The University of Notre Dame does not have a religious freedom right to bar third parties from providing contraceptive coverage to its students and staff, Americans United told the U.S. Supreme Court.
In a brief filed today on behalf of a Notre Dame student who seeks access to contraceptive coverage, Americans United informed the high court that the University of Notre Dame’s own words and actions indicate it does not believe its free exercise of religion is actually burdened by requesting the accommodation offered to those with religious objections to the Affordable Care Act’s (ACA) contraceptive-coverage regulations; the accommodation requires third-party providers to offer contraceptive coverage to employees and students.
“Notre Dame knows full well that its religious beliefs are in no way harmed when a third-party provides certain forms of health care to its students and staff,” said the Rev. Barry W. Lynn, executive director of Americans United. “Its lawsuit is baseless and appears to have been filed mainly due to pressure from wealthy alumni who oppose birth control.”
In its brief, Americans United notes that when the federal government announced in February 2012 that religious institutions would be able to opt-out of paying directly for contraceptive coverage (these groups are not required to pay for the birth control; they must simply inform the government of their objection so that the government can arrange for a third-party insurer to provide contraceptives), the president of the university called it a “welcome step toward recognizing the freedom of religious institutions.”
In addition, Americans United points out in its brief that Notre Dame initially decided to accept the government’s ACA accommodation.
“In keeping with this determination that its religious exercise was not burdened by requesting an exemption from the contraceptive-coverage regulations, the university initially decided to take advantage of the accommodation voluntarily; it filed this lawsuit only after a powerful alumni association pressured it to litigate because of ‘the symbolic importance of Notre Dame’ to the ongoing legal challenges to the contraceptive-coverage regulations,” asserts AU’s brief.
Americans United is the only national group representing a directly affected woman in this dispute, having successfully intervened on her behalf in January 2014. In February 2014, the 7th U.S. Circuit Court of Appeals ruled 2-1 against Notre Dame. After the Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, however, Notre Dame asked the high court to send the case back to the 7th Circuit for reconsideration. In March 2015, the Supreme Court granted that request. In May 2015, the appeals court again rejected Notre Dame's request for a preliminary injunction. The full 7th Circuit then denied Notre Dame's request for rehearing but Notre Dame once again sought review from the Supreme Court.
In its brief, Americans United agrees that the Supreme Court should delay any action in the case of University of Notre Dame v. Burwell until the court decides several related challenges to the contraception accommodation brought by religiously affiliated non-profits. But the brief notes that Notre Dame’s statements and actions—and the presence of an affected woman as an actual party to the case—highlight why the challenges to the contraception accommodation should be rejected.
“Even as Notre Dame’s lawyers challenge the accommodation in court, Notre Dame’s leadership admits that there is no burden on the university’s religious exercise,” said Americans United Senior Litigation Counsel Gregory M. Lipper. “This lawsuit is designed to do one thing and only one thing: prevent women—including our client, Jane Doe—from receiving contraceptive coverage to which they are entitled by law.”
The brief was written by Americans United Legal Director Richard B. Katskee, Lipper and Madison Fellow Natacha Lam.