The Hesburgh Library with the Word of Life mural at the University of Notre Dame
Associated Press/Photo by Darron Cummings
The Hesburgh Library with the Word of Life mural at the University of Notre Dame

Barely fighting Irish

Healthcare | Did Notre Dame, one of the only major Catholic universities to sue over the Obamacare contraceptive mandate (and so far lose), derail its own case?

Issue: "The one and the many," Sept. 20, 2014

The University of Notre Dame was the only religious university of the dozens that challenged the Obama administration’s contraceptive and abortifacient mandate to fail to win a preliminary injunction. Questions about Notre Dame’s defeat include whether its legal failure indicated an identity crisis: Is it primarily a Catholic university, or a university striving toward the secular glory of an Ivy League institution?

Outspoken alumni are critical of the school’s perceived mishandling of the case, and the missed opportunity—with 12,000 students and substantial resources—to be the first organization not to comply with the mandate.

Protestants mostly do not share the strict view of contraceptives Catholics have forbidding their use (while both agree certain drugs mandated for coverage act as abortifacients). Yet 22 Protestant colleges and universities filed lawsuits against the contraceptive mandate, while only 10 Catholic schools did so.

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Notre Dame lost its plea for an injunction at both the district and circuit level. When the 7th U.S. Circuit Court of Appeals panel wrote its opinion against the university, it excoriated Notre Dame’s legal counsel and the school’s handling of the lawsuit. Many at Notre Dame think the fault lies with a string of prejudiced judges and yes, indecisive school leadership, rather than mediocre legal counsel. “I believe that the carping from some quarters [about Jones Day, Notre Dame’s counsel] is unjustified,” said Rick Garnett, a professor at the Notre Dame Law School.

The case started badly. Notre Dame filed a lawsuit against the mandate in May 2012, which a district judge dismissed on the grounds that the case wasn’t ripe: The federal government was working out a new nonprofit exemption. That took over a year, and in July 2013 the Obama administration released its “accommodation” for objecting nonprofits. 

Most nonprofit litigants laughed off the accommodation as a meaningless gesture and refiled their lawsuits. Notre Dame’s local Catholic diocese refiled its lawsuit at the beginning of September that year, but Notre Dame did nothing for months. The school’s third party administrator began informing faculty it would be covering contraceptive benefits through the setup outlined in the federal accommodation. In December 2013 the school, in a seeming about-face, refiled its suit, calling the accommodation unacceptable—only three weeks before the new insurance plan would have to cover the objectionable drugs. 

No one seems sure what happened between July and December. At a November annual meeting, U.S. bishops issued a statement against the accommodation, while an alumni group dedicated to preserving Notre Dame’s Catholic mission also pressed the administration to refile. Asked about the delay by the federal district judge handling Notre Dame’s motion, Notre Dame’s counsel Matt Kairis referenced the bishops’ meeting, and said, “There was a great deal of theological analysis going on between July and November.”

The judge was frustrated with the last-minute motion and rejected it. “I’ve got 300 cases on my docket,” Judge Philip Simon told Kairis. The school immediately appealed to the 7th Circuit, which declined the motion on Dec. 30. 

‘It would have been courageous and befitting [Notre Dame’s] status as the leading Catholic institution in the country not to comply. … Then that would put the ball back in Obama’s court, whether he was going to exact tribute from them or not.’ —William Dempsey

With no legal relief by Jan. 1, Notre Dame signed the form required by the federal accommodation, indicating its objection to contraceptive coverage and authorizing its third party administrator to provide the coverage to its employees. Then the school appealed to the 7th Circuit again, based on a U.S. Supreme Court order granting an injunction to the Catholic charity Little Sisters of the Poor.

A February hearing before three 7th Circuit judges went badly. Judge Richard Posner clearly already had decided the case for himself and took the argument time to dress down Kairis. Compliance with the mandate seemed “so trivial,” Posner said, and he exploded when Kairis tried to explain the burden on Notre Dame’s religious freedom: “Would you stop babbling?” he said. “When you’re asked a question—I don’t know, you must have argued cases before. When you’re asked a question, you’re not supposed to interrupt judges.” (In a 2010 blog post Posner wrote, “Why sex plays such a large role in Catholic doctrine is a deep puzzle.”)

Kairis, needled, tried to talk over the judge, fueling Posner’s frustration. He repeatedly yelled at Kairis, “Don’t interrupt me!” and threatened to end Kairis’ argument time. During the arguments, none of the three judges on the panel appeared to grasp how the religious accommodation worked.

Not surprisingly, the 7th Circuit ruled against Notre Dame, 2-1. The dissenter, Judge Joel Flaum, noted that every nonprofit had been granted an injunction except Notre Dame, but the court rejected Notre Dame’s appeal for a hearing before the full court.


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