Notre Dame, Bishops file suit against contraception coverage mandate

The University of Notre Dame and a host of Catholic universities and dioceses have filed suit to declare unconstitutional the federal mandate that employers who provide health insurance include contraceptive and other reproductive services to employees without deductible.  Church-affiliated organizations - such as hospital and universities - may decline the coverage, in which case their insurers must provide it at their own expense.  Drafted by Jones Day (attorneys pro bono) and reportedly filed today in the federal court for the Northern District of Indiana the complaint in University of Notre Dame v. Sebelius begins:

This lawsuit is about one of America’s most cherished freedoms: the freedom to
practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are, and will continue to be, freely available in the United States, and nothing prevents the Government itself from making them more widely available. But the right to such services does not authorize the Government to force the University of Notre Dame (“Notre Dame”) to violate its own conscience by making it provide, pay for, and/or facilitate those services to others, contrary to its sincerely held religious beliefs. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act, protects religious entities from such overbearing and oppressive governmental action. Notre Dame therefore seeks relief in this Court to protect this most fundamental of American rights.

Catholic University of America President John Garvey explains "Religious institutions are not seeking to control what their employees buy, use, or do in private; they are trying to avoid being conscripted by the government into acting in a way that would be inconsistent with their character, mission, and values.".

The key word here is "facilitate".  The compromise offered by defendant Secretary of Health Kathleen Sebelius relieves the Church-related organizations from the burden of payment and provision, shifting that cost to insurers.  The complaint concedes the right of people to abortifacient drugs like RU 486, to sterilization, and contraception.  Its centerpiece is the "facilitation" argument.  Complicity in evil is the core argument.  Informing students, employees, and patients that contraceptive, sterilization or abortion-inducing drugs are available without cost through the insurer, it is alleged, constitute a form of speech and conduct which compels Notre Dame and other Catholic organizations to violate their conscience.

The courts will have to decide if provision of such widely employed health services is a general requirement justified by the federal power to regulate commerce of if seen as compelled conduct or speech is sufficiently narrowly drawn to avoid unduly burdening the Catholic Church's right to preach and otherwise adhere to its prohibitions of artificial contraception, including drugs or surgery which prevent conception.

In Employment Division v. Smith Justice Antonin Scalia, upholding a discharge for cause (use of mescaline in a religious ritual),  has explained that "[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices".  A key argument will be whether religious employers' provision of such limited health insurance is a "practice" which may be regulated or a choice which must be accommodated and respected.  For this the courts will have to balance the interests of beneficiaries who need or elect such care against those of religious employers who object to such methods.