Three students who say the University of Notre Dame should include contraception in its health care coverage are seeking to intervene in their school’s lawsuit challenging the federal government’s birth-control mandate.
The three unidentified women said in their motion Wednesday that they are entitled to participate in the lawsuit because they will be directly affected by its outcome.
Notre Dame’s suit against the Department of Health and Human Services challenges the Affordable Care Act’s mandate that religious employers contracting with third-party providers must offer contraception as part of their health care coverage.
Notre Dame argues that the government does not have the right to impose any rules on the university that violate its Catholic principles and instead should extend the same blanket exemption applied to houses of worship.
In December, a judge ruled against Notre Dame’s lawsuit, and the university appealed to the 7th Circuit Court of Appeals in Chicago. The women filed their motion for intervention anonymously in the appellate court Wednesday.
“These women are the people principally affected by the outcome of the case, so their voice ought to be fully heard,” said Ayesha N. Khan, legal director for the Americans United for the Separation of Church and State.
“They contacted us because they were very concerned about this and very much in need of contraception and hopeful that they would finally be able to obtain access to it,” Khan said. “They were very disheartened by the position that Notre Dame has taken.”
University spokesman Paul Browne reserved comment on the new motion, referring to a past statement that its lawsuit “is about the freedom of a religious organization to live its mission.”
To date there are 91 lawsuits challenging the constitutionality of the mandate. The three Notre Dame students are the first individuals seeking to voice objections in court over their institution’s challenge of the contraception mandate, according to interest groups involved in the cases.
Arguing for anonymity, Khan said the litigation potentially could force the women to publicize personal information about their sexual activity. She also said there was the likelihood of retaliation from the community, referring to the protests about President Barack Obama appearing on campus in 2009 to receive an honorary doctorate and deliver a commencement speech.
“It takes a lot of courage to do this,” Khan said. “Students are obviously at the mercy of … the university they attend. Employees are likewise dependent on their employers for their very livelihood. Neither students or employees are going to take lightly the prospect of prejudicing their status at the institution.”
Judith Fox, a clinical professor of law at Notre Dame, supports the women’s decision to maintain anonymity. She said the students approached several faculty members to join them in the motion to intervene, but none was willing for fear of retaliation or because they were beyond their child-bearing years.
“Having lived through the situation around here over the whole Obama [visit] people got really, really ugly,” said Fox, saying that she feared retaliation not from the university but from the community at large.
The University of Notre Dame is self-insured, and uses Meritain as a third-party administrator for employee coverage. Student coverage is provided through Aetna, said university spokesman Browne.
Only 3 percent of the undergraduates enroll for campus health insurance. Most of the insurance enrollment among students is at the graduate level with 2,120 graduate students -- 622 international and 1498 domestic – enrolled in university health insurance.