News Law and Policy

University of Notre Dame Students Intervene in Contraception Fight

Jessica Mason Pieklo

At least three students are challenging the university's position that making contraception coverage available to students and staff violates the school's religious liberty.

On Tuesday night, the Seventh Circuit Court of Appeals ruled that Americans United for Separation of Church and State may intervene on behalf of students and staff from the University of Notre Dame in a federal lawsuit challenging the contraception mandate in the Affordable Care Act.

Attorneys for the university filed a lawsuit last month challenging the portion of the health-care reform law that permits religiously affiliated nonprofits from providing contraceptive coverage in insurance plans so long as those groups allow third-party insurance providers to make that coverage available independently to employees and students. Like the Little Sisters of the Poor, the University of Notre Dame claims that accommodation, and the requirement to self-certify that it does not wish to cover contraceptives, is a violation of the school’s religious liberty.

“In all of the talk about the so-called religious liberty rights of Notre Dame, something has been overlooked: the women who would be hurt,” said Americans United Executive Director Rev. Barry W. Lynn in a statement following the organization filing a motion to intervene. “The university’s leaders are free to preach against birth control, but they shouldn’t have the right to deny necessary medication to anyone.”

In December, a federal judge ruled against Notre Dame, holding the university must comply with the self-certification requirement. The university has done so, but it also has appealed the judge’s decision to the Seventh Circuit Court of Appeals. On February 12, the Seventh Circuit will hear oral arguments on that appeal.

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According to Americans United, its successful intervention in the case marks the first time affected women have been able to play a formal role in any of the hundreds of lawsuits challenging the birth control benefit. “This is not some abstract legal debate,” said Ayesha Khan, legal director for the church-state watchdog group, in a statement. “The lack of access to birth control—something that the vast majority of Americans use at some point in their lives—is a hardship that affects real people, every day. Americans United looks forward to giving them a voice in court.”

To date, a total of 102 lawsuits have been filed in federal court challenging the contraception mandate. In March, the Supreme Court will hear arguments in the first of the challenges to reach the nation’s highest court, when it considers whether or not secular, for-profit businesses have religious exercise rights.

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