In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐3853
UNIVERSITY OF NOTRE DAME,
Plaintiff‐Appellant,
v.
KATHLEEN SEBELIUS, Secretary of U.S. Department of
Health & Human Services, et al.,
Defendants‐Appellees,
and
JANE DOE 1, et al.,
Intervening‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:13‐cv‐01276‐PPS‐CAN — Philip P. Simon, Chief Judge.
____________________
ARGUED FEBRUARY 12, 2014 — DECIDED FEBRUARY 21, 2014
____________________
Before POSNER, FLAUM, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The Affordable Care Act requires
providers of health insurance (including companies that
administer self‐insured employer health plans) to cover cer‐
2 No. 13‐3853
tain preventive services without cost to the insured, includ‐
ing, “with respect to women, such additional preventive care
and screenings … as provided for in comprehensive guide‐
lines supported by the Health Resources and Services Ad‐
ministration.” 42 U.S.C. § 300gg‐13(a)(4); see also 45 C.F.R.
§ 147.130(a)(iv), 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011).
Guidelines specifying such preventive care have now been
promulgated, and they include “all Food and Drug Admini‐
stration approved contraceptive methods, sterilization pro‐
cedures, and patient education and counseling for all
women with reproductive capacity.” Health Resources &
Services Administration, “Women’s Preventive Services
Guidelines,” www.hrsa.gov/womensguidelines (visited Feb.
21, 2014, as were the other websites cited in this opinion). To
simplify exposition, we’ll refer to all methods of female pre‐
vention of pregnancy as “contraceptives.” (Male contracep‐
tives are not covered by the guideline.)
The health concerns that motivated the inclusion of con‐
traception in the guidelines on needs of women for preven‐
tive care begin with the fact that about half of all pregnancies
in the United States are unintended, and 40 percent of them
end in abortion and many others in premature births or oth‐
er birth problems. Institute of Medicine, Clinical Preventive
Services for Women: Closing the Gaps 102–03 (2011),
www.nap.edu/catalog.php?record_id=13181; Lawrence B.
Finer & Mia R. Zolna, “Shifts in Intended and Unintended
Pregnancies in the United States, 2001–2008,” 104 Am. J. Pub.
Health S43, S44 (2014). Many of the unintended pregnancies
are teen pregnancies; contraceptive use has been found to be
positively correlated with decreased teen pregnancy. John S.
Santelli & Andrea J. Melnikas, “Teen Fertility in Transition:
Recent and Historical Trends in the United States,” 31 Ann.
No. 13‐3853 3
Rev. Pub. Health 371, 375–76, 379 (2010). Because out‐of‐
pocket expenditures on female contraceptives can be sub‐
stantial for many women, see Su‐Ying Liang et al., “Wom‐
en’s Out‐of‐Pocket Expenditures and Dispensing Patterns
for Oral Contraceptive Pills Between 1996 and 2006,” 83 Con‐
traception 528, 531 (2011), the provision of such contracep‐
tives without cost to the user can be expected to increase
contraceptive use and so reduce the number both of unin‐
tended pregnancies and of abortions. See Jeffrey F. Peipert et
al., “Preventing Unintended Pregnancies by Providing No‐
Cost Contraceptives,” 120 Obstetrics & Gynecology 1291,
1295–96 (2012). Furthermore, “women who can successfully
delay a first birth and plan the subsequent timing and spac‐
ing of their children are more likely than others to enter or
stay in school and to have more opportunities for employ‐
ment and for full social or political participation in their
community.” Susan A. Cohen, “The Broad Benefits of Invest‐
ing in Sexual and Reproductive Health,” 7 Guttmacher Rep.
on Public Policy, March 2004, pp. 5, 6; see also Martha J. Bai‐
ley et al., “The Opt‐in Revolution? Contraception and the
Gender Gap in Wages,” pp. 19, 26 (National Bureau of Econ.
Research Working Paper No. 17922, 2012), www.nber.org/
papers/w17922.pdf.
Like other universities, the University of Notre Dame
provides health benefits to both its employees and its stu‐
dents. It self‐insures its employees’ medical expenses, but
has hired Meritain Health, Inc. to administer the employee
health plan without providing any insurance coverage (Mer‐
itain is therefore what is called a “third‐party administrator”
of a health plan). To take care of its students’ medical needs,
Notre Dame has a contract with Aetna (which happens to be
Meritain’s parent) that gives the students the option of ob‐
4 No. 13‐3853
taining health insurance from Aetna. Meritain administers
coverage for some 4600 employees of Notre Dame (out of a
total of 5200) and 6400 dependents of employees. Aetna in‐
sures 2600 students and 100 dependents; Notre Dame has
about 11,000 students. But many of them have coverage un‐
der their parents’ health insurance policies.
Because Catholic doctrine forbids the use of contracep‐
tives (the “rhythm” method of avoiding pregnancy, which is
permitted, is a form of abstention, not of contraception),
Notre Dame has never paid for contraceptives for its em‐
ployees or permitted Aetna to insure, under the Aetna Notre
Dame Health Plan, Notre Dame students for the expense of
contraceptives. Cognizant of the religious objections of
Catholic institutions to contraception, and mindful of the
dictate of the Religious Freedom Restoration Act, 42 U.S.C.
§§ 2000bb‐1(a), (b), that “Government shall not substantially
burden a person’s exercise of religion even if the burden re‐
sults from a rule of general applicability,” unless “it demon‐
strates that application of the burden to the person—(1) is in
furtherance of a compelling governmental interest; and (2) is
the least restrictive means of furthering that compelling gov‐
ernmental interest,” the government, some months after the
enactment of the Affordable Care Act, created by adminis‐
trative regulation a religious exemption from the guidelines.
See “Group Health Plans and Health Insurance Issuers Re‐
lating to Coverage of Preventive Services,” 76 Fed. Reg.
46621, 46626 (Aug. 3, 2011) (codified at 45 C.F.R.
§ 147.130(a)(1)(iv)); see also 77 Fed. Reg. 8725, 8727–29 (Feb.
15, 2012). But at first it was narrowly drafted and as a result
excluded Catholic institutions that, like Notre Dame, are in‐
corporated as nonprofit rather than religious institutions.
That precipitated the filing in 2012 of a federal suit by Notre
No. 13‐3853 5
Dame against the government, claiming that the contracep‐
tive regulations infringed rights conferred on the university
by both the First Amendment and the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb‐1. That suit was dis‐
missed on standing and ripeness grounds, the government
having promised that Notre Dame wouldn’t have to comply
with the regulations for one year, during which time new
regulations would be issued. University of Notre Dame v. Se‐
belius, 2012 WL 6756332, at *3–4 (N.D. Ind. Dec. 31, 2012); see
“Certain Preventive Services Under the Affordable Care
Act,” 77 Fed. Reg. 16501, 16502–03 (Mar. 21, 2012).
The new regulations were issued as promised—and, as
expected, they enlarged the exemption. See “Coverage of
Certain Preventive Services Under the Affordable Care Act,”
78 Fed. Reg. 39870, 39875–90 (July 2, 2013); 29 C.F.R.
§ 2590.715‐2713A(a); 45 C.F.R. § 147.131(b). As a result, Notre
Dame now came within its scope. To exercise its right thus
conferred to opt out of having to pay for coverage for con‐
traceptives, either directly or through a health insurer, such
as Aetna, the university had to fill out “EBSA Form 700—
Certification.” See 45 C.F.R. § 147.131(b)(4). The form (www.
dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcer
tificationform.pdf) is short, its meat the following sentence:
“I certify that, on account of religious objections, the organi‐
zation opposes providing coverage for some or all of any
contraceptive services that would otherwise be required to
be covered; the organization is organized and operates as a
nonprofit entity; and the organization holds itself out as a
religious organization.” The form states that “the organiza‐
tion or its plan must provide a copy of this certification to
the plan’s health insurance issuer (for insured health plans)
or a third party administrator (for self‐insured health plans)
6 No. 13‐3853
in order for the plan to be accommodated with respect to the
contraceptive coverage requirement.” So Notre Dame was
required to give copies both to Aetna and to the employee
plan’s third‐party administrator, Meritain.
The Affordable Care Act requires providers of health in‐
surance (including third‐party administrators of self‐insured
health plans, even though they are conduits rather than ul‐
timate payors of plan benefits) to pay for contraceptives for
women, see 45 C.F.R. §§ 147.131(c)(2)(i)(B), (ii); 29 C.F.R.
§ 2590.715‐2713A(b)(3); the form alerts Aetna and Meritain
that since Notre Dame is not going to pay, they will have to
pay. The companies have neither religious objections to pay‐
ing for contraception nor financial objections. The govern‐
ment will reimburse at least 110 percent of the third‐party
administrator’s (Meritain’s) costs, 45 C.F.R. § 156.50(d)(3),
and Aetna can expect to recoup its costs of contraceptive
coverage from savings on pregnancy medical care, since
there will be fewer pregnancies if contraception is more
broadly available, at no cost, to Notre Dame’s female em‐
ployees and students, as well as from other regulatory off‐
sets. See “Coverage of Certain Preventive Services Under the
Affordable Care Act,” supra, 78 Fed. Reg. at 39877–78.
