Notre Dame University of v. Sebelius et al

Filing 1

COMPLAINT against Jacob J Lew, Thomas Perez, Kathleen Sebelius, US Department of Health and Human Services, US Department of Labor, US Department of the Treasury (Filing fee $ 400.) Receipt #3009121, filed by Notre Dame University of. (Attachments: # 1 Civil Cover Sheet)(jld) (Additional attachment(s) added on 12/3/2013: # 2 Exhibit A) (jld).

3009121

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA -_ -= ~ -:
SOUTH BEND DIVISION

UNIVERSITY OF NOTRE DAME,
Plaintiff,
v.

KATHLEEN SEBELIUS, in her official
capacity as Secretary of the U.S. Department
of Health and Human Services; THOMAS
PEREZ, in his official capacity as Secretary of
the U.S. Department of Labor; JACOB J.
LEW, in his official capacity as Secretary of
the U.S. Department of the Treasury; U.S.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES; U.S. DEPARTMENT OF
LABOR; and U.S. DEPARTMENT OF THE
TREASURY,

Case NO;-!7

'il

~J

0

Defendants.

COMPLAINT
1.

This lawsuit is about one of America's most cherished freedoms: the freedom to

practice one's religion without government interference. It is not about whether people have a
right to abortion-inducing drugs, sterilization, and contraception. Those services are, and will
continue to be, freely available in the United States, and nothing prevents the Govemment itself
from making them more widely available. But the right to such services does not authorize the
Govemment to force the University of Notre Dame ("Notre Dame") to pay for, facilitate access
to, and/or become entangled in the provision of products, services, practices, and speech that are
contrary to its sincerely held religious beliefs. It does not authorize the Govemment to coerce
Notre Dame to participate in a program whose central financial premise-"cost neutrality"
through reductions in the number ofchildbi11hs-is antithetical to Notre Dame's faith. Finally, it

COI-l.+993.+1

does not authorize the Government to require Notre Dame to facilitate and appear to endorse
practices that Catholic doctrine considers morally wrong. See, e.g., Advertisements of Colorado
Consumer Health Initiative, including one depicting female youth next to male youth and stating
"OMG he's hot! Let's hope he's as easy to get as this birth control. My health insurance covers
the pilL which means all I have to worry about is getting him between the covers." (attached as
Exhibit A). Notre Dame's Catholic mission-paI1icularly its mission as an educator of youth in
a Catholic tradition-dictates that it avoid facilitation or affiliation with objectionable products,
services, practices, and mores that are inextricably inte11wined with the law challenged in this
case. Because the U.S. Government Mandate requires Notre Dame pay for, facilitate access to,
and/or become entangled in the provision of products, services, practices, and speech that that
are contrary to its sincerely held religious beliefs, the Mandate would require Notre Dame to
commit scandal, which in Catholic theology is defined as leading by words or example others to
engage in wTongdoing. Put simply, it offends Notre Dame's sincerely held religious beliefs to
play any role in the law from which the Government refuses to exempt Notre Dame.
2.

Through this lawsuit, Notre Dame does not seek to impose its religious beliefs on

others. It simply asks that Notre Dame be permitted to act according to its faith and in ways that
articulate the moral standards to \vhich it adheres. Notre Dame seeks only to protect its right to
the free exercise of its religion, its right to be recognized as a religious institution, its right to
avoid being forced to pay for, facilitate access to, and/or become entangled in the provision of
products and services that violate its religious beliefs, and its right not to be compelled

~o

speak,

or to be silent, in a way that implies acceptance or endorsement of practices directly at odds with
its religious teachings.

CO 1-1499341

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3.

The U.S. Government Mandate that lies at the heart of this lawsuit has a well

documented and tortured history of modifications, amendments, and changed enforcement
policies. The reason the history is tortured is simple: the Mandate impinges on fundamental
rights of religion and free speech, and the Government has been caught up in fruitless and
unsuccessful attempts to work around those rights. But instead of recognizing the inalienable
rights of all religious organizations, the Government has instead acknowledged and exempted
only a small class of religious entities, and required the rest-like Notre Dame-to "certify" its
beliefs in a way never before required, and nonetheless to participate and become entangled in a
program antithetical to its faith. The now final U.S. Government Mandate continues to coerce
Notre Dame to violate its beliefs, and Notre Dame has regrettably been forced to bring this
lawsuit to protect its rights.
4.

The U.S. Government Mandate also improperly attempts to sever Notre Dame

from the Roman Catholic Church. Notre Dame sincerely believes in the unity of the Catholic
Church. including that Catholic educational institutions, especially Notre Dame, are by definition
the "heart of the church" or Ex Corde Ecclesiae. Notre Dame's mission isjust as central to
Catholic faith and life as the mission of Catholic houses of worship. Yet, the U.S. Government
Mandate would limit the definition of "religious employers" to houses of worship, attempting to
sever the Church from its heart and to divide the unified Church. The U.S. Government Mandate
would thus turn the broad right to Religious Exercise into a narrow Right to Worship.
5.

The U.S. Government Mandate, including the narrow exemption for

cert~in

"religious employers," is irreconcilable with the First Amendment, the Religious Freedom
Restoration Act ("RFRA"), and other laws. The Government has not shown any compelling
need to attempt to sever Notre Dame from the Church, nor to force Notre Dame to pay for,

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facilitate access to, and/or become entangled in the provision of abOliion-inducing drugs,
sterilization, contraception, and related counseling services (the "objectionable products and
services'").
6.

Additionally, the Government has not shown a compelling need to force Notre

Dame to be part of a vehicle that inevitably encourages and counsels members of a Catholic
community to use these products and procedures at issue, in effect normalizing them. Nor has
the Government shown a compelling need to force Notre Dame to accept a purported promise of
"cost neutrality" that is expressly premised on reductions in the number of childbirths as a costsaving measure-a premise antithetical to its sincerely held Catholic religious beliefs.
7.

The Government also has not shown that the U.S. Government Mandate is

narrowly tailored to advancing its interest in increasing access to these services, since these
services are already widely available and nothing prevents the Government from making them
even more widely available by providing or paying for them directly through a duly-enacted law.
8.

The Government, therefore, cannot justify its decision to force Notre Dame, in

violation of its sincerely held religious beliefs, to be an unwilling participant in the U.S
Government Mandate and the process through which it is implemented.
BACKGROUND
I.

PRELIMINARY MATTERS

9.

Plaintiff Notre Dame is a nonprofit Indiana corporation with a principal place of

business in Notre Dame, Indiana. It is organized exclusively for charitable, religious,
educational, and scientific purposes within the meaning of Section 501 (c )(3) of the Internal
Revenue Code. It is also an educational organization under Section 170(b)(1 )(A)(ii) of the
Internal Revenue Code.

COI-I-+993-+ 1

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10.

Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health

and Human Services ("HHS"). She is sued in her official capacity.
11.

Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is

sued in his official capacity.
12.

Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury.

He is sued in his official capacity.
13.

