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Judge dismisses lawsuit against HHS

Megan Doyle | Wednesday, January 16, 2013

A federal judge has dismissed the University’s religious liberty lawsuit challenging the constitutionality of a mandate that requires employers to provide contraceptive services in their minimum health insurance packages.

The lawsuit, filed last May, states the mandate would go against Church teachings and therefore violates the First Amendment, the Religious Freedom Act and other federal laws. The mandate is part of the Patient Protection and Affordable Care Act, passed in 2010.

U.S. District Court Judge Robert Miller Jr. ruled Jan. 2 that the lawsuit should be dismissed because the University’s claim is not yet “ripe,” meaning it is not ready to be litigated.

Notre Dame argued the University needs to set aside significant funds for the costs it would incur in connection with the regulations, and those budget decisions need to be made now.

But in a compromise announced last year, the federal government had granted Notre Dame and other religious employers a year-long “safe harbor” before any regulations would take effect. In Miller’s written opinion on the case, he stated the defendants have announced they are working to refashion the mandate and its exemptions, and he dismissed the case because Notre Dame remains under the safe harbor for the time they believe is needed for those changes to be made. Court documents list the defendants as Health and Human Services Secretary Kathleen Sebelius, Labor Secretary Hilda Solis, Treasury Secretary Timothy Geithner and their respective departments.

“Notre Dame lacks standing to attack the present regulatory requirement because it isn’t subject to that requirement, and, taking the defendants at their word, never will be subject to the present regulation,” Miller wrote.

University Spokesman Dennis Brown said the administration is still examining the judge’s ruling.

“We are reviewing the opinion and considering our options, but it is important to note that this is not a ruling on the merits of our claim that the challenged mandate infringes on religious liberty,” Brown said.

Law professor Rick Garnett, an expert on religious liberty cases, explained that the judge’s reasoning was based on the fact that the mandate has not yet begun to directly affect Notre Dame’s operations.

“Simply put, the district court concluded that because the mandate has not yet actually been applied to Notre Dame – and because the mandate might be changed or revised before it is applied to Notre Dame – the legal challenges to the rule are premature,” he said in an email interview. “If Notre Dame is not yet being harmed by the mandate, the reasoning goes, it is not yet time for Notre Dame to challenge its legality.”

Garnett said he respectfully disagreed with the judge’s ruling, citing the decision of another judge presented with a similar suit.

In my view, and with all due respect, the judge considering another challenge to the HHS mandate – this one brought by the Archdiocese of New York – got it right, noting that, ‘There is no “Trust us, changes are coming” clause in the Constitution,'” Garnett said. “The mandate, in its current form, is the law and Notre Dame is facing substantial financial costs associated with preparing to comply with that law, if and when the mandate goes into effect.”

While protecting everyone’s right in such a diverse society is challenging, Garnett reiterated the Constitution commits the government to passing laws placing a burden on religious freedom only when necessary.

“In this case, the burden is not necessary and my hope is that this case will both vindicate the religious freedom rights of the various challengers, but also inspire current and future officials to be more mindful of our foundational commitment to religious freedom that the Administration [and the Department of Health and Human Services] was here,” he said.

In an interview with The Observer last fall, University President Fr. John Jenkins explained he felt Notre Dame’s case would eventually be successful as it moves through the legal system.

“I saw a few headlines after we filed, ‘Catholic bishops, Notre Dame and 62 other institutions file lawsuit,'” Jenkins said. “That Notre Dame is picked out, and I don’t say this with arrogance, but it just shows I think people look to us for leadership on these issues. If I didn’t feel it was a fundamental issue, an issue of the limits of government as against religious organizations, I wouldn’t have done this.”

As an outside observer, Garnett said he expected the ruling to be reviewed and reversed, but the University’s lawyers and administrators are responsible for deciding their next step. The ruling does not preclude another lawsuit after the issue has become ripe.

Contact Megan Doyle at mdoyle11@nd.edu