Yesterday, the University of Notre Dame re-filed its lawsuit challenging the contraception mandate “accommodation” offered to religious institutions by the Department of Health and Human Services. Notre Dame had filed suit before, but that suit was dismissed as the Administration had announced plans to adopt an accommodation for objecting religious institutions. The WSJ reports on the suit here.
As I noted in prior posts (here and here), the Administration had a difficult time finding a way to accommodate the objections to the contraception mandate of religious institutions, including universities and social service organizations, that are not themselves houses of worship or their auxiliaries. The accommodation ultimately offered by HHS is that if a religious institution objects to paying for insurance coverage that covers methods of contraception that are contrary to the teachings of that religion, the institution may certify that it objects, and then the institution’s insurer will provide a separate contraception-only insurance policy. The problem for an institution like Notre Dame, as detailed in its complaint, is that it self-insures. (Many large institutions self-insure, and many religious ones do so, in part, to avoid state-level contraception mandates.) To address this, the final accommodation shifted the obligation to the third-party administrator of the insurance plan. Assuming this shift of obligation is even legal (as the administrator is not acting as an insurer, and has to provide the contraception at no cost to the insured), Notre Dame still objects because the provision of contraception is still tied to Notre Dame’s decision to provide insurance in the first place and Notre Dame’s decision to certify that it is an objecting institution results in the designation of the third-party administrator as the provider of contraception. According to Notre Dame, this requires the university to “become entangled with and facilitate” [...]