Defendant U.S. Depmiment of Health and Human Services is an executive agency

of the United States within the meaning of RPRA and the Administrative Procedure Act ("APA").
14.

Defendant U.S. Department of Labor is an executive agency of the United States

within the meaning of RFRA and the AP A.
15.

Defendant U.S. Depmiment of the Treasury is an executive agency of the United

States within the meaning of RFRA and the AP A.
16.

This is an action for declaratory and injunctive relief under 5 U.S.C. § 702; 28

U.S.c. §§ 2201, 2202; and 42 U.S.C. § 2000bb-l(c).
17.

An actual, justiciable controversy currently exists between Plaintiff and

Defendants. Absent a declaration resolving this controversy and the validity of the U.S.
Government Mandate, Notre Dame will be required to be act in contravention of its sincerely held
religious beliefs, as described below.
18.

Notre Dame has no adequate or available administrative remedy, or, in the

alternative, any effOli to obtain an administrative remedy would be futile.
19.

This Court has subject-matter jurisdiction over this action under 28 U.S.c.

§§ 1331, 1343(a)(4), and 1346(a)(2).
20.

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Venue is proper in this Court under 28 U.S.C. § 1391(e)(1).

5

University of Notre Dame
21.

Notre Dame is an academic community of higher learning, organized as an

independent, national Catholic research university located in Notre Dame, Indiana. Founded in
1842 by a priest of the Congregation of Holy Cross and officially chmiered in 1844, it seeks to
provide a Catholic educational environment that prepares students spiritually and intellectually
for their future vocations and careers.
22.

Notre Dame's Catholic educational mission is furthered by its leadership. Each of

Notre Dame's seventeen Presidents has been a priest from the Congregation of Holy Cross,
United States Province of Priests and Brothers. Current-President Rev. John 1. Jenkins has
miiculated a vision of Notre Dame as a preeminent research university with a distinctive Catholic
character and an unsurpassed commitment to undergraduate education.
Notre Dame currently serves more than 11,500 undergraduate and graduate
students annually and it is consistently rated one of the best universities in the country.
24.

In total, Notre Dame employs over 5,000 full- and part-time employees and is the

largest employer in St. Joseph County, Indiana.
Offering over 60 undergraduate majors and 70 graduate programs, including the
nation's oldest Catholic law school, Notre Dame pursues the highest academic achievement in
every discipline, integrating faith and reason in pursuit of truth.
26.

Notre Dame provides a distinctive voice in higher education that is at once

rigorously intellectual and unapologetically committed to the moral principles and

ethic~

of the

Catholic Church.
Notre Dame's Religious Beliefs
27.

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
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colleges and universities, Notre Dame embraces the riclmess 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.
28.

In accordance with the apostolic constitution Ex Corde Ecclesiae, Notre Dame

believes and teaches that "besides the teaching, research and services common to all
Universities," it must "bring[] to its task the inspiration and light of the Christian message."
"Catholic teaching and discipline are to influence all university activities," and "[a]ny official
action or commitment of the University [must] be in accord with its Catholic identity." "In a
word, being both a University and Catholic, it must be both a community of scholars
representing various branches of human knowledge, and an academic institution in which
Catholicism is vitally present and operative."
29.

To carry out that religious mission, Notre Dame both lives and teaches its students

how to live Catholic moral teachings both inside and beyond the church doors. This religious
mission is the heart of the Church and cannot be severed from it. Indeed, Notre Dame is the
ideal fusion of Catholic worship (with daily and weekly Catholic mass) and living Catholic
moral teachings (educating future leaders in a society of scholars that is enriched in every way by
Catholic intellectual and cultural traditions). It would violate Notre Dame's religious beliefs,
including the beliefs articulated in Ex Corde Ecclesiae, to sever Notre Dame from the Catholic
Church.
30.

The Catholic Church's well-established religious beliefs are articulated in the

Catechism of the Catholic Church. One of the central tenets of the Catholic faith is belief in the
sanctity of human life and the dignity of all persons. Thus, the Church believes that the "dignity

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of the human person is rooted in his creation in the image and likeness of God." Catechism of

the Catholic Church
31.

~

1700.

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." Id.

~

2270. As a result, the Church believes that abOliion is prohibited

and that it cannot facilitate, endorse, or appear to endorse the provision of abortion-inducing
products. Id.
32.

~~

2271-72.

Catholic teachings prohibit any action which "render[ s] procreation impossible"

and, more specifically, regard direct sterilization as "unacceptable." Id.
33.

~~

2370,2399.

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. Id.'-; 2370. The Church, however, does not oppose the use of drugs
commonly used as contraceptives when a physician prescribes the medication for noncontraceptive purposes.
34.

The Catholic moral tradition forbids "scandal," which in the theological context is

defined as encouraging by words or example other persons to engage in wrongdoing. "Scandal
is an attitude or behavior which leads another to do evil. The person who gives scandal becomes
his neighbor's tempter." Id.

~

2284. Scandal is pariicularly grave when associated with those

"who by nature or office are obliged to teach and educate others." Id.

~

2285. Scandal in this

sense can be caused not only when an individual or institution deliberately acts to cOlllItJ.it or
condone some \\'rong-doing, but also when it appears to do so through its actions. It is Notre
Dame's sincerely held religious belief that it cannot become entangled with, or appear to
facilitate, endorse, or accept, that which it believes to be contrary to Catholic faith.

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Notre Dame's Health Insurance Plans
35.

Notre Dame offers health insurance plans to eligible employees and students.

36.

Notre Dame's employee health plans are self-insured. That is, Notre Dame does

not contract with a separate insurance company that pays for its employees' medical costs.
Instead, Notre Dame functions as the insurance company underwriting its employees' medical
expenses. Notre Dame canies no stop loss or catastrophic coverage to supplement its selfinsured employee health plan.
37.

The Notre Dame employee health plans are administered by a third party

administrator, Meritain Health, Inc. ("Meritain"). Meritain handles the administrative aspects of
Notre Dame's self-insured employee health plans, but Meritain bears none of the risks for
benefits nor is it obligated to pay health care providers. Notre Dame pays Meritain
administrative fees based on the number of individuals covered by its plans.
38.

Approximately 5,200 employees at Notre Dame are eligible for coverage under

Notre Dame's self-insured health plans. These health plans cover approximately 4,600
employees and 11,000 total individuals, including dependents.
39.

Notre Dame offers its students a fully-insured health plan through Aetna.

40.

Over 11,000 students at Notre Dame are eligible for coverage under Notre

Dame's student health plan. The Notre Dame student health plan covers approximately 2,600
students and 2,700 total individuals, including dependents.
41.

Consistent with Roman Catholic teachings, Notre Dame's employee and ,student

health plans do not cover abOliion-inducing products, contraceptives (when used for
contraceptive purposes), or sterilization. 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.
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42.

