Lead Opinion
The Affordable Care Act requires providers of health insurance (including both health insurance companies and companies that administer self-insured employer health plans on behalf of the employer— such companies are called “third party administrators”) to cover certain preventive services without cost to the insured, including, “with respect to women, such additional preventive care ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” of the Department of Health and Human Services. 42 U.S.C. § 300gg-13(a)(4); see also 45 C.F.R. § 147.130(a)(1)(iv); 76 Fed.Reg. 46621, 46623 (Aug. 3, 2011). Guidelines specifying such care have been promulgated by the Department and include, so far as bears on this case, “all Food and Drug Administration approved contraceptive methods.” Health Resources & Services Administration, “Women’s Preventive Services Guidelines,” www.hrsa.gov/womensguidelines (visited May 14, 2015, as were the other websites cited in this opinion).
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 other birth problems. Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 102-03 (2011), www.nap.edu/ catalog.php?reeorcLid=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, and contraceptive use has been found to be positively correlated with decreased teen pregnancy. John S. Santelli & Andrea J. Melnikas, “Teen Fertility in Tran
The University of Notre Dame provides health benefits to both its employees and its students. It self-insures its employees’ medical expenses, but has hired Meritain Health, Inc. to administer the employee health plan without providing any insurance coverage; Meritain is therefore the third-party administrator of the university’s employee health plan. To take care of its students’ medical needs, Notre Dame has a contract with Aetna, Inc., the well-known health care and health insurance company (and Meritain’s parent); the contract gives the students the option of obtaining health insurance from Aetna at rates negotiated by Notre Dame. Meritain administers coverage for some 4600 employees of Notre Dame (out of a total of 5200) and 6400 dependents of employees. Aetna insures 2600 students and 100 dependents; Notre Dame has about 11,000 students, most of whom have coverage under either their parents’ health insurance policies or under their own policies rather than under the Aetna Notre Dame Health Plan.
Because Catholic doctrine forbids the use of contraceptives to prevent pregnancy (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 employees or permitted Aetna to insure students under the Aetna Notre Dame Health Plan (or any other Aetna plan) for the expense of contraceptives. Cognizant of the religious objections of Catholic and a number of other religious 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 results from a rule of general applicability,” unless “it demonstrates 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 governmental interest,” some months after the enactment of the Affordable Care Act the government offered a religious exemption from the con
At first the exemption was limited to churches and so excluded religious institutions that are incorporated as nonprofit (rather than as religious) institutions, such as Notre Dame. The exclusion precipitated the filing in 2012 of a federal suit by the university against the government, claiming that the contraceptive regulations infringed rights conferred on the university by both the First Amendment and the Religious Freedom Restoration Act. That suit was dismissed 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 new regulations would be issued. University of Notre Dame v. Sebelius,
But to exercise its right conferred by the new regulations to opt out of having to pay for contraceptive coverage either directly (with or without the administrative assistance of a third-party administrator, such as Meritain) 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/preventiveser viceseligibleorganizationcertificationfprm. pdf) is short, its meat the following sentence: “I certify that, on account of religious objections, the organization 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 organization 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) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.” So Notre Dame, if it decided to sign the exemption form, would have to give copies to both Aetna and Meritain.
As noted at the outset of this opinion, the Affordable Care Act requires providers of health insurance (including third-party administrators of self-insured health plans, even though they are conduits rather than ultimate payors of plan benefits) to provide contraceptive coverage for women. See also 45 C.F.R. §§ 147.131(c)(2)(i)(B), (ii); 29 C.F.R. § 2590.715-2713A(b)(3). The exemption form if signed by Notre Dame and sent to Aetna and Meritain would therefore inform them that since Notre Dame was not going to pay for contraceptive coverage of its students and staff, Aetna and Meritain would have to pay. Aetna (including its Meritain subsidiary) has neither religious nor financial objections to paying for contraception. Regarding the cost to these companies, the government will reimburse at least 110 percent of the third-party administrator’s (Meritain’s) costs, 45 C.F.R. § 156.50(d)(3), while Aetna can expect to recoup its costs of contraceptive coverage from savings on pregnancy medical care (since there will be
The regulations required Aetna and Meritain, if Notre Dame signed and sent the exemption form — but not Notre Dame — to inform the university’s female employees and students that those companies would be covering their contraceptive costs. See 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d). The companies could either “provide payments for contraceptive services” themselves or, alternatively, “arrange for an insurer or other entity to provide’ payments for” those services, but they could not “impos[e] any cost-sharing requirements (such as a co-payment, 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 sought an accommodation between the secular interests that had motivated the requirement to provide contraceptive services to women free of charge and the interests of religious objectors. Accommodation is consistent with the balancing act required by the Religious Freedom Restoration Act, which as we noted requires consideration of “substantial burden” (on the institution unwilling to provide contraceptive services), a “compelling governmental interest” in that provision, and the “least restrictive means” that is feasible for realizing the government’s interest.
