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)
v.
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.
Background
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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