Bench Memos

Notre Dame’s Mandate

Earlier today a panel of the Seventh Circuit (composed of Judges Posner, Flaum, and Hamilton) denied Notre Dame’s emergency motion for a stay pending its appeal of District Judge Simon’s ruling, of December 20. Judge Simon ruled that Notre Dame was not likely to succeed on the merits of its case against the HHS abortion/contraception mandate. He therefore denied the University’s motion for a preliminary injunction. The Seventh Circuit panel set up an expedited briefing and argument schedule, so that a full consideration of Notre Dame’s appeal is likely due before the end of February.

In the meantime: Starting tomorrow, with the beginning of Notre Dame’s self-insured health-care plan year, the University’s Third-Party Administrator will begin offering all eligible female employees and dependents free “contraceptives,” including such potentially abortifacient drugs as IUDs, Plan B and ella. That is, unless the University refuses to “certify” its religious conscientious objection to the HHS mandate, a move that Notre Dame (along with many other Catholic institutions) has said is morally impossible in light of its Catholic beliefs. If Notre Dame so refuses, then the mandate’s obligation to pay for very-early abortions remains with the University itself (because, as far as I can tell, the TPA has no legal authority to undertake the task without Notre Dame’s “certification”). But Notre Dame cannot in conscience do that, for doing so would involve paying for contraception and abortion, and thus would entail greater moral complicity in those evils than if the University shifted that burden to Meritain (its TPA). In that case, the Obama administration will face the prospect of forcing Notre Dame to pay onerous fines for remaining true to its Catholic faith.


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