When the accommodation was promulgated in July of 2013, Notre Dame did not at first bring a new suit (remember 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 were irrelevant to a suit challenging the new regulations). Not until December 2013 did the university file the present suit, challenging the accommodation. The deiay 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, 2014. “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra, 78 Fed.Reg. at 39889. (The student health plan, provided by Aetna, had until August 2014 to comply. See id.; University of Notre Dame, 2013-2011. Student Injury and Sickness Insurance Plan 3, 5, http://uhs.nd.edu/assets/ 108455/nd_brochure_1314.pdf.)
With the January deadline for compliance looming, the university, less than a week after filing its second suit on December 3, 2014, asked the district court to issue a preliminary injunction that would prevent the government from enforcing the regulation against it pending a trial. The district judge denied the motion on December 20, and Notre Dame filed its appeal from that denial the same day. On December 30 we denied the university’s emergency motion for an injunction pending appeal. The next day — the last day before it would be penalized for violating the regulations — the university signed EBSA Form 700 and thereby opted out of providing contraceptive coverage for its employees. On January 28 it filed with us a second appeal from the denial of the preliminary injunction that it had sought. Later it signed the same form regarding Aetna.
The lawsuit had been only a few weeks old when Notre Dame appealed, and so the district judge suspended all proceedings in his court pending our resolution of the
Notre Dame continued filing appellate petitions, the most notable being a petition for certiorari, granted by the Supreme Court on March 9 of this year in an order (University of Notre Dame v. Burwell, — U.S.-,
Our previous opinion had expressed puzzlement about what exactly the university wanted us to enjoin. It had by that time signed EBSA Form 700 and sent copies to Aetna and Meritain, thus obtaining the statutory accommodation, and the companies had notified Notre Dame’s employees and students that they (the companies, not the university) would be providing contraceptive coverage. We now have (we think) a clearer idea of what the university wants. It wants us to enjoin the government from forbidding Notre Dame to bar Aetna and Meritain from providing contraceptive coverage to any of the university’s students or employees. Because of its contractual relations with the two companies, which continue to provide health insurance coverage and administration for medical services apart from contraception as a method of preventing pregnancy, Notre Dame claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain — with both of which, to repeat, it continues to have contractual relations — to provide any contraceptive coverage to Notre Dame students or staff. The result would be that the students and staff currently lacking coverage other than from Aetna or Meri-tain would have to fend for themselves, seeking contraceptive coverage elsewhere in the health insurance market.
Notre Dame does not forbid its students or staff to use contraception or to obtain reimbursement from health insurance companies for their purchase of contraceptives. Its objection that it asks us to ratify by issuing a preliminary injunction is to Aetna’s and Meritain’s being legally obligated to make contraceptive coverage available to Notre Dame students and staff. It regards its contractual relation
But the scanty record contains no evidence to support the conduit theory. Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs. As far as we can determine from the very limited record, the only “conduit” is between the companies and Notre Dame students and staff; the university has stepped aside. Thus it tells its students (and we assume its staff as well) that “the University of Notre Dame honors the moral teachings of the Catholic Church. Therefore, for example, University Health Services may prescribe contraceptive medications to treat approved medical conditions, but not to prevent pregnancy. To comply with federal law, Aetna Student Health provides coverage for additional women’s health products or procedures that the University objects to based on its religious beliefs. This coverage is separate from, Notre Dame. Students enrolled in Aetna Student Health may call Aetna customer service at 877-378-9492 for more information. Students not covered by Aetna Student Health should check with their own insurance plans regarding federally-mandated women’s health coverage.” University of No-tre Dame Health Services, “FAQ-Aetna Student Health,” http://uhs.nd.edu/ insurance-billing/faq-aetna-student-health-ans/ (emphasis added). There thus is no suggestion that Notre Dame is involved at all in Aetna’s and Meritain’s contraception coverage.
When the case was last before us, in 2014, the university’s lawyer had similarly argued that Notre Dame’s health plans were the “conduit” through which the employees and students obtained contraceptive coverage, making Notre Dame complicit in sin. But the lawyer also had said that his client would have no problem 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.” It’s difficult to see how that would make the health plan any less of a “conduit” between Notre Dame and Aetna/Meritain.
