University of Notre Dame v. Kathleen Sebelius, et al

Filing

Filed opinion of the court by Judge Posner. AFFIRMED. Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge, dissenting, and David F. Hamilton, Circuit Judge, concurring. [6663997-1] [6663997] [13-3853]

Case: 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3853
UNIVERSITY OF NOTRE DAME,
Plaintiff-Appellant,
v.
SYLVIA MATHEWS BURWELL, Secretary of U.S. Department of
Health & Human Services, et al.,
Defendants-Appellees,
and
JANE DOE 3,

Intervening Appellee.
____________________

Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:13-cv-01276-PPS-CAN — Philip P. Simon, Chief Judge.

____________________
ARGUED APRIL 22, 2015 — DECIDED MAY 19, 2015
____________________
Before POSNER, FLAUM, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The Affordable Care Act requires
providers of health insurance (including both health insurance companies and companies that administer self-insured

Case: 13-3853

2

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

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?record_id=
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 Transition: Recent and Historical
Trends in the United States,” 31 Ann. Rev. Pub. Health 371,
375–76, 379 (2010). Because out-of-pocket expenditures on
female contraceptives can be substantial for many women,
see Su-Ying Liang et al., “Women’s Out-of-Pocket Expendi-

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

3

tures and Dispensing Patterns for Oral Contraceptive Pills
Between 1996 and 2006,” 83 Contraception 528, 531 (2011), the
provision of such contraceptives without cost to the user can
be expected to increase contraceptive use and so reduce the
number both of unintended pregnancies and of abortions.
See Jeffrey F. Peipert et al., “Preventing Unintended Pregnancies by Providing No-Cost Contraceptives,” 120 Obstetrics & Gynecology 1291, 1295–96 (2012). Furthermore, “women who can successfully delay a first birth and plan the subsequent timing and spacing of their children are more likely
than others to enter or stay in school and to have more opportunities for employment and for full social or political
participation in their community.” Susan A. Cohen, “The
Broad Benefits of Investing in Sexual and Reproductive
Health,” 7 Guttmacher Report on Public Policy, March 2004,
pp. 5, 6; see also Martha J. Bailey et al., “The Opt-in Revolution? Contraception and the Gender Gap in Wages,” 4 American Economic Journal: Applied Economics, July 2012, pp. 251–
52. For a compact and convincing summary of the benefits to
society in general and women in particular of inexpensive
access to contraception, see Priests for Life v. U.S. Dept. of
Health & Human Services, 772 F.3d 229, 257–64 (D.C. Cir.
2014).
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 thirdparty 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 con-

Case: 13-3853

4

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

tract 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 contraception guidelines. See “Group
Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services,” 76 Fed. Reg. 46621, 46626
(Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(1)(iv)); see
also 77 Fed. Reg. 8725, 8727–29 (Feb. 15, 2012).

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

5

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, 2012
WL 6756332, at *3–4 (N.D. Ind. Dec. 31, 2012); see “Certain
Preventive Services Under the Affordable Care Act,” 77 Fed.
Reg. 16501, 16502–03 (Mar. 21, 2012). The new regulations
were issued as promised—and as expected they enlarged the
exemption. See “Coverage of Certain Preventive Services
Under the Affordable Care Act,” 78 Fed. Reg. 39870, 39875–
90 (July 2, 2013); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R.
§ 147.131(b). As a result, Notre Dame now came within its
scope.
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/preventive
serviceseligibleorganizationcertificationform.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

Case: 13-3853

6

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

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. § 2590.7152713A(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 thirdparty 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 fewer pregnancies if contraception is
more broadly available, at no cost, to Notre Dame’s female
employees and students) as well as from other regulatory

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

7

offsets. See “Coverage of Certain Preventive Services Under
the Affordable Care Act,” supra, 78 Fed. Reg. at 39877–78.
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 copayment, 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. §§ 2590.7152713A(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

Case: 13-3853

8

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

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 delay 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,
2013–2014 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 appeal