The regulations require Aetna and Meritain, but not
Notre Dame, to inform the university’s female employees
and students that those companies will be covering their
contraceptive costs. See 26 C.F.R. § 54.9815‐2713A(d); 29
C.F.R. § 2590.715‐2713A(d). The companies may either “pro‐
vide payments for contraceptive services” themselves or, al‐
ternatively, “arrange for an issuer or other entity to provide
payments for” those services; either way, they may not “im‐
pos[e] any cost‐sharing requirements (such as a copayment,
No. 13‐3853 7
coinsurance, or a deductible), or impos[e] a premium, fee, or
other charge, or any portion thereof, directly or indirectly,
on the eligible organization, the group health plan, or plan
participants or beneficiaries.” 29 C.F.R. §§ 2590.715‐
2713A(b)(2), (c)(2). The regulations thus seek an accommoda‐
tion between the secular interests that motivate the mandate
to provide contraceptive services to women free of charge
and the interests of religious institutions that provide health
services. Accommodation is consistent with the balancing
act required by the Religious Freedom Restoration Act
(“substantial burden,” “compelling governmental interest,”
“least restrictive means”).
When the new regulations were promulgated in July of
last year, Notre Dame did not at first bring a new suit (re‐
member that its previous suit, brought when the university
was excluded from opting out of contraceptive coverage,
had been dismissed on jurisdictional grounds, and those
grounds are irrelevant to a suit challenging the new regula‐
tions). Months passed. Not until December did the univer‐
sity file the present suit. The delay in suing was awkward,
since the regulations were to take effect with respect to the
employee health plan—and did take effect—on January 1 of
this year. “Coverage of Certain Preventive Services Under
the Affordable Care Act,” supra, 78 Fed. Reg. at 39889. (The
student health plan, however, the Aetna plan, has until Au‐
gust of this year to comply. See id.; University of Notre
Dame, 2013–2014 Student Injury and Sickness Insurance Plan 3,
5, http://uhs.nd.edu/assets/108455/nd_brochure_1314.pdf.)
With the January deadline for compliance with the regu‐
lations applicable to the employee plan looming, the univer‐
sity, less than a week after filing its second suit on December
8 No. 13‐3853
3, moved for the entry of a preliminary injunction. The dis‐
trict court denied the motion on December 20, and Notre
Dame filed its appeal from that denial the same day. On De‐
cember 31, the last day before it would be penalized for vio‐
lating the regulations, Notre Dame signed EBSA Form 700
and thereby opted out of paying for contraceptive coverage
for its employees.
Because the appeal asks us to reverse the district court’s
denial of a preliminary injunction, we need to emphasize the
limitations on our consideration of the appeal that result
from its interlocutory character (that is, from the fact that it
was before completion of the litigation in the district court).
The lawsuit was only a few weeks old when the district
judge suspended all proceedings in his court pending our
consideration of the appeal. The parties have thus had little
opportunity to present evidence. So the question before us is
not whether Notre Dame’s rights have been violated but
whether the district judge abused his discretion in refusing
to grant a preliminary injunction. That depends on such con‐
siderations as whether Notre Dame will experience irrepara‐
ble harm if denied preliminary relief—that is, harm that
cannot be eliminated by a final judgment in favor of Notre
Dame—as well as on the likelihood that the university will
win its case when the case is finally tried in the district court.
Kraft Foods Group Brands LLC v. Cracker Barrel Old Country
Store, Inc., 735 F.3d 735, 740–41 (7th Cir. 2013). We empha‐
size that with the evidentiary record virtually a blank, every‐
thing we say in this opinion about the merits of Notre
Dame’s claim and the government’s (and intervenors’) re‐
sponse is necessarily tentative, and should not be considered
a forecast of the ultimate resolution of this still so young liti‐
gation.
No. 13‐3853 9
An initial puzzle is that the university hasn’t told us what
exactly it wants enjoined at this stage in the litigation. It has
gone ahead and signed the EBSA Form 700 and sent copies
to Aetna and Meritain, and the latter has notified Notre
Dame’s employees of the contraceptive coverage that it is
offering them. (Aetna has not notified the students; remem‐
ber that it has until August to do so.) The university has thus
complied with the statute, albeit under duress. The penalties
for violating the applicable regulations are indeed stiff: $100
per day for “each individual to whom such failure relates,”
26 U.S.C. § 4980D(b)(1), which would cost Notre Dame
roughly $685,000 per day, assuming plausibly that half the
13,700 covered employees, students, and dependents are
women—thus $250 million per year. There is an annual cap
on such penalties of $500,000, but it is applicable only to un‐
intentional violations of the regulations. § 4980D(c)(3). If
Notre Dame dropped its employee health plan, the penalty
would be only $2,000 per full‐time employee per year, 26
U.S.C. §§ 4980H(a), (c)(1), or roughly $10 million a year. That
is well within Notre Dame’s ability to pay but is still a num‐
ber large enough to capture a university administrator’s at‐
tention.
But we are left with the question: what does Notre Dame
want us to do? Tell it that it can tear up the form without in‐
curring a penalty for doing so, even though the govern‐
ment’s regulations require the religious institution to retain
it after signing it, 26 C.F.R. § 54.9815‐2713A(a)(4), though not
to submit it to the government? But what effect would that
have—except to rescind the university’s exemption from the
requirement of paying for the contraceptive services that
Meritain is now offering as a consequence of Notre Dame’s
choosing to exempt itself from the contraception regula‐
10 No. 13‐3853
tions? No certification, no exemption. We imagine that what
the university wants is an order forbidding Aetna and Mer‐
itain to provide any contraceptive coverage to Notre Dame
staff or students pending final judgment in the district court.
But we can’t issue such an order; neither Aetna nor Meritain
is a defendant (the university’s failure to join them as defen‐
dants puzzles us), so unless and until they are joined as de‐
fendants they can’t be ordered by the district court or by this
court to do anything. Furthermore, while a religious institu‐
tion has a broad immunity from being required to engage in
acts that violate the tenets of its faith, it has no right to pre‐
vent other institutions, whether the government or a health
insurance company, from engaging in acts that merely of‐
fend the institution. Lyng v. Northwest Indian Cemetery Protec‐
tive Ass’n, 485 U.S. 439, 450–51 (1988); Bowen v. Roy, 476 U.S.
693, 699–700 (1986).
The regulation to which Notre Dame takes the sharpest
exception states that “the copy of the self‐certification [EBSA
Form 700] provided by the eligible [to opt out] organization
[Notre Dame] to a third party administrator [Meritain] (in‐
cluding notice of the eligible organization’s refusal to admin‐
ister or fund contraceptive benefits) … shall be an instru‐
ment under which the plan is operated, [and] shall be
treated as a designation of the third party administrator as
the plan administrator under section 3(16) of ERISA for any
contraceptive services required to be covered under
§ 2590.715‐2713(a)(1)(iv) of this chapter to which the eligible
organization objects on religious grounds.” 29 C.F.R.
§ 2510.3‐16. Notre Dame treats this regulation as making its
mailing the certification form to its third‐party administrator
the cause of the provision of contraceptive services to its em‐
ployees, in violation of its religious beliefs. Not so. Since
No. 13‐3853 11
there is now a federal right, unquestioned by Notre Dame, to
female contraceptive services, the effect of the university’s
exercise of its religious exemption is to throw the entire bur‐
den of administration of the right on the entities (Aetna and
Meritain) that provide health services to Notre Dame’s stu‐
dents and staff. The university is permitted to opt out of
providing federally mandated contraceptive services, and
the federal government determines (enlists, drafts, con‐
scripts) substitute providers, and naturally they are the pro‐
viders who are already providing health services to the uni‐
versity personnel.
Fearing the penalties for violating the contraceptive regu‐
lation, the university has complied and as a result Aetna and
Meritain have been designated to provide the Notre Dame
staff and students with female contraceptive services. Unlike
the Little Sisters of the Poor, who filed their suit in Septem‐
ber of last year, well before the January 1 deadline for com‐
pliance with the contraceptive regulation, and obtained a
stay pending appeal—equivalent to a preliminary injunc‐
tion—before having to comply, see Little Sisters of the Poor
Home for the Aged v. Sebelius, 134 S. Ct. 893 (Dec. 31, 2013),
Notre Dame filed suit at the last minute. It could have sued
in July, when the regulations were amended to include
Notre Dame as a religious organization entitled to continue
refusing to pay for contraceptive services.
Still, Notre Dame’s compliance has not mooted the case.