It’s not even clear that by forcing Aet-na/Meritain to provide Notre Dame’s students and staff with contraception coverage the government is forcing Notre Dame to do business with an entity that is providing an objectionable service to the Notre Dame community. For the government authorizes a third-party administrator to “arrange for an issuer or other entity” to pay for contraception coverage and bill the expense to the government. 29 C.F.R. § 2590.715-2713A(b)(2)(ii). No-tre Dame thus could ask Meritain to outsource contraception coverage for both students and staff to an entity that does no business with Notre Dame. The university would have no contractual relationship with that entity and so would not be involved even indirectly in the provision of contraceptive coverage to its students and employees.
A further problem with Notre Dame’s quest for a preliminary injunction is the absence from the record of its contracts with Aetna and Meritain. We are not told what the duration of the contracts is, whether or in what circumstances they are
It is irregular, moreover, for a court to be asked to enjoin nonparties. For all we know, Aetna and its subsidiary value the opportunity to provide contraception coverage with generous reimbursement by the federal government. (The record, consistent with its sparseness, contains almost nothing about Aetna or Meritain.) Their business is providing health care, health care administration, and health insurance, and Notre Dame wants unilaterally to exclude them from a possibly lucrative chunk of that business. When the university, albeit under protest, signed and mailed the exemption form, Aetna and Meritain reasonably believed that they had an economic opportunity — that for the first time they would be providing contraceptive coverage to the Notre Dame community. (Remember that before the Affordable Care Act was passed they provided no such coverage to the community.) They have had no opportunity to intervene in the district court, where proceedings have been suspended pending Notre Dame’s appellate submissions culminating in this case.
Notre Dame takes particular umbrage at the regulation under the Affordable Care Act which states that “if the eligible organization provides a copy of the self-certification [EBSA Form 700] of its objection to administering or funding any contraceptive benefits ... to a third party administrator [Meritain], the self-certification shall be an instrument 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)(l)(iv) of this chapter to which the eligible organization objects on religious grounds.” 29 C.F.R. § 2510.3-16(b). (What a mouthful!) Notre Dame treats this regulation as having made its mailing of the certification form to its third-party administrator (Meritain) the cause of the provision of contraceptive services to its employees in violation of its religious beliefs. That’s not correct. Since there is now a federal right, unquestioned by Notre Dame, to contraceptive services, the effect of the university’s exercise of its religious exemption is to throw the entire burden of administration on the entities (Aetna and Meritain) that now provide contraceptive coverage to Notre Dame’s students and staff. The university is permitted to opt out of providing federally mandated contraceptive services, and the federal government determines (enlists, drafts, conscripts) substitute providers, and it is not surprising that'they are' the providers who already are providing health services to university students and staff.
The university argues that by conditioning its right not to provide contraceptive coverage for its students and staff on its signing EBSA Form 700 and giving copies to Aetna and Meritain, the government has, in violation of RFRA, “substantially
Alternatively Notre Dame charges that the government has “eoeree[d] [it] into serving as the crucial link between contraceptive providers and recipients.” That’s a recursion to the “conduit” theory, and ignores that as a result of the university’s signing the exemption form, students and staff now deal directly with Aetna and Meritain, bypassing Notre Dame. It is federal law, rather than the religious organization’s signing and mailing the form, that 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 Meritain would still be required to provide the services to the university’s students and employees.
Notre Dame says no — that had it not filled out the form, Meritain wouldn’t have been authorized to provide contraceptive services because it would have been a “plan administrator” under section 3(16) of ERISA, 29 U.S.C. § 1002(16), and thus not a plan fiduciary entitled to make expenditures (as for contraception coverage) on behalf of the plan. The university argues that it alone is authorized to designate a plan fiduciary, 29 U.S.C. § 1102(a)(2), and that it made that designation in the form that it mailed to the company and thus is complicit in the provision of contraceptives to the university’s staff. This version of Notre Dame’s “triggering” argument does not apply to Aetna, which is the students’ health insurer and so already a plan fiduciary, 29 U.S.C. § 1002(21)(A), required therefore by the Affordable Care Act to provide contraceptive coverage to plan members whether or not Notre Dame signs the form. 45 C.F.R. §§ 147.130(a)(l)(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 Under the Affordable Care Act,” swpra,
Nor has the university been ordered to name Meritain 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
Suppose the United States, like the United Kingdom, Canada, and many other foreign nations, had a “single payer” health care system. In such a system, the government pays the cost of specified medical services (if the United States had such a system, it would be the equivalent of Medicare for everyone), rather than employers, health insurers, and patients, though patients may be charged directly for some of the expense of the medical care provided by the system, as distinct from indirectly through taxes. If our hypothetical single-payer system paid the full expense of female contraceptives, No-tre Dame couldn’t argue that the system placed a “substantial burden” on the university’s compliance with Catholic doctrine, for Notre Dame does not deny the existence of the legitimate secular interests noted at the outset of this opinion that justify a federal program of paying for contraceptive expenses. (For a summary of those interests, see “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra, 78 Fed.Reg. at 39872-73.) It even advised the district court that to “achieve its asserted interests without forcing Notre Dame to violate its religious beliefs” the government could “directly provide contraceptive[s]” to the university’s staff and students or, alternatively, “directly offer insurance coverage for contraceptive services.” The consequence in either case would be a single-payer system for contraceptives. The main difference between such a system and the Affordable Care Act is that under the Act the government, instead of providing medical services directly, uses private insurance providers and health plan administrators as its agents to provide medical services subsidized by the government.
