September 2018 Chuch & State Magazine - September 2018

Contraception Challenge: In A New Lawsuit, Americans United And Allies Challenge A Secret Deal Between The University Of Notre Dame And The Trump Administration

  Rokia Hassanein

To Jamee Elder, a doctoral can­didate at the University of Notre Dame, no one should be denied coverage for reproduc­tive health care because of their boss’s or university’s religion.

“We all feel that everyone should have the right to decide what’s best for their own health and livelihood regardless of where they happen to work and go to school,” Elder told The Chicago Tribune. “It’s very frus­trating for us, especially with this most recent change, to have our rights being taken away.”

That’s why on June 26 Americans United, the National Women’s Law Center, the Center for Reproductive Rights and the law firm Macey Swan­son LLP filed a lawsuit to chal­lenge a settlement between the Don­ald J. Trump administration and Notre Dame that allows the univer­sity to use religion to deny birth control coverage to students and employees.

The case, Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, was filed on be­half of Irish 4 Reproductive Health (I4RH), a group of Notre Dame stu­dents who aren’t afraid to say that de­nying students and employees ac­cess to contraception in the name of rel­igion is discrimination, plain and simple.

“We’re all here to do research, and we want to make the best of our time here, and we don’t want to be dis­tracted by all these obstacles to basic health care,” Mauna Dasari, a doc­toral candidate, told The Chicago Trib­une. “The fact that the university ad­ministration has been going back and forth about what is and isn’t covered, as a Ph.D. student I’m al­ready stres­sed enough. I don’t want to be stres­sed about my health care.”

Notre Dame students protest the university's policies on birth control access

(Photo: University of Notre Dame students protest the university’s policies that limit birth control access for students and employees on university health insurance plans. Credit: Irish 4 Reproductive Health.)

Let’s rewind to how this lawsuit came about: Last year, the Trump administration issued rules to let bosses and universities use religion to justify denying employees and stu­dents access to birth control. Thanks to these rules, Notre Dame announ­ced it wouldn’t cover birth control, so AU and allies filed a lawsuit, Shiraef v. Hargan, to ensure that students could still have access to birth con­trol, which is critical to women’s health and equality.

In December 2017, AU also filed public comments to tell the Trump ad­ministration that these new rules harm women and are unconsti­tu­tional. Joining allies, AU delivered more than 500,000 comments from people nat­ion­wide – including AU supporters – who also know that women’s health and equality and religious freedom are at stake.

In a sudden about-face, Notre Dame officials then changed their minds and said they would indeed continue to provide students with access to birth control. AU dismissed its earlier law­suit because the plaintiffs no longer needed to fight for basic health care.

But then the university changed its mind yet again. Behind closed doors, the Trump administration and Notre Dame struck a deal to allow the uni­ver­sity to use religion to block stu­dents and staff from accessing birth control.

This unfortunate agreement gives the university the right to ignore the Affordable Care Act (ACA)—which requires the school to provide its em­ployees and students with insur­ance coverage for contracep­tion ­—and to deny students, employees and their dependents such coverage. As a result of the agreement, Notre Dame announ­ced it would stop cov­ering certain forms of contracep­tion for 17,000 stu­dents, employees and their families.

AU’s lawsuit challenges that un­lawful settlement between the Trump administration and Notre Dame denying students, employees and their dependents insurance coverage for birth control guaranteed to them by the ACA.  It also challenges the Trump administration’s interim final rules announced in October 2017 that would allow any employer or university to refuse to comply with the ACA contraceptive-coverage benefit.

“Universities should not be al­lowed to use religion to deny women access to birth control,” said Ameri­cans United President and CEO Ra­chel Laser. “The Trump-Pence adminis­tration and the University of Notre Dame conspired in secret dealings to take away insurance coverage for women’s reproductive health care. This lawsuit aims to get it back.”

Universities should not be al­lowed to use religion to deny women access to birth control. The Trump-Pence adminis­tration and the University of Notre Dame conspired in secret dealings to take away insurance coverage for women’s reproductive health care. This lawsuit aims to get it back.

~ AU President and CEO Ra­chel Laser

Notre Dame, a Catholic university with students of many faiths, objects to covering birth control for its students and staff. But according to a 2011 Guttmacher Institute report, 98 percent of sexually active American Cath­­­o­lic women use one of the vari­ous meth­ods of birth control.