One can imagine an alternative form of relief to turning the
clock back; and being able to imagine an alternative form of
relief is all that’s required to keep a case alive after the pri‐
mary relief sought is no longer available. Hoosier Environ‐
mental Council v. U.S. Army Corps of Engineers, 722 F.3d 1053,
12 No. 13‐3853
1057–58 (7th Cir. 2013). For example, the university could
ask the district court (because the case is before us on an in‐
terlocutory appeal, our ruling will not end the litigation) to
order the government to notify all of Notre Dame’s students
and employees of the university’s exemption from having to
provide contraception and of its opposition to having to no‐
tify Aetna and Meritain of their duties under the Affordable
Care Act with regard to contraceptive services.
But here we need to remind the reader that the only issue
before us is whether Notre Dame is entitled to a preliminary
injunction. It faces an uphill struggle for that relief. One rea‐
son is that “because of the uncertainty involved in balancing
the considerations that bear on the decision whether to grant
a preliminary injunction—an uncertainty amplified by the
unavoidable haste with which the district judge must strike
the balance—we appellate judges review his decision defer‐
entially.” Planned Parenthood of Wisconsin, Inc. v. Van Hollen,
738 F.3d 786, 795 (7th Cir. 2013). Another obstacle is that a
sine qua non for such relief is proof of irreparable harm if
the injunction is denied: “A plaintiff seeking a preliminary
injunction must establish that he is … likely to suffer irrepa‐
rable harm in the absence of preliminary relief.” Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 20
(2008).“For if the harm can be fully repaired in the final
judgment, there is no reason to hurry the adjudicative proc‐
ess.” Kraft Foods Group Brands LLC v. Cracker Barrel Old Coun‐
try Store, Inc., supra, 735 F.3d at 740. As we cannot figure out
what Notre Dame wants in the way of preliminary relief, we
cannot make a determination that it will suffer irreparable
harm if we affirm the denial of such relief.
No. 13‐3853 13
Another requirement for preliminary relief is that the
plaintiff be likely to win its suit in the district court. The Su‐
preme Court’s decision in the Winter case states flatly that “a
plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits.” 555 U.S. at 20. So hav‐
ing explained the other objections to the appeal let’s turn to
the merits.
Notre Dame’s principal claim is that by requiring the
university to fill out EBSA Form 700 and give copies to Aet‐
na and Meritain, the government has “substantially bur‐
den[ed] a person’s exercise of religion” (the university is a
nonprofit corporate “person”; cf. 1 U.S.C. § 1; Korte v. Se‐
belius, 735 F.3d 654, 674 (7th Cir. 2013)), and that no “compel‐
ling governmental interest” justifies that burdening. Reli‐
gious Freedom Restoration Act, supra. But the university has
not yet shown that there is a substantial burden. The form is
two pages long—737 words, most of it boring boilerplate;
the passages we quoted earlier, the only ones of conse‐
quence, consist of only 95 words. Signing the form and mail‐
ing it to Meritain and Aetna could have taken no more than
five minutes. The university claims that there are other pa‐
perwork requirements; there aren’t. The only colorable bur‐
den it complains about has nothing to do with time or cost; it
is that by filling out the form and sending it to the compa‐
nies it “triggers” their coverage of the contraception costs of
the university’s female employees and students, and that
this makes the university an accomplice in the provision of
contraception, in violation of Catholic doctrine, which in the
name of avoiding “scandal” forbids the encouragement
(equivalent to aiding and abetting) of sinful acts.
14 No. 13‐3853
The “trigger” theory was stated clearly, which is not to
say convincingly, in a recent district court decision where we
read that “the self‐certification form requires the [religious]
organizations to do much more than simply protest or ob‐
ject. The purpose of the form is to enable the provision of the
very contraceptive services to the organization’s employees
that the organization finds abhorrent.” East Texas Baptist
University v. Sebelius, 2013 WL 6838893, at *20 (S.D. Tex. Dec.
27, 2013). The key word is “enable,” and it’s inaccurate. Fed‐
eral law, not the religious organization’s signing and mailing
the form, requires health‐care insurers, along with third‐
party administrators of self‐insured health plans, to cover
contraceptive services. By refusing to fill out the form Notre
Dame would subject itself to penalties, but Aetna and Merit‐
ain would still be required by federal law to provide the ser‐
vices to the university’s students and employees unless and
until their contractual relation with Notre Dame terminated.
(Obviously if they were no longer providing any health
benefits to the university’s students and staff they would not
be providing them with any contraceptive services or cover‐
age.)
Notre Dame says no—that had it not filled out the form,
Meritain and Aetna wouldn’t have been authorized to pro‐
vide contraceptive services because neither would have been
a “plan administrator” under section 3(16) of ERISA, 29
U.S.C. § 1002(16), and thus would not have been plan fiduci‐
aries entitled to make expenditures (as for costs of contra‐
ceptives) on behalf of the plan. As the plan’s sponsor, Notre
Dame is alone authorized to designate a plan fiduciary, 29
U.S.C. § 1102(a)(2), and it made that designation in the form
and thus is complicit in the provision of contraceptives to
the university’s students and staff.
No. 13‐3853 15
This argument was made for the first time at oral argu‐
ment, and so has been forfeited. In any event it’s unconvinc‐
ing. For one thing it fails to distinguish between Meritain
and Aetna—the latter is the students’ health insurer and so
already a plan fiduciary, 29 U.S.C. § 1002(21)(A), and there‐
fore required by the Affordable Care Act to provide (come
August) contraceptive coverage to plan members whether or
not Notre Dame signs the form. 45 C.F.R. §§ 147.
130(a)(1)(iv), 147.131(f). Even as to Meritain, although “many
agreements between third party administrators and plan
sponsors prohibit third party administrators from serving as
fiduciaries,” “Coverage of Certain Preventive Services Un‐
der the Affordable Care Act,” supra, 78 Fed. Reg. at 39879,
“many” is not “all” or even “most.” Notre Dame has pre‐
sented no evidence that its contract with Meritain forbids the
latter to be a plan fiduciary.
Moreover, the university has not been told to name Mer‐
itain as a plan fiduciary. Rather, the signed form “shall be
treated as a designation of the third party administrator as
the plan administrator under section 3(16) of ERISA for any
contraceptive services required to be covered.” 29 C.F.R.
§ 2510.3‐16(b) (emphasis added). Treated and designated by
whom? By the government. The delivery of a copy of the
form to Meritain reminds it of an obligation that the law, not
the university, imposes on it—the obligation to pick up the
ball if Notre Dame decides, as is its right, to drop it. Notre
Dame’s signing the form no more “triggers” Meritain’s obli‐
gation to provide contraceptive services than a tortfeasor’s
declaring bankruptcy “triggers” his co‐tortfeasors’ joint and
several liability for damages. Meritain must provide the ser‐
vices no matter what; signing the form simply shifts the fi‐
nancial burden from the university to the government.
16 No. 13‐3853
The parties have not told us the terms of Notre Dame’s
contracts with these providers. For all we know, the con‐
tracts permit the university at any time to “disable” them
from providing medical services, including contraceptive
services, simply by ceasing to do business with them. Stu‐
dents and employees would make their own health insur‐
ance arrangements—most students already do (76 percent),
and so do many staff (12 percent). Notre Dame would be off
the hook without having to sign the certification form.
The following example may help make clear the fallacy
in Notre Dame’s “triggering” metaphor. Suppose the United
States, like Canada and many other foreign nations, had a
“single payer” health care system. That means the govern‐
ment pays the cost of covered medical services (if the United
States had such a system, it would be the equivalent of Med‐
icare for everyone), rather than employers, health insurers,
and patients, though patients may in a single‐payer system
be charged directly for some of the expense of the medical
care provided by the system, as distinct from indirectly
through taxes. Now suppose our hypothetical single‐payer
system paid the full expense of female contraceptives. We
don’t think Notre Dame would argue that the system placed
a “substantial burden” on the university’s compliance with
Catholic doctrine. Notre Dame does not deny the existence
of legitimate secular interests, some noted at the outset of
this opinion, that can justify a federal program of paying for
medical expenses, including contraceptive expenses. (For a
summary of those interests, see “Coverage of Certain Pre‐
ventive Services Under the Affordable Care Act,” supra, 78
Fed. Reg. at 39872–73.) In fact we know it wouldn’t object, at
least on religious grounds, because it advised the district
court that one method by which the government could
No. 13‐3853 17
“achieve its asserted interests without forcing Notre Dame to
violate its religious beliefs” would be for the government to
“directly provide contraceptive[s]” to the university’s staff
and students and another method would be for it to “di‐
rectly offer insurance coverage for contraceptive services”: in
either case a single‐payer system, at least for contraceptives.