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

9

(which as just noted had become two appeals). The parties
had thus had only a slender window in which to present evidence, and very little had been presented. Because of Notre
Dame’s focus on obtaining relief at the appellate level, there
has been no resumption of proceedings in the district court,
and as a result there is very little evidence in the record before us. That is one reason why, in a decision issued on February 21, 2014, we declined (with one member of the panel
dissenting) to reverse the district judge’s denial of the preliminary injunction sought by Notre Dame. University of
Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014). A few
months later, in an almost identical case, the Sixth Circuit
also ruled in favor of the government, Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th
Cir. 2014), vacated and remanded, 2015 WL 1879768 (April
27, 2015), and afterward was joined by the D.C. Circuit in
Priests for Life v. U.S. Dept. of Health & Human Services, supra.
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, 135 S. Ct. 1528) that states in its
entirety: “On petition for writ of certiorari to the United
States Court of Appeals for the Seventh Circuit. Petition for
writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S.Ct. 2751 (2014).”
With the case now back in this court, the parties filed position statements, after which we heard oral argument for an
hour and fifty minutes. The discussion of issues that follows
in this opinion is based on the position statements and oral

Case: 13-3853

10

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

argument, on portions of our original opinion, and on the
Hobby Lobby decision.
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 Meritain 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

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

11

to make contraceptive coverage available to Notre Dame
students and staff. It regards its contractual relationship with
those companies as making the university a conduit between
the suppliers of the coverage and the university’s students
and employees. In the university’s words, the contraception
regulation imposes a substantial burden on it by forcing the
university to “identify[] and contract[] with a third party
willing to provide the very services Notre Dame deems objectionable.”
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 Notre Dame Health Services, “FAQ-Aetna Student
Health,” http://uhs.nd.edu/insurance-billing/faq-aetna-stude

Case: 13-3853

12

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

nt-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 Aetna/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. § 2590.7152713A(b)(2)(ii). Notre 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.

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

13

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 terminable by Notre Dame before their expiration
date, or what the financial consequences to the companies
might be given that the federal government reimburses
health insurers’ contraception payouts generously. So far as
contraception is concerned, health insurers are merely intermediaries between the federal government and the consumers. We are led in turn to wonder whether the government—which rarely provides health services directly to patients but rather uses health care companies to provide those
services as the government’s agents—might without offending Notre Dame’s religious scruples hire Aetna and Meritain
to provide that coverage. That would be simpler and more
direct than the government’s shopping for other health insurance companies to be its agents in dealing with Notre
Dame’s students and staff.
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

Case: 13-3853

14

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

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 § 2590.7152713(a)(1)(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 thirdparty 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

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

15

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 burden[ed] a person’s exercise of religion” (the
university is a nonprofit corporate “person”; cf. 1 U.S.C. § 1;
Korte v. Sebelius, 735 F.3d 654, 674 (7th Cir. 2013)), and that
no “compelling governmental interest” justifies that burdening. It notes that the Catholic concept of “scandal” forbids
the encouragement (equivalent to aiding and abetting) of
sinful acts; a 2013 affidavit by Notre Dame’s executive vicepresident defines “‘scandal’ … in the theological context …
as encouraging by words or example other persons to engage in wrongdoing.” Of course in invoking the exemption
the university also throws the entire administrative and financial burden of providing contraception on the health insurer and third-party administrator, which are secular organizations that unlike the university have no aversion to
providing contraceptive coverage. The result is to lift a burden from the university’s shoulders.
Alternatively Notre Dame charges that the government
has “coerce[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-

Case: 13-3853

16

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

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)(1)(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,” supra, 78 Fed. Reg. at 39879,
“many” is not “all” or even “most.” Notre Dame has presented no evidence that its contract with Meritain forbids the
latter to be a plan fiduciary (remember that the contract is
not in the record).

