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Notes on the Notre Dame lawsuit

The University of Notre Dame has filed a lawsuit against the Departments of Health and Human Serivces, Labor, and the Treasury. They object to HHS’ inclusion of contraception as one of the core preventive services that must be provided in health insurance plans without cost sharing, on the grounds that covering contraception (and, they claim, abortifacients, but we’ll get to that later) is against their religious beliefs and the exemption for religious employers isn’t broad enough. I’m not a lawyer, so I’m not going to claim that Notre Dame has zero points in its favor in this lawsuit, but its arguments have some problems.

80. “Other commenters noted that ‘preventive care’ could not reasonably be interpreted to include such practices. These groups explained that pregnancy was not a disease that needed to be ‘prevented,’ and that a contrary view would intrude on the sincerely held beliefs of many religiously affiliated organizations by requiring them to pay for services that violate their religious beliefs.”

Whether or not evidence shows a practice to be ‘preventive care’ has nothing to do with anyone’s sincerely held religious beliefs about that practice’s morality. Pregnancy is not a disease, but it is a tremendous exertion, and the ability to plan it for those times when a woman is best prepared is beneficial to both the mother’s and the child’s health.

OK, you might say, we’ll grant for the sake of argument that contraception can be considered preventive care, but making Notre Dame include it in their employee health plans still violates their right to practice their religion. Just how far does Notre Dame want to extend this ability for employers to simply not offer coverage for medical treatments they disapprove of? They’re hoary old examples, but they keep getting trotted out because they are still relevant: Should employers who are Christian Scientists be able to refuse to provide any health insurance? Should employers who are Scientologists be able to refuse to provide insurance that covers mental health care? What about employers with a sincerely held belief that vaccines are dangerous and shouldn’t be considered “preventive care”? Do all of these employers get to offer nonstandard health benefits that conform to their religious beliefs, or just the more numerous and more politically powerful anti-contraception employers? And do the conscience rights of employees with regard to how they use their own health insurance have any weight at all?

I would also argue that in most cases, employers are not paying for contraception, or for any other particular procedure or service. They are taking part of their employees’ compensation and using it to pay premiums so that the employee will have affordable access to health care. Then the employee and her doctor decide on what health care the employee needs, and then the insurance company takes money from the pool of all of its clients’ premiums and pays the claim. The employer is no more directly involved in the supposed evil of contraception than if the employee went out and bought condoms with her paycheck — and no employer gets to stipulate that wages can’t be used to buy contraception. I’ll grant that Notre Dame’s situation is a little different, because it’s self-insured for its employees’ health plans. I think that if the Administration was going to have this compromise saying that religious employees could punt responsibility for contraception coverage to the health insurance companies, it probably should have thought a little harder about what self-employed companies would do. Of course, Notre Dame also wants to make sure that its students, who are insured through Aetna, can’t access contraception with that insurance either (despite Aetna having all the responsibility of informing students of the benefit and paying for it), so the suit doesn’t exactly hinge on that distinction.

87. FDA-approved contraceptives that qualify under these guidelines include drugs that induce abortions. For example, the FDA has approved “emergency contraceptives” such as the morning-after pill (otherwise known as Plan B), which operates by preventing a fertilized embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or Ella [sic]), which likewise can induce abortions of living embryos.”

As we have pointed out many times, Plan B has been shown to have no mechanism of action besides the prevention of implantation [edit: I can’t believe this was up so long before I noticed this mistake — of course it should read “no mechanism of action besides the prevention of fertilization.”]. The mechanism of action of ella has not been fully explicated, and a contragestive effect can’t be ruled out at this time, especially since large or repeated doses of ulipristal acetate can be abortifacient. However, I have been able to find no studies in which a single dose of 30mg, as used in ella, has been shown to prevent implantation or to harm embryos after implantation. This paragraph is factually incorrect with regard to Plan B and presents speculation as fact with regard to ella. Arguments relying on the information in this paragraph should be discounted accordingly.

157. Furthermore, the U.S. Government Mandate is not narrowly tailored to promoting a compelling governmental interest. Even assuming the interest was compelling, the Government has numerous alternatives to furthering that interest other than forcing Notre Dame to violate its religious beliefs.

158. For example, the Government could provide or pay for the objectionable services through expansion of its existing network of family planning clinics funded by HHS under Title X or through other programs established by a duly enacted law. Or, at a minimum, it could create a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws.

Except that creating broad exemptions undermines the government’s interest in setting a minimum standard that all insurance policies must meet. This isn’t a new concept; the government sets minimum standards for many products, to protect consumers. And not including family planning as preventive care when evidence points to its usefulness in improving women’s and children’s health undermines the government’s interest in being able to shape its health care policy according to what actually works.

184. The religious employer exemption is based on an improper Government determination that “inculcation” is the only legitimate religious purpose.

Actually, the regulation does not say that organizations with a “legitimate religious purpose” will receive an exemption and then set out to define legitimate religious purpose. The regulation, quite properly, does not have anything to say about legitimacy. The limitations on the exemption appear designed to grant exemptions in those cases where employees can reasonably be expected to share the religious views of their employers, and therefore are less likely to be deprived by the exemption of a benefit that they might otherwise take advantage of.

Notre Dame then attemps to show that the mandate is not a neutral law of general applicability:

198. The Government has also crafted a religious exemption to the U.S. Government Mandate that favors certain religions over others. As noted, it applies only to plans sponsored by religious organizations that have, as their “purpose,” the “inculcation of religious values”; that “primarily” serve individuals that share those religious tenets; and that “primarily” employ such individuals. 45 C.F.R. § 147.130(a)(iv)(B)(1).

That does not favor particular religions over others. Notre Dame and other religiously-affiliated organizations are not, themselves, religions. Frankly, if anything the exemption favors religion over non-religion, but it does not favor any one religion over another. It distinguishes between organizations in which there is likely to be a difference of belief between the employer and the employees, and organizations in which there is less likelihood.

199. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose Catholic teachings and beliefs regarding marriage and family. For example, on October 5, 2011, after Defendants announced the interim final rule but before they announced the final rule, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long been a staunch supporter of abortion rights and a vocal critic of Catholic teachings and beliefs regarding abortifacients and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.”

We live in a country in which government officials have the right to criticize the policy positions of religious organizations, especially when those policy positions have negative implications for people who do not share the beliefs of said organizations. This is not evidence of discrimination.

200. Consequently, on information and belief, Notre Dame alleges that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose contraception and abortifacients.

Notre Dame can only make this allegation because it refuses to acknowledge the validity of the evidence in favor of the health benefits of family planning, or to consider those health benefits a sufficiently compelling reason for the government to include family planning as part of its standards for health insurance plans. Notre Dame can only make this all about them by denying that their employees have any valid interest in being able to use the health insurance they earn to access health care services according to their own beliefs.

Notre Dame, not everything is about you.