The main difference between such a system and the Afford‐
able Care Act is that under the Act the government—instead
of providing medical services directly—uses private insur‐
ance providers and health plan administrators, such as
Aetna and Meritain, as its agents to provide medical ser‐
vices, subsidized by the government.
If the government is entitled to require that female con‐
traceptives be provided to women free of charge, we have
trouble understanding how signing the form that declares
Notre Dame’s authorized refusal to pay for contraceptives
for its students or staff, and mailing the authorization docu‐
ment to those companies, which under federal law are obli‐
gated to pick up the tab, could be thought to “trigger” the
provision of female contraceptives.
Consider this further example illustrative of our doubts.
Suppose it is wartime, there is a draft, and a Quaker is called
up. Many Quakers are pacifists, and their pacifism is a tenet
of their religion. Suppose the Quaker who’s been called up
tells the selective service system that he’s a conscientious ob‐
jector. The selective service officer to whom he makes this
pitch accepts the sincerity of his refusal to bear arms and ex‐
cuses him. But as the Quaker leaves the selective service of‐
fice, he’s told: “you know this means we’ll have to draft
someone in place of you”—and the Quaker replies indig‐
nantly that if the government does that, it will be violating
18 No. 13‐3853
his religious beliefs. Because his religion teaches that no one
should bear arms, drafting another person in his place
would make him responsible for the military activities of his
replacement, and by doing so would substantially burden
his own sincere religious beliefs. Would this mean that by
exempting him the government had forced him to “trigger”
the drafting of a replacement who was not a conscientious
objector, and that the Religious Freedom Restoration Act
would require a draft exemption for both the Quaker and his
non‐Quaker replacement? That seems a fantastic suggestion.
Yet confronted with this hypothetical at the oral argument,
Notre Dame’s counsel acknowledged its applicability and
said that drafting a replacement indeed would substantially
burden the Quaker’s religion.
Another way to see the error of thinking that by signing
the certification form Notre Dame was “enabling” Aetna and
Meritain to violate its religious freedom is to ask what
would happen if the university refused to sign the form
while adhering to its long‐standing refusal to pick up any
part of the cost of contraceptives. The answer is that the fe‐
male employees and students would still have a federal right
to free contraceptives from Meritain and Aetna unless Notre
Dame stopped offering health services to its students en‐
tirely. Health groups would lose no time in acquainting
those employees and students with their federal rights.
To nail down the fallacy of the “trigger” or “enablement”
interpretations of the certification form we need only parse
carefully its instructions—the statement that “the organiza‐
tion or its plan must provide a copy of this certification to
the plan’s health insurance issuer (for insured health plans)
or a third party administrator (for self‐insured health plans)
No. 13‐3853 19
in order for the plan to be accommodated with respect to the con‐
traceptive coverage requirement” (emphasis added). Remember
that “accommodation” in this context means accommodat‐
ing the Affordable Care Act to religious beliefs. The accom‐
modation in this case consists in the organization’s (that is,
Notre Dame’s) washing its hands of any involvement in con‐
traceptive coverage, and the insurer and the third‐party ad‐
ministrator taking up the slack under compulsion of federal
law. Notre Dame is telling Aetna and Meritain: “we’re ex‐
cused from the new federal obligation relating to contracep‐
tion,” and in turn, the government tells those insurance
companies “but you’re not.” This is a warning, not a trigger.
It enables nothing. The sole “enabler” is the federal statute
that Notre Dame has been allowed to opt out of.
The university argues alternatively that if the form isn’t a
trigger, its health plans are the “conduit” through which the
employees and students obtain contraceptive coverage, mak‐
ing Notre Dame complicit in sin. But the university’s lawyer
told us at oral argument that his client would have no prob‐
lem if each of its female employees signed and mailed to
Meritain (and its students mailed to Aetna) a form saying “I
have insurance through Notre Dame, but the university
won’t cover contraceptive services, so now you must cover
them.” We can’t see how that would make the health plan
less of a “conduit.”
The university has still another argument: that the con‐
traception regulation imposes a substantial burden on it by
forcing the university to “identify[] and contract[] with a
third party willing to provide the very services Notre Dame
deems objectionable.” It’s true that Meritain could exit its
contract with Notre Dame without liability if it didn’t want
20 No. 13‐3853
to provide contraceptive services. See “Coverage of Certain
Preventive Services Under the Affordable Care Act,” supra,
78 Fed. Reg. at 39880. But as Meritain does not object to pro‐
viding them and is doing so already, the “burden” alleged
by Notre Dame is entirely speculative and so not a ground
for equitable relief. See City of Los Angeles v. Lyons, 461 U.S.
95, 104–05 (1983).
The novelty of Notre Dame’s claim—not for the exemp‐
tion, which it has, but for the right to have it without having
to ask for it—deserves emphasis. United States law and pub‐
lic policy have a history of accommodating religious beliefs,
as by allowing conscientious objection to the military draft—
and now exempting churches and religious institutions from
the Affordable Care Act’s requirements of coverage of con‐
traceptive services. What makes this case and others like it
involving the contraception exemption paradoxical and vir‐
tually unprecedented is that the beneficiaries of the religious
exemption are claiming that the exemption process itself im‐
poses a substantial burden on their religious faiths. The clos‐
est analogues we have found are cases in which churches
seeking rezoning or variances claim that the process for ob‐
taining permission is so cumbersome as to constitute a sub‐
stantial burden on religious practice. E.g., Saints Constantine
& Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396
F.3d 895, 901 (7th Cir. 2005), and cases cited there. Consider
also United States v. Friday, 525 F.3d 938, 947–48 (10th Cir.
2008), in which a member of a tribe had been prosecuted for
killing, without a permit to do so, a bald eagle, for use in a
religious ceremony. The court expressed skepticism that the
permitting process itself might have imposed a substantial
burden on a religious exercise. Cf. United States v. Oliver, 255
F.3d 588, 589 (8th Cir. 2001) (per curiam).
No. 13‐3853 21
The process of claiming one’s exemption from the duty to
provide contraceptive coverage is the opposite of cumber‐
some. It amounts to signing one’s name and mailing the
signed form to two addresses. Notre Dame may consider the
process a substantial burden, but substantiality—like com‐
pelling governmental interest—is for the court to decide.
Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011). Other‐
wise there would have been no need for Congress in the Re‐
ligious Freedom Restoration Act to prefix “substantial” to
“burden.”
Notre Dame can derive no support from our decision in
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013), heavily cited in
the university’s briefs. The question in that case was whether
two for‐profit companies that had health plans for their em‐
ployees could refuse, because of the religious beliefs of their
Catholic owners, to comply with the contraceptive regula‐
tion. We ordered the district court to enter a preliminary in‐
junction against enforcing the mandate against the employ‐
ers. But Notre Dame is authorized to refuse, and it has re‐
fused. Provided it overcomes the intervenors’ “sincerity” at‐
tack in the district court when the litigation resumes there
(see below), it will be in the same position that we allowed
the company owners in the Korte case to occupy pending the
resolution of their case: fully entitled to thumb its nose at the
contraceptive regulation.
We need to say something about the three Notre Dame
students whom we have allowed to intervene. They had
filed a timely motion in the district court to intervene in that
court under Fed. R. Civ. P. 24. Having stayed the litigation
pending the resolution of this appeal, the district judge did
not rule on it, so the students moved for leave to intervene in
22 No. 13‐3853
this court. Although the Federal Rules of Appellate Proce‐
dure do not provide for intervention other than in cases in‐
volving review of certain administrative rulings, interven‐
tion is permitted in other cases as a matter of federal com‐
mon law, with Rule 24 supplying the standard for determin‐
ing whether to permit intervention in a particular case. Au‐
tomobile Workers v. Scofield, 382 U.S. 205, 217 n. 10 (1965); Si‐
erra Club, Inc. v. EPA, 358 F.3d 516, 517–18 (7th Cir. 2004).
The student intervenors in our case express concern that the
university is seeking to obtain a ruling from this court that
may thwart their right to contraception under the Affordable
Care Act. The concern is natural though perhaps exagger‐
ated, since Notre Dame has complied fully with the Act, but
we decided that the concern was sufficient to warrant inter‐
vention. And we decided to permit the intervenors to par‐
ticipate under pseudonyms because of the privacy interest
involved in contraceptive use and their concern that they
might be subjected to harassment were their identities re‐
vealed. When the litigation in the district court resumes,
they presumably will be allowed to intervene in the district
court.
In the brief they’ve filed in this court they say they in‐
tend, when litigation in the district court resumes, to press
the issue of “sincerity.” To obtain the contraceptive exemp‐
tion, or other exemptions from secular requirements, the
leadership of a religious organization must actually believe,
not simply pretend, that its religious teachings require the
exemption. See, e.g., Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 428–29 (2006); International So‐
ciety for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 441
(2d Cir. 1981). Although the government has not questioned
Notre Dame’s sincerity, the intervenors’ brief has. It inti‐
No. 13‐3853 23
mates that a plausible inference from the timing and tactics
employed by Notre Dame in this litigation is that in chal‐
lenging the contraception regulation the university is re‐
sponding to outside pressures. We express no opinion on
whether the intervenors will be able to substantiate their
doubts about the sincerity of Notre Dame’s opposition to the
use of contraceptives, when, upon the resumption of the liti‐
gation in the district court, they have an opportunity to pre‐
sent evidence.
