Seventh Circuit Pulls Back Curtain on Notre Dame's Challenge to Contraception Mandate

Steven D. Schwinn, John Marshall Law School

In an opinion dripping with contempt for Notre Dame's litigation strategies and legal theories, the Seventh Circuit today affirmed the denial of a preliminary injunction for the university in its challenge against the contraception mandate in Obamacare.  The ruling in Notre Dame v. Sebelius sends the case back to the district court for full proceedings and denies Notre Dame interim relief.

It also pulls back the curtain on Notre Dame's claim, revealing just how far-fetched it is.

The issue in this case--whether the government's accommodation for religious nonprofits to exempt themselves from the contraception mandate itself violates religious freedom--is the same issue in Little Sisters, the case in which the Supreme Court recently allowed a religious nonprofit to sidestep the mandate and the accommodation pending its appeal on the merits to the Tenth Circuit.

Recall that the government crafted an accommodation to the Obamacare requirement that employers provide health-insurance options that include contraception for females.  The accommodation allowed religious nonprofits (like Little Sisters and Notre Dame) to shift the mandate to their insurers or third-party administrators (which then would have to provide contraception options to the insured employees and students free of charge) by completing a short form indicating that they have a religious objection to contraception. 

Notre Dame, Little Sisters, and other religious nonprofits sued, arguing that the accommodation itself violated the Religious Freedom Restoration Act and the First Amendment.

The Seventh Circuit's ruling addresses only whether Notre Dame qualifies for a preliminary injunction from the accommodation (and mandate) while its case proceeds to the merits.  But in answering that question, the court had to determine whether Notre Dame is likely to succeed on the merits.  And the court said that it wasn't.

Right out of the gate, the court practically mocked the university for asking for something that the court couldn't deliver--because of the university's litigation tactics.  In particular, the court noted that Notre Dame filed its case late, close to the mandate's (and the accommodation's) implementation date, so that it was forced to either file the form for the accommodation or incur fines under the Affordable Care Act.  Notre Dame filed the form, and its administrator notified Notre Dame employees that contraception was available to them.  With the cat out of the bag, the court wondered what relief does Notre Dame want?  Revoking the form would do nothing, because federal law requires the administrator (not Notre Dame) to provide contraception.  But the court can't order the administrator to stop providing contraception, because Notre Dame neglected to join the administrator in the case.

As to the merits, the court was equally dismissive.  In particular, the court rejected Notre Dame's "trigger" theory--that by signing the accommodation form, it triggers, or enables, contraception coverage by a third party, against its religious beliefs.  The court dismissed this out of hand:

The key word is "enable," and it's inaccurate.  Federal law, not the religious organization's signing and mailing the form, requires health-care insurers, along with third-party administrators or self-insured health plans, to cover contraceptive services.  By refusing to fill out the form Notre Dame would subject itself to penalties, but [its insurance company and administrator] would still be required by federal law to provide the services to the university's students and employees unless and until their contractual relations with Notre Dame terminated.

The court wrote further,

The novelty of Notre Dame's claim--not for the exemption, which it has, but for the right to have it without having to ask for it--deserves emphasis. . . .  What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. . . . 

The process of claiming one's exemption from the duty to provide contraceptive coverage is the opposite of cumbersome.  It amounts to signing one's name and mailing the signed form to two addresses.  Notre Dame may consider the process a substantial burden, but substantiality--like compelling government interest--is for the court to decide.  Otherwise there would have been no need for Congress in the Religious Freedom Restoration Act to prefix "substantial" to "burden."

The court also held that Notre Dame was not likely to succeed on its Establishment Clause claim, that the Act treats religions differently than religious organizations for the purpose of exemption from the contraception mandate. 

The court did find potential merit in Notre Dame's claim that a regulation that forbids a religious nonprofit from interfering with a third-party administrator's arrangements to provide for contraceptive services violates free speech.  But the court said that the parties "failed to place the issue in focus," and so didn't rule on it.

Judge Flaum dissented, arguing that the court should have granted Notre Dame's motion to dismiss the appeal after three Notre Dame students joined the appeal to argue that Notre Dame's religious conviction was not sincere, and that Notre Dame showed a likelihood of success on the merits.