Notre_Dame_Golden_Dome1Notre Dame University announced yesterday that it will comply with the HHS mandate requiring employers to include contraception, abortifacients and abortion coverage in health care packages for employees. The university made the announcement after a federal judge last week denied the university’s request for exemption of the Obama administration’s law. An emergency stay was also denied by the Seventh District Court of Appeals. Failure to comply with the law means the university would now have to pay fines of $100 per day for each employee.

The university decided to comply with the “accommodation” offered by the Obama administration:

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,” said Paul Browne, Notre Dame’s vice president for public affairs and communications, according to WNDU. “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.”

Georgetown law professor Marty Lederman offers some insight into Notre Dame’s decision, and what he believes is flawed reasoning on the university’s part. He says that Notre Dame (like most plaintiffs suing the government regarding the HHS mandate) wrongly assumes that the government is forcing or requiring employers to offer this type of coverage. Lederman says this is mistaken: employers have the option of offering no insurance at all.

However, Lederman says that an employer need not even go that far, as the government’s “accommodation” is meant to allow employers a way to opt out of this predicament.

Notre Dame’s principal argument is that by filing a certification asserting that it opposes contraceptive coverage, as the HHS Rule requires, it would thereby “authorize” third parties–Aetna and Meritain Health, Inc.–to provide such coverage, and thereby become morally responsible for the use of the contraceptives subsidized by thoseother parties.

This argument, however, is premised on a simple mistake of fact and law (not religious doctrine):  The self-certification Notre Dame would sign–substantively identical to the assertions of objection that it makes in its very RFRA [Religious Freedom Restoration Act] complaint–merely notifies the relevant third parties that Notre Dame is eligible for and exercising the available religious accommodation because it objects to providing contraceptive coverage.  By certifying, Notre Dame would not “authorize” anything:  Federal law does that work.  As the district court explained, “[i]f 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.” [emphasis added]

Of course, Notre Dame is correct that its certification of religious objection would have a legal effect:  As with any religious accommodation of this kind, the whole point of the accommodation is that the opting out by the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do.  But if that is enough to establish a substantial burden on Notre Dame’s religious exercise, then it would effectively mean that governmental religious accommodations taking the form of “opt outs” for dissenters would themselves often create the very conflict with religion that they are designed to alleviate–and would thus threaten to prevent the state from both accommodating religion and satisfying its state interests through an alternative means, such as the use of a non-objecting party.

Lederman’s lengthy discussion goes on to address the legal situation of the Little Sisters of the Poor as well, and is certainly well worth the read.

Read “Not Quite Hobby Lobby: The Nonprofit Cases, and Opting Out as Complicity” at Balkinization.


  • Pingback: Notre Dame To Comply With HHS Mandate | Catholic4Life

  • ted

    Hurray for Notre Dame

  • Mike Hunt

    What a disgrace. Fighting Irish, my azz!!!!!

    • Bill S

      You do realize that they have exhausted every legal option and are certifying that they cannot provide the coverage?

  • Darth__Vader

    It’s not gutless — it’s facing the reality that paying the fine would put the University out of business. There are about 11,000 University employees. Let’s say the litigation takes 6 months to work its way to SCOTUS, and the University loses:

    11,000 x $100/day x 180 days = $198,000,000.

    • Micha_Elyi

      Then you go out of business before being fined. Duh.

      • Darth__Vader

        You think that one of the nation’s finest universities, and which basically supports an entire town in an economically depressed area, should just close up shop because of this?

        That’s…one approach.

      • Bill S

        Notre Dame is not going out of business because the Church opposes contraception. Get real

  • john654

    I’m so sick of Notre Dame I could throw up!

  • john654

    Notre Dame can go to Hell if it wants to. I’m sick of them! The sell out Jesus!

    • Darth__Vader

      Yes, you are certainly providing a better example of Christian love.

  • Pingback: SUNDAY EDITION | God & Caesar

  • Micha_Elyi

    Every US bishop who failed years ago to demand a plan from every so-called Catholic hospital, college, and charity in his diocese that detailed how they would shut down in the event the Obamacare mandates were imposed on them… has failed.

    • Bill S

      I don’t know of many colleges that report to Bishops.

  • htmurph

    My Grandfather who played under Rockne is turning in his grave! I will burn my Jersey. Lord have mercy on a once fine school. I guess you choose to bow to evil!

    • Bill S

      Notre Dame has pursued every legal option and is only signing the certification stating that they refuse to provide the coverage under their health plan. They are not providing the coverage.

  • Bill S

    It is not providing the coverage. It is using the accommodation.

  • Bill S

    ND does not report to a Bishop.

  • Bill S

    I think the vast majority of Catholic people and institutions are exactly that. In name only. The percentage that actually accept and try to follow all of its teachings is probably in the single digits or decimal places.

  • Pingback: University Of Dallas Receives Injunction Against HHS Mandate | Acton PowerBlog