Judge allows student group’s abortion lawsuit to progress against Notre Dame

South Bend, Ind., Jan 28, 2020 / 00:59 am

The University of Notre Dame's refusal to pay for drugs that can cause early abortions will face further litigation in court, after a federal judge in Indiana allowed a lawsuit to challenge an agreement between the university and the Trump administration.

"Notre Dame stands on firm legal and moral ground in refusing to subsidize the limited number of contraceptive products that can act as abortifacients and harm an unborn child," Paul Browne, vice president of public affairs and communications at the University of Notre Dame, said in a Jan. 20 letter to the editor of the Notre Dame Observer, a student-run newspaper.

U.S. District Court Judge Philip Simon rejected the university's motions to dismiss the case on Jan. 16. A pretrial conference is scheduled for early March, the South Bend Tribune reports.

The lawsuit, filed in June 2018, charges that the Catholic university's failure to provide abortifacient drugs violates a federal requirement dating back to 2012 holding that employer health plans must provide contraceptive coverage.

The lawsuit comes from a group of students allied with national pro-abortion rights NGOs.

Browne told the South Bend Tribune the university's position is "grounded in the autonomy of litigants, including the government, to settle claims." He added "we are confident that Notre Dame will prevail."

Among the plaintiffs in the lawsuit are three unnamed students and the group Irish 4 Reproductive Health, a 501c4 non-profit not affiliated with or funded by the Catholic university.

"No one at Notre Dame - and no one anywhere -should have to choose between what is right for their body and life and what they can afford," said the group Irish 4 Reproductive Health, a plaintiff in the lawsuit.

In February 2018, University of Notre Dame president Rev. John I. Jenkins, C.S.C., announced that while the insurance plan at the university will not provide abortifacients, the school will fund the use of "simple contraceptives."

Irish 4 Reproductive Health still objected, contending that the policies follow a February 2018 "secretive deal with the Trump-Pence administration to impose unnecessary and burdensome costs on us and restrict our reproductive healthcare options to methods deemed acceptable by Fr. Jenkins's coterie of advisors."

The group of Notre Dame undergraduate and graduate students describes itself as an advocate for "reproductive justice."

"We work to expand access to sexual health resources and information at the University of Notre Dame as well as in our surrounding community. Our feminism is intersectional and sex-positive," it says on its Facebook page.

The group says the majority of its funding comes from individual donors but it also reports receiving grants from Planned Parenthood, the nation's largest performer of abortions, and Catholics for Choice, whose claims to be a Catholic organization have been rejected by the U.S. bishops.

Irish 4 Reproductive Justice works with South Bend-area pro-abortion rights and feminist groups as well as the National Women's Law Center, and Americans United for the Separation of Church and State. The latter two groups are assisting in the lawsuit, as is the New York-based Center for Reproductive Rights and the Fried Frank and Macey Swanson law firms.

Americans United named Irish 4 Reproductive Health as its 2020 Students of the Year.

Named alongside Notre Dame in the lawsuit are the U.S. Departments of Health and Human Services, Treasury, and Labor.

"The Supreme Court should affirm that it is unconstitutional for the Trump administration to misuse religious freedom to block employees' and students' access to birth control," Rachel Laser, president and CEO of Americans United for Separation of Church and State, said Jan. 17.

Laser cited similar court decisions in Pennsylvania and California.

The 2010 Affordable Health Care Act, she said, "guarantees employees and students the right to contraceptive coverage."

The 2010 health care legislation required employer-provided health insurance plans are required to cover certain "preventative services." Guidance issued under the Obama administration in January 2012 defined these services to include all FDA-approved sterilization procedures and contraceptive methods, including abortifacient birth control pills and IUDs.

Initially, there were no religious exemptions for those opposed to the distribution of contraceptives. The eventual exemption was so narrow in scope it excluded religious orders such as the Little Sisters of the Poor and non-profits like the EWTN Global Catholic Network.

In 2015,  the Supreme Court ruled against the mandate as it applied to Christian-owned business Hobby Lobby and similar "closely held for-profits."

The Trump administration established new rules in October 2017 allowing companies with religious or moral objections to contraception to opt out of the mandate. Federal judges blocked the rules in December 2017, resulting in new rules in November 2018.

Judges in California and Pennsylvania issued injunctions against these new rules in January 2019, again halting the Little Sisters of the Poor's legal case. On Jan. 17, 2020 the U.S. Supreme Court said it would again hear the Little Sisters of the Poor's case.

(Story continues below)

Americans United, one supporter of the lawsuit against Notre Dame, is historically an anti-Catholic group. Formerly known as Protestants and Other Americans United for Separation of Church & State, it was founded in 1947 with financial backing and other support from prominent Scottish Rite Masons, Southern Jurisdiction, Phillip Hamburger reports in his 2002 book "Separation of Church and State," published by Harvard University Press.

In a Feb. 7, 2018 statement, Notre Dame's president Father Jenkins acknowledged that the use of contraception is indeed "contrary to Catholic teaching." Attempting to justify the health plan policy, he said that offering contraception in the school health plan was a way to "respect" other religious traditions and conscientious decisions-particularly decisions made by those in the university's community who rely on access to contraception through the insurance plan.

This step came as a surprise to many, since the university was one of the institutions which sued the United States over the mandate. Prior to the mandate, Notre Dame did not provide contraception coverage in its insurance plans, except when prescribed to treat a medical condition.

Notre Dame law professor Gerard V. Bradley criticized the new university policy in a February 2018 Public Discourse essay "Notre Dame Swallows the Pill." He said the policy was "a giant leap into immorality" that made the university "sole funder and proprietor of a contraception giveaway."

Bradley cited Notre Dame's previous claims that justified its lawsuit on the grounds of fidelity to Catholic teaching. In his words, the university argued that "to remain faithful to its beliefs, it could not be involved in any way whatsoever with a process designed to provide contraceptives to its employees, its students, or their dependents."

Bradley said the allowance for contraception will cause incalculable harm to "so many persons' minds, bodies and souls."

"Our moral duty to respect others' choices does not have anything to do with giving them the means to do evil," he said.