Notre Dame's employee and student health plans have undergone a number of

changes and amendments since March 23,2010, and, accordingly, do not meet the Affordable
Care Act's definition of a "grandfathered" health plan. Additionally, the Notre Dame plans have
not included and do not include a statement in any plan materials provided to participants or
beneficiaries that Notre Dame believes the plans are grandfathered, as is required to maintain the
status ofa grandfathered health plan. 26 C.F.R. § 54.9815-1251T(a)(2)(i).

4'.:>.
"

Notre Dame does not appear to qualify as an entity described in Section

6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Notre Dame does not
qualifY as a "religious employer" under the exemption to the U.S. Government Mandate.
44.
45.

II.

Notre Dame's employee health plan year starts on January 1st.
Notre Dame's student health plan year starts on August 15th.

ST ATUTORY AND REGULATORY BACKGROUND

Statutory Background
46.

In March 2010, Congress enacted the Patient Protection and Affordable Care Act,

Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation
Act, Pub. L. No. 111-152,124 Stat. 1029 (2010) (collectively, the "Affordable Care Act" or the
·'Ace). The Affordable Care Act established many new requirements for "group health plan[s],"
broadly defined as "employee welfare benefit plan[ s

r \vithin the meaning of the Employee

Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1002(1), that "provide[] medical care
... to employees or their dependents." 42 U.S.C. § 300gg-91 (a)(1).
47.

As relevant here, the Act requires an employer's group health plan to cover

certain women's "preventive care." Specifically, it indicates that "[a] group health plan and a
health insurance issuer offering group or individual health insurance coverage shall, at a
minimum[,] provide coverage for and shall not impose any cost sharing requirements for ...
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with respect to women, such additional preventive care and screenings ... as provided for in
comprehensive guidelines supported by the Health Resources and Services Administration for
purposes of this paragraph." 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits "cost
sharing requirements," the health plan must pay for the full costs of these "preventive care"
services without any deductible or co-payment.
48.

"[T]he Affordable Care Act preserves the ability of individuals to retain coverage

under a group health plan or health insurance coverage in which the individual was enrolled on
March 23, 2010." Interim Final Rules for Group Health Plans and Health Insurance Issuers
Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care
Act, 75 Fed. Reg. 41,726,41,731 (July 19,2010) ("Interim Final Rules"); 42 U.S.C. § 1801l.
These so-called "grandfathered health plans do not have to meet the requirements" of the U.S.
Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that "98 million individuals will
be enrolled in grandfathered group health plans in 2013." Id. at 41,732.
49.

Federal law provides several mechanisms to enforce the requirements of the Act,

including the U.S. Government Mandate. For example:
a.

Under the Internal Revenue Code, certain employers who fail to offer

"full-time employees (and their dependents) the opportunity to enroll in minimum
essential coverage under an eligible employer-sponsored plan" will be exposed to
significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a),
(c)(1).

b.

Under the Internal Revenue Code, group health plans that fail to provide

certain required coverage may be subject to a penalty of $1 00 a day per affected
beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro,

C01- J.t9934 I

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Congo Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services
Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that
this applies to employers who violate the "preventive care" provision of the Affordable
Care Act).
c.

Under ERISA, plan participants can bring civil actions against insurers for

unpaid benefits. 29 U.S.C. § 1132(a)(l)(B); see also Congo Research Serv., RL 7-5700.
d.

Similarly, the Secretary of Labor may bring an enforcement action against

group health plans of employers that violate the U.S. Government Mandate, as
incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Congo Research Serv., RL
7-5700 (asse11ing that these penalties can apply to employers and insurers who violate
the "preventive care" provision of the Affordable Care Act).

Regulatory Background - Defining "Preventive Care" and the Narrow Exemption
(1) The Original Mandate
50.

On July 19,2010, Defendants issued interim final rules addressing the statutory

requirement that group health plans provide coverage for women's "preventive care." 75 Fed.
Reg. at 41,726 (citing 42 U.S.c. § 300gg-13(a)(4».
5 1,

To develop the definition of "preventive care," HHS outsourced its deliberations

to the Institute of Medicine ("10M"), a non-governmental "independent" organization. At the
close of this process, on July 19,2011, the 10M issued a final report recommending that
"preventive care" for women be defined to include "the full range of Food and Drug
Administration-approved contraceptive methods, sterilization procedures, and patient education
and counseling for [all] women with reproductive capacity." Inst. Of Med., Clinical Preventive
Services for Women: Closing the Gaps," at 218-19 (2011) ("10M Report").

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52.

Less than two weeks after the 10M Report was released, HHS issued a press

release on August 1,2011, announcing that it would adopt the 10M's definition of "preventive
care," including all "FDA-approved contraception methods and contraceptive counseling." See
U.S. Dept. of Health and Human Services, "Affordable Care Act Ensures Women Receive
Preventive Services at No Additional Cost," available at

http://wvvw.hhs.gov/news/press/2011pres/OS/2011 OSO 1b.html. Under the final definition, the
category of mandatory "preventive care" extends to "[a]ll Food and Drug Administration
approved contraceptive methods, sterilization procedures, and patient education and counseling
for all women with reproductive capacity." See HRSA: "Women's Preventive Services:
Required Health Plan Coverage Guidelines," available at
http://v,\vw .hrsa.goY/womensguidelines.
53.

The Government's definition of mandatory "preventive care" also includes

abortion-inducing products. For example, the FDA has approved "emergency contraceptives"
such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from
implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise
can induce abortions.
54.

On August 3, 2011, shortly after announcing its definition of "preventive care,"

the Government proposed a nalTOW exemption from the Mandate for a small category of
"religious employers" that met all of the following four criteria: "( 1) The inculcation of religious
values is the purpose of the organization"; "(2) The organization primarily employs

per~ons

who

share the religious tenets of the organization"; "(3) The organization serves primarily persons
\\'ho share the religious tenets of the organization"; and "(4) The organization is a nonprofit
organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the

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Internal Revenue Code of 1986, as amended." 76 Fed. Reg. 46,621,46,626 (Aug. 3,2011)
(codified at 45 C.F.R. § 147. 130(a)(iv)(B)).
55.

As the Government itself admitted, this narrow exemption was intended to protect

only "the unique relationship between a house of worship and its employees in ministerial
positions." Id. at 46,623. It provided no protection for religious universities, elementary and
secondary schools, hospitals, and charitable organizations.
56.

Despite pleas for expansion of the exemption, the Government at first refused to

reconsider its position. Instead, the Government "finalize [d], without change," the narrow
exemption as originally proposed. 77 Fed. Reg. 8,456, 8,729 (Feb. 15, 2012). At the same time,
the Government announced that it would offer "a one-year safe harbor from enforcement" for
religious organizations that remained subject to the Mandate. Id. at 8,728.
57.

A month later, under continuing public pressure, the Government issued an

Advance Notice of Proposed Rulemaking ("ANPRM") that, it claimed, set out a solution to the
religious-liberty controversy created by the Mandate. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The
ANPRM did not revoke the Mandate, but instead offered hypothetical "possible approaches" that
\vould, in the Government's view, somehow solve the religious-liberty problem without granting
an exemption for objecting religious organizations. Id. at 16,507.
58.