For now the important point is that Notre Dame has
failed to demonstrate a substantial burden. We find support
for this conclusion in Judge David Tatel’s dissent from the
grant (made without accompanying explanation) of an in‐
junction pending appeal in Priests for Life v. U.S. Dep’t of
Health & Human Services, No. 13‐5368, and Roman Catholic
Archbishop of Washington v. Sebelius, No. 13‐5371 (D.C. Cir.
Dec. 31, 2013) (per curiam):
Because Congress has imposed an independent obliga‐
tion on insurers to provide contraceptive coverage to Ap‐
pellants’ employees, those employees will receive contra‐
ceptive coverage from their insurers even if Appellants self‐
certify—but not because Appellants self‐certify. … In other
words, it was Congress that “authorized” insurers to pro‐
vide contraceptive coverage to Appellants’ employees—
services those employees will receive regardless of wheth‐
er Appellants self‐certify.
… Although we must accept Appellants’ assertion that
the scheme itself violates their religious beliefs, we need
not accept their legal conclusion that their purported in‐
volvement in that scheme qualifies as a substantial burden
under RFRA. Cf. Kaemmerling v. Lappin, 553 F.3d 669, 679
(D.C. Cir. 2008) (“Accepting as true the factual allegations
24 No. 13‐3853
that Kaemmerling’s beliefs are sincere and of a religious
nature—but not the legal conclusion, cast as a factual alle‐
gation, that his religious exercise is substantially bur‐
dened—we conclude that Kaemmerling does not allege
facts sufficient to state a substantial burden on his religious
exercise.”). Appellants’ participation is limited to comply‐
ing with an administrative procedure that establishes that
they are, in effect, exempt from the very requirements they
find offensive. See id. at 678 (“An inconsequential or de
minimis burden on religious practice does not rise to [the
level of a substantial burden under RFRA], nor does a
burden on activity unimportant to the adherent’s religious
scheme.”). At bottom, then, Appellants’ religious objec‐
tions are to the government’s independent actions in man‐
dating contraceptive coverage, not to any action that the
government has required Appellants themselves to take.
But Appellants have no right to “require the Government
to conduct its own internal affairs in ways that comport
with the religious beliefs of particular citizens.” Bowen v.
Roy, 476 U.S. 693, 699 (1986). Religious organizations are
required to file many forms with the government, such as
applications for tax exemptions, even though they may
have religious objections to a whole host of government
policies and programs.
Id. at 3–4 (emphases in original). See also Judge Jackson’s
district court decision in the Roman Catholic Archbishop case,
denying preliminary relief. 2013 WL 6729515 (D.D.C. Dec.
20, 2013).
Notre Dame doesn’t place all its eggs in the RFRA “sub‐
stantial burden” basket, but only two of its other arguments
warrant discussion. (The rest add nothing to its RFRA ar‐
guments.) The first is that the exemption for religious em‐
ployers (essentially churches, as distinct from other religious
No. 13‐3853 25
organizations, such as Catholic universities, see 45 C.F.R.
§ 147.130(a)(1)(iv)(B)) violates the establishment clause of the
First Amendment because it favors certain types of religious
organizations (churches or other houses of worship) over
others (like Notre Dame). The religious employer doesn’t
have to sign or mail a certification form in order to claim its
exemption; its exemption from the contraceptive guideline
appears to be automatic. See, e.g., 45 C.F.R. § 147.130
(a)(1)(iv)(A); U.S. Health Resources & Services Administra‐
tion, “Women’s Preventive Services Guidelines,” supra; U.S.
Department of Labor, “Affordable Care Act Regulations and
Guidance,” www.dol.gov/ebsa/healthreform/regulations/
coverageofpreventiveservices.html. But religious employers,
defined as in the cited regulation, have long enjoyed advan‐
tages (notably tax advantages) over other entities, 26 U.S.C.
§§ 6033(a)(3)(A)(i), (iii), without these advantages being
thought to violate the establishment clause. See, e.g., Walz v.
Tax Commission of City of New York, 397 U.S. 664, 666, 672–73
(1970). The establishment clause does not require the gov‐
ernment to equalize the burdens (or the benefits) that laws of
general applicability impose on religious institutions. A law
exempting churches or other religious property from prop‐
erty taxes will benefit religious denominations that own a
great deal of property, to the disadvantage of denominations
with modest property holdings (such as storefront
churches). This unequal effect does not condemn the law.
Notre Dame’s second non‐RFRA claim, which is more
substantial, is that the regulations violate the free‐speech
clause of the First Amendment by providing that an exempt
organization, such as Notre Dame, “must not, directly or in‐
directly, seek to interfere with a third party administrator’s
arrangements to provide or arrange separate payments for
26 No. 13‐3853
contraceptive services for participants or beneficiaries, and
must not, directly or indirectly, seek to influence the third
party administrator’s decision to make any such arrange‐
ments.” 29 C.F.R. § 2590.715‐2713A(b)(1)(iii); 26 C.F.R.
§ 54.9815‐2713A(b)(1)(iii). Obviously there are forms of “in‐
fluence” that are not protected by the speech, press, or peti‐
tion for redress of grievances clauses of the First Amend‐
ment. But most speech or writing intended to influence
someone’s decision—to persuade someone to do or not do
something—is protected.
There is a great variety of female contraceptives, see U.S.
Food & Drug Administration, “Birth Control; Medicines To
Help You,” www.fda.gov/forconsumers/byaudience/forwo
men/freepublications/ucm313215.htm, including a great va‐
riety just of contraceptive pills. Mayo Clinic, “Choosing a
Birth Control Pill,” www.mayoclinic.org/best‐birth‐control‐
pill/art‐20044807. Notre Dame’s student health service might
have views concerning the relative medical risks of different
female contraceptives; it would certainly be entitled to
communicate those views to its third‐party administrator,
Meritain. It’s true that the regulation requires provision of
“all” FDA‐approved female contraceptives, but the health
service could try to persuade the administrator to recom‐
mend to the physicians in its network one FDA‐approved
drug over another, such as progestin IUDs over copper ones,
or even to advise the FDA to alter its list of approved female
contraceptives. The university has a responsibility for the
health and safety of its students and staff.
A footnote in the commentary to the regulation states
that “nothing in these final regulations prohibits an eligible
organization from expressing its opposition to the use of
No. 13‐3853 27
contraceptives.” “Coverage of Certain Preventive Services
Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39880
n. 41. That’s not very reassuring. The example we gave was
not of a statement of opposition to the use of contraceptives,
but of a statement intended to influence the choice of contra‐
ceptives that the third‐party administrator or the health in‐
surance provider would cover. The footnote is an unsatisfac‐
tory afterthought.
Against this it can be argued that the regulation is only
about “payments,” and not about the provision of contracep‐
tives, as in our example of student health services’ being
concerned with the safety of particular contraceptives. At the
oral argument the government’s lawyer said that the regula‐
tion, despite its wording, is not limited to wrangling over
payments; that it also concerns the provision of contracep‐
tives, as in our example of an attempt at influence that can‐
not be prohibited without infringing freedom of speech. The
regulations specify the contraceptives that health plans must
provide for women—namely “all Food and Drug Admini‐
stration approved contraceptive methods, sterilization pro‐
cedures, and patient education and counseling for all wom‐
en with reproductive capacity,” U.S. Health Resources &
Services Administration, “Women’s Preventive Services
Guidelines,” supra—and the government’s lawyer seemed
(no stronger word is possible) to imply that for Notre Dame
to urge a plan not to provide a specific such contraceptive,
even because of a sincere health concern by the university,
would violate the “influence” regulation.
We’re troubled by the seeming vagueness of the regula‐
tion as drafted and as further muddied by the footnote in the
commentary (why isn’t it in the regulation itself?), and we
28 No. 13‐3853
fear that it may have pernicious consequences if understood
to forbid or inhibit the kind of discussion between the uni‐
versity and the contraceptives providers sketched in the pre‐
ceding paragraphs. But the parties have failed to place the
issue in focus. Notre Dame hasn’t told us what it wants to
say but fears to say (except that it at least wants to be able to
tell Meritain not to provide contraceptive coverage at all—
which sounds like urging civil disobedience) and the gov‐
ernment hasn’t clearly embraced an interpretation of the
regulation that would give rise to the concerns we’ve ex‐
pressed. The issue must, for now, be left for further explora‐
tion in the district court.
