Tuesday, June 19, 2012

The HHS Lawsuit, Abridged

On May 21, 2012, the University of Notre Dame announced its lawsuit against the HHS Healthcare Mandate. For the full text of this lawsuit, as well as Fr. Jenkins' message regarding it, visit http://newsinfo.nd.edu/news/30962-notre-dame-files-religious-liberty-lawsuit-related-to-hhs-mandate/
Below is an abridged version of the lawsuit:

University of Notre Dame (Plaintiff)
Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services; Hilda Solis, in her official capacity as Secretary of the U.S. Department of Treasury; U.S. Department of Health and Human Services; U.S. Department of Labor; and U.S. Department of Treasury (Defendants).

Complaint and Demand for Jury Trial
1. This lawsuit is about one of America’s most cherished freedoms: the freedom to practice one’s religion without interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception… The right to such services does not authorize the Government to force the University of Notre Dame to violate its own conscience by making it provide, pay for, and/or facilitate those services to others, contrary to its sincerely held religious beliefs. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act protects religious entities from such overbearing and oppressive governmental action. Notre Dame therefore seeks relief in this court to protect this most fundamental of American rights.
4. Under current federal law… Notre Dame must provide, or facilitate the provision of, abortion-inducing drugs, sterilization, and contraceptive services to its employees in violation of the centuries’ old teachings of the Catholic Church… Group health plans are eligible for the [religious] exemption only if they are “established or maintained by religious employers,” and only if the “religious employer” can convince the Government that it satisfies four criteria:
·      “The inculcation of religious values is the purpose of the organization”;
·      “The organization primarily employs persons who share the religious tenets of the organization”;
·      “The organization primarily serves persons who share the religious tenets of the organization”; and
·      “The organization is a nonprofit organization as described in… the Internal Revenue Code of 1986, as amended.”
Thus, in order to safeguard their religious freedoms, religious employers must plead with the government for a determination that they are sufficiently “religious.”
5. Notre Dame’s health benefits plans may not qualify for this religious exemption…
6. The U.S. Government Mandate, including the narrow exemption for certain “religious employers,” is irreconcilable with the First Amendment, the Religious Freedom Restoration Act, and other laws. The Government has not shown any compelling need to force Notre Dame to provide, pay for, and/or facilitate access to these objectionable services, or for requiring Notre Dame to submit to an intrusive governmental examination of its religious missions… The Government, therefore, cannot justify its decision to force Notre Dame to provide, pay for, and/or facilitate access to these services in violation of its sincerely held religious beliefs.
7. If the Government can force religious institutions to violate their beliefs in such a manner, there is no apparent limit to the Government’s power. Such an oppression of religious freedom violates Notre Dame’s clearly established constitutional and statutory rights.
8. The First Amendment also prohibits the Government from becoming excessively entangled in religious affairs and from interfering with a religious institution’s internal decisions concerning the organization’s religious structure, ministers, or doctrine. The U.S. Government Mandate tramples all of these rights.
I. Preliminary Matters
16. This is an action for declaratory and injunctive relief…
A. Background on Notre Dame
19. Notre Dame is an academic community of higher learning, organized as an independent, national Catholic research university located in Notre Dame, Indiana…
22. Notre Dame currently serves more than 11,500 undergraduate and graduate students annually and is consistently rated one of the best universities in the country.
23. While committed to remaining a distinctively Catholic institution, Notre Dame opens its doors and its service programs to students, academics, prospective employees, and people in need, from all faiths and creeds.
25. In total, Notre Dame employs over 5,000 full- and part-time employees and is the largest employer in St. Joseph County.
28. Notre Dame is also home to The University of Notre Dame Press, the largest Catholic university press in the world…
31. Notre Dame serves others directly through the education of its students and its charitable acts.
B. Notre Dame’s Health Insurance Plans
43. Notre Dame operates self-insured employee health plans… Notre Dame functions as the insurance company underwriting its employees’ medical expenses, with all funding coming from Notre Dame…
44. Approximately 5,200 employees at Notre Dame are eligible for coverage under Notre Dame’s self-insured health plans. Approximately 4,600 employees are covered, and approximately 11,000 individuals are covered, including dependents.
52. Approximately 11,902 students at Notre Dame are eligible for coverage under Notre Dame’s student health plan. Approximately 2,582 students are covered, and approximately 2,715 individuals are covered, including dependents.
53. Notre Dame has ensured that its student [and employee] health plan does not include coverage for abortifacients, sterilization, contraception, or related education and counseling.

