Last month, the University of Notre Dame announced that it would comply with Obamacare's contraception mandate, after the school's legal challenges failed. "Pursuant to the Affordable Care Act," a university statement explained, "our third-party administrator is required to notify plan participants of coverage provided under its contraceptives payment program." In other words, university employees would receive contraceptive coverage at no cost to them. But the statement warned that “the program may be terminated once the university's lawsuit on religious-liberty grounds...has worked its way through the courts."

That dismayed some of the university's more conservative critics. Notre Dame law professor Gerard V. Bradley, for example, argued that the university's compliance with the mandate amounted to "facilitating abortions." And Notre Dame historian Wilson Miscamble, CSC, worried that the university's heart wasn't really in the fight. But after listening to Notre Dame counsel's oral arguments last week at the 7th U.S. Court of Appeals, they may have something else to worry about.

The trouble began early in the proceedings, when Judge Richard Posner asked Notre Dame's attorney Matthew Kairis what his client wants. Kairis struggled to provide a clear answer. "We would like to return to the district court," Kairis began, when Posner stopped him. "No, no," the judge said. "What do you want in the way of relief? You’ve complied fully with the statute. So what’s left?"

Posner was referring to the fact that Notre Dame has already notified the administrator of its employee health plan that it will not pay for contraceptive services. In turn, the administrator has told employees that they will receive such coverage for free. (Notre Dame is a self-insured organization, so it does not pay premiums to an insurer. Rather, the university pays a third-party adminstrator [TPA] much lower fees to handle employee health claims, which it then pays out of its own funds, according to a fee schedule it negotiates with the TPA.)

Kairis began to reply to Posner's question—"The fact that Notre Dame was forced to buckle by this mandate..."—but the judge stopped him again: "Whatever it was. You’ve complied fully.... What do you want the District Court to do? You never explain." Kairis tried again: "If we went back to the district court we would seek an injunction to prevent the enforcement of this mandate." And again, Posner wanted more: "Given that you have fully complied with the law, and you have no further obligations under the law...what can you enjoin?" Kairis kept repeating that Notre Dame wants to be able to revoke the self-certification form it already sent to its TPA (a company called Meritain, now part of Aetna).

After several minutes of wrangling, Judge David Hamilton stepped in: "You want an injunction against the third-party administrator?" No, Kairis replied, they want an injunction against enforcement of the mandate. "You want an injunction against the federal government," Hamilton asked, "so that it would be prohibited from requiring a third-party administrator to provide the coverage, right?" Nope. What Notre Dame wants, Kairis tried to explain, is an injunction against the mandate "that requires Notre Dame to maintain a contractual relationship with a third-party administrator who provides" contraception coverage because it "requires" Notre Dame act as a "vehicle for the provision of these services."

That led the conversation in another direction. Posner reminded Kairis that Notre Dame has already indicated it would not object to the government's providing contraception services directly. "Why wouldn't that have the identical effect?" Posner asked. Kairis replied that it would, but that what Notre Dame wants is to be left out of the process. So Posner offered a hypothetical: If Notre Dame just had to send a one-sentence letter to the government stating that it is a Catholic organization and would not make any financial contribution to contraception coverage, could Notre Dame accept that?

“It depends on the consequences and the context," Kairis answered. That didn't satisfy the judges. Eventually Judge Hamilton had to intervene again:

Hamilton: Is it your position that if you sent such a letter to the federal government, the federal government then informed Maritain that its obligation had kicked in, and so the services would be provided, would that be a problem for you?

Kairis: My sense is yes, your honor.

But Judge Joel Flaum wanted to get straight on Kairis's claim:

Flaum: Mr. Kairis, isn’t it your position that you can’t participate in the process in even the most minimal way? Why don’t we just confront that as a framework? Isn’t that the position of the university—that, whether it’s the sending of the letter or applying for the exemption, it involves itself in a process that violates its religious tenets?

Kairis: It is.

Posner: And you can’t even send a letter to the government?

Kairis: If the consequences were such that the services were provided, no.