If the government is entitled to require that female contraceptives be provided to women free of charge, it is unclear how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and its mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to “trigger” the provision of contraceptive coverage.
But we must — we have been ordered by the Supreme Court to — consider the bearing on our analysis of Burwell v. Hobby Lobby Stores, Inc., —- U.S. -,
The Supreme Court did leave open in Hobby Lobby the possibility that the accommodation sought and obtained there would not prevent religious beliefs or practices from being substantially burdened in some cases. But it gave no examples; perhaps it remanded our case for further consideration of that possibility. We’ve suggested in this opinion that Notre Dame could as an alternative to the official accommodation direct Meritain to delegate to companies that have no contractual relationship with Notre Dame (as Aetna and Meritain do) the provision of contraception coverage to the university’s students and staff. Then Notre Dame would be outside the loop.
Notre Dame does note possible alternatives, such as a single-payer system in which Notre Dame women would apply directly to the government for reimbursement of their costs of buying contraceptives. But at this stage in the litigation, with no trial having been conducted, we have no basis for concluding that any of the university’s proposed alternatives would avoid imposing an unreasonable cost either on the government or on Notre Dame’s students and employees. The government, as we said, typically provides medical services, including reimbursement of costs incurred by medical providers, indirectly, through health insurance companies such as Aetna. Does Notre Dame expect the government to establish a federal contraception agency to which Notre Dame women should send the bills for the contraceptives they buy? Alternatively, must every woman who wants reimbursement of contraceptive costs pick a health insurance company, maybe on the basis of a Google search, to contract with? This seem to be what the university has in mind when it says in its position statement that it has no “objection to a system in which its employees or students coordinated with an independent insurer to provide coverage that ‘would not involve Notre Dame’ ” (emphasis in original). But because it’s a bother for a person to shop for the “best” contraceptive coverage, the proposed solution would reduce the number of women with such coverage, compared to their being entitled to such coverage automatically by virtue of being Notre Dame students or employees. See Brigitte C. Madrian & Dennis F. Shea, “The Power of Suggestion: Inertia in 401(k) Participation and Savings Behavior,” 116 Quarterly Journal of Economics 1149 (2001), comparing employee participation in employer-sponsored
The Supreme Court pertinently observed in its Hobby Lobby opinion that the official accommodation (the accommodation that Notre Dame wants to escape from) would not impede “women’s receipt of benefits by requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit.”
Notre Dame says in its position statement that the government has “many alternative ways of providing free contraceptive coverage without using the health plans of objecting religious non-profits as the conduit” (emphasis added). Put to one side the question in what sense students and staff dealing directly as they now do with Aetna and Meritain are “using” Notre Dame’s health plans — plans that exclude, contraception coverage. Our present concern is that Notre Dame has thus far failed to explain the “many alternative ways” (elsewhere it refers to “the myriad ways” or “any number of ways” in which the government can provide free contraceptive coverage to Notre Dame’s students and staff) — and it admits that it (that is, Notre Dame) “opposes many of these alternatives on policy grounds.”
It lists the following “myriad ways”: The government could
(i) directly provide contraceptive services to the few individuals who do not receive it under their health plans;
(ii) offer grants to entities that already provide contraceptive services at. free or subsidized rates and/or work with these entities to expand delivery of the services;
(iii) directly offer insurance coverage for contraceptive services;
(iv) grant tax credits or deductions to women who purchase contraceptive services; or
(v) allow Notre Dame and other Catholic non-profit organizations to comply with the Mandate [what we are calling the accommodation or official accommodation] by providing coverage for methods of family planning consistent with Catholic beliefs (i.e., Natural Family Planning training and materials).
