Wheaton College v. Sylvia Mathews Burwell, et al

Filing

Filed opinion of the court by Judge Posner. AFFIREMED. Richard A. Posner, Circuit Judge; Ann Claire Williams, Circuit Judge and David F. Hamilton, Circuit Judge. [6674808-1] [6674808] [14-2396]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2396
WHEATON COLLEGE,
Plaintiff-Appellant,
v.
SYLVIA MATHEWS BURWELL, Secretary of Health and Human
Services, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 8910 — Robert M. Dow, Jr., Judge.

____________________
ARGUED JUNE 10, 2015 — DECIDED JULY 1, 2015
____________________
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. Wheaton College is a liberal arts
college in Illinois that although not owned by or affiliated
with any church (in other words, it is nondenominational) is
deeply committed to evangelical Protestantism. Although
Wheaton hires faculty and staff from a variety of Christian
traditions, and admits students of varied faiths, it requires
all members of the college community, which is to say all

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employees and all students, to sign a “Community Covenant” that among other things requires them to “uphold the
God-given worth of human beings, from conception to
death.” (Despite the centrality of the covenant to the college’s argument, its lawyers did not bother to include it in
the appellate record. We found it online, at Wheaton College, “Community Covenant,” www.wheaton.edu/aboutwheaton/community-covenant (visited June 17, 2015, as
were the other websites cited in this opinion).) The Covenant
does not mention contraception, but the passage we quoted
implies, and Wheaton believes, that what is called “emergency contraception,” which means contraception after intercourse, is forbidden on religious grounds if it can destroy
a fertilized ovum. Wheaton also opposes intrauterine devices (IUDs) that whether inserted before or after intercourse
may prevent the implantation of a fertilized ovum. The college implements its belief about emergency contraception
and IUDs by excluding coverage of them from its health
plans.
Contraception that prevents fertilization rather than destroying a fertilized ovum is referred to by the college as
“traditional contraception,” and the college has made clear
that it does not oppose such contraception. Of the 20 types of
female contraceptive approved by the Food and Drug Administration the college disapproves only emergencycontraceptive drugs and certain IUDs.
The college brought this suit against the federal government complaining that the Affordable Care Act is infringing
its religious rights—in violation of the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb-1, as well as the First
Amendment—by making it complicit in the provision of

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emergency-contraceptive coverage to its employees and students. The suit is pending in the district court; before us is
the college’s appeal from the denial of a preliminary injunction.
The Introduction to the college’s opening brief begins
with the following inaccurate statement: “This case arises
from the government’s effort to use Wheaton College’s
health plans to distribute emergency contraceptive drugs.”
And the first sentence of the reply brief states in like vein
that “Wheaton has benefit plans, and the government wants
to use them.” At oral argument the college’s lawyer insisted
that the government was “using our plan” and “putting
[additional terms] into our contract.” If Wheaton College is
wrong, and the government is not trying to “use” the college’s health plans to provide insurance coverage for emergency contraceptives (of which the best known are “morning
after” pills), or to add terms to those plans, the college has
no case. This point is underscored by the fact that the only
articulated relief it seeks in this court is a “remand with an
injunction [we assume the college means a preliminary injunction] prohibiting the government’s efforts to use
Wheaton’s plans.” True, it says it also wants “an injunction
against the government during the pendency of this appeal
requiring it to treat Wheaton as an exempt ‘religious employer’” (it means an injunction requiring such treatment,
not an injunction against the government’s requiring such
treatment); but at the oral argument the college’s lawyer indicated that the college’s only objection is to the government’s “using” Wheaton’s health plans to get around the
college’s objection to emergency contraception. Actually
there are no efforts by the government to take over

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Wheaton’s health plans, as Wheaton contends. Acts cannot
be enjoined that are neither actuality nor threat.
The contraception provisions of the federal Act and its
implementing regulations do not alter or annex college or
other institutional health plans that fail to provide coverage
for some or all contraceptives. In the case of religious objectors to such coverage, the Act requires providers of health
insurance (to the objectors’ staff, students, etc., and thirdparty administrators, which usually are also insurance companies) to cover certain preventive services without cost to
the insured. The services include “all Food and Drug Administration approved contraceptive methods.” 42 U.S.C.
§ 300gg-13(a)(4); 45 C.F.R. § 147.130(a)(1)(iv); Health Resources & Services Administration, “Women’s Preventive
Services Guidelines,” www.hrsa.gov/womensguidelines.
The college does not challenge the government’s authority to
require that all approved methods of contraception be available to women at no cost to them. What it challenges is the
requirement that it notify its insurers or the government that
it is claiming a religious exemption and that it give the government the insurers’ names so that the government can direct the insurers to provide emergency-contraception coverage.
We should note that in its May 2014 response to the
“Plaintiff’s Statement of Additional Material Facts,” the government emphatically denied that it has approved any abortifacient contraceptive; it said that “no FDA-approved contraceptive methods cause the demise of an early embryo as
part of their mechanism of action.” True, the government
defines abortion as the termination of a pregnancy, and defines pregnancy as (beginning) the moment an embryo is

