Notre Dame Answers Motion to Dismiss Suit Against HHS Mandate: University Faces Immediate Harm

University of Notre Dame is contesting a Justice Department motion to dismiss its lawsuit on technical grounds, contending that the university is facing immediate harm from the HHS mandate.

The Obama administration has had some success with getting lawsuits against the HHS mandate tossed on technical grounds, arguing that they are still working to accommodate religious objections and that because the mandate hasn’t affected religious institutions as of yet, the lawsuits are not ripe. That argument has worked against the lawsuits brought by Belmont Abbey College and Wheaton College.
So it was no surprise earlier this month when the Obama administration filed a motion to have the lawsuit by the University of Notre Dame dismissed on those same technical grounds. But the university is reportedly pushing back.

In a memorandum filed in Indiana federal court Aug. 28, the University of Notre Dame opposed the U.S. government’s motion to dismiss its suit and argued that the contraception mandate forces the university to violate its faith by forcing it to provide coverage for contraceptives, abortifacients, and sterilization procedures or by hiring only employees of its own religion.

Notre Dame is arguing that because of the mandate, which is scheduled to go into effect in August of next year, it’s presently facing roughly $50,000 in costs to budget consultants as well as providing for an additional $1 million set aside for potential penalties, according to Law360.com.

“Notre Dame is suffering imminent injuries to its rights from the U.S. government mandate, and, indeed, the very existence of that threat has posed collateral injuries now,” the university argued in its brief, according to Law360.com. “The U.S. government mandate and its narrow religious-employer definition require Notre Dame to face ‘a Hobson’s choice.’ On the one hand, Notre Dame would have to violate its religious beliefs were it to abide by the Mandate or its exemption. On the other, failure to adhere to those options could subject Notre Dame to various penalties.”

Notre Dame also reportedly argued that the mandate exposes it to the potential of expensive lawsuits for not complying with the mandate next year.

The Administration reportedly claimed that the suit should be tossed because it is working on amendments to the rule to accommodate religious objections.

Notre Dame argues in its brief that no matter what the Administration intends to change or doesn’t intend to change, the law as its currently written is having an effect right now and “is imposing both imminent and current harms.”

Notre Dame Law professor Richard Garnett told Notre Dame’s student newspaper he believes Notre Dame’s case is strong.

“…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.