But of course, as Posner points out, there is no way for an employer to obtain an accommodation without notifying someone of its objection. So how is the government supposed to know which organizations qualify for the accommodation? Read minds?

So if Notre Dame rejects the very idea of seeking an accommodation that would result in its employees receiving contraception coverage, why is Kairis so hung up on the language of the self-cerification form? According to Kairis, "The federal law is that Notre Dame sign a piece of paper that on its face states: This is a document under which the plan is operated. You hereby amend your plan to appoint the third-party administrator to do this." He's quoting (not very accurately) the second page of the self-certification form, which is for the TPAs. It clarifies that the objecting employer will not be considered the admininistrator for the contraceptive coverage. That language is intended to morally insulate the objecting employer.

Kairis goes on: "In the Federal Register it states that the Deptartment of Labor has determined that it is that form that amends Notre Dame’s plan that Notre Dame signs to relinquish its sole discretion as plan administrator." In other words, Notre Dame objects to being told that it does not have discretion to bar its TPA from providing contraception to its employees. Even if the government tells the TPA it must?

At the end of oral arguments, Kairis offered an impassioned plea to leave Notre Dame alone.

Notre Dame has made the religious determination that those acts—the contract, the form, and the continued relationship—are complicit in such a way to violate its faith. And everything I heard from the government was: They don’t really have to do much. They’re just getting out of the way. The accommodation provides them an exit. Notre Dame has determined under Catholic moral doctrine that that’s not true. The government says that it has washed Notre Dame’s hands and fixed its problem. It didn’t. And it’s not the first time a government hasn’t understood matters of faith…. Notre Dame must be taken for its word in its religious determination, the same determination by the U.S. Conference of Catholic Bishops, and Pope Francis’s edict to Notre Dame last month that Notre Dame bear consistent and unambiguous witness to Catholic moral doctrine and defend its religious freedom. The government can’t trump all of that.

Having disingenuously described a brief talk the pope gave to representatives of Notre Dame as an "edict," Kairis finally told the court what Notre Dame would settle for: a situation in which employees and students were the ones responsible for registering their objection—"it would not involve Notre Dame." It's nice to see the plaintiff in one of these cases acknowledging the moral agency of its employees, but it's hard to see how Kairis's proposed solution changes the moral equation for Notre Dame. Either way, its students and employees will be getting contraceptive coverage from the TPA Notre Dame pays to administer its health insurance.

Consider again what Notre Dame is seeking relief from. As a self-insured institution, it has collected lots of cash that is uses to pay for its employees' medical claims. It doesn't pay insurance premiums that are pooled with other monies that may or may not come from premiums for plans that cover, say, abortion. It pays a relatively small fee to a third-party administrator to deal with the claims paperwork. All the payments to health-care providers come out of Notre Dame's coffers. The Obama administration's contraception-mandate accommodation requires third-party-administartors of such plans to pay for contraception coverage out of its own pockets—not out of fees it collects from the self-insured employer. So what kind of cooperation is this? Financially, it's minimial.

But what about the issue of the plan? Is Notre Dame culpably proximate to the decision of its employees to use contraception coverage? As the government's lawyer explained, the letter Meritain sends to Notre Dame's employees explicitly says that the university is not providing contraceptive coverage. It even says that employees must get a separate I.D. in order to obtain these services. That puts even more distance between Notre Dame and the coverage it objects to.

None (or almost none) of Notre Dame's money will fund contraception coverage. Its TPA offers employees that coverage only as a separate plan. And the whole world knows that Notre Dame has chosen to exempt itself from covering contraceptives because of Catholic teaching against contraception. So what, exactly, is the problem? The Catholic tradition includes a moral theology that accounts for the fact that in a fallen world morally pure acts are quite rare. That's why it developed categories of cooperation with evil. The university and its lawyers could engage that tradition to decide that complying with the contraception mandate is licit remote material cooperation with evil.

They might even consider it a religious determination.

Grant Gallicho joined Commonweal as an intern and was an associate editor for the magazine until 2015. 

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