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implanted in the wall of the uterus (see 45 C.F.R. § 46.202(f)),
whereas Wheaton defines “conception,” which it regards as
the first stage in a pregnancy, as the creation of a fertilized
ovum. It takes about five or six days for a fertilized ovum to
travel down a fallopian tube and begin the process of implantation in the uterine wall. See UCSF Medical Center,
“Conception: How it Works,” www.ucsfhealth.org/educa
tion/conception_how_it_works/. Wheaton considers any
drug that kills the fertilized ovum by preventing implantation to be an abortifacient.
The FDA’s “Birth Control Guide” says in apparent conformity with Wheaton College’s view that two emergency
contraceptives, Plan B and ella, may prevent implantation of
a fertilized egg. The government has not disputed (which is
not to say that it necessarily accepts) this view, but scientific
studies dispute it. According to The Emergency Contraception
Website (operated by the Office of Population Control of
Princeton University and the Association of Reproductive
Health Professionals), “How Does Emergency Contraception
Prevent Pregnancy?,” http://ec.princeton.edu/questions/ecw
ork.html, “There is no evidence to suggest that either of the
FDA-approved emergency contraceptive options, levonorgestrel (LNG, such as Plan B One-Step, Take Action, Next Choice
One Dose or My Way) or ulipristal acetate (UPA, such as ella)
works after an egg is fertilized.” See also James Trussell,
Elizabeth G. Raymond, and Kelly Cleland, “Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy,” http://ec.princeton.edu/questions/ec-review.pdf. For a
lucid review of the scientific evidence, see Pam Belluck, “No
Abortion Role Seen for Morning-After Pill,” New York Times,
June 6, 2012, p. A1. Asked about this at oral argument, how-

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ever, Wheaton College’s lawyer acknowledged ignorance of
the scientific literature.
Whether emergency contraceptives prevent implantation
is relevant to whether Wheaton has any religious basis for
opposing them, given its acceptance of what it calls traditional contraception, but does not affect the outcome of this
appeal. The government, while it denies that the emergency
contraceptives approved by the FDA and hence subject to
the contraception-coverage provisions of the Affordable
Care Act are abortifacients, has not made an issue of
Wheaton’s religious sincerity. Moreover, the scientific literature does not challenge the capacity of IUDs to prevent implantation, so Wheaton’s religious objection to those devices,
at least, is not affected by scientific controversy.
As explained in too many cases to warrant citation, the
Affordable Care Act requires college health insurance plans
(including plans in which an insurance company merely
administers a plan insured by the college itself and is therefore a third-party administrator rather an insurer) to cover
the 20 types of FDA-approved contraceptives. But a college
can refuse to include in its health plans coverage of drugs of
which it disapproves on sincere religious grounds. To exercise this right of refusal the college has only to notify its
health insurers, or if it prefers the Department of Health and
Human Services, of its unwillingness to provide coverage.
The insurers are then obligated by the Affordable Care Act
to provide the coverage directly to requesting students, faculty, and staff. The college and its health plans are thus bypassed.
So when Wheaton College tells us that it is being
“forced” to allow “use” of its health plans to cover emergen-

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cy contraceptives, it is wrong. It’s being “forced” only to notify its insurers (including third-party administrators),
whether directly or by notifying the government (which will
forward the notification to the insurers), that it will not use
its health plans to cover emergency contraception, that it is
out of the loop, that the insurers will have to deal directly
with the students, faculty, and staff, bypassing the college
health plans, which remain in force, so far as contraceptive
coverage is concerned, only for the contraceptives that the
college does not disapprove of on religious grounds. The college doesn’t even have to inform the insurers of their obligation to provide coverage; the government as we said does
that if the college has told the government that it refuses to
provide the coverage.
Once informed by the government of the college’s objection, the insurers are required by the Affordable Care Act
and implementing regulations to notify the members of the
college community of their right to coverage by the insurers.
In deference to religious sensibilities the government directs
the insurers to separate notification to the community members from the insurers’ communications with them concerning the college’s health plans, and to include a statement that
the college is not funding or administering contraceptive (in
Wheaton’s case just emergency-contraceptive) coverage. 29
C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(d). Call this
“using” the health plans? We call it refusing to use the
health plans.
The upshot is that the college contracts with health insurers for contraceptive coverage exclusive of coverage for
emergency contraceptives, and the Department of Health
and Human Services contracts with those insurers to cover

