Unclear on the concept: no burden, so no injunction for religious college

The Seventh Circuit Court of Appeals has upheld the denial of an injunction that would have barred HHS from enforcing the contraceptive coverage mandate against Wheaton College (Wheaton). The court ruled that Wheaton was not burdened by the requirement that it identify its insurers to HHS so that HHS could notify the insurers of their obligation to provide cost-free coverage of the contraceptives that Wheaton will not cover (Wheaton College v. Burwell, July 1, 2015, Posner, R.).

The parties

Wheaton, a nondenominational, evangelical Christian college, requires students and staff to sign a “community covenant” that requires them to “uphold the God-given worth of human beings, from conception to death.” The covenant does not mention contraception, but the government accepted Wheaton’s position that it objected to any form of contraception that would either destroy or prevent the implantation of a fertilized ovum because it defines “conception” as the moment of fertilization and did not dispute Wheaton’s claims about the effects of the specific birth control methods.

Prior proceedings

Wheaton filed its lawsuit to challenge an earlier HHS rule, which required the employer to complete a form to notify its insurer of the contraceptives it would not cover and direct the insurer to do so. The Supreme Court agreed to hear Wheaton’s challenge and ruled that, pending further proceedings, the college did not have to complete the form to which it objected as long as it notified the government that it qualified for the exception. The government then would assume all responsibility for communicating with the insurer or third party administrator (See Supreme Court: religious college doesn’t have to file contraception mandate opt-out form, Health Reform WK-EDGE, July 9, 2014.).

The government amended its rules to require Wheaton only to notify the government of its religious objections and identify its insurers so that the government could communicate directly with them. Nevertheless, without amending its complaint, Wheaton continued to claim that its rights under the Religious Freedom Restoration Act (RFRA), (42 U.S.C. §2000bb et seq.) were violated, arguing that it should not have to identify the insurers or, perhaps, should be permitted to choose insurers who would not agree to provide the coverage even through the government.

Wheaton’s arguments

Wheaton contended that the revised procedure effectively allowed the government to use its insurance plans to provide contraception coverage to students and staff, so that Wheaton remained complicit in facilitating the behavior it finds sinful. The court rejected Wheaton’s characterization of the requirement and its claim of complicity, reasoning that the government could not know about Wheaton’s specific objections unless Wheaton told it. In addition, the law, not Wheaton’s communication to the government, triggered the obligations of its insurers.

Wheaton also argued that all of its students and staff sign the community covenant, so that they would not access the forbidden contraceptives. But the court noted that the community covenant did not mention contraception, so that it could not assume that everyone who signed it would understand that they were pledging not to use the intrauterine devices or emergency contraception to which Wheaton objected. In addition, Wheaton did not claim that dependents of the students and staff signed the covenant, but their coverage was affected.

The court’s reasoning

The court observed that Wheaton claimed that it would have no objection to the government providing universal access to contraception; it reasoned that the effect on the college was the same as that of the requirement that it tell the government about its objections and identify its insurers. If Wheaton sought to enjoin its insurers from providing coverage, it should have added them as defendants.

In addition, Wheaton demanded to be treated as a church, but it has never identified itself as a church. It argued that the HHS rule violated section 706 of the Administrative Procedure Act (APA) without explaining how or why; similarly, Wheaton claimed violation of the Employee Retirement Income Security Act (ERISA) (29 U.S.C. §§1001 et seq.) by requiring the contraception coverage, but the document that requires the insurer to cover contraception is issued by the government, not Wheaton.

The court also observed that Wheaton’s claims that the contraceptive methods worked to prevent implantation of an embryo, but the scientific evidence did not support the claim. It also noted that Wheaton did not seek simply to avoid complicity in the sin of using the contraceptive methods, it wanted to make it hard for the employees or students to obtain them.

The ultimate ruling

Finally, the court ruled that Wheaton had not met the basic requirements for issuance of a preliminary injunction because it failed to show that: (1) delaying the relief it requested until after a trial on the merits would harm it in any way; and (2) there was any reason to expect that an employee would use the coverage to which it objected. Wheaton’s entire case was based on the alleged forced use of its health plans, and the court found that allegation factually and legally untrue.

The case is No. 14-2396.