Two loose ends remain to be tied up. They relate to mo‐
tions that Notre Dame filed in this court after filing its ap‐
peal but before oral argument. First was a motion it filed on
January 20, six days after the students’ motion to intervene
was granted, asking us to dismiss its appeal or in the alterna‐
tive to order a limited remand to the district court; the stated
purpose of either alternative was to provide Notre Dame
with an opportunity to depose the three student intervenors.
We took the motion under advisement, the appeal having
been scheduled for imminent oral argument with expedited
briefing underway and the intervenors having not yet filed
their brief, which made the motion premature. It was appar‐
ent that the appeal would be refiled after discovery relating
to the intervenors or resumed if we ordered a limited re‐
mand in lieu of dismissal. So dismissal or remand would be
an interruption rather than a termination—a source of delay
harmful to both parties and disruptive of this court’s sched‐
ule.
No. 13‐3853 29
We have the authority to dismiss an appeal at the appel‐
lant’s request. Fed. R. App. P. 42(b); United States v. Hager‐
man, 549 F.3d 536, 538 (7th Cir. 2008). But it is authorization,
not command. E.g., Albers v. Eli Lilly & Co., 354 F.3d 644, 646
(7th Cir. 2004) (per curiam). As in the case just cited, here we
have thought it “best … to carry through so that the invest‐
ment of public resources already devoted to this litigation
will have some return.” So the motion has remained pend‐
ing, and is now moot in light of our affirming the denial of
preliminary relief to Notre Dame.
On January 28 the university filed a renewed motion for
an injunction pending appeal—it had filed such a motion on
December 23, but we had denied that motion a week later
when we ordered expedited briefing of the appeal. The sole
ground for the renewed motion was the Supreme Court’s
order of January 24 in the Little Sisters case, 2014 WL 272207.
That ground was an odd one for Notre Dame to assert, be‐
cause the university disagrees with the Court’s order. The
Court’s order conditioned the injunction pending appeal in
that case on the Little Sisters’ sending a letter to the govern‐
ment declaring its opposition to paying for contraceptive
services—and at the oral argument of our case Notre Dame
told us that it would consider sending such a letter an in‐
fringement of its religious freedom. Another distinction be‐
tween that case and this one is that unlike Meritain, Little
Sisters’ third‐party administrator, Christian Brothers, is a
“church plan” administrator and so wouldn’t provide con‐
traceptive services anyway, or be required to do so. We now
deny the renewed motion for an injunction pending appeal
as moot because the appeal has been resolved.
30 No. 13‐3853
Chief Judge Simon’s denial of preliminary relief in the
district court is
AFFIRMED.
No. 13‐3853 31
FLAUM, Circuit Judge, dissenting. While Notre Dame’s ap‐
peal from the district court’s denial of a preliminary injunc‐
tion was pending before this court, we granted the students’
motion to intervene. Notre Dame then moved to dismiss the
appeal in order to conduct additional discovery in the dis‐
trict court. Dismissal would not prejudice the government or
the student‐intervenors. Nor would it inhibit this court’s re‐
view of the ultimate issues at a later stage in the proceed‐
ings. Because I see no reason not to “accept plaintiffs’ deci‐
sion to proceed to trial without interim relief,” Creaton v.
Heckler, 781 F.2d 1430, 1431 (9th Cir. 1986), I would grant
Notre Dame’s motion and dismiss this appeal.
The majority does not agree, however, and so the appeal
remains before us. Faced with the merits, I conclude that
Notre Dame has made out a credible claim under the Reli‐
gious Freedom Restoration Act. I therefore would grant the
university a preliminary injunction forbidding the govern‐
ment from penalizing Notre Dame for refusing to comply
with the self‐certification requirement.
I.
Notre Dame filed an emergency motion for an injunction
pending appeal on December 23, 2013. At that point, its at‐
tention was fixed on the looming January 1, 2014 deadline,
the date that the mandate and relevant regulations would go
into effect. The court denied the motion on December 30 and
ordered expedited briefing. The following day, the universi‐
ty—“forced,” in its words, “to choose between potentially
ruinous fines and compliance with the Mandate”—opted to
submit its self‐certification form while it continued to litigate
this appeal. See Notre Dame Issues Statement on Contraceptive
Care Injunction Denial, WNDU.com (Dec. 31, 2013), available
32 No. 13‐3853
at http://tinyurl.com/kyhn6op (last visited Feb. 20, 2014). On
January 14, the day after Notre Dame filed its opening brief,
the court granted the students’ motion to intervene. The stu‐
dents intended to, and in fact later did, advance a number of
arguments that the government had not pursued in the dis‐
trict court. Shortly thereafter, Notre Dame moved to dismiss
its appeal. The government took no position on the motion
for voluntary dismissal, and the students opposed it. The
motion was taken under advisement.
Federal Rule of Appellate Procedure 42 permits us to
dismiss an already‐docketed appeal “on the appellant’s mo‐
tion on terms agreed to by the parties or fixed by the court.”
Fed. R. App. P. 42(b). Even where the parties do not agree on
terms, we apply a “presumption in favor of dismissal,” Al‐
bers v. Eli Lilly & Co., 354 F.3d 644, 646 (7th Cir. 2004)—as
well we should, for normally it makes very little sense to
force an appellant into court against his will. This presump‐
tion would appear to be stronger when the appeal is an in‐
terlocutory one. Such a dismissal will not prejudice any fu‐
ture determination on the merits and will put the appellee in
no worse position than if the appellant had not taken an ap‐
peal to begin with. At the same time, however, this presump‐
tion may be overcome by other prudential considerations.
Appellate review is not a “bargaining chip” to be played and
then casually conceded after a bad card is dealt. Id. (citing
U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18
(1994)).
Invoking the Albers case, the student‐intervenors accuse
Notre Dame of “procedural gamesmanship” for moving to
dismiss the appeal after its pleas for urgent relief earlier in
the litigation. But for Notre Dame, the circumstances of this
No. 13‐3853 33
case changed significantly on January 1, by which point the
expedited briefing schedule had already been set. They
changed yet again on January 14, when the student‐
intervenors entered the case. Certainly Notre Dame is not
the first party to reassess the wisdom of taking an appeal in
light of later developments. Cf. Tyndale House Publishers, Inc.
v. Sebelius, No. 13‐5108, 2013 WL 2395168 (D.C. Cir. May 3,
2013) (granting the government’s opposed motion for volun‐
tary dismissal in a contraceptive‐mandate case brought by a
for‐profit religious employer). In my judgment, if the univer‐
sity is willing to return to the district court and forego any
chance at a preliminary injunction, we should not hold it to
an expedited schedule that it did not request and to an ap‐
peal involving parties and arguments that it did not antici‐
pate.
Importantly, Notre Dame has not “sought dismissal for
the purpose of evading appellate determination.” United
States v. Wash. Dep’t of Fisheries, 573 F.2d 1117, 1118 (9th Cir.
1978). To the contrary, the university tells us that it “fully ex‐
pects to be back in this Court—either from its appeal or the
Government’s appeal … following the district court’s ruling
on a permanent injunction.” This is a far cry from a case like
Albers, where counsel for the appellant “essentially
conced[ed]” that he decided after oral argument to dismiss
the appeal for opportunistic reasons, in order to “try again,
with a different client, at a different time or in a different
court.” 354 F.3d at 646.
This case is also very much unlike United States v. Hager‐
man, where we denied an imputed motion for voluntary
dismissal because it arose “with the appeal fully briefed and
the merits free from doubt.” 549 F.3d 536, 538 (7th Cir. 2008).
34 No. 13‐3853
Notre Dame requested dismissal a week before the govern‐
ment’s and intervenors’ briefs were due; Notre Dame’s reply
brief (which addressed a number of the intervenors’ new ar‐
guments) was due a week after that. More to the point, and
with respect for my colleagues’ views, I do not find the ques‐
tion in this case to be clear cut. There have been nineteen
cases challenging the application of the mandate to religious
nonprofits to date, and every plaintiff besides Notre Dame
has received an injunction.1 In contrast to Hagerman, the mer‐
1 Most plaintiffs received a preliminary injunction in the district court.
See Ave Maria Found. v. Sebelius, No. 13‐cv‐15198, 2014 WL 117425 (E.D.
Mich. Jan. 13, 2014); Catholic Diocese of Beaumont v. Sebelius, No. 1:13‐cv‐
709, 2014 WL 31652 (E.D. Tex. Jan. 2, 2014); Roman Catholic Diocese of Fort
Worth v. Sebelius, No. 4:12‐cv‐314 (N.D. Tex. Dec. 31, 2013) (Doc. 99);
Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12‐cv‐
92, 2013 WL 6858588 (E.D. Mo. Dec. 30, 2013); Diocese of Fort Wayne‐S.
