Date: October 11, 2018

Notre Dame Struck a Secret Deal With the Trump Administration to Deny Birth Control Coverage. Now Students Are Fighting Back.

Chissa Rivaldi never expected to be in a fight with her university over birth control. Four years ago, when she was deciding where to pursue a doctoral degree in biology, she had two key things in mind: a supportive adviser and an institution with a robust research program. She found what she was looking for in the University of Notre Dame. “This program was the best thing for me in terms of the research I wanted to do and the pace and how it incorporated the work I’d done previously,” she said.

That the university is a Catholic institution didn’t really enter the equation. Rivaldi is not Catholic, but she didn’t see that as a reason not to pursue her education there — even though she was aware of the church hierarchy’s positions on various issues, including reproductive rights and access to birth control. After all, the university actively champions its diversity and “spirit of inclusion.” And where her access to health care was concerned, there was the Affordable Care Act’s mandate that a host of core women’s health services be provided without cost sharing, including contraceptives — a coverage requirement that would apply to the insurance benefits the university offered to students.

To Rivaldi, it all seemed pretty straightforward. But that’s not how it turned out.

Instead, Notre Dame has balked at the birth control mandate, waging a protracted legal battle in an effort to exempt itself from having to provide insurance for services that it says violate its religious beliefs. The university’s efforts so far have been unsuccessful in court.

But according to a recent lawsuit, the Trump administration did an end run around the judicial system to negotiate a settlement with Notre Dame and 73 other institutions that allows them to deny birth control coverage. The suit, filed on behalf of the student-led activist group Irish 4 Reproductive Health, of which Rivaldi is a member, argues that the settlement is illegal and demonstrates flagrant disregard for due process and equal protection. The Trump administration is expected to file its answer to the lawsuit on October 11.

Rivaldi is frustrated by the university’s backdoor dealings and unrelenting quest to deny her full health coverage. “Notre Dame has this whole persona and relationship with its students,” she said. “They’re all about doing the right thing and making sure that everybody has a place … and feels comfortable. And then they’re like, ‘Well, except for this.’”

The Fight to Opt Out Without Notice

Before the ACA, women often paid higher insurance premiums while still paying out of pocket for things like contraceptives. The ACA created parity, prohibiting sex discrimination in health care and requiring that a suite of preventive services for women be covered without cost-sharing, including guaranteed access to all 18 Food and Drug Administration-approved forms of birth control.

Early on, churches were exempted from having to provide the coverage and affiliated institutions wanted the same treatment. The Obama administration refused and instead devised a workaround: A religious affiliate could opt out of providing coverage by submitting a form to its insurance company or to the federal government voicing its objection, which would then allow the insurance company or a third-party administrator to work with the government to provide birth control coverage directly.

The accommodation did not satisfy Notre Dame, which along with a number of other organizations filed a series of lawsuits claiming that having to notify anyone of its objection to birth control coverage put it in a position of serving as a conduit for the coverage it objected to, impinging on its religious freedom. Federal appellate courts roundly rejected that argument — including the 7th U.S. Circuit Court of Appeals, which considered Notre Dame’s case.

The “record contains no evidence to support the conduit theory,” the court wrote. “Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs. As far as we can determine … the only ‘conduit’ is between the [insurance] companies and Notre Dame students and staff; the university has stepped aside.”

The U.S. Supreme Court considered the cases in 2016 before sending them back to the lower courts. The government and the organizations should work together to find an equitable solution, the court wrote — one that accommodates the religious organizations while “at the same time ensuring” that women covered by their health plans “receive full and equal health coverage, including contraceptive coverage.”

Meanwhile, as Notre Dame was fighting in court for its chance to deny contraceptive coverage, it had already signed the accommodation form, so coverage was still being provided to those insured by Notre Dame — in all, more than 17,000 students, faculty, and staff. Graduate students like Rivaldi were still largely unaffected by the controversy.

The Supreme Court’s direction that an acceptable accommodation be found went unmet. After negotiations and a period of public comment, the Obama administration concluded that there was “no feasible” way to devise an alternate accommodation that would also ensure coverage.

The Obama-era workaround remained in place until early October 2017, when the Trump administration announced new rules that extended the ability to object to providing coverage to almost any employer based on religious belief or “moral conviction,” and made the accommodation optional — meaning that employers could simply refuse to cover contraceptives without providing any notice.

In South Bend, Indiana, the news was well received by Notre Dame’s president, Rev. John Jenkins, who said in a statement that he welcomed “this reversal” and applauded the government’s discernment that “except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law.” Before long, Jenkins would announce that the university was formally opting out of coverage.

Protests and U-Turns

Not everyone was as pleased, and on a sunny Tuesday afternoon the same month, doctoral candidate Kate Bermingham and some three dozen other members of the university community gathered outside its golden-domed main building, which houses the administration offices, for a peaceful protest. They carried signs and Bermingham held a megaphone as the group chanted its support for contraceptive coverage.