II. Statutory and Regulatory Background
A. Statutory Background
56. On March 23, 2010, Congress enacted the Patient Protection and Affordable Care Act…
58. The Act requires an employer’s group health plan to cover certain women’s “preventative care,” leaving the definition of that term up to an agency within HHS…
62. Violations of the Affordable Care Act can subject an employer and an insurer to substantial monetary penalties.
67. The Affordable Care Act limits the Government’s regulatory authority… The ability “[to] determine whether or not the plan provides coverage of” abortifacients is expressly reserved for “the issuer of a qualified health plan,” not the Government.
69. The intent to exclude abortions was instrumental in the Affordable Care Act’s passage, as cemented by an Executive Order without which the Act would not have passed. Indeed, the Acts legislative history could not show a clearer congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services…
70. The Act was, therefore, passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion.
71. The executive order was consistent with a 2009 speech that President Obama gave at Notre Dame, in which he indicated that his Administration would honor the conscience of those who disagree with abortion, and draft sensible conscience clauses.

B. Regulatory Background – Defining “Preventative Care” and the Narrow Exemption
72. Less than two years later, Defendants promulgated the U.S. Government Mandate, subverting the Act’s clear purpose to protect the rights of conscience… They issued interim rules… that required federal funding of abortifacients, sterilization services, contraceptives and related counseling services and commandeered religious organization to facilitate those services as well.
76. The interim final rules did not resolve what services constitute “preventative care;” instead, they merely track the Affordable Care Act’s statutory language…
79. …Several groups engaged in a lobbying effort to persuade Defendants to include various contraceptives and abortion-inducing drugs in the “preventative care” requirements for group health plans.
80. Other commenters noted that “preventative care” could not reasonably be interpreted to include such practices. These groups explained that pregnancy was not a disease that needed to be “prevented,” and that a contrary view would intrude on the sincerely held beliefs of many religiously affiliated organizations by requiring them to pay for services that violate their religious beliefs.
82. On August 1, 2011, the HHS issued the “preventative care” services that group plans, including student health plans, would be required to cover…
86. In stark contrast with the agreement essential to passage of the Affordable Care Act and President Obama’s promise to protect religious liberty, the HHS’s new guidelines required insurers and group health plans to cover “[all] Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”
87. FDA-approved contraceptives that qualify under these guidelines include drugs that induce abortions.
88. A few days later, on August 3, 2011, Defendants issued amendments to the interim final rules that they had previously enacted in July 2010.
90. When announcing the amended regulations, Defendants ignored the view that “preventative care” should exclude abortion-inducing drugs, sterilization, or contraceptives that do not prevent disease.
92. …The regulatory “religious employer” exemption ignored definitions of religious employers already existing in federal law, and, instead, is available only to those employers whose purpose is to inculcate religious values, and who employ and serve primarily individuals with the same religious tenets…
93. The regulation delegates to the Government the job of issuing exemptions, on an ad hoc basis, based on a determination of whether an organization is sufficiently “religious” to qualify for the exemption.
94. The religious employer exemption mandates an unconstitutionally invasive inquiry into an organization’s religious purpose, beliefs, and practices.
95. Similarly, the religious employer exemption further mandates and impermissibly invasive inquiry into the private beliefs of the individuals that an organization employs and serves.
96. The religious employer exemption also uses impermissibly vague, undefined terms that extend the government’s broad discretion and fail to provide organizations with notice of their duties and obligations…
97. The religious employer exemption does not appear to apply to educational organizations.
98. Defendants ignored all other religiously-affiliated employers and insurance issuers, excluding from the narrow exemption all religious organizations that view their mission as providing charitable, educational, and employment opportunities to all those who request it, regardless of the requestors’ religious faith.
103. Notre Dame’s President, Rev. John Jenkins, also noted that religious organizations such as Notre Dame should not be required “to participate in, pay for, or provide coverage for certain services that are contrary to our religious beliefs or moral convictions.”
104. On October 10, 2011, within two weeks after Rev. Jenkins respectfully requested an exemption from the U.S. Government Mandate for Notre Dame, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. She told the pro-choice audience that “we are in a war,” apparently with opponents of either federal funding of abortion-related services or federal mandates requiring coverage for abortion-related services in health care plans.
105. Three months later, allegedly “[a]fter evaluating [the new] comments” to the interim final rules, the Defendants gave their response…
106. The press release announced a one-year “safe harbor” from enforcement. With little analysis or reasoning, HHS opted to keep the exemption unchanged, but indicated that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.” The safe harbor also applies to student health plans.
107. Taken together, these various rules and press releases amount to a U.S. Government Mandate that requires most religiously affiliated organizations to pay, sponsor and facilitate abortifacients, sterilization services, contraceptives and related counseling services through their health plans. As noted by Cardinal Timothy Dolan, the “safe harbor” effectively gave objecting religious institutions “a year to figure out how to violate [their] consciences.”

