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As Notre Dame Appeals Birth Control Benefit, Costs to Catholic Universities of Discriminatory Health Plans Increases

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Written by Bridgette Dunlap for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

On Friday, Notre Dame filed a notice of appeal in its lawsuit challenging the contraceptive coverage rule.  So, game on. It was not exactly a surprise when the bishops rejected the Obama administration's latest overture to religiously-affiliated institutions. And it is now clear that no "compromise" short of freeing all health plans from any regulation whatsoever having to do with contraception will suffice. I didn't expect all of these lawsuits to go away, but I was hoping, perhaps naively, that Notre Dame might accept the court's dismissal of its lawsuit given the vocal disagreement with the legal and theological claims therein that has come from students and faculty at Notre Dame. (See hereherehere, and  here. A dissent here.)

The lower court dismissed Notre Dame's lawsuit for lack of standing and ripeness because Notre Dame is not currently required to provide contraception, having taken advantage of the one-year safe harbor period the Obama administration provided while the rule's accommodation for objecting religiously-affiliated institutions is amended.  All but one of the courts to consider the issue have essentially said that no final rule means nothing to sue about. These cases are pre-mature. ( Like I been sayin'!) The Obama administration released a new proposed rule on January 30th, but the rule still isn't final yet.  Still, the closer we get to implementation of whatever the final rule is, the stronger the plaintiffs' arguments become that it is time to reach the merits in these cases. (Though I believe Notre Dame lacks standing for other reasons that the government hasn't argued.)

So why did I think Notre Dame might accept the court's decision?  My general theory is that the administrators of these plaintiff universities would like to do what is in the best interest of their students and employees and understand that going out of their way to provide a substandard, discriminatory health plan is not the best route to doing so. But the administrators of these institutions are under significant pressure from bishops, donors, and other off-campus orthodoxy-enforcing bullies like the Cardinal Newman Society. The promoters of the litigation campaign against contraceptive coverage likely saw Notre Dame as the crown jewel of plaintiffs, given its place in the American Catholic imagination. Plus, there are few big name schools that could be plaintiffs since so many of them currently have health plans with contraceptive coverage: at least for employees that is, who have more legal protections and bargaining power than students. (I'm looking at you, Georgetown.)

 

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