees won’t even be eligible for contraception coverage under the accommodation. So why would plaintiffs sue now over a mandate that won’t affect them and won’t go into effect for another fifteen months? The Fortnight for Freedom doesn’t start for another four weeks.
The U.S. Conference of Catholic Bishops has decided to sit this suit out. It is, however, “serving in a coordinating and facilitating role,” according to USCCB spokeswoman Sr. Mary Ann Walsh. “USCCB concerns are addressed in the lawsuits that were filed,” she told me. “There was no need to pile on.”