Bend v. Sebelius, No. 1:12‐cv‐159, 2013 WL 6843012 (N.D. Ind. Dec. 27,
2013); Grace Schs. v. Sebelius, No. 3:12‐cv‐459, 2013 WL 6842772 (N.D. Ind.
Dec. 27, 2013); E. Tex. Baptist Univ. v. Sebelius, No. H‐12‐3009, 2013 WL
6838893 (S.D. Tex. Dec. 27, 2013); S. Nazarene Univ. v. Sebelius, No. 13‐
1015, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013); Geneva Coll. v. Sebelius,
No. 12‐0207, 2013 WL 6835094 (W.D. Pa. Dec. 23, 2013); Reaching Souls
Int’l, Inc. v Sebelius, No. 13‐1092, 2013 WL 6804259 (W.D. Okla. Dec. 20,
2013); Legatus v. Sebelius, No. 12‐12061, 2013 WL 6768607 (E.D. Mich. Dec.
20, 2013); Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12‐2542, 2013
WL 6579764 (E.D.N.Y. Dec. 16, 2013); Zubik v. Sebelius, No. 2:13‐cv‐1459,
2013 WL 6118696 (W.D. Pa. Nov. 21, 2013). A handful lost in the district
court but later received an injunction on appeal. See Little Sisters of the
Poor v. Sebelius, No. 13‐cv‐2611, 2013 WL 6839900 (D. Colo. Dec. 27, 2013),
injunction pending appeal granted, No. 13A691 (U.S. Jan. 24, 2014); Mich.
Catholic Conf. v. Sebelius, No. 1:13‐CV‐1247, 2013 WL 6838707 (W.D. Mich.
Dec. 27, 2013), injunction pending appeal granted, No. 13‐2723 (6th Cir. Dec.
31, 2013); Catholic Diocese of Nashville v. Sebelius, No. 3:13‐1303, 2013 WL
6834375 (M.D. Tenn. Dec. 26, 2013), injunction pending appeal granted, No.
13‐6640 (6th Cir. Dec. 31, 2013); Roman Catholic Archbishop of Wash. v.
No. 13‐3853 35
its in this case are hardly “free from doubt.” Id. I suggest that
granting the motion to dismiss the appeal is the more pru‐
dential approach.
II.
On the merits, I believe that Notre Dame has made out a
credible claim that the Patient Protection and Affordable
Care Act and accompanying regulations are a substantial
burden on its exercise of religion. Accordingly, I would
grant the university’s request for a preliminary injunction.
See Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011)
(setting forth the legal standard for a preliminary injunc‐
tion); cf. ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir.
2012) (noting that the “loss of First Amendment freedoms,
for even minimal periods of time,” constitutes an irreparable
injury for which damages are not an adequate remedy).
The Religious Freedom Restoration Act provides that a
federal law may not “substantially burden a person’s exer‐
cise of religion” unless the government “demonstrates that
application of the burden to the person … is in furtherance
of a compelling governmental interest” and “is the least re‐
strictive means of furthering that compelling governmental
interest.” 42 U.S.C. § 2000bb‐1. For purposes of this litiga‐
tion, the government concedes that the least‐restrictive‐
means exception does not apply, so we need only decide
Sebelius, No. 13‐1441, 2013 WL 6729515 (D.D.C. Dec. 20, 2013), injunction
pending appeal granted, No. 13‐5371 (D.C. Cir. Dec. 31, 2013); Priests for Life
v. U.S. Dep’t of Health & Human Servs., No. 13‐1261, 2013 WL 6672400
(D.D.C. Dec. 19, 2013), injunction pending appeal granted, No. 13‐5371 (D.C.
Cir. Dec. 31, 2013).
36 No. 13‐3853
whether the burden that the Affordable Care Act imposes on
Notre Dame is substantial.
In Korte v. Sebelius, this court said that a substantial bur‐
den arises “when the government ‘put[s] substantial pres‐
sure on an adherent to modify his behavior and to violate his
beliefs.’” 735 F.3d 654, 682 (7th Cir. 2013) (quoting Thomas v.
Review Bd. of Ind. Emp’t Div., 450 U.S. 707, 718 (1981)). Put
another way, government action substantially burdens reli‐
gious exercise if it “necessarily bears direct, primary, and
fundamental responsibility for rendering religious exer‐
cise … effectively impracticable.” Civil Liberties for Urban Be‐
lievers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (in‐
terpreting a parallel provision in the Religious Land Use and
Institutionalized Persons Act).
It is clear that if Notre Dame were forced to pay for con‐
traceptive coverage against its religious beliefs or else incur
significant monetary penalties, this would be a substantial
burden. See Korte, 735 F.3d at 682–85. Unlike the for‐profit
plaintiffs in Korte, however, the university has an additional
choice: a specially crafted accommodation “whereby the ob‐
jecting employer gives notice to its insurance carrier and the
insurer issues a separate policy with the mandated cover‐
age.” Id. at 662. This accommodation permits a religious or‐
ganization to discharge its obligations to provide contracep‐
tive coverage by “self‐certif[ying], in a form and manner
specified by the [government],” that the organization “op‐
poses providing coverage for some or all … contraceptive
services … on account of religious objections,” “is organized
and operates as a nonprofit entity,” and “holds itself out as a
religious organization.” 26 C.F.R. § 54.9815‐2713A(a).
Among other things, the organization must provide a copy
No. 13‐3853 37
of the self‐certification form, known as EBSA Form 700, to its
insurance issuer or third‐party administrator; those entities
are then required to offer segregated contraceptive services
directly to plan participants and beneficiaries. Id. § 54.9815‐
2713A(b)–(c). However, if the organization does not self‐
certify—and also does not provide the required, religiously
objectionable coverage—it continues to face the same “ruin‐
ous fines” that constituted a substantial burden in Korte. 735
F.3d at 684.
I do not question that the accommodation is the govern‐
ment’s good‐faith attempt to meet religious objectors half‐
way, and it makes this a somewhat closer case than Korte.
Nevertheless, by putting substantial pressure on Notre
Dame to act in ways that (as the university sees it) involve
the university in the provision of contraceptives, I believe
that the accommodation still runs afoul of RFRA.
The district court reasoned that the self‐certification
scheme is not a substantial burden because the scheme does
not require the university to modify its behavior in any way.
According to the court, “Notre Dame need only step aside
from contraception coverage, as it has always done and most
assuredly would always do.” Similarly, the government tells
us that by self‐certifying, the university “is simply complet‐
ing a form conveying that the University does not intend to
provide contraceptive coverage.”
I do not view the required act so mechanistically. The ac‐
commodation does not merely require the religious organi‐
zation to “step aside from contraceptive coverage.” It re‐
quires the organization to perform a new act that it did not
have to perform before: completing and delivering to its in‐
surer or third‐party administrator the official EBSA Form
38 No. 13‐3853
700. In the university’s eyes, this form’s “purpose and ef‐
fect”—evident from the face of the regulations—“is to ac‐
complish what the organization finds religiously forbidden
and protests.” E. Tex. Baptist Univ. v. Sebelius, No. H‐12‐3009,
2013 WL 6838893, at *20 (S.D. Tex. Dec. 27, 2013). As to
health plans administered by third‐party administrators in
particular, the form flatly states that it is “an instrument un‐
der which the plan is operated.” Having to submit the EBSA
Form 700, Notre Dame maintains, makes it “complicit in a
grave moral wrong” by involving it with a system that de‐
livers contraceptive products and services to its employees
and students.
The majority has trouble accepting this position, in part
due to the university’s statement that its signature will
“trigger” contraceptive coverage, because the majority un‐
derstands federal law to require contraceptive coverage re‐
gardless of what Notre Dame signs or does not sign. But see
Roman Catholic Archbishop of Wash. v. Sebelius, No. 13‐1441,
2013 WL 6729515, at *17, *22 (D.D.C. Dec. 20, 2013) (distin‐
guishing between group health insurers, which have an in‐
dependent obligation under the regulations to provide con‐
traceptive coverage, and third‐party administrators, which
do not). Yet we are judges, not moral philosophers or theo‐
logians; this is not a question of legal causation but of reli‐
gious faith. Notre Dame tells us that Catholic doctrine pro‐
hibits the action that the government requires it to take. So
long as that belief is sincerely held, I believe we should defer
to Notre Dame’s understanding.2
2 The intervenors insinuate that sincerity is at issue, hinting at the possi‐
bility of last‐minute influence by a group called the Sycamore Trust.
While the district court may find a warrant for this suggestion once dis‐
No. 13‐3853 39
The district court relied in part on Bowen v. Roy, 476 U.S.
693 (1986), and derivatively Kaemmerling v. Lappin, 553 F.3d
669 (D.C. Cir. 2008), which the court thought foreclosed
Notre Dame’s objection to a mere “administrative tool, used
to relieve Notre Dame of liability for not providing contra‐
ceptive payments.” I do not read Roy as cutting so broadly.
