Notre Dame’s Moral Dilemma Over Birth Control

How much should a conflict of conscience count in court?
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A Notre Dame student wears a graduation cap displaying the symbol of an aborted fetus during a commencement speech delivered by President Obama in 2009. (Reuters)

Notre Dame has run into some bad legal luck. This year, 45 religious non-profit groups have brought lawsuits against the Department of Health and Human Services concerning the Affordable Care Act’s birth control mandate. Although the mandate was supposed to go into effect on January 1, many of these organizations have been granted a bit of borrowed time while their cases are being decided: Nineteen of them were granted Injunctions against enforcement, which means that the government isn’t allowed to fine them until courts decide whether their religious objections have merit. Most notably, Supreme Court Justice Sonia Sotomayor granted a last-minute injunction to the Denver-based Little Sisters of the Poor on New Year’s Eve, which prevented them from having to pay heavy fines, begin complying with the law, or stop offering insurance to their employees altogether on January 1. The government has issued a response, and now Sotomayor or possibly the full Supreme Court will decide whether to keep the injunction in place.

Of these 45 non-profits suing the government, Notre Dame is the only one that was flatly denied its request for delayed enforcement. This means that as of January 1, the university is officially providing coverage to employees and students who participate in its insurance plan. The Fighting Irish plan to keep fighting, though. Their birth control coverage "may be terminated once the university's lawsuit on religious liberty grounds against the HHS mandate has worked its way through the courts,” a university spokesperson said last week.

Why was Notre Dame treated so differently from all the other religious non-profits during this round of litigation? The fact that Notre Dame is a university doesn’t seem to be that important—at least four other colleges and universities were granted injunctions that delayed possible penalties.

Ira Lupu, a professor at the George Washington School of Law, said he thinks Notre Dame just had a bit of bad luck. “That might be a little bit of a fluke, that they drew what turned out to be misfortune in judges, and that judges in other places have been more sympathetic, and this set of judges wasn’t as sympathetic." He added, "Sympathetic isn’t the right word—they weren’t as persuaded."

But the way rulings have trended so far doesn’t necessarily predict the future. “The surprise in this run of cases is not Notre Dame—it’s all these other ones. As this unfolds, they may not do so well,” he said.

As these and other similar cases work their way through the courts, the important questions to keep in mind are these: What is it that Notre Dame and other religious organizations find morally objectionable about the law? And how much should the government accommodate religious organizations when they claim that a law violates their conscience?

These questions have more or less been answered when it comes to explicitly religious non-profits like churches. After several rounds of negotiations with HHS, these groups were exempted from the requirement to provide coverage. For-profit companies that claim a religious affiliation get no exemption, a rule that will be debated before the Supreme Court this spring.

“The surprise in this run of cases is not Notre Dame—it’s all these other ones."

Notre Dame falls into a third group: religiously affiliated non-profit groups, which might include hospitals, food banks, or universities. Like explicitly religious groups, these some of these organizations object to the portion of the Affordable Care Act that requires employers who offer insurance plans to include coverage of “the full range of Food and Drug Administration-approved contraceptive methods [and] sterilization procedures.” These groups can, in fact, avoid paying for, administering, advertising, or otherwise dealing with this birth control coverage in any way. They can file a notice stating their objections and transferring total responsibility for coverage to a third party. In other words, groups like Notre Dame or the Little Sisters of the Poor just need to sign a two-page document saying that they don’t want to provide coverage for contraceptives, and someone else will do it for them.

But a number of groups think this is still morally compromising, for this reason: If they sign a form saying they don’t want to provide birth control coverage, they’re implicitly saying that it’s okay if someone else does.

In the Little Sisters of the Poor case, the Obama administration argued that religious groups are framing their moral concerns incorrectly. Third-party administrators won’t become responsible for coordinating birth control coverage because a religious non-profit signs a piece of paper saying it objects. That coverage would happen in spite of an organization’s objections. (This semantic clarification isn’t applicable to the Little Sisters: Their third-party administrator also has objections to covering birth control, so none of the Little Sisters’ employees would get coverage, regardless.)