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emergency-contraceptive benefits. The latter contracts are
not part of the college’s health plans, and so the college is
mistaken when it tells us that the government is “interfering” with the college’s contracts with its insurers. The contracts, which do not require coverage of emergency contraception, are unchanged. New contracts are created, to which
the college is not a party, between the government and the
insurers.
After the district court denied the preliminary injunction
sought by Wheaton College and we denied a temporary injunction pending appeal, the college sought relief from the
Supreme Court. In a brief per curiam order the Court said
that if the college notified the Department of Health and
Human Services in writing of its religious objection to
providing coverage for certain types of contraceptives, the
Department could rely on the notice “to facilitate the provision of full contraceptive coverage under the Act”—in other
words, to notify the insurers that they would be obligated to
provide, to the members of the Wheaton College community, “without cost, the full range of FDA approved contraceptives.” Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). The
Department notifies the insurers of their obligation to provide contraceptive coverage in the college’s stead without
cost to, or any involvement of, the college.
The college argues that it remains involuntarily complicit
in the provision of emergency contraception because its notification to the Department that it objects to the provision of
contraception on religious grounds serves as the “trigger” of
the Department’s ordering the insurers to cover emergency
contraception. It says as the trigger-puller or facilitator the
college shares responsibility for the extension of such cover-

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age to its students, faculty, and staff. That also is incorrect.
The Affordable Care Act requires insurers to provide coverage for FDA-approved emergency as well as traditional contraception to Wheaton’s students and employees, and to pick
up the tab for that coverage (which the government reimburses) should Wheaton decide to opt out of paying for
emergency-contraception coverage on religious grounds. As
we explained in University of Notre Dame v. Burwell, 786 F.3d
606, 614–15 (7th Cir. 2015), it is the law, not any action on the
part of the college, that obligates insurers “to pick up the ball
if [the college] decides, as is its right, to drop it. [The college’s notification to the government] no more ‘triggers’ [the
insurer’s] obligation to provide contraceptive services than a
tortfeasor’s declaring bankruptcy ‘triggers’ his cotortfeasors’ joint and several liability for damages. [The insurer] must provide the services no matter what; [by notifying the government, the college] simply shifts the financial
burden from the university to the government, as desired by
the university.” Wheaton College does not want to be involved in the provision of emergency contraceptives; pursuant to its wishes, it no longer is involved.
It doesn’t claim any right to prevent its students or employees (not to mention dependents of those employees,
who are also covered by Wheaton’s health plans) from obtaining access to emergency contraceptives covered by the
Affordable Care Act. But it seeks to make that access difficult. For supposing that the college has no obligation to notify the government or the insurers that it doesn’t want to
cover emergency contraception, how are the government
and the insurers to find this out? Are they required to investigate every college? All that the government requires of an
opt out like Wheaton—and it isn’t much—is that

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When a notice is provided to the Secretary of Health
and Human Services, the notice must include the name
of the eligible organization and the basis on which it
qualifies for an accommodation; its objection based on
sincerely held religious beliefs to coverage of some or
all contraceptive services (including an identification of
the subset of contraceptive services to which coverage
the eligible organization objects, if applicable); the plan
name and type (i.e., whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a)
or a church plan within the meaning of ERISA section
3(33)); and the name and contact information for any
of the plan’s third party administrators and health insurance issuers. If there is a change in any of the information required to be included in the notice, the organization must provide updated information to the
Secretary of Health and Human Services. The Department of Labor (working with the Department of Health
and Human Services), shall send a separate notification
to each of the plan’s third party administrators informing the third party administrator that the Secretary of
Health and Human Services has received a notice under paragraph (b)(1)(ii) of this section and describing
the obligations of the third party administrator under
§ 2510.3–16 of this chapter and this section.