Alternatives were offered by many religious leaders. ERISA, for example, has

long excluded "church plans" from its requirements, more broadly defined to cover civil law
corporations, including organizations like Notre Dame, that share common religious bOl1ds and
convictions with a church. See 29 U.S.c. §§ 1002(33)(C)(iv), 1003.

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(2) The Government's Refusal To Recognize The Rights of Religious
Organizations Like Notre Dame By Instead Subjecting Them To An
"Accommodation" Antithetical To Notre Dame's Religious Beliefs
59.

On February 1, 2013, the Government issued a Notice of Proposed Rulemaking

C'NPRM"), largely adopting the proposals contained in the ANPRM. The NPRM, like the
Government's previous proposals, was once again met with strenuous opposition, including over
400,000 comments. For example, the U.S. Conference of Catholic Bishops stated that "the
'accommodation' still requires the objecting religious organization to fund or otherwise facilitate
the morally objectionable coverage. Such organizations and their employees remain deprived of
their right to live and work under a health plan consonant with their explicit religious beliefs and
commitments." Comments of U.S. Conference of Catholic Bishop (Mar. 20, 2013) at 3,
available at http://w"\vw.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-

Comments-3-20-final.pdf.
60.

Despite this opposition, on June 28, 2013, the Government issued a final rule that

adopted substantially all of the NPRM's proposal without significant change. See 78 Fed. Reg.
39870 (July 2,2013) ("Final Rule").
61.

The Final Rule makes two primary changes to the Mandate. As described below,

neither of these changes relieves the unlawful burdens placed on Notre Dame.
62.

First, the Final Rule makes what the Government concedes to be a non-

substantive, cosmetic change to the definition of "religious employer." In particular, it
eliminates the first three prongs of that definition, such that, under the new definition, ar: exempt
"religious employer" is simply "an organization that is organized and operates as a nonprofit
entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986,
as amended." 78 Fed. Reg. at 39,874 (codified at 45 C.F.R. § 147.131(a)). As the Government
has admitted, this new definition does "not expand the universe of employer plans that would
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qualify for the exemption beyond that which was intended in the 2012 final rules." 78 Fed. Reg.
at 8,461. Instead, it continues to "restrict[]the exemption primarily to group health plans
established or maintained by churches, synagogues, mosques, and other houses of worship, and
religious orders." ld. In this respect, the Final Rule mirrors the intended scope of the original
"religious employer" exemption, which focused on "the unique relationship between a house of
worship and its employees in ministerial positions." 76 Fed. Reg. at 46,623. Religious
organizations that have a broader mission-such as Notre Dame-are still not, in the
Government's view, "religious employers."
63.

The "religious employer" exemption, moreover, creates an official, Government-

favored category of religious groups that are exempt from the Mandate, while denying this
favorable treatment to all other religious groups. The exemption applies only to those groups
that are "referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code." This
category includes only (i) "churches, their integrated auxiliaries, and conventions or associations
of churches," and (iii) "the exclusively religious activities of any religious order." The IRS has
adopted an intrusive fourteen (14 )-factor test to determine whether a group meets these
qualifications. See Foundation of Human Understanding v. United States, 88 Fed. Cl. 203, 220
(Fed. Cl. 2009). Among these fourteen (14) factors is whether the group has" a recognized
creed and form of worship," "a definite and distinct ecclesiastical government," "a formal code
of doctrine and discipline," "a distinct religious history," "an organization of ordained
ministers," "a literature of its own," "established places of worship," "regular congregatjons,
"regular religious services," "Sunday schools for the religious instruction of the young," and
"schools for the preparation of its ministers." ld. Not only do these factors favor some religious
groups at the expense of others, but they also require the Government to make intrusive

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judgments regarding religious beliefs, practices, and organizational features to determine which
groups fall into the favored category.
64.

Second, the Final Rule establishes an illusory "accommodation" for certain non-

exempt objecting religious entities that qualify as "eligible organizations." To qualify as an
"eligible organization," a religious entity must (1) "oppose[] providing coverage for some or all
of [the] contraceptive services"; (2) be "organized and operate[] as a non-profit entity"; (3)
"hold[] itself out as a religious organization"; and (4) self-certify that it meets the first three
criteria, and provide a copy of the self-certification either to its insurance company or, if the
religious organization is self-insured, to its third party administrator. 26 C.F.R. § 54.98162713A(a). The provision of this self-certification then automatically requires the insurance
issuer or the third party administrator to provide or arrange "payments for contraceptive
services" for the organization's employees, without imposing any "cost-sharing requirements
(such as a copayment coinsurance, or a deductible)." Id. § 54.9816-2713A(b)(2), (c)(2). The
objectionable coverage, moreover, is directly tied to the organization's health plan, lasting only
as long as the employee remains on that plan. See 29 C.F.R. § 2590.715-2713; 45 C.F.R.

§ 147.131 (c )(2)(i)(B). In addition, self-insured organizations are prohibited from "directly or
indirectly, seek[ing] to influence the[ir] third party administrator's decision" to provide or
procure contraceptive services. 26 C.F.R. § 54.9815-2713.
65.

This so-called "accommodation", which exists solely to avoid entities like Notre

Dame's rightful exemption from the Mandate, by definition binds Notre Dame to the prQcess of
providing the objectionable products and services and thereby fails to address Notre Dame's
sincerely held religious beliefs. The Catholic moral tradition requires avoiding "scandal," which
in the theological context is defined as leading by words or example other persons to engage in

COJ-J-l99341

17

\\'rongdoing. Scandal is particularly grave when associated with those "who by nature or office
are obliged to teach and educate others." Catechism o/the Catholic Church

~

2285. Under the

original version of the Mandate, a non-exempt religious organization'S decision to offer a group
health plan resulted in the provision of coverage for abortion-inducing products, contraception,
sterilization, and related counseling. Under the Final Rule, a non-exempt religious
organization'S decision to offer a group health plan still results in the provision of coveragenow in the form of "payments"-for ab0l1ion-inducing products, contraception, sterilization, and
related counseling. 26 C.F.R. § 54.9816-2713A(b)-(c). Some have argued that the
accommodation in the Final Rule, unlike the original version, does not compel Notre Dame to
act against its beliefs because third pariies are purportedly "arranging" the "payments."
However, what is germane is that in both scenarios, Notre Dame's decision to provide a group
health plan, and execution of the self-celiification, triggers the provision of "free" objectionable
coverage to Notre Dame's employees in a manner contrary to its beliefs. The provision of the
objectionable products and services is directly tied to Notre Dame's insurance policies and Notre
Dame's self-certification, and the objectionable "payments" are available only so long as an
employee is on the Notre Dame's health plan. See 29 C.F.R. § 2590.715-2713 (for self-insured
employers, the third pmiy administrator "will provide or arrange separate payments for
contraceptive services ... for so long as [employees] are enrolled in [their] group health plan");
45 C.F.R. § 147.131 (c )(2)(i)(B) (for employers that offer insured plans, the insurance issuer must
"[p ]rovide separate payments for any contraceptive services ... for plan pmiicipants an?
beneficiaries for so long as they remain enrolled in the plan"). Moreover, the regulations compel
Notre Dame to pay for, facilitate access to, and/or become entangled in the provision of
objectionable drugs and services in ways that will lead many to think Notre Dame condones

COI-1499341

18

these services, and hence undermines the role of Notre Dame, a Catholic educational institution,
to educate others on a matter of religious and moral significance. It is incumbent upon Notre
Dame to extricate itself from any process that leads others to violate the faith. The
accommodation does not extricate Notre Dame from the process.
66.

