Notre Dame filed a lawsuit on May 21, seeking to prevent the Department of Health and Human Services from executing its now well-known mandate against the university. In its lawsuit the university maintains that the mandate, which will require most religious employers to provide (or at least to facilitate provision of) contraceptives, abortifacients and sterilization to its employees, is unlawful. Notre Dame’s main argument is that the mandate violates its religious freedom, as guaranteed by the First Amendment and by federal statutes.

Here, two professors present opposing answers to the question: Should the university have filed its lawsuit?
No – Faith, Reason and Notre Dame
I want to focus on the University lawsuit’s opposition to providing contraceptives as part of preventive health care for Notre Dame’s employees and students. I want to argue that the University should abandon its opposition to providing contraceptives, unless it can come up with a reason-alone (non-religiously-based) argument in support of its opposition.
In its lawsuit, the University does not provide any reason-alone argument that the use of contraceptives would be harmful to anyone. Now I for one would like to see a reason-alone debate over the use and provision of contraceptives. There is a Thomistic doctrine that faith and reason do not conflict.  So if we had a reason-alone argument that settled the question as to the use and provision of contraceptives (maybe as to whether they should be secured by a right to welfare guaranteed to all) then people would have to interpret their faiths so they did not conflict with those requirements.
Yet rather than attempt to provide a reason-alone argument against the use and provision of contraceptives, the University in its lawsuit maintains that freedom of religion would be restricted by a preventive health care program that provided contraceptives. But whose freedom of religion would be restricted?  Presumably it is that of Catholics who interpret their religion as opposing the use and provision of contraceptives.  But, if polls give us any indication of numbers here, there are many Catholics–and also many at Notre Dame–who interpret their religion as permitting the use and favoring the provision of contraceptives.  So wouldn’t the freedom of religion of these Catholics be restricted if the University’s health care program fails to provide contraceptives? This failure of the University to provide contraceptives may also restrict the freedom of religion of non-Catholics as well. So what the University’s lawsuit supports, in effect, is favoring the freedom of religion of some at the expense of the freedom of religion of others.  That is not a happy outcome.
Interestingly, the University’s lawsuit does suggest a way out. It proposes that the federal government pay for contraceptives for Notre Dame’s employees and students.  But how does that help if what we are trying to do is not interfere with people’s freedom of religion? Presumably some taxpayers would object to their paying for contraceptives on just the same grounds the University does.  So again, the University’s lawsuit supports favoring the freedom of religion of some at the expense of the freedom of religion of others. Again, not a happy outcome.
This is why I favor engaging in a reason-alone discussion of the use and provision of contraceptives. If we are successful in this endeavor and we then limit ourselves to enforcing only requirements that are justified on reason-alone, then we won’t have to interfere with the freedom of religion of anyone, provided, of course, that St. Thomas is correct and faith and reason do not conflict.  To me that looks like a better outcome than the one defended in the University’s lawsuit.

Jim Sterba
Professor, Philosophy Department

Yes – The University Was, and Is, Right
The so-called HHS mandate was developed and imposed arbitrarily.  It employs strikingly restrictive criteria to identify the few religious institutions that are exempt from its commands.  And, it imposes on the religious-freedom rights of the many religious employers to which it applies a burden that is significant, unnecessary, unjustified, and unlawful.
For these and other reasons, the University of Notre Dame (and many other employers) challenged the mandate in federal court.  In Fr. Jenkins’ words, the University filed the lawsuit “neither lightly nor gladly, but with sober determination,” and it was right to do so.
The University’s legal arguments are strong.  Its critics, for the most part, appear to misunderstand these arguments, and also the relevant legal standards, authorities, and precedents.

It is not only that the processes that produced the mandate do not comply with administrative-law requirements (though they do not) or that the mandate’s substance conflicts in a variety of ways with the First Amendment (though it does).  The mandate’s most glaring shortcoming is that it offends the federal Religious Freedom Restoration Act, a measure that was enacted two decades ago with bipartisan and near-unanimous support.  This law straightforward requires that any federal measure that burdens religious exercise – and the mandate does – is subject to close and careful judicial scrutiny.  Such burdens are permissible only if they are necessary  — not just convenient, but necessary – to achieve a compelling public interest.  If the government can achieve its goals without imposing such burdens – that is, if it can accommodate religious objections to its policies – then, according to the Act, it must.

It is far from necessary, in order to achieve the goals of the Affordable Care Act generally, or of the “preventative services” mandate specifically, to impose on the religious freedom of institutions like the University.  Like many other institutions and employers, the University tried, in a number of ways, to convince the Administration to pursue its goals in other ways and thereby to respect both liberty and pluralism.  These efforts have not succeeded, and it is not reasonable to expect the University either to roll over or to “wait and see” if, perhaps, the mandate is modified or abandoned in the future.

The University’s religious-freedom rights are not limited to avoiding coerced “cooperation with evil,” but include the right to “heal, unify, and enlighten” in a way that is pervasively animated by a meaningful, interesting Catholic character.  Whether or not complying with the mandate might survive a “double effect” test is not the point; it is, instead, that the mandate hamstrings the University’s aspiration, and vocation, to be a special and distinctive community of scholars, teachers, staff, and students.
Finally, the University’s lawsuit is about principle, not politics.  Far from seeking to embarrass or attack the President, the University and its leadership have consistently sought and welcomed respectful dialogue and constructive cooperation with his administration.  What should trouble us is not the University’s carefully considered, reluctant decision to challenge the mandate, but rather the mandate’s cynically partisan and transparently election-oriented imposition and defense.

Richard W. Garnett
Professor and Associate Dean, Law School