C. The White House Has Refused to Expand the Exemption.
108. On February 10, 2012, given the continued public outry to the U.S. Government Mandate and its exceedingly narrow conscience protections, the White House held a press conference and issued another press release about the U.S. Government Mandate, announcing that it had come up with a “solution” to the religious objections based on First Amendment protections for religious freedom.
109. According to the White House, the Defendants planned to issue regulations at some unspecified date prior to August 1, 2013 to exempt religious organizations that have religious objections…
110. When such religious organizations provide health plans, the “insurance company will be required to directly offer… contraceptive care free of charge.”
111. HHS has since indicated that a similar arrangement will apply for student health plans that colleges and universities provide to students through a health insurance issuer.
112. Notre Dame informed the White House that such a proposal would not help Notre Dame, which is self-insured, and would not protect its religious liberties.
113. Despite continued objections that this “accommodation” did nothing of substance to protect the right of conscience, when asked if there would be further room for compromise, White House Chief of Staff Jacob Lew responded, “No. This is our plan.”
116. The U.S. Government Mandate is therefore the current, operative law.
117. On March 16, 2012, the Government announced an Advance Notice of Proposed Rulemaking (“ANPRM”), seeking comment on various ways to structure the proposed accommodation.
119. The ANPRM’s recurring theme is that the Government has not found a solution to the problems it created when it promulgated its U.S. Government Mandate.
120. In fact, the ANPRM contains little more than a recitation of proposals, hypotheticals, and “possible approaches.” It offers almost no analysis of the relative merits of the various proposals. It is, in essence, an exercise in public brainstorming.
121. This “regulate first, think later” approach is not an acceptable method of rulemaking when the Government is regulating in a way that may require monumental changes of the regulated entities.
122. The ANPRM does not alter existing law. It merely states that it may do so at some point in the future. But a promise to change the law, whether issued by the White House, or in the form of an ANPRM, does not, in fact, change the law.
126. The U.S. Government Mandate is already causing serious, ongoing hardship to Notre Dame that merits judicial relief now.
127. Moreover, the uncertainty surrounding the implementation of the U.S. Government Mandate has increased the harm Notre Dame is incurring. With the regulatory landscape so unsettled, it is impossible for Notre Dame to develop its future health plans.
134. By the time any new rule is finalized, if ever, it will be too late for Notre Dame to bring its health plans into compliance with the law.
135. In addition, if Notre Dame does not comply with the U.S. Government Mandate, Notre Dame may be subject to huge annual government fines and penalties. Notre Dame’s fiscal year starts in July and budgeting for major expenses starts approximately one year in advance. Notre Dame thus needs to understand the potential cost of the U.S. Government Mandate by the Fall of 2012.
136. The U.S. Government Mandate thus imposes a present and ongoing hardship on Notre Dame.