For self-insured organizations, moreover, the self-certification constitutes the

religious organization's "designation of the third party administrator(s) as plan administrator and
claims administrator for contraceptive benefits." 78 Fed. Reg. at 39,879 (emphasis added). The
act and consequences of submitting the self-certification causes Notre Dame to become
associated with the Mandate in a way that causes scandal in violation of its religious beliefs.
Employer health plans offered by non-exempt religious organizations-such as Notre Dame's
employee health plans-are the vehicle by which "free" abortion-inducing products,
contraception, sterilization, and related counseling would be delivered to Notre Dame's
employees.
67.

By its Mandate, the Government requires, through threats of crippling fines and

other pressure, Notre Dame to become entangled with and facilitate-through offering health
care coverage and then ce11ifying and appointing others to directly offer objectionable products
and services-a process that creates an unacceptable burden to Notre Dame in calTying out its
religious mission, and one contrary to Catholic beliefs. Should it do so, Notre Dame is then
precluded from interfering with communications by its "designated agent" to participants
regarding the access to and availability of morally objectionable products and services ..By
definition, these communications would occur due to Notre Dame's status as health plan sponsor
and its decision to self-ce11ify-a circumstance that would create scandal, according to the
Catholic tradition, and lead some to believe that Notre Dame condones the objectionable

COI-I-l993-l1

19

serVIces. Nor, through coerced participation in this scheme, can Notre Dame ensure
disassociation w'ith targeted communications such as those advertised to Notre Dame's employee
participants and students that seek to normalize practices contrary to Notre Dame's mission. See,
e.g., Advertisements of Colorado Consumer Health Initiative, including one depicting female

youth next to male youth and stating "OMG he's hot! Let's hope he's as easy to get as this birth
control. My health insurance covers the pill, which means all I have to worry about is getting
him between the covers." (Exhibit A). Because such communications would result from Notre
Dame's participation as plan sponsor and submission of its self-certification, Notre Dame would
become associated with the Mandate in a way that causes scandal, and Notre Dame therefore
cannot comply with the Mandate consistent with its religious beliefs.
68.

Similarly, to avoid scandal, Notre Dame cannot appear to endorse the litany of

concepts that underlie the Mandate and that are contrary to its religious beliefs: e.g., (i) that it is a
moral societal goal to encourage a reduction in the overall cost of health care by reducing the
number of mothers or children who may require expensive post child birth care, (ii) that
pregnancy is a condition for which there should be "preventive services", and (iii) that increased
access to contraception, sterilization, and/or abortion-inducing drugs as proposed by the
Governn1ent necessarily improves public health.
69.

It is Notre Dame's sincerely held religious belief that it cannot become entangled

with, or appear to facilitate, endorse, or accept, that which it believes to be contrary to the
Catholic faith. Notre Dame believes that its participation in the U.S. Government Mand,ate
would cause scandal and therefore Notre Dame cannot comply with the Mandate consistent with
its religious beliefs.

CO]-]-l993-l]

20

70.

The U.S. Government Mandate also requires Notre Dame to subsidize the

objectionable products and services, and thus directly participate in a way that causes scandal.
71.

For organizations that procure insurance through a separate insurance provider (as

Notre Dame does with its student health plans), the Government asserts that the cost of the
objectionable products and services will be "cost neutral" and, therefore, that Notre Dame will
not actually be paying for it. But this rests on the implausible assumption that "cost savings"
from "fewer childbirths" will be at least as large as the direct costs of paying for contraceptive
products and services and the costs of administering individual policies. 78 Fed. Reg. at 8,463.
72.

Further, the premise underlying the Government's entire theory of cost

neutrality-that the cost to insurance companies of providing contraceptive coverage will be
offset by reducing the costs those insurance companies would otherwise payout for "pregnancies
and childbirths" (which will allegedly occur at a lower rate due to the use of contraceptives)-is
ineconcilable with Catholic doctrine regarding the immorality of atiificial interference with
procreation. 78 Fed. Reg. at 39,877; Catechism o/the Catholic Church" 2370,2399.
73.

More importantly, even if the Government's "cost-neutral" assertion were true, it

is inelevant. Premiums previously paid by the objecting employers such as Notre Dame to
cover, for example, "childbirths," will now be redirected to pay for contraceptive products and
services-the objectionable services. Thus, many will reasonably conclude that Notre Dame is
still required to pay for the objectionable products and services.
74.

For Notre Dame's self-insured employee health plan, the Government's ':cost-

neutral" assumption is likewise implausible. The Government asserts that third patiy
administrators required to provide or procure the objectionable products and services will be
compensated by reductions in user fees that they otherwise would pay for participating in

COI-I-l993-l1

21

federally-facilitated health exchanges. See 78 Fed. Reg. at 39,882. Such fee reductions are to be
established through a highly regulated and bureaucratic process for evaluating, approving, and
monitoring fees paid in compensation to third party administrators. Such regulatory regimes,
however, may not fully compensate the regulatory entities for the costs and risks incurred. As a
result, few if any third party administrators are likely to pm1icipate in this regime, and those that
do are likely to increase fees charged to the self-insured organizations.
75.

Either way, as with insured plans, self-insured organizations likewise will be

required to subsidize contraceptive products and services notwithstanding the so-called
"accommodation. "
76.

Moreover, Notre Dame is required to pay for prescriptions dispensed each month

at the pharmacy at Notre Dame's Wellness Center on campus. Notre Dame receives a credit for
amounts it pays that are later reimbursed by third party insurers. If the U.S. Government
Mandate were to be enforced, Notre Dame would have to pay its on-campus pharmacy for
contraceptive products and would receive a credit for those payments only when Meritain paid
for the products as directed by the Mandate. In other words, Notre Dame would be forced to
"float" the cost of contraceptive products until those costs were reimbursed by Meritain. By
absorbing the cost of the objectionable services until any subsequent reimbursement, Notre
Dame v/ould be forced to directly pay for the provision of these objectionable products and
services in violation of its religious beliefs.
77.

For all of these reasons, the U.S. Government Mandate continues to

requ~re

Notre

Dame to act in violation of its sincerely held religious beliefs.
78.

In sum, the Final Rule fails to alleviate the burden that the U.S. Government

Mandate imposes on Notre Dame's religious beliefs.

COI-1499341

22

III.