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

17

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 “triggers” Meritain’s obligation to
provide contraceptive services than a tortfeasor’s declaring
bankruptcy “triggers” his co-tortfeasors’ joint and several
liability for damages. Meritain must provide the services no
matter what; signing the form simply shifts the financial
burden from the university to the government, as desired by
the university.
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, Notre 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 pay-

Case: 13-3853

18

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

ing 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 singlepayer 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., 134 S. Ct. 2751 (2014). The case (anticipated by our decision in Korte v. Sebelius, supra) involved
three closely held for-profit corporations whose owners objected on religious grounds to having (by virtue of the contraception provisions of the Affordable Care Act and the
regulations issued under it) to provide insurance coverage

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

19

for their employees’ purchase of contraceptives that can destroy a fertilized ovum, such as “morning after” pills and
intrauterine contraceptive devices (IUDs); the owners’ objections were thus objections not to contraceptives as such but
to what they considered to be abortifacients. The question
was whether RFRA should be interpreted to apply to nonreligious institutions owned by persons having sincere religious objections to their institutions’ having to comply with
the ACA’s contraceptive regulations. The Court held that it
should be so interpreted, and therefore the institutions
would be entitled to the “accommodation,” that is, to fill out
form FSBA 700 and mail it to their health insurers: “HHS has
already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must ‘[e]xpressly
exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health
plan’ and ‘[p]rovide separate payments for any contraceptive services required to be covered’ without imposing ‘any
cost-sharing requirements … on the eligible organization,
the group health plan, or plan participants or beneficiaries.’”
134 S. Ct. at 2782 (citations and cross-reference omitted). This
of course is what Notre Dame did in our case; the companies
in the Hobby Lobby case did it without protesting—which
shows how different the two cases are. The companies in
Hobby Lobby requested the accommodation; Justice Kennedy, concurring in Hobby Lobby, described the accommodation
as an “existing, recognized, workable, and already implemented framework to provide coverage” for employees of

Case: 13-3853

20

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

“an objecting employer.” 134 S. Ct. at 2786. Notre Dame, in
contrast, deems the accommodation a violation of its religious rights.
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

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

21

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 savings plans under “opt-in” and “optout” enrollment and finding that there is much greater participation when one has to opt out in order to forgo it.
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.” 134 S. Ct. at
2783. So far as we can tell from an undeveloped record, the
alternatives suggested by Notre Dame would impede the
receipt of such benefits.
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

Case: 13-3853

22

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

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 bur-

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

23

den 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 FSBA 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
institution of higher learning that was unwilling to provide
contraceptive coverage or even sign the FSBA 700. In
Wheaton College v. Burwell, 134 S. Ct. 2806 (2014) (per curiam), the Supreme Court said that “if the applicant informs
the Secretary of Health and Human Services in writing that
it is a nonprofit organization that holds itself out as religious
and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the
Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To
meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government,
EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.” We assume that

Case: 13-3853

24

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

Notre Dame could ask Aetna and Meritain to ignore its
submission to them of the signed FSBA 700, and instead
could itself inform the Secretary of Health and Human Services of its desire to be exempt on religious grounds from
providing contraceptive coverage; undoubtedly the Secretary would agree.
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, 476 U.S. 693 (1986).
Roy objected that any use of his daughter’s Social Security
number would substantially burden his religious beliefs because he believed that use of that unique identifier would
harm her spirit. He wanted an accommodation that would
relieve him of the burden of providing the number in his
applications for welfare and food stamps and prevent the
government from using the number in its internal administration. The Supreme Court refused. It said that “Roy may
no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than
he could on a sincere religious objection to the size or color
of the Government’s filing cabinets.” Id. at 700. The very
word “accommodation” implies a balance of competing interests; and when we compare the burden on the government or third parties of having to establish some entirely
new method of providing contraceptive coverage with the

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

25

burden on Notre Dame of simply notifying the government
that the ball is now in the government’s court, we cannot
conclude that Notre Dame has yet established its right to the
injunctive relief that it is seeking before trial. The mandate to
cover contraceptive care as part of any broad health insurance package provided by employers (or in the case of educational institutions, students as well) was intended to minimize financial, administrative, and logistical obstacles to
such coverage. See 78 Fed. Reg. 39888 (July 2, 2013), rejecting
alternative proposals and explaining the importance of minimizing costs and logistical and administrative obstacles to
contraceptive coverage; see also Priests for Life v. U.S. Dept. of
Health & Human Services, supra, 772 F.3d at 265. All of Notre
Dame’s suggested alternatives would impose significant financial, administrative, and logistical obstacles by requiring
women to sign up for separate coverage either with a government agency or with another private insurer. Such obstacles were considered by the Supreme Court in Hobby Lobby
in support of the same accommodation that Notre Dame refuses to accept.
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.

