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Notre Dame v. Sebelius: Ten notes

Yesterday the University of Notre Dame filed a lawsuit against HHS Secretary Kathleen Sebelius and other high ranking officers of the Obama administration. The complaint is available online here. I urge readers to check it out for themselves. It is a document of great interest. In this post I offer a few observations.

1. It was only three years ago that the University of Notre Dame invited President Obama to appear as the speaker at its commencement ceremony. There is no need for us to ask how that hopey changey stuff is working’ out for Notre Dame and its sister Catholic institutions. The complaint definitively answers that question.

2. As my late, beloved law teacher Leo Raskind used to ask in class, what’s all the shooting about? Notre Dame’s lawsuit is only one of 12 filed on behalf of a diverse group of 43 Catholic entities that are challenging the HHS’s sterilization, abortifacient and birth-control insurance mandate, also known as the “preventive services regulation.” Harvard Law Professor Mary Ann Glendon has a good column on the lawsuit in today’s Wall Street Journal. The New York Sun has posted a good editorial on the lawsuit.

3. The New York Times article on the lawsuits, by Laurie Goodstein, imparts a distincly unfragrant scent to the proceedings. Ms. Goodstein clearly has not read the complaint; she has no idea what is going on. You might almost think she gets her news strictly from the New York Times. Incidentally, I can’t find news of the lawsuits on the Times home page this morning. The Times wants to bury it, but it is extremely important. It signifies.

4. Goodstein writes: “The bishops rejected a compromise offered by President Obama in February that would have insurance companies — not the Catholic employers — pay for and administer the coverage for birth control. When some Catholic organizations broke with the bishops and greeted the accommodation positively, the bishops resolved that Catholic institutions must present a united front.” The Obama administration should be paying Goodstein for acting as its spokesman. She is regurgitating Obama administration talking points. See paragraph 3 above.

5. As Paul Mirengoff suggests in the adjacent post, this is a substantial lawsuit filed on behalf of prominent Catholic institutions raising a core constitutional question regarding the Obamacare “preventive services” mandate. If the Supreme Court doesn’t kill Obamacare in its entirety, the lawsuits will represent a milestone in the saga of religious liberty in the United States.

6. When the Church pushed back against the version of the mandate announced by the administration earlier this year, the Obama administration went back to the lab to cook up a resolution that it presented as a “compromise.” The “compromise” is a joke in every respect but one: it delayed the effective date of the mandate one year, from August 2012 to August 2013. It called the one-year delay a “safe harbor.” Hmmmm. What’s going on here? Put another way, the question is: How stupid does Obama think these folks are? As with the question about the hopey changey stuff, the answer is self-evident.

7. The complaint seeks declaratory and injunctive relief on behalf of Notre Dame and its sister Catholic institutions. It wrestles with the fact that the regulation in issue isn’t yet final and that the lawsuit might be deemed premature.

8. Goodstein does not note that the administration is still trying to figure out just how its purported “compromise” works. The final version of the regulation hasn’t been formulated yet. The administration is seeking ideas about how those “preventive services” might be made to materialize out of thin air. The complaint argues that by the time the regulation is finalized, it will to be too late for Notre Dame and others to make appropriate arrangements.

9. The complaint asserts that the “compromise” — shifting the costs of the “preventive services” mandate to insurers in some manner yet to be determined — doesn’t work for Catholic institutions such as Notre Dame because they are self-insured. It seems like a good point to me.

10. I have struggled in a series of posts to reconstruct the administrative law background to the “preventive services” regulation. I called the series “Adventures in administrative law” because I didn’t think that the background conformed to the general requirements of administrative law. The complaint provides an invaluable summary of the administrative law background to the regulation. See Complaint paragraphs 72-136 and Count VII. I need more time to study and think about it, but I will say this. The background is farcical. It represents administrative law brought to us by Laurel and Hardy, or Professor Irwin Corey, or the dictator of that Central American country featured in Woody Allen’s Bananas.

There is much more that could and should be said. I hope to return to the subject when I have had more time for thought. My purpose this morning is to urge you to take a look at the lawsuits with your own eyes.

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