The Mandate, the Proposed Accommodation, and the Religious Employer Exemption Violate Notre Dame’s Religious Beliefs
A. The U.S. Government Mandate Violates Notre Dame’s Religious Beliefs
137. Faith is at the heart of Notre Dame’s educational mission. In accordance with the apostolic constitution Ex Corde Ecclesiae, which governs and defines the role of Catholic colleges and universities, Notre Dame embraces the richness of the Catholic intellectual tradition, “consecrat[ing] itself without reserve to the cause of truth.” It aims to provide a forum where, through free inquiry and open discussion, the various lines of Catholic thought may intersect with the arts, sciences, and every other area of human scholarship.
139. The Catholic Church’s well-established religious beliefs are articulated in the Catechism of the Catholic Church…
140. One outgrowth of belief in human life and dignity is the Church’s well-established belief that ‘[h]uman life must be respected and protected absolutely from the moment of conception.” As a result, the Church believes that abortion is prohibited and that it cannot facilitate the provision of abortifacients.
141. Catholic teachings prohibit any action which “render[s] procreation impossible” and, more specifically, regard direct sterilization as “unacceptable.”
142. Notre Dame’s employee and student health plans are consistent with the Church’s teachings on abortifacients and sterilization.
143. Catholic teachings also prohibit the use of contraceptives to impede conception. Consequently, artificial contraception and sterilization cannot be used for the purpose of impeding procreation.
145. Consistent with Church teachings, Notre Dame’s employee and student health plans cover drugs commonly used as contraceptives only when prescribed with the intent of treating another medical condition, not with the intent to prevent pregnancy.
146. Notre Dame cannot, without violating its sincerely held religious beliefs, subsidize, facilitate, and/or sponsor coverage for abortifacients, sterilization services, contraceptives and related counseling services, which are inconsistent with the teachings of the Catholic Church.
147. The U.S. Government Mandate irreconcilably conflicts with Notre Dame’s well-established, sincerely held beliefs that strictly forbid the subsidy, facilitation, and/or sponsorship of abortifacients, sterilization, and contraception that the U.S. Government Mandate forces upon it.
151. As Notre Dame’s employee health plans are self-insured, Notre Dame would be paying directly for contraception and sterilization in direct conflict with its religious beliefs.
152. Refusal or failure to provide these drugs and services to employees can expose Notre Dame to substantial fines.
153. This unprecedented, direct assault on the religious beliefs of Notre Dame and all Catholics is irreconcilable with American law.
155. Requiring Notre Dame to provide, subsidize, and/or facilitate devices, drugs, procedures, or services that violate its beliefs constitutes a substantial burden on Notre Dame’s free exercise of religion.
156. The Government has no compelling interest in forcing Notre Dame to violate its sincerely held religious beliefs by requiring it to provide, pay for, or facilitate access to abortion-inducing drugs, sterilizations, and contraceptives. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Notre Dame does inhibits any individual from exercising that right.

B. The U.S. Government Mandate’s Religious Employer Exemption Aggravates the Constitutional and Statutory Violations.
161. The religious employer exemption substantially burdens Notre Dame’s religious exercise. The exemption forces Notre Dame to choose between its religious beliefs… its mission (educating, servicing, and employing individuals of all faith traditions to enrich and enlighten), and obeying the law.
162. The U.S. Government Mandate also seeks to compel Notre Dame to fund “patient education and counseling for all women with reproductive capacity.” It therefore compels Notre Dame to pay for, provide, and/or facilitate speech that is contrary to its firmly held religious beliefs.
170. The Government also has not provided any process by which Notre Dame can determine whether it fits within the exemption.
171. It is unclear whether Notre Dame qualifies for this exemption.
176. Although the President of Notre Dame encourages all faculty and staff to “remain committed to [Notre Dame’s] core values,” which include “support[ing] the Catholic mission of the University,” it is unclear how the Government will view their religious tenets.
177. Any attempt by Notre Dame to qualify for the narrow religious employer exemption by restricting its charitable and educational mission to Catholics would have devastating effects on the communities Notre Dame serves.
178. The limited and ill-defined religious exemption provided in the U.S. Government Mandate conflicts with the Constitution and the RFRA.