Case: 13-3853

26

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

HAMILTON, Circuit Judge, 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 intervenors, 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., 369 F.3d 1,
6 (1st Cir. 2004) (vacating in part dismissal of ERISA case
challenging actions of employee stock ownership plan and
allowing for factual development where law was “neither
mature nor uniform”); Doe v. Walker, 193 F.3d 42, 46 (1st Cir.
1999) (Boudin, J.) (vacating dismissal on issue with “important social and moral implications” where further factual
development might make it unnecessary to decide hard case
and in any event would be “likely to contribute to a more
sensitive assessment of what the law ‘is’ (which, absent deci-

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

27

sive precedent, means what it ‘should be’)”); Nelson v.
IPALCO Enterprises, Inc., 2005 WL 1924332, at *3 (S.D. Ind.
Aug. 11, 2005) (denying cross-motions for summary judgment to allow further factual development where applicable
law was “emerging, controversial, and highly factsensitive”). The district court is best suited for those responsibilities even where—and perhaps especially where—the
appellate courts are still debating the applicable law.
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. —, 134 S. Ct. 2751
(2014). The accommodation for religious not-for-profits like
Notre Dame played a pivotal role in Hobby Lobby, but not in
a way that helps Notre Dame in this case. Hobby Lobby
Stores is a for-profit corporation that was not eligible for this
accommodation. The very existence of the accommodation
for religious not-for-profits, however, persuaded the Supreme Court that the government could achieve its purpose
of making contraceptives available to employees and their
families without infringing on Hobby Lobby’s religious beliefs. 134 S. Ct. at 2782.
The Court’s conclusion focused on how the accommodation allowed the employer to avoid paying for contraceptives
contrary to the owners’ religious beliefs while still making
them available to employees and their families in a convenient and seamless way. In praising the accommodation, the
Court explained that the effect of the accommodation on
employees “would be precisely zero. Under that accommodation, these women would still be entitled to all FDAapproved contraceptives without cost sharing.” 134 S. Ct. at
2760. Justice Kennedy’s concurring opinion embraced the

Case: 13-3853

28

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

accommodation as a fully satisfactory alternative for accomplishing the government’s objectives without infringing on
Hobby Lobby’s religious beliefs. 134 S. Ct. at 2786–87 (Kennedy, J., concurring). He also made clear that neither he nor
the other Justices in the majority expected the government to
create “a whole new program or burden on the Government” to provide the accommodation needed by the forprofit employer-plaintiffs. Id.
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-forprofits 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.”
134 S. Ct. at 2782 & n.40.
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.

Case: 13-3853

Document: 85

Filed: 05/19/2015

No. 13-3853

Pages: 50

29

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 forprofit 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. 134 S. Ct. at 2776–77. Notre Dame faces essentially
the same financial consequences if it refuses to certify its eligibility for the religious accommodation.
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 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

Case: 13-3853

Document: 85

Filed: 05/19/2015

30

Pages: 50

No. 13-3853
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.

134 S. Ct. at 2778 (footnote omitted).
The accommodation for religious not-for-profits 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 accommo-

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

31

date 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 we 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, 743 F.3d 547, 557–58 (7th Cir. 2014). True,
there are rare cases in which courts have considered the possibility that an accommodation process itself might be too
prolonged, intrusive, ineffective, and/or otherwise burdensome. See, e.g., Saints Constantine & Helen Greek Orthodox
Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005),
and cases cited there dealing with land-use decisions, and
United States v. Friday, 525 F.3d 938 (10th Cir. 2008), and cases
cited there, dealing with processes for seeking permits to kill
protected wildlife for use in Native American religious practices.
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