Number v is not contraception at all; iv elides all consideration of the costs and complications of the administrative machinery for providing tax incentives to consumers; options i through iii similarly would involve cumbersome administrative machinery and at the same time impose a burden on Notre Dame’s female students and employees who want to obtain contraceptives.
Nor does Notre Dame explain how a government program that directly or indirectly provided contraception coverage to Notre Dame employees — as Notre Dame suggests — would avoid complicity in sin. Were Notre Dame to hire an unemployed person who, by virtue of becoming employed by Notre Dame, obtained contraception coverage for the first time, would not the university be “triggering” the new employee’s access to contraception?
We point out, finally, that a religious institution does not have to sign ESBA 700 •in order to exempt itself from the requirement of providing contraceptive coverage to employees and (if the institution is a college or university) students. It can in the alternative notify the Department of Health and Human Services. That was the alternative chosen by another institu
Notre Dame tells us that it likewise objects to that alternative. But based on the sparse record before us, there is a strong argument that given the government’s legitimate interest in the provision of contraceptive coverage to women without cost to them, notice to the government would strike the proper balance between legitimate governmental and sincere religious interests. That was the accommodation sought and received by Wheaton College.
We are put in mind of Bowen v. Roy,
We emphasize in closing the tentative character of the analysis in this opinion. The record is insufficiently developed to enable us to rule definitively on Notre Dame’s claims. The burden of establishing an entitlement to a preliminary injunction was of course on the university, not on the government. The burden has not been carried. Chief Judge Simon’s denial of preliminary relief is therefore once again
Affirmed.
Concurrence Opinion
concurring.
I join Judge Posner’s opinion in full. Notre Dame is not entitled to preliminary injunctive relief at this point. While the ultimate decision on the merits of this case remains uncertain, equitable considerations weigh against a grant of a preliminary injunction now. An injunction would disrupt the status quo and temporarily cut off contraceptive coverage for hundreds or thousands of women.
What this case needs now is a trial on the merits where the relevant factual issues can be explored in depth. The limited factual record before us was made in the district court on an emergency basis in December 2013. That record was also made without the participation of the in-tervenors, who would be affected most directly by the injunction Notre Dame seeks. Since that time, also, the legal and factual landscapes shaping the issues have shifted a good deal.
Where the law is evolving rapidly and the facts are complex, the better course is usually full exploration of the evidence and thorough findings of fact by the district court, rather than reliance on sweeping legal doctrines and hypothesized or assumed facts. See Lalonde v. Textron, Inc.,
For now, however, the Supreme Court has ordered us to reconsider our earlier interlocutory decision in light of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. -,
The Court’s conclusion focused on how the accommodation allowed the employer
The accommodation for religious not-for-profits thus made it fairly easy for the Hobby Lobby Court to find that a less restrictive and equally effective alternative was available to accomplish the government’s purposes, which the Court assumed were compelling. The Court’s solution was to extend the accommodation to religious owners of closely held businesses.
What does Hobby Lobby teach us about this case? In deciding Hobby Lobby, the Supreme Court was well aware of pending lawsuits like this one, in which religious not-for-profits have challenged the accommodation itself as violating their rights under the Religious Freedom Restoration Act. The majority opinion referred to this category of cases in footnote 9 and wrote later “We do not decide today whether an approach of this type [i.e., the accommodation] complies with RFRA for purposes of all religious claims.”
Despite this inconclusive comment, it is useful to consider in turn the three principal issues under RFRA in light of the Court’s remand order after Hobby Lobby. Those issues are: (1) “substantial burden” on the exercise of religion; (2) compelling governmental interests; and (3) less restrictive alternatives.
1. Substantial Burden: Notre Dame reads Hobby Lobby as resolving conclusively in its favor the issue whether the accommodation substantially burdens its exercise of its religion. In Hobby Lobby, the Court found that the Affordable Care Act’s requirements for contraceptive coverage by for-profit employers substantially burdened the plaintiffs’ exercise of religion., The employers were required by law to contract and pay for contraceptive coverage to which the, employers’ owners objected on sincere religious grounds. The alternatives to compliance would have imposed stiff financial consequences, which the Court deemed a substantial burden.
Notre Dame finds most helpful to its position the Hobby Lobby rejection of the government’s argument that the role of the employer in contracting and paying for contraceptive coverage was too remote from an employee’s use of contraceptives to impose a substantial burden on the exercise of religion. Federal courts had no business addressing whether the plaintiffs’ religious beliefs about their moral complicity were reasonable. Id. at 2778. The Court explained:
This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or*621 facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS'and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.