As long as Bermingham had been at Notre Dame, her birth control had been covered. Like Rivaldi, she is not Catholic, and she understood the church’s stance on contraceptives, but given the ACA’s protections, she didn’t consider that attending Notre Dame would put her access to health care in jeopardy. When she began her graduate studies six years ago, she was just 24 and still covered by her parents’ insurance (another benefit conferred by the ACA). When she aged out, she moved over to Notre Dame’s carrier.

Under the accommodation, Bermingham had two insurance cards — one for her main health insurance coverage and a second for her birth control benefits. Navigating the layers of insurance bureaucracy was a challenge (at least in part because “Notre Dame’s HR people weren’t really empowered to help us,” she said), but certainly it was better than having to figure out how to access coverage if the school opted out altogether.

“Notre Dame does not have a just claim to saddle me or other individuals it employs with the expenses of its conscience,” Bermingham told the student newspaper after the protest. “It is impossible to overlook the gendered implications of Notre Dame’s claims to be exercising religious freedom in this instance.”

But then, just days after the university announced that it would opt out of coverage, Jenkins pivoted, saying that Notre Dame would continue to provide care under the accommodation. Addressing the faculty in early November 2017, Jenkins said that the university’s interest had “never been in preventing access to those who make conscientious decisions to use contraceptives.” The university had been confused, thinking that the Trump administration rules meant the Obama-era accommodation was no longer available.

The following month, two courts blocked the Trump rules from taking effect.

Bermingham was relieved. “It was heartening to think that the administration had listened to the current community members, rather than some of its more ideological donors,” she wrote to The Intercept.

It would be a short-lived victory.

Notre Dame President Rev. John I. Jenkins speaks during the opening ceremony event for the Jimmy & Rosalynn Carter Work Project on Sunday, Aug. 26, 2018, inside the University of Notre Dame's Purcell Pavilion in South Bend, Ind. (Robert Franklin/South Bend Tribune via AP)

Notre Dame President Rev. John Jenkins speaks during the opening ceremony for the Jimmy and Rosalynn Carter Work Project at the University of Notre Dame in South Bend, Ind., on Aug. 26, 2018.

Photo: Robert Franklin/South Bend Tribune/AP

Behind Closed Doors

On February 8, Jenkins posted online a letter to the university community announcing another turnabout: Notre Dame would not be using the accommodation after all. Jenkins wrote that he had decided that the university would provide birth control coverage directly through its insurance plans — but it would require copays and deductibles for services, bar undergraduates from obtaining birth control, and only cover contraceptives deemed appropriate, what Jenkins called “simple contraceptives.”

Most of the individuals covered by Notre Dame’s insurance “have no financially feasible alternative but to rely on the university for such coverage,” Jenkins wrote. “The use of artificial contraceptives to prevent conception is contrary to Catholic teaching, though many conscientiously disagree.”

Jenkins determined that it was important and in line with the university’s values to provide health insurance, but wrote that continuing to use the accommodation meant that women would have access to contraceptives that the church vehemently dislikes — those it has determined act as “abortion-inducing drugs, which are far more gravely objectionable in Catholic teaching.”

The decision caused a considerable amount of confusion for many covered by Notre Dame’s insurance — largely because the new plan directly contravened the ACA’s no-cost, full-access birth control provision, which had been upheld by the courts despite attempts by the university and the Trump administration to dismantle it.

Moreover, the notion that certain contraceptives induce abortion, while popular among the Catholic hierarchy, doesn’t comport with science. Notre Dame has said that it will not cover the copper intrauterine device — a small, T-shaped piece of plastic wrapped in copper wire, which is toxic to sperm. While it can also be used as emergency contraception, it is among the most effective forms of birth control and is nonhormonal, which is the best solution for some women. (A spokesperson wrote in an email to The Intercept that faculty with Health Savings Accounts would also be barred from using funds to obtain a copper IUD or other reproductive services the university objects to.)

And then there was the question of what exactly constituted a “simple contraceptive” — a description without a definition. “Many of us at this point were very concerned,” Bermingham said. “There was … this very vague and nonscientific language … and we weren’t really sure what that meant, of course. What is simple for one person might cause a whole slew of hormonal, emotional, or physical problems for another.”

Rivaldi, Bermingham, and other students who officially formed Irish 4 Reproductive Health in the wake of Jenkins’s February announcement said their attempts to get clarification were frustrated by the administration. “They just weren’t telling us anything,” Rivaldi said.

Michelle Banker, a lawyer with the National Women’s Law Center, said a clue was found in Jenkins’s February statement. In announcing the change, Jenkins mentioned in passing that the university’s long-standing legal challenge to the mandate had been “settled favorably.” Considering that the Trump rules had been blocked and negotiations over a new workaround had broken down, Banker wanted to know exactly what that meant. The NWLC filed a Freedom of Information Act request and received a copy of a 10-page settlement between several federal agencies and 74 religiously affiliated institutions, negotiated by the Department of Justice and signed on October 13, 2017.

The settlement adopted language from the Trump rules — claiming that the contraceptive mandate impinged on the organizations’ religious freedoms and promising that they would never have to comply with it, at present or in the future. “We were really surprised,” Banker said. “And we were frustrated.”