Case: 13-3853

32

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

Dame is a not-for-profit employer that objects on religious
grounds to the law’s contraceptive coverage requirements.
The official must then send the form to either the Department of Health and Human Services or the insurer or thirdparty administrator. Notre Dame has already done so, and it
need do nothing more.
As Judge Posner’s opinion explains, Bowen v. Roy, 476
U.S. 693 (1986), weighs against Notre Dame’s claim of a substantial burden here. Roy had objected on religious grounds
to the government’s use of his daughter’s Social Security
number to administer federal benefits for the family. The
Supreme Court rejected the challenge, holding: “The Free
Exercise Clause simply cannot be understood to require the
Government to conduct its own internal affairs in ways that
comport with the religious beliefs of particular citizens.” Id.
at 699.
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 Meritain 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

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

33

itself in any degree impair Roy’s ‘freedom to believe, express, and exercise’ his religion.” 476 U.S. at 700–01.
While the Court acknowledged that “Roy's religious
views may not accept this distinction between individual
and governmental conduct,” id. at 701 n.6, the Court concluded that this was ultimately a legal question, not a religious one: “It is clear, however, that the Free Exercise Clause,
and the Constitution generally, recognize such a distinction;
for the adjudication of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the
frame of reference.” Id. Under Roy, whether the government
is causing a substantial burden on a person’s religious exercise is a question of federal law. Accord, Geneva College v.
Secretary of the United States Dep’t of Health and Human Services, 778 F.3d 422, 436–38 (3rd Cir. 2015) (courts must consider substantial burden issue under RFRA); Priests for Life v.
Burwell, 772 F.3d 229, 247–49 (D.C. Cir. 2014); Michigan Catholic Conference v. Burwell, 755 F.3d 372, 385–87 (6th Cir. 2014),
remanded, 2015 WL 1879768 (April 27, 2015).
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

Case: 13-3853

34

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

even not to provide any health insurance coverage at all—
those employees and students would receive contraceptive
coverage through some form of health insurance. As we and
other circuits have pointed out, their coverage results from
federal law, not from Notre Dame’s actions.
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. 1
As in Roy, Notre Dame’s “religious views may not accept
this distinction.” 476 U.S. at 701 n.6. But the courts cannot
substitute even the most sincere religious beliefs for legal
analysis. To do so would “afford an individual a right to dictate the conduct of the Government’s internal procedures,”
which the Court has expressly rejected. Id. at 700.
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
1

Accord, Geneva College, 778 F.3d at 437 (3rd Cir. 2015); Priests for
Life, 772 F.3d at 252; Michigan Catholic Conference, 755 F.3d at 387; 78 Fed.
Reg. 39870, 39876 (July 2, 2013) (final rules explaining that obligations of
insurers and third-party administrators are imposed by federal law).

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

35

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, 743 F.3d at 556. Yet Notre Dame
has embraced that reasoning. It argues that national catastrophe could be avoided by treating the substitute draftee as
the least restrictive means to achieve a compelling governmental purpose. See Notre Dame Rule 54 Statement at 11
n.4. This seems wrong in two fundamental ways.
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, 778 F.3d at 439 n.14 (making similar point with example of employee who asks for time off to
accommodate his religion, but who then objects to employer’s substitution for him). And not coincidentally, the government’s ability to find substitutes fits well with the Su-

Case: 13-3853

36

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

preme Court’s decision, just a few days after it decided Hobby Lobby, in a RFRA case much more similar to this one. In
Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), the Court
issued an interim order allowing another religious college to
invoke the exemption by notifying the government rather
than its insurer. The Court pointed out: “Nothing in this order precludes the Government from relying on this notice, to
the extent it considers it necessary, to facilitate the provision
of full contraceptive coverage under the Act.” Id. at 2807. In
other words, the Court’s order allowed the government to
pass the notice on to the insurer so that the insurer could
comply with its obligations under federal law. That order left
Wheaton College essentially where Notre Dame is now.
Second, if even such mistaken and attenuated objections
were sufficient to invoke RFRA’s stringent least-restrictivemeans 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,
778 F.3d at 438; Priests for Life, 772 F.3d at 251, 256; Michigan
Catholic Conference, 755 F.3d at 388; see generally Bowen v.
Roy, 476 U.S. at 699–700; Kaemmerling v. Lappin, 553 F.3d 669,