The accommodation for religious not-for-proflts accepts an employer’s religious beliefs and provides a mechanism to provide coverage to employees and their families, while making sure that the employer need not contract, arrange, pay, or refer for the health care it finds objectionable on religious grounds. Notre Dame asserts, however, that the mere act of requesting the exemption substantially burdens its religious exercise because it still has an attenuated role in causing its employees and students to receive the objectionable coverage. Citing Hobby Lobby, Notre Dame asserts that its opinion or belief is beyond the reach of a federal court, apart from questions of sincerity.
It is not obvious that the reasoning of Hobby Lobby on the substantial burden issue extends to this case. There are important differences between the cases: Notre Dame challenges not the general rule but the accommodation itself, and it attempts to prevent the government from arranging for a substitute for the employer to pay for contraceptive care. Notre Dame also contends, in effect, that its religious belief can substitute for legal analysis regarding the operation of federal law.
Any student of United States history learns the central roles that religious faith and tolerance have played in the settlement of this land and in the founding of the British colonies and the modern States and the federal Republic. We have a long tradition of governing in ways that accommodate the free exercise of religion. Special treatment of religious faith and practice abounds. From conscientious objector status in the military draft to federal and state tax codes, from compulsory school attendance laws to school lunch menus, from zoning law to employment law and even fish and wildlife rules, our governments at every level have long made room for religious faith by allowing exceptions from generally applicable laws. Through such exceptions and accommodations, we respect diverse faiths, and wé govern with reasonable compromises that avoid unnecessary friction between law and faith.
As we pointed out in our first opinion in this case, the most extraordinary feature of this lawsuit is Notre Dame’s claim that the process of requesting the accommodation is itself a- substantial burden on its religious exercise. Notre Dame v. Sebelius,
The accommodation in this case, however, poses no such burdens. To take advantage of the accommodation, so that Notre Dame can avoid contracting, paying, arranging, or referring for the objectionable contraceptive care, a university official must only fill out a simple form asserting that Notre Dame is a not-for-profit employer that objects on religious grounds to the law’s contraceptive coverage require
As Judge Posner’s opinion explains, Bowen v. Roy,
Notre Dame’s, position is analogous. At this point, Notre Dame has requested the accommodation and provided the government with contact information for Aetna and Meritain. The government requires no further action from Notre Dame. The government has informed Aetna and Meri-tain of their federal obligations to provide contraceptive coverage that Notre Dame has been exempted from providing. The government’s steps to have others substitute for Notre Dame are parallel to the internal procedures at issue in Roy.
Notre Dame disagrees, arguing that only it can answer what it says is the religious question of whether its religious exercise is substantially burdened by the government’s actions.. But the Court rejected precisely that argument when it was advanced by Roy. “The Federal Government’s use of a Social Security number for Little Bird of the Snow does not itself in any degree impair Roy’s ‘freedom to believe, express, and exercise’ his religion.”
While the Court acknowledged that “Roy’s religious views may not accept this distinction between individual and governmental conduct,” id. at 701 n. 6,
Notre Dame argues, however, that the consequence of its certification and exemption imposes the substantial burden. The consequence is that federal law then requires other entities (Meritain and Aetna) to step in as substitutes to provide contraceptive coverage directly to Notre Dame employees and students, respectively, and to their families. Notre Dame objects to this consequence on religious grounds and says it could avoid this consequence only by incurring burdensome financial penalties.
The problem with this argument is that regardless of Notre Dame’s choice- — -to provide contraceptive coverage, to invoke the accommodation for religious not-for-profits, or even not to provide any health insurance coverage at all — those employ
This is an issue not of moral philosophy but of federal law. Federal courts are not required to treat Notre Dame’s erroneous legal interpretation as beyond their reach — even if that interpretation is also a sincere and religious belief. Notre Dame is not entitled to nullify the law’s benefits for others based on this mistake of law, which is the foundation of its claim of a substantial burden.
As in Roy, Notre Dame’s “religious views may not accept this distinction.”
A comparison to the military draft helps to illustrate the extraordinary nature of Notre Dame’s objection to the government’s accommodation and finding of substitutes for it. Federal law allows for exemption from military training and service for any person “who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” 50 App. U.S.C. § 456(j). (The process for claiming conscientious objector status is far more demanding than the accommodation to which Notre Dame objects, but that’s not my focus here.) Suppose a person’s religious faith leads him to believe that it is wrong for people to engage in war. He applies for conscientious objector status. .The local draft board grants him the exemption.
But suppose a board member then points out that because the objector will not be drafted, someone else will be drafted in his place. He objects again, asserting, much as Notre Dame does here, that if his exemption means someone else must substitute for him to engage in wrongdoing, he will be morally responsible for it and his religious exercise will be substantially burdened. Citing RFRA, he therefore demands that he be exempted without a substitute.
