As part of the Affordable Care Act’s implementing regulations, group health plans were required to include coverage for various forms of preventative care, including all FDA-approved methods of contraception. Houses of worship were exempted from these requirements, and the Department of Health and Human Services later created a broader accommodation for certain nonprofit organizations. In particular, religious nonprofit organizations could opt out of providing contraceptive coverage by certifying their religious objection; upon receiving this certification, the organization’s insurance company—or in the case of self-insured plans, its third-party administrator—would step in to provide the coverage.
Despite this accommodation, the University of Notre Dame filed a lawsuit challenging the regulations, arguing that the mere process of certifying its religious objection itself violated its religious beliefs by “triggering” the provision of contraceptive coverage. Notre Dame maintained that the accommodation violated its rights under, among other things, the Religious Freedom Restoration Act (RFRA). In December 2013, we moved to intervene in the case on behalf of three Notre Dame students who relied on the university’s health-insurance policy to obtain coverage for contraception.
The trial court denied Notre Dame’s request to bar the government from enforcing the regulations, and Notre Dame appealed. The U.S. Court of Appeals granted our motion to intervene; we then filed a brief in defense of our clients’ access to contraception coverage. The appeals court soon issued a decision refusing to bar enforcement of the regulations against Notre Dame. The court explained that the accommodation already exempted Notre Dame from offering contraception coverage. Notre Dame’s broader argument—that the process of requesting the accommodation itself burdened its exercise of religion—was “paradoxical and virtually unprecedented.”
After the Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Notre Dame asked the Supreme Court to send the case back to the Court of Appeals for reconsideration. We opposed this petition; in March 2015, the Supreme Court granted Notre Dame’s petition and sent the case back to the Court of Appeals for further consideration. In April 2015, we filed a brief with the Court of Appeals explaining that Hobby Lobby did not affect the earlier ruling against Notre Dame.
We also pointed to statements made by Notre Dame’s president calling into question the basis of Notre Dame’s lawsuit. Although Notre Dame claimed in court that the accommodation substantially burdens its exercise of religion, the University president said in a speech in April 2014 that “I don’t see this as a scandal because we are not giving out contraceptives.”
In May 2015, the Court of Appeals again rejected Notre Dame’s request for a preliminary injunction. The full Seventh Circuit then denied Notre Dame’s request for rehearing. In December 2015, Notre Dame petitioned the U.S. Supreme Court to review the Seventh Circuit’s decision. We filed a brief in response, arguing that Notre Dame did not have the right to stop the government’s provision of contraception coverage through third parties.
In May 2016, the Supreme Court granted the petition for review, vacated the Seventh Circuit’s decision, and returned the case to the lower court so that the parties would have the opportunity to reach a settlement.
In October 2017, after the Trump Administration enacted a new regulation that allows employers and universities to use religion as an excuse to deny contraceptive coverage completely, Americans United and the National Women’s Law Center filed a lawsuit challenging the regulation. In this lawsuit, Shiraef v. Hargan, we represented women at risk of being denied birth control coverage, including University of Notre Dame students. Barely a week after we filed the case, Notre Dame reversed course on its plan to take advantage of the Trump Administration regulation, announcing instead that employees and students would continue to have contraceptive coverage. Because these women were promised access to birth control at the time, they decided they didn’t need to continue their lawsuit.
But then, in February 2018, Notre Dame reversed course again after signing an illegal settlement agreement with the Trump Administration. Notre Dame announced that it would stop covering certain forms of contraception for 17,000 students, employees, and their families.
In June 2018, Americans United, the National Women’s Law Center, the Center for Reproductive Rights, and Macey Swanson LLP, challenged the illegal settlement on behalf of a group of Notre Dame students in Irish 4 Reproductive Health v. U.S. Department of Health and Human Services.
Listen to our former Litigation Counsel Gregory M. Lipper discuss the contraception cases on the RJ Court Watch podcast in 2014.