THE U.S. GOVERNMENT MANDATE IMPOSES A SUBSTANTIAL BURDEN
ON NOTRE DAME'S RELIGIOUS LIBERTY
A.

The U.S. Government Mandate Substantially Burdens Notre Dame's
Religious Beliefs

79.

Since the founding of this country, our law and society have recognized that

individuals and institutions are entitled to freedom of conscience and religious practice. Absent a
compelling reason, no government authority may compel any group or individual to act contrary
to their religious beliefs. As noted by Thomas Jefferson, "[ n]o provision in our Constitution
ought to be dearer to man than that which protects the rights of conscience against the enterprises
of civil authority."
80.

The U.S. Government Mandate violates Notre Dame's right of conscience by

forcing it to participate in an employer-based scheme to provide insurance coverage to which it
strenuously objects on moral and religious grounds.
81.

It is a core tenet of Notre Dame's religion that abortion, contraception, and

sterilization are serious moral wrongs.
82.

Notre Dame's Catholic beliefs, therefore, prohibit it from associating with,

providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or
sterilization.
83.

Notre Dame's religious beliefs are deeply and sincerely held.

84.

The U.S. Government Mandate, therefore, requires Notre Dame to do precisely

what its sincerely held religious beliefs prohibit-pay for, facilitate access to, and/or become
entangled in the provision of objectionable products and services or else incur crippling
sanctions.
85.

The U.S. Government Mandate, therefore, imposes a substantial burden on Notre

Dame's religious beliefs.
COI-1499341

86.

The U.S. Government Mandate's exemption for "religious employers" does not

apply to Notre Dame.
87.

The so-called "accommodation" also does not alleviate the burden the Mandate

imposes on Notre Dame's religious freedom.
88.

Not\vithstanding the so-called "accommodation," Notre Dame is still financially

penalized or required to pay for, facilitate access to, and/or become entangled in the provision of
the objectionable products and services in violation of its sincerely held religious beliefs.
89.

The unity of the Catholic Church is also a core tenet of Notre Dame's Catholic

90.

Notre Dame's Catholic beliefs in the unity of the Church includes its belief that it

beliefs.

is the heart of the Church, performing and living a religious educational mission that is just as
religious and just as significant as worship.
91.

Notre Dame's Catholic beliefs, therefore, are violated by severing or attempting

to sever it from the Catholic Church.
92.

Notre Dame's beliefs in the unity of the Catholic Church are deeply and sincerely

93.

The U.S. Government Mandate attempts to sever the Catholic Church, dividing it

held.

into a "worship" arm whose religious beliefs are respected and an "educational and charitable"
arm whose religious beliefs are trampled.
94.

The U.S. Government Mandate, therefore, imposes a substantial burden qn Notre

Dame's religious beliefs.
95.

Finally, Notre Dame cannot avoid the U.S. Government Mandate without

incurring crippling fines. If it eliminates its employee health plans, it is subject to annual fines of

COI-l 49934 I

24

$2,000 per full-time employee. If Notre Dame keeps its health plans but refuses to provide or
facilitate the objectionable coverage, it is subject to fines of $1 00 a day per affected beneficiary.
The fines, therefore, coerce Notre Dame into violating its religious beliefs.
96.

If Notre Dame offers a student health plan consistent with its Catholic values, it is

subject to fines of $100 a day per affected beneficiary. Declining to offer a student health plan
would negatively impact Notre Dame's effolis to recruit and retain students.
97.

In short, while the President claims to have "found a solution that works for

everyone" and that ensures that "religious liberty will be protected," his promised
"accommodation" does neither. Unless and until this issue is definitively resolved, the U.S.
Government Mandate does and will continue to impose a substantial burden on Notre Dame's
religious beliefs.
B.

98.

The U.S. Government Mandate Is Not a Neutral Law of General
Applicability

The U.S. Government Mandate is not a neutral law of general applicability. It

offers mUltiple exemptions from its requirement that employer-based health plans include or
facilitate coverage for aboliion-inducing products, sterilization, contraception, and related
education and counseling. It was, moreover, implemented by and at the behest of individuals
and organizations that disagree with Notre Dame's religious beliefs regarding abOliion and
contraception, and thus targets religious organizations for disfavored treatment.
99.

For example, the U.S. Government Mandate exempts all "grandfathered" plans

from its requirements, thus excluding tens of millions of people from the mandated coverage. As
the Government has admitted, while the numbers are expected to diminish over time, "98 million
individuals viill be enrolled in grandfathered group health plans in 2013." 75 Fed. Reg. at
41,732. Elsewhere, the government has put the number at 87 million. See "Keeping the Health

COI-I-I993-11

Plan You Have" (June 14,2010), available at
http://wvvw .heal thcare. govInews/factsheets/2 01 0106/keeping -the-heal th -plan -you -havegrandfathered.html. And according to one district court last year, "191 million Americans
belong[ed] to plans which may be grandfathered under the ACA." Newland v. Sebelius, 881 F.
Supp. 2d 1287, 1291 (D. Colo. 2012).
100.

Similarly, small employers (i.e., those with fewer than 50 employees) are exempt

from certain enforcement mechanisms to compel compliance with the Mandate. See 26 U.S.C.
§ 4980H(a) (exempting small employers from the assessable payment for failure to provide

health coverage).
101.

In addition, the U.S. Government Mandate exempts an arbitrary subset of

religious organizations that qualify for tax-reporting exemptions under Section 6033 of the
Internal Revenue Code. The Government cannot justify its protection of the religiousconscience rights of the nalTOW category of exempt "religious employers," but not of Notre
Dame and other religious organizations that remain subject to the Mandate.
102.

The U.S. Government Mandate, moreover, was promulgated by Government

officials, and supported by non-governmental organizations, who strongly oppose certain
Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a
fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion
rights and criticized Catholic teachings and beliefs regarding abortion and contraception.
NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many' Catholic
teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose
beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice
America fundraiser, stating: "Wouldn't you think that people who want to reduce the number of

COI-I-t993-tI

26

abortions would champion the cause of widely available, widely affordable contraceptive
services? Not so much." In addition, the Mandate was modeled on a California law that was
motivated by discriminatory intent against religious groups that oppose contraception.
103.

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 abortion and contraception.

C.
104.

The U.S. Government Mandate Is Not the Least Restrictive Means of
Furthering a Compelling Governmental Interest
The U.S. Government Mandate is not narrowly tailored to serve a compelling

governmental interest.
105.

The Government has no compelling interest in forcing Notre Dame to violate its

sincerely held religious beliefs by requiring it to participate in a scheme for the provision of
abortion-inducing products, sterilization, contraceptives, and related education and counseling.
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.
106.

Moreover, abortion-inducing products, sterilization, contraceptives, and related

education and counseling 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.
107.