From a legal perspective, there are a couple of issues at stake. The first is whether the coverage requirement places a “substantial burden” on an organization’s free exercise of religion. Judges make this call by referring to the Religious Freedom Restoration Act, a piece of legislation passed in 1993. Judge Philip Simon, writing for the District Court for the Northern District of Indiana, explained why he didn’t think the burden on Notre Dame was substantial in this case. The question, he noted, was whether the government was actually forcing Notre Dame to take action that would violate its religious beliefs—rather than simply “offending the plaintiff’s religious sensibilities.” He went on:

It’s critical to note at this point that if Notre Dame opts out of providing contraception, it will have nothing to do with providing contraception. It won’t pay actual or administrative costs, and the TPA [Third Party Administrator] won’t be looking to Notre Dame’s fees to make a profit on the contraceptive program. Notre Dame obfuscates this point in its briefing, but as best I can tell by my review of the regulations, there is simply no financial burden on Notre Dame if it opts out.

Boiled to its essence, what Notre Dame essentially claims is that the government’s action after Notre Dame opts out, in requiring the TPA to cover contraception, offends Notre Dame’s religious sensibilities.

Simon referred to an earlier case, Bowen v. Roy, which decided whether a Native American plaintiff could claim that the government’s use of his daughter’s social security number violated his family’s religious beliefs. An interesting counterfactual was tucked away in that opinion (emphasis added):

“[Plaintiff] may no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.

This example makes the situation seem pretty clear: Religious groups shouldn’t have veto power on anything the government does just because they claim a moral objection to it. But there are two distinct categories here. There are things  the government does in its own day-to-day governing that religious groups may find morally objectionable (like choosing the hypothetical filing cabinets). And then there are things the government makes religious groups do themselves, against their moral objections.

In the Notre Dame case, Simon ruled that the religious non-profit accommodation created by HHS falls more squarely into the first category than the second. The two-page form is a tool the government has created to facilitate a legislative goal (providing better access to birth control coverage for women) while still giving religious groups ways to opt out.

Notre Dame’s appeal to the Seventh Circuit Court was denied several days after Simon’s decision.

It's similar to "a sincere religious objection to the size or color of the government’s filing cabinets."

Although this is obviously a legal matter, some scholars speculate that institutions like Notre Dame have other reasons for filing lawsuits. In his Summa Theologica, Thomas Aquinas wrote about the concept of scandal, defining it as “something less rightly done or said, that occasions another's spiritual downfall.” In other words, a religious person has an obligation to speak and act in ways that encourage moral uprightness in others. Otherwise, that person assumes some responsibility for other people’s moral wrongdoings.

“There’s a funny sort of circularity to the argument,” said Eduardo Peñalver, a professor at the University of Chicago Law School. “Going through the motions of filing the lawsuit and being compelled to engage in this behavior reduces the possibility of scandal.” In other words, lawsuits provide a very public way for religious organizations to state their opposition to contraceptives. If they eventually have to comply with the law, there’s less of a chance that someone will mistake their compliance for support. This may be particularly true of prominent organizations like Notre Dame, which exert a wider influence than smaller organizations.

When Notre Dame lost its request for a delay in penalties, it chose to comply with the law, likely because of the financial burden the school would otherwise face. But it remains to be seen whether other groups like the Little Sisters of the Poor will eventually capitulate.

“It’s a really good question,” said Lupu, the George Washington University law professor. “What are these outfits going to do if they lose? Are they really going to say, ‘This is a matter of faith. We are martyrs to our conscience. We are not going to sign that form, and you can’t make us sign that form. If you want to fine us a million dollars a day, you’re going to have to come here and seize land and buildings?’

"That’s about religious will to fight,” he added. “That’s not about whether they should or shouldn’t win the lawsuit.”

Peñalver didn’t see this outcome as likely. “I would be shocked if these institutions decided to not comply with the terms of the law and accept the penalty associated with that,” he said. “I’m surprised that it has gotten this far.”

As Notre Dame has said, its litigation will go on. The school may have been the exception in rulings so far, but with the fates of other groups still uncertain, and the Hobby Lobby case on the horizon, it’s hard to predict which way Notre Dame's fortunes will go.

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Emma Green is an associate editor at The Atlantic, where she oversees the National Channel, manages TheAtlantic.com’s homepage, and writes about religion and culture.

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