Not only did the settlement violate current court orders blocking Trump’s rules, but it also thumbed its nose at the U.S. Supreme Court’s 2016 order that a solution be found that included full contraceptive coverage. “And that’s not what has happened,” Banker said. “The Affordable Care Act’s birth control benefit was designed to ensure that women could use the birth control method that works best for them, and that is a personal decision, and no university boss should be able to make that decision for anyone.”

In June, the NWLC, Americans United for the Separation of Church and State, and the Center for Reproductive Rights filed suit, arguing that the Trump administration’s secret settlement was illegal. “By their actions,” it reads, the government has “embarked on a two-tiered effort to do by fiat what the courts had refused to allow: give employers and universities a veto over the legal rights of countless women to obtain coverage of necessary health care.”

The lawsuit is currently pending before a federal district court in Indiana.

The Legacy of “Humanae Vitae”

Although Catholic doctrine bans the use of contraceptives, in the U.S. at least, that teaching is almost universally rejected.

According to Catholics for Choice, which advocates for the moral and legal right to reproductive autonomy, 99 percent of U.S. Catholics have used birth control at some point in their lives. Moreover, polling by the group reveals that 79 percent agree that health insurance policies should be required to cover birth control, while 54 percent believe that insurers should be required to offer abortion coverage. The bottom line, says the group’s vice president, Sara Hutchinson Ratcliffe, is that the hierarchy is completely out of touch with the laity.

Nonetheless, the church has tied its authority to a 50-year-old papal letter that has been deeply controversial both inside and outside the Catholic church. Known as “Humanae Vitae” (“Of Human Life”), the encyclical released in the summer of 1968 doubled down on the church’s ban on contraceptives during a time of profound social change. Three years earlier, the U.S. Supreme Court had overturned a Connecticut law that criminalized the use of birth control by married couples, concluding that it violated “marital privacy.” Just four years later, the court extended access to birth control for single people. And the delivery of “Humanae Vitae” was actually counter to what the pope’s commission on birth control had recommended; the vast majority of the bishops, theologians, and laypeople tapped to sit on the commission had voted in favor of modernizing the church’s teaching.

The decision to extend the ban has had significant consequences — and not just in the U.S., says Ratcliffe. It has negatively impacted efforts around the world to curb the spread of HIV and AIDS and to stem maternal mortality, among other things, particularly in African countries where Catholicism has been growing, according to a new report on the legacy of “Humanae Vitae.”

In the U.S, the encyclical precipitated a marked reduction in church attendance. And ultimately, Ratcliffe argues, it led the hierarchy to flex its political muscle to advocate for church policies to be recognized by the government in various ways — such as an exemption from providing birth control under the ACA, or the expansion of conscience, or refusal, clauses — as an alternate means of enforcing an unpopular policy the flock had rejected. “Time and time again, the … conservative aspects inside the Catholic hierarchy have pushed this policy beyond the ‘We think you should as a Catholic follow this,’ to ‘No, no, no; we want to impose our teaching that nobody follows anyway onto the entire world,’” she said. (In his February letter, Jenkins embraced the encyclical, recognizing it as controversial but also calling it a “thoughtful challenge to tendencies in our culture.”)

And that’s exactly what is happening at Notre Dame, Ratcliffe says. Catholic teaching leans heavily on the concept of conscience and the ability to defy church teachings if your moral compass believes they are wrong. That’s why the general concept of a conscience clause may “sound good,” Ratcliffe said. But having an institution like Notre Dame hide behind conscience in order to deny full access to health care is itself wrong. “When you put a refusal clause into place that only protects the conscience of those who want to refuse things, and especially when it comes to coverage, you have essentially violated our social justice tradition, because it means if you have the means, you can get the service.” Polling reveals that two-thirds of Catholics reject the idea that an employer should be allowed to deny access to health care based on religious beliefs.

And in negotiating the settlement agreement with Notre Dame, the Trump administration illegally signed away the rights of the thousands of people covered by the university’s policies without even consulting them, says the NWLC’s Banker. Moreover, Notre Dame students had won the right to intervene in the lawsuit the school originally filed against the Obama administration, she said, and therefore should have been part of any settlement negotiations. “They should have been told that this was happening,” she said. (Banker said the NWLC has reason to believe that the Trump administration has engaged in other, similar backroom settlements.)

Dani Green chose Notre Dame for her doctoral studies because of its academics, just like fellow Irish 4 Reproductive Health members Rivaldi and Bermingham — and with the expectation that her rights would be protected. The ongoing tumult over the school’s health insurance plans has been frustrating, confusing, and distracting, she said.

Green was raised Catholic, though she doesn’t identify that way, and she understands that the concept of conscience is an important one. “I want to advocate for the rights of all humans to make conscious, moral choices about their bodies, which includes deciding what medical services and what health care they would like to access,” she said. “Providing the best possible options for the welfare and well-being of the Notre Dame community should be in keeping, in my eyes, with Catholic teachings.”

Top photo: The main administration building and golden dome are seen on the campus of the University of Notre Dame in South Bend, Ind., on Sept. 29, 2018.

The post Notre Dame Struck a Secret Deal With the Trump Administration to Deny Birth Control Coverage. Now Students Are Fighting Back. appeared first on The Intercept.

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