Notre Dame contraception battle revived

More than one year after the Seventh Circuit Court of Appeals denied the University of Notre Dame’s plea for relief from the Patient Protection and Affordable Care Act’s (ACA’s) (P.L. 111-148) contraception mandate exemption requirements, the U.S. Supreme Court ordered the appellate court to revisit the issue. The High Court granted Notre Dame’s petition for writ of certiorari, vacating the Seventh Circuit’s order and remanding the case in light of the Supreme Court’s decisions in Burwell v. Hobby Lobby Stores, Inc. (Hobby Lobby) and Wheaton College v. Burwell (Wheaton College). Notre Dame’s contentions focused on the allegedly substantial burdens imposed on it by the requirement that it complete EBSA Form 700.

Notre Dame

Despite its status as a Catholic university, Notre Dame does not meet the ACA’s definition of a religious employer. In order to be exempt from the ACA’s requirement to provide FDA-approved contraceptive coverage to its employees and students, the university was required to execute EBSA Form 700, certifying that it was a nonprofit entity holding itself out as a religious organization and that it opposed the provision of contraceptive services. Upon execution, Notre Dame’s insurers would become responsible for providing contraception coverage. However, Notre Dame argued to the Seventh Circuit that the requirement imposed a substantial burden on its exercise of religion because completion of the form would serve as a trigger to provide contraceptive coverage, in contravention of its religious beliefs. The appellate court disagreed, referring to the form as a warning, rather than a trigger, and stating, “It enables nothing.” The court denied the case (see Notre Dame signs EBSA Form 700-Certification, not substantially burdened, Health Reform WK-EDGE, February 26, 2014).

Supreme Court litigation

Three months later, the U.S. Supreme Court issued its landmark ruling in Hobby Lobby, holding that the mandate could not be applied to for-profit closely-held corporations with religious objections to the mandate because the regulations violated the Religious Freedom Restoration Act (RFRA) (42 U.S.C. §§2000bb et seq.). Although it declined to rule on whether the provision of contraception was a compelling government interest, the Supreme Court determined that the mandate was not the least-restrictive means of furthering that interest. One week later, the Court granted an injunction to Wheaton College, a Christian liberal arts college, enjoining the government from requiring Wheaton to execute EBSA Form 700, which Wheaton believed, would “make it morally complicit in the wrongful destruction of human life.” In doing so, the Court noted the existence of a circuit split as to whether to enjoin the requirement that religious nonprofit organizations use EBSA Form 700 (see Supreme Court: religious college doesn’t have to file contraception mandate opt-out form, Health Reform WK-EDGE, July 9, 2014).

Certiorari and remand

In light of the Hobby Lobby and Wheaton College decisions, Notre Dame filed a petition for certiorari with the Supreme Court, asking it to vacate the Seventh Circuit decision and remand it for consideration. Notre Dame argued that the Hobby Lobby decision focused on the “‘consequences’ of noncompliance,” while the Seventh Circuit decision, “focused on the actions that Notre Dame was compelled to take.” Furthermore, according to Notre Dame, the Hobby Lobby decision left it to plaintiffs to determine whether an act was sufficiently connected to conduct as to make it immoral. It renewed its argument that the mandate substantially burdened Notre Dame’s exercise of religion, yet neither served a compelling government interest nor was the least restrictive means of doing so.

The Supreme Court granted the petition, vacating the Seventh Circuit’s decision and remanding the case to the appellate court. Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty, which filed an amicus brief in the case, referred to the grant as, “a strong signal that the Supreme Court will ultimately reject the government’s narrow view of religious liberty.”