The settlement the University of Notre Dame won on behalf of itself and 70 other Catholic institutions could be imperiled.

SOUTH BEND, Ind. — The University of Notre Dame’s settlement with the federal government to end the Health and Human Services’ contraceptive mandate is under fire, as a new lawsuit argues the settlement is illegal and Notre Dame must pay out free contraception to students and employees covered under its health plans.

Americans United for the Separation of Church and State, the National Women’s Law Center, the Center for Reproductive Rights and the Indianapolis-based Macey Swanson law firm filed the lawsuit in U.S. district court on behalf of some Notre Dame students against the university and the federal government. The suit maintains that Notre Dame’s new contraception policy no longer provides students “meaningful” coverage because students will face co-pays of 20%-40% for certain contraceptives and in some cases have to meet a $500 deductible.

According to the complaint in Irish 4 Reproductive Health v. Azar, the settlement is unlawful on statutory and constitutional grounds. The brief contends the Trump administration violated statutory requirements by issuing new regulations that carved out an exemption for employers with religious or moral-based objections, taking effect Oct. 6, 2017, without public notice or a 60-day comment period. These interim rules, which were the basis of the settlement, are currently blocked in separate legal challenges.

The brief added the 2017 settlement violated the Supreme Court’s May 16, 2016, instruction in Zubik v. Burwell to find a solution agreeable to all parties, arguing that Notre Dame’s students and employees were cut out of the settlement’s negotiations or execution, despite their request to be included as an interested party.

The lawsuit argues the Oct. 13 settlement agreements the Jones Day firm achieved between Notre Dame, 70 other Catholic entities and the U.S. Departments of Health and Human Services, Labor and the Treasury, should be deemed void, because the government does not have the statutory authority to permanently exempt Notre Dame and more than 70 other entities from HHS contraceptive-mandate requirements “both past and future.”

Paul Browne, Notre Dame’s vice president for public affairs and communications, told the Register the university seeks to dismiss the lawsuit in the coming weeks.

“It is meritless,” he said. “We think we have a strong case to dismiss it.”

Browne said the lawsuit was spinning harmful rhetoric that Notre Dame’s settlement amounted to a conspiracy with the Trump administration. He also pointed out that most students at Notre Dame are covered by their parents’ insurance until they are 26 years old, according to federal regulations. While Notre Dame did decide to cover a limited range of contraception, as well as natural family planning, Browne said the university drew the line at abortion-inducing drugs and devices marketed as contraception.

“That’s another point the plaintiffs disagree with,” he said.

Contraception Coverage

After Notre Dame achieved its settlement, the university announced it would no longer cover contraception through a third-party administrator and return to the status quo ante the HHS mandate. However, a week later, Nov. 7, 2017, Notre Dame said it actually would cover contraception in its health plans, citing the plurality of other religious beliefs and convictions.

After substantial criticism, Notre Dame president Holy Cross Father John Jenkins announced in February that the university would only cover “simple contraceptives,” meaning the university would not cover contraceptive drugs and devices that could induce the abortion of a human embryo. That decision, however, also drew fire from Catholics concerned about Notre Dame’s Catholic identity, including Bishop Kevin Rhoades of Fort Wayne-South Bend, who stated at the time, “The Catholic Church clearly teaches that contraception is an immoral action that contradicts the truth of marital love.”

Anne Jarrett, a Notre Dame undergraduate student and member of the unofficial campus group Irish 4 Reproductive Health, which is a party to the lawsuit, told the Register that Notre Dame has lacked “clarity” about its contraception policy.

“They use the word ‘simple contraceptives,’ but that’s a term only Notre Dame uses. It is not an FDA-approved term,” she said. Students who enrolled at Notre Dame, Jarrett argued, had expectations that contraception would be covered.

Jarrett, who identifies as Catholic, said Notre Dame should respect the moral decisions of Catholic women to use artificial contraception, just as they would respect their decision to go to Mass or not on a given Sunday. Jarrett agreed the fundamental difference between the Catholic university’s position on abortifacient contraception — contraceptive drugs and devices, such as the copper intrauterine device, that intend to cause the death of a human embryo — and the women seeking such FDA-approved abortifacient contraception hinged on the question of when a human life begins. But Jarrett said the question of when human life begins is a “difficult thing” — even though the science of embryology teaches that human life begins at fertilization — and should take second place to what she asserts the law requires.

“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,” she said.

“While the Catholic Church has [its] views on it [when life begins], when it interrupts health care that is protected legally, then we have to sort of forgo that question.”

Religious Claims Imperiled?

William Dempsey, the president of an association of Notre Dame alumni known as the Sycamore Trust, told the Register that he was concerned Notre Dame’s contraception policy undermines the religious liberty claims it made earlier to the government. Dempsey said the plaintiffs have seized upon that about-face and showed Notre Dame’s protestations that the Catholic faith forbade it from “facilitating access to contraceptives” rang hollow.

However, Dempsey said Notre Dame, to its credit, has refused to cover abortion-causing contraceptive drugs and devices. According to Notre Dame’s 2018-2019 health plan, “Those contraceptives that have as their primary function the prevention of implantation or interference with the development of a pregnancy are not covered under the university’s plans. Emergency contraceptives are also not covered.”

But Dempsey also cautioned the university dismissing the lawsuit as “preposterous.”

“Certainly the complaints are festooned with radical feminist and pro-abortion rhetoric, but it is true, as plaintiffs say, that the Trump administration’s effort to exempt religious organizations like Notre Dame by amending the mandate has been blocked by two federal courts and that the court of appeals rejected Notre Dame’s religious-liberty claim,” he said.

Dempsey indicated the government and Notre Dame’s responses to the lawsuit will have to address how the federal government can “insulate Notre Dame by agreement,” or why the court can “disregard the injunctions against the Trump amendments and uphold them.”

Browne disagreed Notre Dame’s new contraception policy undermined the core argument of its religious-freedom case. He said that while contraception gained a lot of attention, Father Jenkins identified that the underlying religious-freedom issue for Notre Dame with respect to the contraception mandate was that the federal government “for the first time was saying it and no one else would distinguish what constituted essentially a Catholic organization” that would merit an exemption from the law’s requirements.

He saw the Obama administration’s accommodation that recognized Catholic parishes as exempt, but not Catholic universities or hospitals, as a “slippery slope” toward the government deciding the religious status of institutions.

“That was his foremost concern from the outset, and the question of insurance coverage for contraception was just one manifestation of that,” he said.

Court to Test Settlement

Eric Kniffin, a religious institutions attorney whose firm obtained a permanent injunction against the mandate for the Catholic Benefits Association and its 1,000 Catholic employer members, told the Register that Notre Dame’s flip-flops on contraception do not affect the lawsuit in his view. That is because Notre Dame, although it now provides contraceptive coverage voluntarily, is still not complying with the HHS mandate. Notre Dame has said it will cover contraceptives just as it covers other drugs — regular co-pays and deductibles apply — whereas the mandate requires contraceptive coverage “without cost sharing.”

“That is what the plaintiffs are seizing on,” says Kniffin. “They are arguing that they are being denied the free contraceptive coverage the mandate promised.”

Kniffin said that one of the main issues in the case will be whether HHS has the power to exempt Notre Dame from the mandate through a simple “agreement” or whether — as the plaintiffs argue — any such exemption must be made through the regulatory process. Kniffin believes that the case may also turn on whether Notre Dame’s settlement agreement is legally binding on future administrations, like the permanent injunction obtained by the Catholic Benefits Association.

Peter Jesserer Smith is a Register staff writer.

This story was updated after posting.