Notre Dame petitions for a rehearing in lawsuit against the HHS mandate


The University of Notre Dame has filed a petition requesting a rehearing of its lawsuit in the US Court of Appeals for the Seventh Circuit Court. The petition requests that the university’s case against the Department of Health and Human Services (HHS) be reheard before the full court instead of the panel of three judges that heard the case earlier.

The April 4 petition was filed by Matthew Kairis, the Jones Day attorney for Notre Dame in the lawsuit against the Affordable Care Act’s HHS mandate, which forces the university to provide contraceptives and abortifacients via its employee insurance plan.

“We want the benefit of a review with the participation of all of the judges, en banc,” Paul Browne, Vice President of Notre Dame’s Office of Public Affairs & Communications, told the Rover. University spokesman

Dennis Brown declined to comment.

The court granted relief to nineteen out of the 20 religious organizations that requested exemption; Notre Dame was the only one denied.

According to the new petition, the mandate threatens “ruinous penalties” unless Notre Dame signs and submits a “religiously objectionable” certification form and “maintain[s] a contractual relationship with insurance companies and third party administrators that will provide abortifacients, contraceptives, sterilization, and related counseling to individuals enrolled in Notre Dame’s health plans.”

This provision, the petition alleges, requires Notre Dame “to offer health plans that serve as a conduit for the delivery of the objectionable coverage,” which the university cannot do “without violating its religious beliefs.”

Citing the 1993 Religious Freedom Restoration Act (RFRA), the brief claims that “even under the Government’s so-called ‘accommodation,’ the Mandate still ‘forces [Notre Dame] to do what [its] religion [says it] must not do.’”

Rather than applying the strict legal requirements of RFRA, the three judge panel ruled on February 21 that the mandate “does not substantially burden Notre Dame’s religious exercise.”

William Dempsey, Chairman of Sycamore Trust and former chief law clerk to Chief Justice Earl Warren, told the Rover that Notre Dame stands a good chance of obtaining a rehearing.

“The issue of the proper interpretation of the Religious Freedom Restoration Act is important, and the decision against Notre Dame conflicts with the decision of another panel in a case involving a for-profit company,” Dempsey said.

“This move is an alternative to an appeal to the Supreme Court, which is what The Little Sisters of the Poor did,” Notre Dame Professor of Law Gerard V. Bradley told the Rover. “In the meantime Notre Dame continues to comply with the mandate’s ‘accommodation,’ and so those enrolled in university health plans are presently getting free contraceptives/abortifacients, if they want them.”

The recently filed petition asserts that the university sincerely believes its compliance with the mandate makes it “complicit in a grave moral wrong.”

At a February 24 undergraduate town hall meeting, however, University President Father John Jenkins, CSC, stated, “Our complicity is not an evil so grave that we would compromise our conscience by going along.” Jenkins argued that there is no scandal in compliance because the university itself is not giving out contraceptives.

“This collides with the university’s representation to the court that ‘the Mandate would require Notre Dame to commit scandal,’” Dempsey said of Jenkins’ statement. “In fact, it is in substance precisely what Judge Posner said in explaining why the mandate does not impose any ‘substantial burden’ on Notre Dame’s religious liberty.”

Possible contradictions aside, the results of the petition are difficult to predict.

“Few of these petitions are granted,” Dempsey pointed out, “and even if this one is, the result can’t be foreseen with any assurance. The court will almost surely be divided, but it would be reckless to predict which way.”

Professor Bradley agreed that the outcome of the rehearing is debatable.

“I think that there is a non-negligible chance that these judges will vote to re-hear it,” he said, “but I just could not say how big that chance is. If the case is heard, it will be a really close call about whether to reverse the lower court’s denial of our motion for a preliminary injunction—the court would likely split five to four, and I cannot say with confidence which way.”

“In any case, it probably won’t matter in the end,” Dempsey said, “since the issue will likely be finally decided by the Supreme Court in one of the many cases in litigation.”


Alexandra DeSanctis is a sophomore political science major with a minor in constitutional studies. She has eaten a cheeseburger at every restaurant on Eddy Street. If you have suggestions for a good burger, contact her at