Even assuming the interest was compelling, the Government has numerous

alternative means of furthering that interest without forcing Notre Dame to violate its rdigious
beliefs. For example, the Government could provide or pay for the objectionable services
through expansion of its existing network of family planning clinics funded by HHS under Title
X or through other programs established by a duly enacted law. Or, at a minimum, it could have

COI-1499341

27

created a broader exemption for religious employers, such as those found in numerous state laws
throughout the country and in other federal laws. The Government, therefore, cannot possibly
demonstrate that requiring Notre Dame to violate its conscience is the least restrictive means of
furthering its interest.
108.

Accordingly, Notre Dame seeks a declaration that the

u.s. Government Mandate

cannot lawfully be applied to it, an injunction barring its enforcement, and an order vacating the
Mandate.

IV.

THE U.S. GOVERNMENT MANDATE THREATENS NOTRE DAME WITH
IMMINENT INJURY THAT SHOULD BE REMEDIED BY A COURT
109.

The U.S. Government Mandate is causing serious, ongoing hardship to Notre

Dame that merits relief now.
110.

On June 28, 2013, Defendants finalized the

u.s. Government mandate, including

the narrow "religious employer" exemption and the so-called "accommodation" proposed in the
NPRM. By the terms of the Final Rule and its transitional safe harbor, Notre Dame must comply
with the Mandate by the beginning of the next plan year on or after January 1, 2014.
Ill.

For Notre Dame's employee healthcare plan, the next plan year begins on January

112.

For Notre Dame's student healthcare plan, the next plan year begins on August

1,2014.

15,2014.
113.

Defendants have given no indication that they will not enforce the essential

provisions of the Mandate that impose a substantial burden on Notre Dame's rights.
Consequently, absent the relief sought herein, Notre Dame will be required to pay for, facilitate
access to, and/or become entangled in the provision of abOliion-inducing products,

COI-I-l993-l1

28

contraception, sterilization, and related education and counseling, in violation of their sincerelyheld religious beliefs.
114.

The U.S. Government Mandate and its uncertain legality, moreover, undermine

Notre Dame's ability to hire and retain employees, thus placing them at a competitive
disadvantage in the labor market relative to organizations that do not have a religious objection
to the Mandate.
115.

Notre Dame, therefore, needs judicial relief now in order to prevent the serious,

ongoing harm that the U.S. Government Mandate is already imposing on it.

V.

CAUSES OF ACTION
COUNT I
Substantial Burden on Religious Exercise
in Violation of RFRA
116.

Notre Dame repeats and realleges each of the foregoing allegations in this

Complaint.
117.

RFRA prohibits the Government from substantially burdening an entity's exercise

of religion, even if the burden results from a rule of general applicability, unless the Government
demonstrates that the burden fmihers a compelling governmental interest and is the least
restrictive means of furthering that interest.
118.

RFRA protects organizations as well as individuals from Government-imposed

substantial burdens on religious exercise.
119.

RFRA applies to all federal law and the implementation of that law by any

branch, department, agency, instrumentality, or official of the United States.
120.

The U.S. Government Mandate requires Notre Dame to pay for, facilitate access

to, and/or become entangled in the provision of products, services, practices, and speech that are
contrary to their religious beliefs.
COI-I-l993-l1

29

121.

The U.S. Government Mandate attempts to sever Notre Dame from the Church, in

violation of Notre Dame's belief in the unity of the Church.
122.

The U.S. Government Mandate substantially burdens Notre Dame's exercise of

123.

The Government has no compelling governmental interest to require Notre Dame

religion.

to comply with the U.S. Government Mandate.
124.

Requiring Notre Dame to comply with the U.S. Government Mandate is not the

least restrictive means of furthering a compelling governmental interest.
125.

By enacting and threatening to enforce the U.S. Government Mandate against

Notre Dame, Defendants have violated RFRA.
126.

The U.S. Government Mandate also requires student health plans, including the

one currently offered by Notre Dame, to facilitate access to abortion-inducing products,
sterilization, contraception, and related education and counseling in a manner that is directly
contrary to their religious beliefs.
127.

To require Notre Dame's student health plan to facilitate access to services that

violate Notre Dame's religious beliefs substantially burdens Notre Dame's exercise of religion.
128.

The Government has no compelling interest to require Notre Dame's student

health plan to facilitate access to services that violate Notre Dame's beliefs.
129.

Requiring Notre Dame's student health plan to facilitate access to services that

violate Notre Dame's religious beliefs is not the least restrictive means of furthering a
compelling governmental interest.
130.

CO!-j-l993-lj

Notre Dame has no adequate remedy at law.

30

131.

Defendants are imposing an immediate and ongoing harm on Notre Dame that

wanants relief.
COUNT II
Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment
132.

Notre Dame repeats and realleges each of the foregoing allegations in this

Complaint.
133.

The Free Exercise Clause of the First Amendment prohibits the Government from

substantially burdening an entity's exercise ofreligion.
134.

The Free Exercise Clause protects organizations as well as individuals from

Government-imposed burdens on religious exercise.
135.

The U.S. Government Mandate requires Notre Dame to become entangled w"ith,

pay for, and/or facilitate practices and speech that are contrary to its religious beliefs.
136.

The U.S. Government Mandate attempts to sever Notre Dame from the Church, in

violation of Notre Dame's belief in the unity of the Church.
137.

The U.S. Govermnent Mandate substantially burdens Notre Dame's exercise of

138.

The U.S. Government Mandate is not a neutral law of general applicability,

religion.

because it is riddled with exemptions for which there is not a consistent, legally defensible basis.

It offers mUltiple exemptions from its requirement that employer-based health plans include or
facilitate access to abortion-inducing products, sterilization, contraception, and related e?ucation
and counseling.
139.

The U.S. Government Mandate is not a neutral law of general applicability

because it was passed with discriminatory intent.

COI-149934!

31

140.

The U.S. Government Mandate implicates constitutional rights in addition to the

right to free exercise of religion, including, for example, the rights to free speech, free
association, and freedom from excessive government entanglement with religion.
141.

The Government has no compelling governmental interest to require Plaintiffs to

comply with the U.S. Government Mandate.
142.

The U.S. Government Mandate is not narrowly tailored to further a compelling

governmental interest.
143.

By enacting and tlu'eatening to enforce the U.S. Government Mandate, the

Government has burdened Notre Dame's religious exercise in violation of the Free Exercise
Clause of the First Amendment.
144.

The Government also requires student health plans, including the one currently

offered by Notre Dame, to facilitate access to abortion-inducing products, sterilization,
contraception, and related education and counseling in a manner that is directly contrary to its
religious beliefs.
145.

To require Notre Dame's student health plan to facilitate access to products and

services that violate its religious beliefs substantially burdens Notre Dame's exercise of religion.
146.

The Government has no compelling government interest to require Notre Dame's

student health plan to facilitate access to products and services that violate Notre Dame's
religious beliefs.
147.

Requiring Notre Dame's student health plan to facilitate access to

produ~ts

and

services that violate Notre Dame's religious beliefs is not the least restrictive means of furthering
a compelling governmental interest.
148.

COI-I.f993.f1

Notre Dame has no adequate remedy at law.

