University of Notre Dame v. Sylvia Mathews Burwell
786 F.3d 606
7th Cir.2015Background
- The ACA requires employer-provided group health plans and insurers to cover certain preventive services for women, including FDA-approved contraceptives, without cost sharing; HHS promulgated regulations implementing an "accommodation" for religious non-profits that allows them to opt out by submitting EBSA Form 700.
- University of Notre Dame, a Catholic nonprofit, objects to facilitating contraception; it self-insures employees (third-party administrator Meritain) and offers a student plan through Aetna.
- Notre Dame filed suit challenging the accommodation as a RFRA and First Amendment violation; it sought a preliminary injunction after invoking the accommodation (signing Form 700) and notifying insurers/TPA.
- The district court denied preliminary relief; the Seventh Circuit previously denied relief on an earlier record and the Supreme Court vacated and remanded for consideration in light of Burwell v. Hobby Lobby.
- On remand, the Seventh Circuit (Posner, joined by Hamilton) affirms denial of a preliminary injunction, finding the record too undeveloped to show a substantial RFRA injury or that the accommodation is not the least restrictive means; Flaum dissents.
Issues
| Issue | Plaintiff's Argument (Notre Dame) | Defendant's Argument (HHS/Govt) | Held |
|---|---|---|---|
| Whether submitting EBSA Form 700 or otherwise invoking the accommodation "substantially burdens" Notre Dame's exercise of religion under RFRA | Form 700 and related interaction with Aetna/Meritain makes Notre Dame a "conduit" or complicit in provision of contraception, imposing a substantial religious burden | The obligation to provide contraceptive coverage arises from federal law; signing the form merely notifies the government and shifts provision to insurers/TPAs; no substantial burden shown on the sparse record | Court: No preliminary relief — record insufficient to show substantial burden; Notre Dame has alternatives and has not carried burden for injunction |
| Whether the accommodation is the least restrictive means of furthering a compelling governmental interest in women’s health and access to contraception | The government can feasibly provide alternatives (direct provision, grants, tax measures, single-payer–style program) that would avoid religious compulsion; HHS has not proved those are infeasible | The accommodation minimizes administrative and access obstacles; alternatives would be costly, burdensome, and reduce access; government bears the burden to show least restrictive means and has articulated strong interests | Court: On the limited record, government’s accommodation stands; Notre Dame failed to show alternatives that are practicable or less restrictive for purposes of preliminary injunction |
| Whether the regulation’s designation/treatment of TPAs as plan administrators improperly "triggers" fiduciary duties that make Notre Dame complicit | The regulatory mechanism that "treats" the TPA as plan administrator directly makes Notre Dame responsible for enabling contraception | The designation is a legal mechanism effectuated by the government to shift administrative responsibility to insurers/TPAs; Notre Dame presented no contract evidence showing Meritain could not act | Court: Notre Dame produced no contract or factual proof; signing the form does not legally force the university to cause the provision; record insufficient |
| Appropriateness of preliminary injunctive relief given effect on third parties (insurers, employees, students) | Immediate injunction needed to prevent religious compulsion and ongoing violation of Notre Dame’s beliefs | Injunction would disrupt coverage for thousands of women and injure insurers who have no objection and have had no opportunity to intervene; status quo favors denying emergency relief | Court: Equitable considerations and sparse record weigh against preliminary injunction; denial affirmed |
Key Cases Cited
- Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (RFRA analysis in contraceptive-mandate context; recognized accommodation for religious nonprofits and held closely held for-profit owners may invoke RFRA)
- Wheaton College v. Burwell, 134 S. Ct. 2806 (2014) (per curiam) (temporary relief allowing a religious college to notify HHS instead of insurers to invoke exemption)
- Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) (Seventh Circuit RFRA framework applied in preliminary-injunction context)
- Priests for Life v. U.S. Dep’t of Health & Human Services, 772 F.3d 229 (D.C. Cir. 2014) (upholding government’s compelling interests and discussing accommodation and access concerns)
- Bowen v. Roy, 476 U.S. 693 (1986) (government internal procedures need not conform to an individual’s religious beliefs; limits on substituting religious judgment for legal analysis)