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Petition opposes suit against HHS mandate

Sam Stryker | Friday, August 24, 2012

Several months after the University filed a lawsuit challenging the constitutionality of the Department of Health and Human Services’ (HHS) mandate requiring religious organizations to provide contraceptive services as part of their minimum health insurance packages, the government is moving to have the case dismissed – and some Notre Dame students, staff and faculty are voicing a similar opinion.

Over summer break, students began circulating a petition opposing the University’s religious liberty lawsuit. The letter originated as a personal letter written by graduate student Kathryn Pogin.

More than 170 students, faculty and staff have signed the letter as of Aug. 23. Pogin said the letter was recently submitted to Faculty Senate to garner additional signatures. Jenkins responded July 27 with his own letter, according to Brown.

The petition states though the University may believe it “will advance its Catholic mission” with the lawsuit, the signees believe “the philosophical and legal arguments strongly favor compliance with the law.”

“Further, we believe Notre Dame would better serve its Catholic mission by focusing on improving campus services for families rather than embroiling itself in a legal challenge,” the letter states.

In an Aug. 2 interview with The Observer, Pogin said the petition focuses on two additional issues with the lawsuit. In the case, the University argues the federal mandate is irreconcilable with the First Amendment, the Religious Freedom Restoration Act and other laws protecting religious freedom.

“First of all, it’s not clear to us that the University couldn’t comply with the mandate without remaining within Catholic practice,” she said. “In addition, even if there is a genuine conflict with freedom of religion, which we’re not convinced there is, at least with respect to contraceptives, we think the legal argument favors compliance with the mandate.”

The mandate is part of the Patient Protection and Affordable Care Act, President Barack Obama’s healthcare reform legislation, passed in 2010.

The lawsuit, filed by the University in the U.S. District Court for the Northern District of Indiana on May 21, names HHS Secretary Kathleen Sebelius, Labor Secretary Hilda Solid, Treasury Secretary Timothy Geithner and their respective departments as defendants, according to court documents.

In an email to The Observer, University spokesman Dennis Brown said the case has been assigned. With the government moving to have the case dismissed, he said Notre Dame would respond in early September.

“All of this is standard procedure,” he said.

Notre Dame Law School professor Rick Garnett said his impression is the University is ultimately looking to “vindicate” its religious freedom rights in filing the lawsuit.

Garnett said it is “noteworthy” Notre Dame challenged the mandate because the University does not oppose the overarching goals of the Affordable Care Act.

“It would be highly implausible for anyone to suggest that the University is a ‘partisan’ actor, or is seeking to embarrass the President or the Obama administration,” he said.

“That the University of Notre Dame, which has worked to maintain respectful dialogue with the President and the administration, was put in the position of having to bring a lawsuit in order to protect its religious-freedom rights almost certainly captured many citizens’ attention,” he said.

Garnett said the University’s complaint presents nine different causes of action, some challenging the mandate on technical grounds, while others focus on “defects” in the process of forming the mandate. Others highlight inconsistencies with the First Amendment of the U.S. Constitution.

“And, in Count 1, the University contends that the mandate violates the federal Religious Freedom Restoration Act (RFRA), which provides – in layperson’s terms – that the federal government has to show that burdens it imposes on religious exercise are necessary in order to accomplish a ‘compelling governmental interest,’” he said.

“Put differently, the Act provides that the government should, to the extent possible, find ways to accommodate religious believers, even when it is legislating to achieve important goals.”

Garnett said he believes Notre Dame’s case is strong. Focusing on the RFRA portion of the case, he said the mandate saddles the University with a responsibility that contradicts its “religiously-motivated aspiration” to be a preeminent Catholic research university.

“And, the burden is unnecessary, because it would be possible for the government to achieve its goal of expanding insurance coverage for ‘preventive services’ while accommodating religious institutions like the University,” he said.

There is no specific timeline for the case, Garnett said, and similar cases are pending across the country in different stages.

“In theory, the case could go all the way to the Supreme Court,” he said. “It could also, however, end much earlier in the process, depending on whether or not the administration revises the rule, or on the outcome of the November election.

Garnett said it is standard procedure for the University to have named Sebelius, Solid and Geithner as defendants in the lawsuit because it is naming them in their official capacities, not as private citizens.

News Editor Kristen Durbin contributed to this report.