February 2014 Church & State | Featured

In court papers, the woman is referred to simply as “Jane Doe #1.”

Doe is described as a student at the University of Notre Dame who participates in the school’s health-insurance plan. She is of modest financial means and is sexually active.

Because Notre Dame is a Catholic university, its insurance plan doesn’t cover birth control. For Doe, this is a real hardship.

“My inability to afford and use contraceptives has caused me to suffer personal hardship and to face an unnecessary risk of an unwanted pregnancy,” the anonymous woman stated in a recent court document. “I would like to resume taking contraceptives so as to maintain control over my sexual life, bodily integrity, and reproductive capacity, and to avoid the extraordinary hardship that I would suffer if I were to experience an unwanted pregnancy.”

Doe’s plight illustrates an overlooked aspect of the ongoing national debate over access to contraceptives. While there has been a lot of talk about the so-called “religious freedom” right of church-related colleges, hospitals, social-service agencies and other entities that don’t want to comply with the contraceptive mandate of the Affordable Care Act, there has been much less talk about the people who are most harmed by lack of access to modern contraceptives.

Americans United is working to change that.

Doe #1 is one of three anonymous women being represented by Americans United in a recent legal action concerning Notre Dame. AU attorneys sought and won the right to intervene in a case filed by Notre Dame officials challenging the contraceptive mandate. AU took action because the courts are not hearing the voices of women who are hurt by the lawsuits challenging the contraception regulations – and it’s time they start.

A little background is helpful to set the stage: The U.S. Department of Health and Human Services has issued regulations requiring most employers to include no-cost birth control in employee health-care plans. The rationale behind the move was to en­sure access to contraceptives, which are considered a vital part of women’s health care.

The move also recognizes modern realities: Use of birth control is nearly universal in the United States. Studies show that the overwhelming majority of women will at some point in their lives use birth-control pills, IUDs, diaphragms, implants or other medi­cines or devices to regulate fertility. Access to safe, affordable birth control, federal officials argue, gives people the ability to avoid unwanted pregnancies and more effectively engage in family planning.

The Obama administration was aware that some religious groups would object to the rule. Thus, purely religious entities such as houses of worship and ministries are exempted entirely.

For religiously affiliated groups, such as church-sponsored colleges, hospitals and so on, a different accommodation was created: They merely have to fill out a form telling their health-insurance company that they oppose the use of birth control, and their employees and/or students will be given access to contraceptives through a third-party provider at no cost to the institution.

Some religious institutions, including Notre Dame, are arguing that this isn’t enough. Even the simple act of filling out a form, they argue, makes them complicit in the provision of contraceptives. Citing a 1993 law called the Religious Freedom Restoration Act, which was designed to heighten individual religious liberty rights, they insist that they don’t have to comply.

So far, Notre Dame’s argument isn’t going over too well in court. A federal court rejected the school’s position in late December, denying the university’s request for a preliminary injunction to free it from complying with the contraceptive mandate.

“Notre Dame wants to eat its cake, and have it still, at the expense of Congress, administrative agencies, and the employees who will be affected,” wrote U.S. District Judge Philip P. Simon in the University of Notre Dame v. Sebelius ruling. “Notre Dame is free to opt out of providing the coverage itself, but it can’t stop anyone else from providing it. But that is essentially what Notre Dame is requesting.”

Simon, an appointee of President George W. Bush, added, “Notre Dame is not being asked to do or say anything it doesn’t already do, and wouldn’t do regardless of the outcome of this case; the only thing that changes under the healthcare law is the actions of third parties. Notre Dame can’t claim to be ‘pressured’ to do something it has done, will do, and would do regardless of the contraception requirement. If Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception.  The government isn’t violating Notre Dame’s right to free exercise of religion by letting it opt out, or by arranging for third party contraception coverage.”

In a one-line order, the 7th U.S. Circuit Court of Appeals later refused to overrule Simon and issue a stay. On Jan. 14, the court granted AU’s request to intervene in the case.

As the Notre Dame case moved forward, similar legal challenges were under way in other parts of the country.  In Colorado, an order of nuns called the Little Sisters of the Poor, who run a chain of nursing homes for elderly people, also challenged the mandate. They lost in the trial court, and the 10th U.S. Circuit Court of Appeals refused to exempt them from the rules while they appealed.

However, the Little Sisters of the Poor asked U.S. Supreme Court Justice Sonia Sotomayor, who oversees cases in the 10th Circuit, to examine the matter. Sotomayor issued a temporary stay of the lower court’s order and asked the federal government to present its argument.

(Ironically, the nuns may not even have a viable legal claim. Journalist Sarah Posner reported last month that the group has what is legally considered a “church plan” – an insurance package that benefits employees of a religious organization. Under federal law, groups owning such plans may not legally be fined for refusing to comply with the mandate.)

In addition, the group Priests for Life sued to block the mandate. The non-profit organization that opposes legal abortion lost at the first level of court but won a temporary injunction (exempting them during their appeal) from the D.C. Circuit Court of Appeals on a 2-1 ruling. In a separate case brought by Catholic Charities, the 6th U.S. Circuit Court of Appeals issued a similar interim ruling blocking application of the mandate while the case is on appeal.

The flurry of legal activity underlined the division in the courts on the question of birth control access, and many legal observers believe the U.S. Supreme Court will have to step in. But as Americans United pointed out, the issue at the heart of the matter is clear: No American’s access to safe and affordable contraceptives should be imperiled due to religious dogma.

“In all of the talk about the so-called religious liberty rights of Notre Dame, something has been overlooked: the women who would be hurt,” observed Americans United Executive Director Barry W. Lynn. “The university’s leaders are free to preach against birth control, but they shouldn’t have the right to deny necessary medication to anyone.”

Americans United stressed this argument in its legal brief in the Notre Dame case. In court, AU’s legal team asserted that asking a religious college, hospital or  similar entity to simply state that it does not want to directly provide birth control is in no way a burden on religious freedom.

Furthermore, AU argued, ensuring access to birth control is a legitimate government goal.

“[E]ven if the University’s religious exercise were substantially burdened by the challenged regulations, there is a compelling interest for the imposition of that burden, namely, providing the affected women with access to contraception and the consequent control over their sexual lives, bodily integrity, and reproductive capacity,” asserted AU in its brief.

Now that AU’s lawyers have won the right to intervene in the case, they are gearing up to represent others whose rights are at risk because religious non-profit institutions – many of which receive millions in taxpayer support and hire people from a variety of religious and philosophical backgrounds – refuse to tolerate the use of contraceptives by their employees.

Back in South Bend, Ind., Notre Dame officials grudgingly agreed to abide by the law. Paul Browne, the school’s vice president for public affairs and communications, issued a statement that read, “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.”

But Browne was quick to add that the university will continue its efforts to deny its students, faculty and staff access to birth control.

“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,” he vowed.

AU’s Lynn said revealing statements like that show what’s really at stake in this fight.

“Notre Dame and the other institutions and groups involved in these lawsuits are essentially arguing that religious liberty frees them from complying with a minor administrative detail – in other words, a minute’s worth of paperwork,” Lynn said.

“This is not and never has been about religious liberty,” he said. “It’s about dogmatic groups and individuals who are determined to foist their regressive views onto as many people as possible.”