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

37

679–80 (D.C. Cir. 2008) (prisoner’s religious exercise not burdened by government’s analysis of DNA taken from his tissue sample).
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–1. 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, 735 F.3d 654 (7th Cir. 2013), though the
government preserved its right to dispute the issue in the
future.
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. 134 S. Ct. at 2780.
Justice Kennedy’s concurring opinion made clear that he
viewed the governmental interests as compelling. Id. at 2786
(“It is important to confirm that a premise of the Court’s
opinion is its assumption that the HHS regulation here at
issue furthers a legitimate and compelling interest in the
health of female employees.”). And all four dissenting Justices viewed the government interests as compelling. Id. at
2799–2801 (Ginsburg, J., dissenting). The compelling interests include women’s health, the role that access to contraception plays in enabling women to participate fully and
equally in society, and significant cost savings. See 78 Fed.
Reg. 39870, 39873 & nn. 22, 23, & 24 (July 2, 2013) (final
rules). The D.C. Circuit has explained in detail the factual

Case: 13-3853

38

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

bases for the government’s compelling interests. See Priests
for Life, 772 F.3d at 257–64.
3. Least Restrictive Means: If the RFRA analysis proceeds
to whether the accommodation for religious not-for-profits
like Notre Dame is the least restrictive means of furthering
the government’s interest, the question demands much more
exploration than was possible in the emergency proceedings
in the district court back in December 2013.
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, 772 F.3d at 265. The accommodation for religious notfor-profits has also been designed to minimize those obstacles.
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 134 S. Ct. at 2782–83 (under the accommodation, plaintiffs’ employees would continue to receive contraceptive coverage without cost sharing and with “minimal
logistical and administrative obstacles”); id. at 2802 (Gins-

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

39

burg, J., dissenting) (new government program as substitute
would impose obstacles to effective coverage). Those concerns about effectiveness of alternatives seem to have substantial merit. They deserve exploration in the district court.
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 leastrestrictive-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-forprofits was an “existing, recognized, workable, and alreadyimplemented framework to provide coverage” for employees with an objecting employer. 134 S. Ct. at 2786 (Kennedy,
J., concurring). In finding that the accommodation was a less
restrictive alternative, Justice Kennedy noted that “the Government has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections under
this established framework.” Id. (emphasis added). He also
commented that accommodation was possible “without imposition of a whole new program or burden on the Government.” Id.

Case: 13-3853

40

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853

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 such a
program would impose the sort of logistical and administrative obstacles of such concern in Hobby Lobby.
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.

Case: 13-3853

Document: 85

Filed: 05/19/2015

No. 13-3853

Pages: 50

41

FLAUM, Circuit Judge, 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., 134 S. Ct. 2751 (2014)—the decision the Court cited in asking us to reconsider this case—
Notre Dame has articulated a substantial burden for
purposes of the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. § 2000bb et seq. As a result, strict
scrutiny governs our consideration of Notre Dame’s challenge here, and the government has the burden of
demonstrating that the challenged accommodation is the
least restrictive means of serving a compelling interest. In
my view, the government has not satisfied that charge.
Accordingly, I respectfully dissent, concluding that Notre
Dame is entitled to a preliminary injunction pending the
district court’s decision of this case on the merits.
*

*

*

Case: 13-3853

42

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853
The Catholic Church—like all religious employers—is
exempt from the ACA’s contraceptive mandate. See Hobby
Lobby, 134 S. Ct. at 2763. The U.S. Department of Health
& Human Services excluded churches and religious orders from its edict, permitting them to offer employee
health insurance that does not include coverage for contraception. Notre Dame seeks that same treatment, because it has the same religious objections to rendering
available contraceptive health coverage for those it employs (and those that attend its school, in Notre Dame’s
case). At present, Notre Dame—as a nonprofit religious
organization that opposes providing contraceptive coverage—may avail itself of what has become commonly
referred to as “the accommodation,” see e.g., 45 C.F.R.
§ 147.131(b), the effects of which Notre Dame says also
violate its religious beliefs.
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 thirdparty administrator, became both authorized and required to offer contraceptive coverage to Notre Dame’s
employees. See Wheaton Coll. v. Burwell, 134 S. Ct. 2806,
2814 n.6 (2014) (Sotomayor, J., dissenting) (noting that a
religious university’s “third-party administrator bears the
legal obligation to provide contraceptive coverage only
upon receipt of a valid self-certification” (emphasis add-

