Injunction junction need not function, contraceptive accommodation is enough for 7th Circuit

The Seventh Circuit held that the University of Notre Dame was not entitled to a preliminary injunction barring its insurer and third party administrator from providing contraception coverage to University students and employees under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) contraception mandate. On remand from the United States Supreme Court, the Seventh Circuit held that the accommodation provided by EBSA Form 700 adequately removed Notre Dame from complicity in what Notre Dame called the “sin of contraception.” The court reasoned that because only a third party administrator and Notre Dame’s insurer were engaged in the provision of contraceptives, no religious objection by Notre Dame was sufficient to prevent continuation of that coverage (University of Notre Dame v. Burwell, May 19, 2015, Posner, R.).

ESBA Form 700

Because Notre Dame did not meet the ACA’s religious employer exception, 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. By signing the form, the burden of covering contraceptives shifted from Notre Dame to Aetna and Meritain Health, Inc., the university’s health insurance provider and third party administrator. The university asserted that executing the form constituted a substantial burden on its exercise of religion. A district court and the Seventh Circuit disagreed with that analysis and held that the form served as a “warning” and not a “trigger” because it merely shifted the obligation to a different entity that was obligated to provide contraception coverage under federal law anyway (see Notre Dame signs EBSA Form 700-Certification, not substantially burdened, Health Reform WK-EDGE, February 26, 2014).

Supreme Court

After the U.S. Supreme Court handed down its decisions in Burwell v. Hobby Lobby Stores, Inc. (Hobby Lobby) and Wheaton College v. Burwell (Wheaton College), Notre Dame filed a petition for a writ of certiorari with the Supreme Court, asking it to vacate the Seventh Circuit decision and remand it for consideration. Notre Dame relied on the Hobby Lobby decision and renewed its position that the mandate substantially burdened its exercise of religion without either serving a compelling government interest or being the least restrictive means of doing so. The Supreme Court granted the petition, vacated the Seventh Circuit’s decision, and remanded the case back to the appellate court (see Notre Dame contraception battle revived, Health Reform WK-EDGE, March 11, 2015).


On remand, the Seventh Circuit was unpersuaded by Notre Dame’s objections to the accommodation. In particular, the appellate court rejected the position that the mailing of EBSA Form 700 caused or triggered the provision of contraceptive coverage. The court reasoned that once Notre Dame opted out of providing federally mandated contraception coverage, by exercising its religious exemption, the federal government—and not Notre Dame—enlisted the third party administrator and insurer to provide the coverage.


As a result, the court held that Notre Dame was not functioning as a “conduit” to deliver contraceptives. On the contrary, the court reasoned that the university had its religious burden “lifted” when it filled out EBSA Form 700. Because the effect of the form was to have students and staff members do business directly with Aetna and Meritain to obtain contraceptives, Notre Dame bypassed the objectionable act. Additionally, the court reasoned that Notre Dame could not have, as it argued, “triggered” the provision of contraceptives because federal law mandated such coverage. The filling out of the form merely shifted who was responsible for providing that coverage.

Hobby Lobby

In accordance with the Supreme Court’s request, the Seventh Circuit analyzed the effect of the Hobby Lobby decision where the high court held that the contraceptive mandate could not be applied to for-profit closely-held corporations with religious objections to contraceptive coverage because the mandate violated the Religious Freedom Restoration Act (RFRA) (42 U.S.C. §§2000bb et seq.). In that case, the Supreme Court held that the RFRA should apply to “nonreligious institutions owned by persons having sincere religious objections to their institutions’ having to comply with the ACA’s contraceptive regulations.”


The Seventh Circuit distinguished the Hobby Lobby decision from the Notre Dame case on the fact that in Hobby Lobby, the complaining organizations requested the right to fill out the form for religious accommodation, whereas, Notre Dame’s principal objection was to filling out the form at all. Although the Seventh Circuit acknowledged that the Hobby Lobby Court left open the possibility that the accommodation could substantially burden the free exercise of religion for some organizations in some cases, the Seventh Circuit found no meaningful explanation in the record of feasible alternatives to the status quo accommodation.


Additionally, the Seventh Circuit pointed to the accommodation struck in Wheaton College where the Supreme Court held that an objecting organization could evade the ESBA Form 700 and directly inform HHS of its objection as an alternative. The court held that accommodation “implies a balance of competing interests.” Accordingly, the court balanced the burden on Notre Dame of “simply notifying the government that the ball is now in the government’s court” with the potential burden of devising an “entirely new method of providing contraceptive coverage.” The court held that the balance did not favor an injunction for the university.


Judge Hamilton concurred with the opinion on the grounds that, based upon the current state of the record, Notre Dame was not entitled to preliminary injunctive relief. The concurrence reasoned that “an injunction would disrupt the status quo and temporarily cut off contraceptive coverage for hundreds or thousands of women.” According to the concurrence, the merits of the case required further exploration at a trial. The concurrence articulated important differences between Hobby Lobby and the Notre Dame case and reasoned that those distinctions rendered the Hobby Lobby case less than instructive on the breadth of religious freedom for an institution like Notre Dame.

Notably, the concurrence pointed out distinction arising from the “extraordinary feature” of the lawsuit—Notre Dame’s claim that the process of requesting the accommodation itself was a substantial burden on its exercise of religion. Like Judge Posner, Hamilton concluded that the triggering or casual arguments raised by Notre Dame were unpersuasive because the contraceptive coverage provided to students and staff members of Notre Dame were “caused” by federal law and not by any action of the university. The concurrence articulated Notre Dame’s objection not as an objection to the accommodation itself but to the fact that its exemption was coupled with a substitute—specifically, that someone else would provide the coverage. Accordingly, the concurrence reasoned that Notre Dame’s request reached beyond the protections afforded to it by the RFRA.


Judge Flaum dissented on the grounds that the contraceptive mandate forced Notre Dame to act as a conduit for the provision of cost-free contraception, which made Notre Dame complicit in something that the university saw as a violation of its religious beliefs. The dissent reasoned that Notre Dame articulated a substantial burden for purposes of the RFRA because of its position as a self-insurer (through its contract with Meritain) and as an insurance broker (through its contract with Aetna). Although the accommodation removed the university’s obligation to pay for contraceptives, the dissent concluded that the ACA nevertheless obligated Notre Dame to occupy a “facilitator’s role” regarding the provision of contraception. Judge Flaum held that the Hobby Lobby decision required a different burden than the one applied by the court. The dissent reasoned that the RFRA analysis should have asked “whether the means by which the government is attempting to advance its compelling interest is the least burdensome on Notre Dame’s religious beliefs.”