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Notre Dame, reentering 21st century, restores employees' access to birth control

Michael Hiltzik, Los Angeles Times on

Published in Business News

The University of Notre Dame, in an abrupt reversal, says it will continue to allow its employees access to contraception under their insurance policies. Only a week ago, the university said it would cancel all birth control coverage for students and employees next year. That includes contraception provided to those recipients for free, under government auspices and at government expense.

We reported on Nov. 1 that the South Bend, Ind., university had become the first and most important employer to take advantage publicly of the Trump administration's Oct. 6 rollback of contraceptive coverage under the Affordable Care Act. The act requires insurance plans to provide contraceptive services without charging a deduction or co-pay. Trump had expanded an exemption aimed at religious institutions and widened by the Supreme Court to cover privately held companies claiming religious scruples. Administration policy now applies to almost any employer claiming religious or "moral" objections to birth control.

Trump's order removed the requirement that employers seeking an exemption file a document with the government and their insurer certifying that they objected to the birth control mandate. Following the notification, contraception would be provided by the insurer and reimbursed by the government. The process was part of an "accommodation" offered by the Obama administration to religious employers objecting to the mandate. Trump's order made the accommodation optional, meaning that employers claiming religious scruples no longer have the duty to arrange for birth control coverage for their employees in any form.

Notre Dame has been at the forefront of an attack on the Affordable Care Act's contraceptive mandate, via a lawsuit it filed in federal court in 2013, one of several brought by Catholic institutions. The university has been slapped down by judges at both the district and appeals court levels thus far. There are no indications that Notre Dame is dropping the case, which ultimately may be decided by the Supreme Court.

But it is stepping back from its decision to deny workers access to birth control even through the accommodation. In a statement issued Tuesday, the university said: "Notre Dame, as a Catholic institution, follows Catholic teaching about the use of contraceptives and engaged in the recent lawsuit to protect its freedom to act in accord with its principles. Recognizing, however, the plurality of religious and other convictions among its employees, it will not interfere with the provision of contraceptives that will be administered and funded independently of the University." Contraceptive coverage will continue to be provided to workers through the university's insurance carrier, Meritain Health/OptumRx, with no deductible or co-pay charges.

The university left unclear how it would manage contraceptive access for students covered by its insurance policy, which was set to be removed on Aug. 15. But its statement is an important acknowledgment that even an educational institution with a strongly religious character operates in a secular world. The Obama accommodation had been offered only to religious institutions such as churches and convents, on the reasoning that their employees were likely to share their religious principles. But it's not unusual, as Notre Dame observed, for non-ecclesiastical entities to serve stakeholders from outside their religion.

As we noted last week, the university's position on the contraceptive mandate was at odds with its history as a bastion of liberal Catholic thought. That tradition had been established by its former president, the Rev. Theodore Hesburgh, who led Notre Dame from 1952 to 1987 and whose positions often brought him into conflict with the Catholic hierarchy and the conservative laity.

As it happens, the Rev. John Jenkins, who as Notre Dame's current president has overseen the legal attack on the mandate, participated in June in the unveiling of a statue in South Bend reproducing an iconic photograph of Hesburgh linking hands with the Rev. Martin Luther King Jr. and singing "We Shall Overcome" at a civil rights rally in 1964. Jenkins had said after Trump's rule change that "critical issues of religious freedom were at stake" in the contraceptive mandate. "For that reason, we welcome this reversal."

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