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

43

ed)). Aetna, as the insurer for the student plans, became
obligated to segregate premium payments from Notre
Dame’s students and to provide them with contraceptive
coverage at Aetna’s expense, separate and apart from the
insurance plan offered by the school. See Hobby Lobby, 134
S. Ct. at 2763 (“When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage
from the employer’s plan and provide separate payments
for contraceptive services for plan participants without
imposing any cost-sharing requirements on the eligible
organization, its insurance plan, or its employees beneficiaries.”(citing 45 C.F.R. § 147.131(c)).
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.,
134 S. Ct. at 2807 (majority opinion) (“The Government
contends that the applicant’s health insurance issuer …
[is] required by federal law to provide full contraceptive
coverage regardless [of] whether the applicant” invokes
the accommodation, while Wheaton College “contends,
by contrast, that the obligations of its health insurance issuer ... are dependent on their receipt of notice that the

Case: 13-3853

44

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853
applicant objects to the contraceptive coverage requirement.”). But see 42 U.S.C. § 300gg–13(a) (“A group health
plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum
provide coverage for and shall not impose any cost sharing requirements for— … (4) with respect to women,
such additional preventive care and screenings … as
provided for in comprehensive guidelines supported by
the Health Resources and Services Administration … .”).
But that question really is of no moment here, because
Notre Dame also believes that being driven into an ongoing contractual relationship with an insurer—especially
one that Notre Dame chose—that provides its students
with contraception compels it to act in contravention of
its beliefs.
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]

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

45

simply too attenuated.” 134 S. Ct. at 2777. However, the
Supreme Court made clear that this position, at least in
this narrow context, is untenable. That’s because it
“dodges the question that RFRA presents (whether the
HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a
very different question that the federal courts have no
business addressing (whether the religious belief asserted
in a RFRA case is reasonable).” Id. at 2778 (emphasis in
original).
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.” 1 Id. The
1

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 se-

Case: 13-3853

46

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853
Hobby Lobby Court, however, rejected that position. See id.
(“Repeatedly and in many different contexts, we have
warned that courts must not presume to determine … the
plausibility of a religious claim.” (quoting Emp’t Div.,
Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 887
(1990))). And so do I.
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. 2 Id. at 2775. The
Court thus proceeded to the compelling interest component of the RFRA test. See id. at 2779 (“Since the HHS con–––
verity of the penalties for non-compliance. 134 S. Ct. at 2759, 2775–
76. Because the contraceptive mandate forced the Hobby Lobby plaintiffs “to pay an enormous sum of money ... if they insist[ed] on
providing insurance coverage in accordance with their religious beliefs, the mandate clearly impose[d] a substantial burden on those
beliefs.” Id. at 2779. Here, Notre Dame faces the same penalties the
Hobby Lobby plaintiffs faced: $100 per day for each affected individual. 42 U.S.C. § 300gg-22(b)(2)(C). “These sums are surely substantial.” Hobby Lobby, 134 S. Ct. at 2776.
2

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., 134 S. Ct. at 2807. In granting the preliminary injunction, the Court necessarily found (at least for preliminary injunctive
purposes) that the accommodation substantially burdened Wheaton
College. Notre Dame challenges that same (though slightly revised)
accommodation.

