Judge calls Notre Dame’s third try at avoiding contraceptive mandate ‘absurd’

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At times describing the defendants’ argument as bordering “on the absurd” and noting the policies are already causing injury, the Northern District of Indiana has blocked another attempt by the University of Notre Dame and federal agencies to limit women students’ access to contraceptives.

The ruling in Irish 4 Reproductive Health et al. v. United States Department of Health and Human Services, et al., 3:18-cv-491, allows a group of female undergraduate and graduate students at Notre Dame to continue their fight for FDA-approved contraceptives, including birth control pills, at no cost, as guaranteed by the Affordable Care Act.

This represents the third time Notre Dame has tried to get an exemption from the federal mandate. In two prior attempts — University of Notre Dame v. Sebelius, 743 F.3d 547, 554 (7th Cir. 2014) vacated on other grounds, 135 S. Ct. 1528 (2015) and University of Notre Dame v. Burwell, 786 F.3d 606, 612 (7th Cir. 2015), vacated on other grounds, 136 S. Ct. 2007 (2016) — the private Catholic education institution was unable to convince the federal judiciary that the contraceptive provision in the ACA violated the Religious Freedom Restoration Act.

However, the Trump Administration reversed the stance taken by the Obama Administration and bolstered the exemption through two interim final rules. These new rules enabled for-profit businesses, nonprofits and universities to invoke religious and moral objections to the ACA contraceptive coverage requirement without having to explain their reasonings.

One week after issuing the interim final rules, the named federal defendants in Irish 4 Reproductive Health’s lawsuit entered into a settlement agreement with Notre Dame and more than 70 other entities. The agreement, according to the Northern Indiana District Court, not only absolved the university from offering contraceptive coverage but also inoculated the school from any future regulation that might mandate the provision of birth control.

After the agreement was reached, Notre Dame amended its health plans to terminate coverage for certain contraceptives it views as abortifacients or sterilization. It also imposed cost-sharing, which included co-payments, for other types of contraceptives such as birth control pills.

“Although the Federal Defendants contend the Settlement Agreement still allows for ‘full coverage’ in accordance with (Zubik v Burwell, 136 S. Ct. 1557 (2016) and Notre Dame v. Burwell, 136 S. Ct. 2007 (2016)) because Notre Dame insured can go find ‘a separate or distinct health plan’ elsewhere, this argument borders on the absurd,” Northern Indiana District Judge Philip Simon wrote in his 49-page order issued Thursday. “I’d like to see a plan that offers Notre Dame students and faculty (who are already covered under Notre Dame’s insurance plan) additional health care coverage for contraceptive care with no cost-sharing. There is no such thing.”

Simon went further in highlighting what he saw as the fallacy of the defendants’ argument.

“The Settlement Agreement does not ensure that women get full contraceptive coverage without cost-sharing,” he wrote. “To the contrary, it authorizes Notre Dame to give them no contraceptive coverage at all — now, and in the future.”

Plaintiffs in Irish 4 Reproductive Health survived the motion to dismiss on most of their claims. The district court found their arguments plausible that the final rules violate the procedural requirements of the Administrative Procedures Act; the settlement agreement and final rules substantively violate the APA; the settlement agreement is void for illegality; and the settlement agreement and rules violate the Establishment Clause.

Two additional claims — that the settlement agreement and final rules violate the Due Process and Equal Protection clauses of the Fifth Amendment — were dismissed with prejudice. The court held the plaintiffs did not establish that subsidized contraceptive coverage is a fundamental right.

Also, the court brushed aside the defendants’ contention that the claims based on the settlement agreement were not ripe for adjudication.

“The Settlement Agreement challenges are ripe now because Plaintiffs’ claims address an active controversy that turns on Defendants’ past actions and legal issues, not on uncertain future contingencies,” Simon wrote. “There is no doubt that the Plaintiffs are currently experiencing an injury — they have lost coverage for contraceptive care and are currently paying out-of-pocket for those needs. And there is no question in my mind that the Settlement Agreement is causing this injury – Notre Dame has repeatedly and specifically invoked it as a basis for refusing to provide contraceptive coverage.”

As part of the original Affordable Care Act passed by Congress in 2010, insurance companies were mandated to cover women’s preventive health services, which included providing FDA-approved contraceptive methods, at no cost.

Three years later, the government carved out an exemption from the contraceptive mandate for houses of worship. After religiously affiliated employers and universities objected to still having to provide contraception coverage, an accommodation was created that allowed them to opt out. They could file a one-page form that would enlist the entity’s insurance company or third-party administrators into providing the coverage.

Notre Dame and other nonprofit religious organizations filed suits challenging the contraceptive mandate under the Religious Freedom Restoration Act. A divided 7th Circuit panel upheld the denial of a preliminary injunction in University of Notre Dame. The appellate court agreed the accommodation did not impose a substantial burden on Notre Dame’s religious exercise.

A short time later, the U.S. Supreme Court issued Burwell v. Hobby Lobby, Inc, 573 U.S. 682 (2014) which pushed the government to extend the accommodation to certain closely held for-profit entities with religious objections to contraceptive coverage.

Still, many organizations continued to challenge the contraceptive-coverage mandate. Notre Dame argued the accommodation made the university a “conduit” for contraceptives in violation to its religious beliefs. Again, the 7th Circuit rejected those arguments in In Univ. of Notre Dame v. Burwell.

Ultimately, the U.S. Supreme Court vacated the Notre Dame case and similar ones in Zubik. The cases were remanded with instructions that the parties “should be afforded an opportunity to arrive at an approach going forward that accommodates (the entities’) religious exercise while at the same time ensuring that women covered by (the entities’) health plans receive full and equal health coverage, including contraceptive coverage.”

Notre Dame’s Burwell returned to the 7th Circuit, where the same panel affirmed its earlier decision.

Subsequently, two federal courts issued preliminary injunctions against the Trump Administration’s final rules in December 2017. However, the government pushed forward and the rules took effect Jan. 14, 2019.

Before the Northern Indiana District Court, the federal defendants asserted the final rules are not contrary to the women’s health amendment because the Affordable Care Act does not specify the types of preventive services that must be provided. Moreover, the defendants argued they have the authority to decide who must abide by the health care law.

While Simon conceded an agency can have deference in interpreting an ambiguous statute, he pointed out “no deference is due when an agency’s interpretation conflicts with the statute’s plain language.”

“Here, the plain language of the ACA specifically requires that all group health plans ‘shall’ cover ‘preventive care’ as defined by the (Health Resources and Services Administration. Contrary to Notre Dame’s suggestion, I fail to see the ambiguity in this directive. ‘[S]hall’ is a mandatory term that ‘normally creates an obligation impervious to judicial [or agency] discretion,’” Simon wrote, citing Pennsylvania v. Trump, 351 F.Supp.3d at 818 (quoting Lexecon, Inc. v. Millberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1988)).

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