As we said in our prior opinion, that seems a “fantastic suggestion.” Notre Dame,
First, for reasons explained above, the arrangements the government makes to find substitutes for those given the benefit of a religious exemption are imposed as a matter of federal law, not as a result of the exemption itself. The party claiming the exemption is not entitled to raise a religious objection to the arrangements the government makes for a substitute. See Geneva College,
Second, if even such mistaken and attenuated objections were sufficient to invoke RFRA’s stringent least-restrictive-means test, fair governance where the law imposes burdens on individuals would become nearly impossible. In the draft context, the conscientious objector could argue, much as Notre Dame does here, in favor of an all-volunteer military as a less restrictive means. Should arguments for such radical restructuring of government programs be sufficient under RFRA? And in contexts not involving national security and defense, would government accommodations of religion that require finding substitutes all have to satisfy compelling-interest, least-restrictive-means scrutiny?
For these reasons, RFRA should not be understood to recognize such mistaken views about substitutes as “substantial burdens” on religious belief. Accord, Geneva College,
2. Compelling Governmental Interest: Even if Notre Dame can ultimately show a substantial burden on its religious belief, the next major issue under RFRA is whether imposing the burden on Notre Dame furthers a “compelling governmental interest.” 42 U.S.C. § 2000bb-l. In the abbreviated district court proceedings back in December 2013, the federal government did not contest this issue because of our ruling in Korte v. Sebelius,
Hobby Lobby now shows that the government has a strong argument on the compelling-interest issue. The Hobby Lobby majority assumed that the burden on'those plaintiffs would serve a compelling governmental interest.
The general mandate to cover contraceptive care as part of any broad health insurance package provided by employers was intended to minimize financial, administrative, and logistical obstacles to such coverage. 78 Fed.Reg. at 39888 (rejecting alternative proposals and explaining importance of avoiding incremental costs and minimizing logistical and administrative obstacles for contraceptive coverage); Priests for Life,
Notre Dame’s suggested alternatives would all impose significant financial, administrative, and logistical obstacles by requiring women to sign up for separate coverage, either with a government agency or another private insurer, and to pay additional costs unless the government paid for the program. Such obstacles were specifically considered in Hobby Lobby. In debating whether the accommodation would suffice for the for-profit employers, the majority and dissent paid close attention to cost and to administrative and logistical obstacles. See
The least-restrictive-means issue also presents a question of law for which the contours are not yet well-defined. The legal question is in essence the scope of imagination permitted in thinking of supposedly less restrictive means.
The heart of the Affordable Care Act was a decision to approach universal health insurance by expanding the employer-based system of private health insurance that had evolved in our country, rather than to substitute a new “single payer” government program to pay for health care, like the systems in place in the United Kingdom and Canada. I do not see support for Notre Dame’s view that a least-restrictive-means analysis would need to consider such radically different alternatives.
In fact, Justice Kennedy’s Hobby Lobby concurrence emphasized that the accommodation for religious not-for-profits was an “existing, recognized, workable, and already-implemented framework to provide coverage” for employees with an objecting employer.
Consistent with those observations, I doubt that a hypothetical new single-payer program for contraceptives, which would require separate registration or application, would be for RFRA purposes a “less restrictive” means of achieving the government’s interests. It also seems likely that
Further fact-finding in the district court may cast the case in a different light, of course. But for all of these reasons, as well as those explained in Judge Posner’s opinion, I continue to agree that Chief Judge Simon properly denied a preliminary injunction in this case.
Notes
. Accord, Geneva College,
Dissenting Opinion
dissenting.
By requiring health insurers to provide contraceptive coverage, the Patient Protection and Affordable Care Act (“ACA”) forces Notre Dame to act in ways it says violate its religious beliefs. The resultant burden on Notre Dame’s rights is substantial: because Notre Dame offers health insurance to its students, and especially because it acts as a self-insurer for its employees, the law turns Notre Dame into a conduit for the provision of cost-free contraception. It also compels Notre Dame to contract with parties — Meritain and Aetna — in a manner in which Notre Dame believes makes it complicit in moral wrong. Notre Dame’s only alternative is to endure crippling fines.