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

47

traceptive mandate imposes a substantial burden on the
exercise of religion, we must move on and decide whether HHS has shown that the mandate both ‘(1) is in furtherance of a compelling governmental interest; and (2) is
the least restrictive means of furthering that compelling
governmental interest.’ 42 U.S.C. § 2000bb–1(b).”). In
Hobby Lobby, “HHS assert[ed] that the contraceptive
mandate serves a variety of important interests, but
many of these [were] couched in very broad terms, such
as promoting ‘public health’ and ‘gender equality.’” Id.
HHS asserted those same interests to the district court in
this case. See Defs.’ Resp. in Opp’n to Pl.’s Mot. for Prelim. Inj. at 15–16, Notre Dame v. Sebelius, 988 F. Supp. 2d
912 (N.D. Ind. 2013) (No. 3:13-cv-01276) (“[E]ven if the
challenged regulations were deemed to impose a substantial burden on plaintiff’s religious exercise, the regulations satisfy strict scrutiny because they are narrowly
tailored to serve compelling government interests in public health and gender inequality.” (emphases added)). The
Supreme Court, however, rejected the simple assertion of
such broad interests.
“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, 134 S. Ct. at 2779 (quoting Gonzales v. O Centro Espírita Beneficente Uniao do Vegetal, 546
U.S. 418, 430–31 (2006)). “This requires us to ‘loo[k] beyond broadly formulated interests’ and to ‘scrutiniz[e]
the asserted harm of granting specific exemptions to particular religious claimants … .’” Id. (quoting O Centro, 546

Case: 13-3853

48

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853
U.S. at 431). Nevertheless, the Court found it unnecessary
to delve into the “features of [the] ACA that support [the]
view” that the government lacks a compelling interest
here (such as the fact that “many employees—those covered by grandfathered plans and those who work for
employers with fewer than 50 employees—may have no
contraceptive coverage without cost sharing at all”), because—even assuming that the government’s interest is a
compelling one—HHS failed to demonstrate “that the
contraceptive mandate is ‘the least restrictive means of
furthering’” it. Id. at 2780 (citing § 2000bb–1(b)(2)).
As the Court noted, “[t]he least-restrictive-means
standard is exceptionally demanding,” and it is the government’s burden to demonstrate that “it lacks other
means of achieving its desired goal without imposing a
substantial burden on the exercise of religion by the objecting part[y].” 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, 723 F.3d 1114, 1143 (10th
Cir. 2013) (“[E]ven at the preliminary injunction stage,
RFRA requires the government to demonstrate that mandating a plaintiff’s compliance with the contraceptivecoverage requirement is ‘the least restrictive means of
advancing a compelling interest.’” (emphasis in original)
(citing O Centro, 546 U.S. at 423)), aff’d, 134 S. Ct. 2751.
And the law in our own circuit is clear on this point. See
Korte v. Sebelius, 735 F.3d 654, 673 (7th Cir. 2013) (noting,
in the preliminary injunction context, that “[o]nce a
RFRA claimant makes a prima facie case that the application of a law or regulation substantially burdens his reli-

Case: 13-3853

No. 13-3853

Document: 85

Filed: 05/19/2015

Pages: 50

49

gious practice, the burden shifts to the government to justify the burden under strict scrutiny”). Indeed, the government—in this very case—conceded in its brief to the
district court that Korte dictates the issuance of a preliminary injunction if the court finds a substantial burden on
Notre Dame’s religious beliefs. See Defs.’ Resp. in Opp’n
to Pl.’s Mot. for Prelim. Inj., supra, at 15–16 (“Defendants
recognize that a majority of the Seventh Circuit rejected
these arguments [that the regulations satisfy strict scrutiny because they are narrowly tailored to serve compelling governmental interests in public health and gender
equality] in Korte, and that this Court is bound by that
decision.”). In Korte, we granted the preliminary injunction because the government had made minimal efforts
“to explain how the contraception mandate is the least
restrictive means of furthering its stated goals of promoting public health and gender equality.” 735 F.3d at 687.
Korte, of course, was our iteration of Hobby Lobby, and it
remains the law of this circuit—yet it appears not to instruct the majority.
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

Case: 13-3853

50

Document: 85

Filed: 05/19/2015

Pages: 50

No. 13-3853
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, 134 S. Ct. at 2781. For those reasons,
the Supreme Court made clear that, in this sphere, “[t]he
most straightforward way” of serving the Government’s
interests would be for it to assume the cost of providing
contraception “to any women who are unable to obtain
them under their health-insurance policies due to their
employers’ religious objections.” Id. at 2780. Here, as in
Hobby Lobby, “HHS has not shown … that this is not a viable alternative.” Id. For that reason, I would reverse the
decision of the district court denying Notre Dame a preliminary injunction.