C. The U.S. Government Mandate’s Religious Employer Exemption Excessively Entangles the Government in Religion, Interferes with Religious Institutions’ Religious Doctrine, and Discriminates Against and Among Religions.
180. In order to determine whether Notre Dame—or any other religious organization—qualified for the exemption, the Government would have to decide Notre Dame’s “religious tenets” and determine whether “the purpose” of the organization is to “inculcate” people into those tenets.
181. The Government would then have to conduct an inquiry into the practices and beliefs of the individuals that Notre Dame ultimately employs and educates.
183. Regardless of outcome, this inquiry is unconstitutional, and Notre Dame strongly objects to such an intrusive governmental investigation into its religious mission.
186. By limiting that legitimate purpose to inculcation, at the expense of other sincerely held religious purposes, the U.S. Government Mandate interferes with religious autonomy. Notre Dame has the right to determine its own religious purpose, including religious purposes broader than inculcation, without Government interference and without losing its religious liberties.
189. The U.S. Government Mandate and its extremely narrow religious employer exemption discriminate against Catholic religious institutions.
191. The U.S. Government Mandate targets Notre Dame precisely because of its religious opposition to abortifacients, sterilization and contraception.
192. The religious employer exemption targets Notre Dame precisely because of its commitment to educate, serve, and employ people of all faiths.
196. As a result of such discrimination, the U.S. Government Mandate is subject to the strictest scrutiny, under the Constitution, as well as RFRA.

D. The U.S. Government Mandate is Not a Neutral Law of General Applicability.
197. …It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling… Moreover, the legislative history indicates that the U.S. Government Mandate was implemented at the behest of individuals and organizations who disagree with certain religious beliefs regarding abortifacients and contraception, and thus targets religious organizations for disfavored treatment.
198. The Government has also crafted a religious exemption to the U.S. Government Mandate that favors certain religions over others...
199. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose Catholic teachings and beliefs regarding marriage and family. For example… Defendant Sebelius has long been a staunch supporter of abortion rights and a vocal critic of Catholic teachings and beliefs regarding abortifacients and contraception…
200. Consequently, on information and belief, Notre Dame alleges that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose contraception and abortifacients.
201. An actual, justiciable controversy exists between Notre Dame and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate and Exemption, Notre Dame is uncertain as to its rights and duties in planning, negotiating, and/or implementing its group health plans, and it is threatened with the impossible choice between paying for prescriptions and procedures in violation of the Catholic Church’s moral teaching, or discontinuing its health plans in violation of the Catholic Church’s social teaching.
IV. Causes of Action
Count I: Substantial Burden on Religious Exercise in Violation of RFRA
Count II: Substantial Burden on Religious Exercise in Violation of the Free Exercise Clause of the First Amendment
Count III: Excessive Entanglement in Violation of the Free Exercise and Establishment Clauses of the First Amendment
Count IV: Religious Discrimination in Violation of the Free Exercise and Establishment Clauses of the First Amendment
Count V: Excessive Interference in Matters of Internal Governance in Violation of the Free Exercise and Establishment Clauses of the First Amendment
Count VI: Compelled Speech in Violation of the Free Speech Clause of the First Amendment
Count VII: Failure to Conduct Notice-And-Comment Rulemaking and Improper Delegation in Violation of APA
Count VIII: Arbitrary and Capricious Action in Violation of the APA
Count IX: Acting Illegally in Violation of the APA
V. Prayer for Relief
Wherefore, Notre Dame respectfully pray that this Court:
1.     Enter a declaratory judgment that the U.S. Government Mandate violates Notre Dame’s rights under RFFA;
2.     Enter a declaratory judgment that the U.S. Government Mandate violates Notre Dame’s rights under the First Amendment
3.     Enter a declaratory judgment that the U.S. Government Mandate was promulgated in violation of the APA;
4.     Enter an injunction prohibiting the Defendants from enforcing the U.S. Government Mandate against Notre Dame;
5.     Enter an order vacating the U.S. Government Mandate;
6.     Award Notre Dame attorneys’ and expert fees under 42 U.S.C. § 1988; and
7.     For all other relief as the Court may deem just and proper.
VI. Jury Demand
1. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Notre Dame hereby demands a trail by jury of all issues so triable.

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