32

149.

Defendants are imposing an immediate and ongoing harm on Notre Dame that

warrants relief.
COUNT III
Compelled Speech in Violation of
the Free Speech Clause of the First Amendment

150.

Notre Dame repeats and realleges each of the foregoing allegations in this

Complaint.
151.

The First Amendment protects against the compelled affirmation of any religious

or ideological proposition that the speaker finds unacceptable.
152.

The First Amendment protects organizations as well as individuals against

compelled speech.
153.

Expenditures are a fOlm of speech protected by the First Amendment.

154.

The First Amendment protects against the use of a speaker's money to support a

viewpoint that conflicts with the speaker's religious beliefs.
155.

The U.S. Government Mandate would compel Notre Dame to provide health care

plans to its employees and students that include or facilitate access to products and services that
violate its religious beliefs.
156.

The U.S. Government Mandate would compel Notre Dame to become entangled

with, subsidize, promote, and facilitate education and counseling services regarding these
objectionable products and services.
157.

The U.S. Government Mandate would compel Notre Dame to issue a

ce~ification

of its beliefs that in turn, would result in the provision of objectionable products and services to
Notre Dame's employees and students. The issuance of the certification itself is compelled
speech, the consequences of which cause Notre Dame to become entangled in the provision of
products, services, and practices that violate its religious beliefs.
COI-I.+993.+1

33

158.

By imposing the U.S. Government Mandate, Defendants are compelling Notre

Dame to become entangled with, publicly subsidize or facilitate the activity and speech of
private entities that are contrary to its religious beliefs, and compelling Notre Dame to engage in
speech that will result in the provision of objectionable products and services to Notre Dame's
employees and students.
159.

The U.S. Government Mandate is viewpoint-discriminatory and subject to strict

160.

The U.S. Government Mandate furthers no compelling governmental interest.

161.

The U.S. Government Mandate is not nanowly tailored to further a compelling

scrutiny.

governmental interest.
162.

For the same reasons, Defendants' requirement that student health plans, like the

one cunently offered by Notre Dame, facilitate access to abortion-inducing products,
sterilization, contraception, and related education and counseling, also violates the Free Speech
Clause of the First Amendment.
163.

Notre Dame has no adequate remedy at law.

164.

Defendants are imposing an immediate and ongoing harm on Notre Dame that

wanants relief.

COUNT IV
Prohibition of Speech
in Violation of the First Amendment

165.

Notre Dame repeats and realleges each of the foregoing allegations in thi~

Complaint.
166.

The First Amendment protects the freedom of speech, including the right of

religious groups to speak out to persuade others to refrain from engaging in conduct that may be
considered immoral.
COI-I-t993-t1

34

167.

The Mandate violates the First Amendment freedom of speech by imposing a gag

order that prohibits Notre Dame from speaking out in any way that might "influence," "directly
or indirectly," the decision of a third party administrator to provide or procure contraceptive
products and services to Notre Dame's employees, or the means by which a third party
administrator provides or procures these services.
168.

Notre Dame has no adequate remedy at law.

169.

Defendants are imposing an immediate and ongoing harm on Notre Dame that

wan-ants relief.
COUNT V
Official "Church" Favoritism and Excessive Entanglement with Religion
in Violation of the Establishment Clause of the First Amendment
170.

Notre Dame repeats and realleges each of the foregoing allegations in this

Complaint.
171.

The Establishment Clause of the First Amendment prohibits the Government from

adopting an official definition of a "religious employer" that favors some religious groups while
excluding others.
172.

The Establishment Clause also prohibits the Government from becoming

excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices,
and organizational features to determine whether they meet the Government's favored definition.
173.

The "religious employer" exemption violates the Establishment Clause in two

174.

First, it favors some religious groups over others by creating an official definition

ways.

of "religious employers." Religious groups that meet the Government's official definition
receive favorable treatment in the form of an exemption from the Mandate, while other religious
groups do not. Moreover, the "religious employer" discriminates in favor of religious
COI-1499341

35

denominations that consist primarily of "houses of worship," "integrated auxiliaries," or
"religious orders," and against denominations, like the Catholic faith, that also exercise their
religion through schools, health care facilities, charitable organizations, and other ministries.
175.

Second, even if it were permissible for the Government to favor some religious

groups over others, the "religious employer" exemption would still violate the Establishment
Clause because it requires the Government to determine whether groups qualify as "religious
employers" based on intrusive judgments about their beliefs, practices, and organizational
features. The exemption turns on an intrusive fourteen (14)-factor test to determine whether a
group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the
Internal Revenue Code. These fourteen (14) factors probe into matters such as whether a
religious group has "a distinct religious history" or "a recognized creed and form of worship."
But it is not the Government's place to determine whether a group's religious history is
"distinct," or whether the group's "creed and form of worship" are "recognized." By directing
the Government to partake of such inquiries, the "religious employer" exemption runs afoul of
the Establishment Clause prohibition on excessive entanglement with religion.
176.

Notre Dame has no adequate remedy at Imv.

177.

Defendants are imposing an immediate and ongoing harm on Notre Dame that

wanants relief.

VI.

PRAYER FOR RELIEF
WHEREFORE, Notre Dame respectfully prays that this Court:
1.

Enter a declaratory judgment that the U.S. Government Mandate violates Notre
Dame's rights under RFRA;

2.

Enter a declaratory judgment that the U.S. Government Mandate violates Notre
Dame's rights under the First Amendment;

co 1- 1-+993..) I

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3.

Enter an injunction prohibiting the Defendants from enforcing the U.S.
Government Mandate against Notre Dame;

4.

Enter an order vacating the U.S. Government Mandate;

5.

Enter a declaratory judgment that Defendants' requirement that student health
plans

facilitate

access

to

abortion-inducing

products,

sterilization,

contraception, and related education and counseling violates Notre Dame's
rights under RFRA and the First Amendment; enter an injunction prohibiting
the Defendants from enforcing that requirement against Notre Dame; and enter
an order vacating the requirement;
6.

Award Notre Dame's attorneys' and expert fees under 42 U.S.C. § 1988; and

7.

Award all other relief as the Court may deem just and proper.

Respectfully submitted, this the 3rd day of December, 2013.

By:

~2~

Matthew A. Kairis (OH No. 5502)
Melissa D. Palmisciano (OH No. 80027)
JONES DAY
325 John H. McConnell Blvd.
Suite 600
P.O. Box 165017
Columbus,OH 43216
[phone]

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Carol A. Hogan (IL No. 06202430)
Brian J. Murray (IL No. 6272767)
JONES DAY
77 West Wacker Drive
Chicago, lL 60601
[phone]
Leon F. DeJulius, Jr. (PA No. 90383)
Alison M. Kilmartin (PA No. 306422)
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219-2514
[phone]
Marianne Corr (DC No. 358051)
UNIVERSITY OF NOTRE DAME
Vice President and General Counsel
203 Main Building
Notre Dame, IN 46556
[phone]

Counsel for University of Notre Dame

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