In light of the Supreme Court’s ruling in • Burwell v. Hobby Lobby Stores, Inc., — U.S.-,
The Catholic Church — like all religious employers — is exempt from the ACA’s contraceptive mandate. See Hobby Lobby,
Notre Dame has two distinct roles as far as health insurance is concerned. With respect to its employees, Notre Dame acts as a self-insurer (hiring Meritain as the third-party administrator of its insurance plan). For its students, Notre Dame acts as an insurance broker (negotiating on their behalf to offer them an insurance plan through insurer Aetna). When Notre Dame invoked the accommodation, its relationship with both Meritain and Aetna changed because of the ACA. Meritain, its third-party administrator, became both authorized and required to offer contraceptive coverage to Notre Dame’s employees. See Wheaton Coll. v. Burwell, — U.S. -,
While Notre Dame is no longer obligated to pay for contraceptive services for its employees, it’s apparent to me that, at a minimum, the ACA thrusts Notre Dame into a facilitator’s role that, Notre Dame says, violates its religious beliefs by forcing it to serve as a continuing link between Meritain and the contraceptive services it provides to Notre Dame’s employees.
With regard to the student health plan, there seems to be outstanding disagreement over whether Notre Dame’s invocation of the accommodation “triggers” Aetna’s obligation to cover student contraception. See Wheaton Coll.,
In Notre Dame’s view, the ACA- alters its relationships with both Meritain and Aetna in a way that renders Notre Dame morally complicit in the provision of contraception. Put simply, Notre Dame is too engaged in a process — the very premise of which offends its religion — that the church itself is exempted from entirely.
The majority appears to minimize the significance of Notre Dame’s position by focusing on its continued objection to the mandate in the face of a proffered accommodation. I believe that any inquiry into the rationality of that position is precluded by the Supreme Court’s decision in Hobby Lobby, which in my view underscores the legitimacy of Notre Dame’s religious objection. There, as here, HHS’s main argument was “basically that the connection between what the objecting parties must do ... and the end that they find to be morally wrong ... [was] simply too attenuated.”
Like the plaintiffs’ challenge in Hobby Lobby, Notre Dame’s deeply held religious beliefs about contraception and the formation and prevention of human life “implicate[ ] a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Id. Notre Dame is no doubt differently situated than the Hobby Lobby plaintiffs, who had to directly provide contraceptive insurance. Nevertheless, the ACA also places Notre Dame in a position that contravenes its belief system. Yet the majority here sides with HHS, and “in effect tell[s] the plaintiff[] that [its] beliefs are flawed.”
For that reason, the Hobby Lobby Court had “little trouble concluding” that “the HHS contraceptive mandate ‘substantially burden[ed]’ the exercise of religion” in view of the plaintiffs’ asserted beliefs.
“RFRA ... contemplates a ‘more focused’ inquiry: It ‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’— the particular claimant whose sincere exercise of religion is being substantially burdened.’ ” Hobby Lobby,
As the Court noted, “[t]he least-restrictive-means standard is exceptionally demanding,” and it is the government’s burden to demonstrate that “it lack's other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting partfy].” Id. Here again, the majority in our case sets aside Hobby Lobby, instead assigning Notre Dame this burden because it seeks a preliminary injunction. But Hobby Lobby, too, sought a preliminary injunction. Hobby Lobby Stores Inc. v. Sebelius,
The majority observes that Notre Dame has presented “possible alternatives” to the accommodation that would not infringe its religious exercise. Yet it concludes that Notre Dame has failed to present an adequate proposal for how the government can efficiently (and conveniently) .implement and administer an alternative program. But to reiterate, Hobby Lobby expressly informs — consistent with Korte— that it is the government’s, not Notre Dame’s, burden to establish that the accommodation is the least restrictive means of advancing a compelling government interest. Moreover, the suggestion by the majority that any alternative method of advancing the government’s interests would likely be too costly or cumbersome to the government turns a blind eye to the Supreme Court’s latest teachings. What matters under RFRA is whether .the means by which the government is attempting to advance its compelling interest is the least burdensome on Notre Dame’s religious beliefs. Accordingly, RFRA may require the government to start over and “creat[e] ... entirely new programs,” and it “may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.” Hobby Lobby,
. To the extent the majority views Notre Dame's burden as less substantial than the burden imposed on the, plaintiffs in Hobby Lobby (and thus not actionable under RFRA) because Notre Dame is further removed from the direct provision of contraception, I suggest that analysis is flawed. Hobby Lobby instructs that, once we determine a religious belief is burdened, substantiality is measured by the severity of the penalties for non-compliance.
. I would be remiss not to note that just one week after the Supreme Court issued its opinion in Hobby Lobby, Wheaton College— which, on the basis of our first (and now vacated) decision in this case was denied a preliminary injunction in its own Seventh Circuit suit challenging the contraceptive mandate's accommodation provision — sought and was granted emergency relief by the Supreme Court. Wheaton Coll.,