Notre Dame University announced yesterday that it ply with the HHS mandate requiring employers to include contraception, abortifacients and abortion coverage in health care packages for employees. The university made the announcement after a federal judge last week denied the university’s request for exemption of the Obama administration’s law. An emergency stay was also denied by the Seventh District Court of Appeals. Failure ply with the law means the university would now have to pay fines of $100 per day for each employee.

The university decided ply with the modation” offered by the Obama administration:

Having been denied a stay, Notre Dame is advising employees that pursuant to the Affordable Care Act, our third party administrator is required to notify plan participants of coverage provided under its contraceptives payment program,” said Paul Browne, Notre Dame’s vice president for public affairs munications, according to WNDU. “As part of an ongoing legal action, however, the program may be terminated once the university’s lawsuit on religious liberty grounds against the HHS mandate has worked its way through the courts.”

Georgetown law professor Marty Lederman offers some insight into Notre Dame’s decision, and what he believes is flawed reasoning on the university’s part. He says that Notre Dame (like most plaintiffs suing the government regarding the HHS mandate) wrongly assumes that the government is forcing or requiring employers to offer this type of coverage. Lederman says this is mistaken: employers have the option of offering no insurance at all.

However, Lederman says that an employer need not even go that far, as the government’s modation” is meant to allow employers a way to opt out of this predicament.

Notre Dame’s principal argument is that by filing a certification asserting that it opposes contraceptive coverage, as the HHS Rule requires, it would thereby “authorize” third parties–Aetna and Meritain Health, Inc.–to provide such coverage, and thereby e morally responsible for the use of the contraceptives subsidized by thoseother parties.

This argument, however, is premised on a simple mistake of fact and law (not religious doctrine): The self-certification Notre Dame would sign–substantively identical to the assertions of objection that it makes in its very RFRA [Religious Freedom Restoration plaint–merely notifies the relevant third parties that Notre Dame is eligible for and exercising the available religious modation because it objects to providing contraceptive coverage. By certifying, Notre Dame would not “authorize” anything: Federal law does that work. As the district court explained, “[i]f Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception.” [emphasis added]

Of course, Notre Dame is correct that its certification of religious objection would have a legal effect: As with any religious modation of this kind, the whole point of the modation is that the opting out by the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do. But if that is enough to establish a substantial burden on Notre Dame’s religious exercise, then it would effectively mean that governmental religious modations taking the form of “opt outs” for dissenters would themselves often create the very conflict with religion that they are designed to alleviate–and would thus threaten to prevent the state from both modating religion and satisfying its state interests through an alternative means, such as the use of a non-objecting party.

Lederman’s lengthy discussion goes on to address the legal situation of the Little Sisters of the Poor as well, and is certainly well worth the read.

Read “Not Quite Hobby Lobby: The Nonprofit Cases, and Opting Out as Complicity” at Balkinization.