The National Women’s Law Center (NWLC) is suing the Trump administration and the University of Notre Dame for an illegal settlement agreement that deny students access to birth control.
In October 2017, the Trump administration issued two rules that gutted access to birth control, allowing any employer or university to declare themselves exempt from the Affordable Care Act’s (ACA) contraception mandate if they claim to have a religious or moral objection to it. (Attorneys General from various states are suing to protect the policy.)
A week after the announcement, the University of Notre Dame and the Trump administration entered into a private settlement agreement that would allow the university to stop providing birth control based on religious reasons. Notre Dame mentioned in a letter that there was a “favorable settlement agreement” that would allow the university to refuse birth control access and provide $3 million in taxpayer dollars to Notre Dame lawyers defending the policy.
“There’s really no basis for Notre Dame to be telling students that they have to either pay copays and deductibles for their birth control or that they have no coverage for some methods altogether,” Michelle Banker, Senior Counsel at the Law Center, said in a recent livestream for NWLC supporters. “It’s preposterous—and so, we’re suing them.”
NWLC declares in their suit that the settlement violates the First Amendment right to separation of church and state, the fifth amendment right to make the most intimate decisions about one’s own body and the Administrative Procedure Act, which governs the way agencies act.
Under the ACA’s birth control benefit clause, insurance plans were required to cover contraception at no cost to the patient, saving women hundreds of dollars each year. Backdoor settlement agreements like the one forged between Notre Dame and the federal government, however, could force individuals to once again pay copays and deductibles, which could mean the difference between access and going without the care they need. These agreements would disproportionately affect low-income communities, people of color and women in rural areas.
“To us, maybe 20 to 30 [dollars] a month is annoying—but to others, that’s like, ‘do I put gas in my tank this week,’” Vacheria Tutson, the Reproductive Rights and Health Fellow at NWLC, explained to supporters on the stream. “There’s no notice attached to something like a settlement agreement. Women just go to the pharmacy and the pharmacist says: ‘Hey, this is $150.’”
Within the Trump administration’s new rules about birth control access, agencies and entities are allowed to claim a moral objection to providing birth control, which is a murky concept. The administration’s rule doesn’t indicate the definition of a moral objection. There are no guidelines for what that looks like. Therefore, there is not much stopping lawmakers and entities from claiming that they are morally opposed to birth control.
“The rules include what is called a moral exemption so even if you’re not affiliate with a church and Notre Dame identifies as affiliated with the Catholic church,” said Banker. “Notre Dame identifies as affiliated with the Catholic Church, so that’s that affiliation but there are secular, non-religious schools that could say, yeah I have a moral objection.”
While the lawsuit will be settled by the courts, Banker and Tutson highlighted that the public plays an important role in this case. “Tell your boyfriend, tell your brother why birth control is important to you,” said Tutson. “Make it personal for them. When you put a face to an issue, I think people understand it more.”
“The bottom line is that no school and no boss should be deciding what’s best for my body,” said Banker. “It’s also not okay to try to trade away our rights in secret backroom deals between the administration and entities that agree with it.”