In the lawsuit, AU and allies argue that the illegal settlement violates the religious-freedom rights of Notre Dame students, facul­ty and staff in various ways, in­cluding the univer­sity’s role “pro­mo­ting, advan­cing, and endorsing religion.”

“The Settlement Agreement and the Rules coercively impose religious beliefs and practices to which Plain­tiffs and other affected persons do not subscribe,” the complaint reads. “The Settlement Agreement and the Rules excessively entangle the government with religion.”

The complaint also notes that access to birth control is important for every­one, acknowledging that although the complaint uses the term “women” be­cause the individual plain­tiffs are women, access to repro­ductive health care and insurance cov­erage for that care also affects gender-nonconforming individuals, people who don’t identify as women and transgender men.

In a June 27 “Wall of Separation” blog post, AU lawyer Kelly Percival wrote that “the overwhelming major­ity of the courts that heard challenges to the accommodation process held that filling out a form does not sub­stantially burden the religious rights of objecting organizations.”

“But the Trump administration ig­nored all that, citing a misinter­pre­tation of the Religious Freedom Rest­o­ra­tion Act as justification for enter­ing the set­tle­ment agreement,” explained Perci­val. “We’re chal­lenging the agree­ment in addition to the rules because the government cannot and should not bargain away the rights of countless women, including our clients.” 

Notre Dame’s illegal settlement agreement ignores the preliminary injunctions issued by federal courts in California and Pennsylvania block­ing the Trump administration rules.

“It’s illegal for the Trump adminis­tration to take away people’s right to contraceptive coverage behind closed doors,” said Fatima Goss Graves, pres­ident and CEO of the National Women’s Law Center. “We are ex­pos­ing this deceptive tactic and taking the administration and Notre Dame to court to stop them from chipping away at our right to control our bodies and lives. People deserve birth control coverage, no matter where they work or go to school.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, echoed this sentiment.

“Millions of women are benefiting today from the ACA’s guarantee that they can choose the best contracep­tion for them without a co-pay,” Northup said. “The Trump administra­tion is trying to deny women the no-copay contraceptive benefit through regula­tory loopholes and side agreements that exempt employers and univer­sities from complying with federal law. That’s unlawful and we’ve sued to stop them.”

Notre Dame students and alumni have continued to speak out about their university’s actions.

We all feel that everyone should have the right to decide what’s best for their own health and livelihood regardless of where they happen to work and go to school. It’s very frus­trating for us, especially with this most recent change, to have our rights being taken away.

~ Jamee Elder, Notre Dame doctoral candidate

This includes Anne Jarrett, a Cath­o­lic graduate student at Notre Dame and member of I4RH. Jarrett told the National Catholic Register that her university ought to respect and trust women’s repro­duc­tive decisions.

“I love that we say we want peace and we’re fighting for truth – I mean, that’s what drew me to Notre Dame – but coming from a philosophy degree, I can’t answer when life begins, and I don’t think Notre Dame should be able to pretty much in this case either,” Jarrett said. “While the Cath­olic Church has [its] views on [when life begins], when it interrupts health care that is protected legally, then we have to sort of forgo that ques­tion.”

One of the plaintiffs in the lawsuit, Natasha Reifenberg, is a recent Notre Dame graduate who now lives in Boston. She is enrolled as a depen­dent in the university’s faculty and staff health plan, and because of that, she might not be able to afford the out-of-pocket costs of her birth control.

Another plaintiff is a graduate stu­dent who “suffers from significant health issues that require regular out-of-pocket expenses.” Paying monthly for her birth control coverage is another stressor, especially since her contraception was prescribed to her as treatment for non-contraceptive purposes and not only to prevent pregnancy. This, the complaint notes, “will likely force her to forgo some services on which she relies to treat her health needs.”

This is wrong, and that’s why AU and allies are fighting back. Employ­ers and universities shouldn’t be able to use religion to dictate their employees’ or students’ health care choices.

Through AU’s Protect Thy Neigh­bor project, AU will continue to fight against the misuse of religion as an excuse to harm others through de­nials and discrimination.

“Religious freedom does not give anyone the right to deny access to health care. Contraception is critical to women’s health and autonomy,” Percival said. “And it is women – not employers, not universities and not the government – who should be in charge of their own health care decisions.”

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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