In fact, five justices in that case expressed the view that the
plaintiffs “were entitled to an exemption” from an analogous
“administrative” requirement—“that welfare recipients pro‐
vide a social security number on their application.” Michael
W. McConnell, Free Exercise Revisionism and the Smith Deci‐
sion, 57 U. Chi. L. Rev. 1109, 1127 (1990) (emphasis added).
Roy involved a Free Exercise Clause challenge to federal
regulations governing state‐run food‐stamp programs. The
plaintiff Roy, a member of the Abenaki tribe, had sought
benefits for his two‐year‐old daughter. Roy objected to two
distinct aspects of the regulations. First, he objected to a re‐
quirement that each applicant furnish a social security num‐
ber on the application. Second, he challenged a requirement
that states utilize social security numbers in administering
the program (principally to prevent abuse or waste). See 476
U.S. at 699. Roy refused to furnish his daughter’s number
because he feared its use would “rob” her spirit and dimin‐
ish her spiritual purity. Id. at 696. During the litigation, it be‐
came clear that the government had somehow obtained a
social security number for Roy’s daughter independently. Id.
at 697. The government argued that the case had become
moot, but Roy disagreed. Id.
covery proceeds, so far as I can determine, there is currently no basis in
the record for concluding that Notre Dame has been insincere in advanc‐
ing this litigation.
40 No. 13‐3853
As the district court in this case correctly noted, the Court
squarely rejected Roy’s free exercise challenge to the state’s
use of the social security number, concluding that the First
Amendment does not “require the Government to conduct
its own internal affairs in ways that comport with the reli‐
gious beliefs of particular citizens.” 476 U.S. at 699. But a ma‐
jority of justices indicated that the requirement that appli‐
cants furnish a social security number was a different matter.
Five justices either concluded or strongly suggested that the
government could not require an applicant to provide the
number on a benefits application if the applicant had a sin‐
cere religious objection to doing so.
Justice O’Connor, joined by Justices Brennan and Mar‐
shall, determined that the requirement burdened Roy’s exer‐
cise of religion, and that the government had “failed to show
that granting a religious exemption to those who legitimate‐
ly object to providing a Social Security number will do any
harm to its compelling interest.” 476 U.S. at 732 (O’Connor,
J., concurring in part and dissenting in part). Justice White
agreed; he would have enjoined both the provision and use
requirements. Id. at 733 (White, J., dissenting). Finally, Jus‐
tice Blackmun would have remanded the case to determine
whether the issue was moot. However, he stated that if the
issue were squarely presented, he would have agreed with
Justice O’Connor and held that the government could not
deny assistance based on a parent’s religious refusal to pro‐
vide a social security number. Id. at 714–16 (Blackmun, J.,
concurring in part).
To be sure, because only four justices actually reached
the question, this conclusion does not constitute part of Roy’s
No. 13‐3853 41
holding. Nevertheless, it provides a useful framework for
analyzing the facts of this case.3
Under Roy’s approach, it is clear that RFRA does not au‐
thorize religious organizations to dictate the independent
actions of third‐parties, even if the organization sincerely
disagrees with them. See 476 U.S. at 700 (noting that Roy
could “no more prevail on his religious objection to the Gov‐
ernment’s use of a Social Security number for his daughter
than he could on a sincere religious objection to the size or
color of the Government’s filing cabinets”). That is true
whether the third‐party is the government, an insurer, a stu‐
dent, or some other actor. Cf. Korte, 735 F.3d at 684 (“[I]t goes
without saying that [the plaintiffs] may neither inquire about
nor interfere with the private choices of their employees on
these subjects.”); Roman Catholic Archdiocese of N.Y. v. Sebe‐
lius, No. 12‐2542, 2013 WL 6579764, at *13 (E.D.N.Y. Dec. 16,
2013) (“[I]t seems unlikely that placing new legal obligations
on the third‐parties with whom plaintiffs contract could be a
substantial burden on plaintiffsʹ religion.”). So long as the
government does not require the university itself to take ac‐
tion, RFRA does not give Notre Dame a right to prevent the
government from providing contraceptives to its students
and employees. Indeed, at oral argument, counsel for Notre
Dame acknowledged that the university would have no ob‐
jection if the students or employees had to opt in to receive
contraceptive coverage from insurers.
3 Although Roy is a Free Exercise Clause case, not a RFRA case, “Con‐
gress was clear that RFRA codifies pre‐Smith free‐exercise jurispru‐
dence.” Korte, 735 F.3d at 679 (referring to Employment Division v. Smith,
494 U.S. 872 (1990)).
42 No. 13‐3853
But the self‐certification requirement is different. It is one
thing for the government to take independent action. It is
quite another for the government to “force[]” the university
“to cooperate actively with the Government by themselves
providing” the EBSA Form 700—a form that, in Notre
Dame’s view, endorses the provision of contraceptives to its
students and employees. Roy, 476 U.S. at 714 (Blackmun, J.,
concurring in part). That type of compulsion takes this case
out of the realm of independent action and into the sort of
“direct, primary, and fundamental” pressure that renders
“religious exercise … effectively impracticable.” Civil Liber‐
ties for Urban Believers, 342 F.3d at 761.
The Supreme Court’s recent decision to grant a tempo‐
rary injunction in a similar RFRA challenge suggests to me
that a majority of justices may continue to hold this view of
free exercise rights (although now as a statutory matter, and
not a constitutional one). See Little Sisters of the Poor v. Sebe‐
lius, No. 13‐cv‐2611, 2013 WL 6839900 (D. Colo. Dec. 27,
2013), injunction pending appeal granted, No. 13A691, 2014 WL
272207 (U.S. Jan. 24, 2014). Notably, the burden on the plain‐
tiffs in Little Sisters appears less significant than the one on
Notre Dame. The government tells us that Little Sisters pro‐
vides group health insurance through a self‐insured “church
plan” that, because of a peculiar twist in ERISA, is itself ex‐
empt from the requirement to assume responsibility for con‐
traceptive coverage. Under the current regime, the form that
Little Sisters refuses to sign is entirely unconnected to the
actual provision of contraceptive services, yet the Supreme
Court still granted the requested injunction. Should the
mandate be enforced in this case, by contrast, Notre Dame
will continue to self‐certify as part of a scheme that will ac‐
tually deliver products and services to which the university
No. 13‐3853 43
has a religious objection. I am well aware that the order in
Little Sisters “should not be construed as an expression of the
Court’s views on the merits.” 2014 WL 272207, at *1. Howev‐
er, I believe the Court’s action strengthens the case for a pre‐
liminary injunction here, where the burden is, if anything,
more concrete.
Now that Notre Dame has signed the self‐certification
form, the majority doubts whether we could grant the uni‐
versity any form of meaningful relief. I agree that we cannot
enjoin the university’s insurers from providing contraceptive
coverage or require the government to forbid the insurers
from doing so. However, this only underscores the point
that Notre Dame does not (and cannot) take issue with the
independent actions of third‐parties. Meaningful relief fol‐
lows from what Notre Dame does object to: a regulation that
requires it either to pay for contraceptive services or self‐
certify that it has a religious objection in order to avoid sub‐
stantial fines. I would therefore enjoin the government from
enforcing the penalty against Notre Dame for not providing
contraceptive coverage—even if Notre Dame revokes or fails
to maintain its EBSA Form 700, refuses to make the form
available for examination upon request, or takes any action
otherwise inconsistent with 26 C.F.R. § 54.9815‐2713A.
III.
My conclusion is not intended to disparage the govern‐
ment’s efforts at accommodation in this difficult area. Espe‐
cially after Employment Division v. Smith, 494 U.S. 872 (1990),
how best to accommodate the twin demands of religious
faith and secular policy has become a challenging political
problem as much as a legal one. Our interpretation of RFRA
can only go so far in solving it. Cf. Lyng v. Nw. Indian Ceme‐
44 No. 13‐3853
tery Protective Ass’n, 485 U.S. 439, 452 (1988) (“[L]egislatures
and other institutions,” not courts, must “reconcile the vari‐
ous competing demands on government, many of them
rooted in sincere religious belief, that inevitably arise in so
diverse a society as ours.”). Whatever the eventual outcome
of this litigation, it would be unfortunate if it dissuaded ei‐
ther the government or religious institutions from taking
further steps toward mutually acceptable accommodation.
* * *
Because dismissal of this appeal is no longer an option, I
conclude that Notre Dame has shown a likelihood of success
on the merits, and that it has met the other requirements for
a preliminary injunction. I would therefore reverse the dis‐
trict court’s order denying relief. I respectfully dissent.
University of Notre Dame v. Kathleen Sebelius
Court: Court of Appeals for the Seventh Circuit
Date filed: 2014-02-21
Citations: 743 F.3d 547
Copy CitationsCombined Opinion