29 C.F.R. § 2590.715-2713A(b)(ii)(B). This is hardly a burdensome requirement; nor does it leave the provider—the opt
out—with any residual involvement in the coverage of
drugs or devices of which it sincerely disapproves on religious grounds.
At oral argument Wheaton College’s lawyer told us that
the college does not object to having to inform the Department of Health and Human Services that it is a religious in-

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stitution unwilling to provide emergency-contraception coverage, but that it does object to identifying its health insurers
to the government. It claims the right to tell the government
no more than that “we’re Wheaton College and we object to
coverage of emergency contraception for our students or our
employees and by the way we won’t give you the names of
our students or employees or insurers to make it easier for
you to arrange alternative coverage for such contraception.”
The government could, though at some expense, discover
who they were without being told by Wheaton. Would that
satisfy Wheaton? It hasn’t told us, but we suspect not, because in Wheaton’s view its notice to the government would
still “trigger” the provision of emergency-contraception to
its students and employees by its insurers, albeit not pursuant to its contracts with them. Wheaton’s antipathy is to having any contractual relations with insurers who provide
emergency contraception to members of the Wheaton College community. Because they are “its” insurers, someone
not in the know might think it “complicit” in the insurers’
provision of a type of coverage that offends Wheaton’s religious views. But where’s the complicity?
Even with a strong case Wheaton could not obtain an injunction against the insurers when it hasn’t named them as
defendants in its complaint. They now have a contract with
the government obliging them to insure the members of the
Wheaton community for emergency contraception. The contract provides them with generous reimbursement. See University of Notre Dame v. Burwell, supra, 786 F.3d at 613. We
don’t know what the contracts’ duration is or whether or in
what circumstances they are terminable by Wheaton College
before their expiration date. All that is clear is that the insurers have an interest in this case yet have not been made par-

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ties. In any event, termination of the contracts would give
Wheaton only temporary relief, since the government would
notify any new insurers hired by Wheaton of their legal obligation to provide emergency-contraceptive coverage.
At oral argument Wheaton’s lawyer said that his client
has no objection to the government’s using the college’s insurers to provide emergency-contraceptive coverage as long
as it’s not “using” Wheaton’s contract with the insurers or
requiring them to provide contraceptives to Wheaton’s students because Wheaton has chosen to opt out. The two conditions are inconsistent; it’s because Wheaton has opted out that
the government is ordering the insurers to provide coverage
in lieu of Wheaton rather than to continue insuring
Wheaton. The first condition, standing alone, would imply
that if the government had a contract with an insurer to provide emergency-contraception coverage to all college students, or to all college students who sought coverage because they were not getting it through their university plans,
Wheaton would be content. (We wonder.)
We can’t order the U.S. government not to ask particular
insurers to insure Wheaton’s students and employees—
especially the insurers that are experienced in dealing with
the members of the Wheaton community. As for Wheaton’s
apparent preference that the government discover through
its own research the names of Wheaton’s insurers, we cannot
imagine that insistence on this roundabout path to imparting
essential information to the government could justify a preliminary injunction, at least in the absence of any explanation by Wheaton of why it thinks the difference between direct and roundabout identification of its insurers pertinent to
its religious commitments.

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Wheaton’s complaint, which it has never tried to amend,
was filed back in 2013 and sought relief only against having
to opt out of emergency-contraception coverage by notifying
the insurers. That was the only method of opting out authorized by federal law at the time. The alternative of being allowed to notify the government instead of the insurers came
later. The college objects emphatically to that alternative as
well, yet hasn’t indicated how it thinks the government
would have learned of its objections had it not sued. It does
argue that the government has alternatives to making the
college’s insurers cover emergency contraception, such as
telling the students and employees to find their own insurance through government-run health exchanges or arranging coverage itself (maybe by creating an EmergencyContraception Bureau in the Department of Health and
Human Services). But as we discussed in the Notre Dame
case, these alternatives would “involve cumbersome administrative machinery and at the same time impose a burden
on [the college’s] female students and employees who want
to obtain contraceptives.” 786 F.3d at 617. And we don’t understand how a government program to provide contraception directly to Wheaton’s students and employees would
relieve the college of its “complicity” in the provision of the
forbidden contraceptives: “Were [the college] to hire an unemployed person who, by virtue of becoming employed by
[the college], obtained contraception coverage for the first
time, would not the university be ’triggering’ the new employee’s access to contraception?” Id.
Wheaton relies on its Community Covenant, which we
quoted from and which all students and employees are required to sign, for the proposition that its students and employees share Wheaton’s belief about emergency contracep-

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tives and so the government has no interest in ensuring their
access to emergency-contraceptive coverage. Remember,
however, that the covenant does not mention emergency
contraception, or for that matter “traditional” contraception
(which Wheaton does not disapprove); it states merely that
the covenant’s signers must “uphold the God-given worth of
human beings, from conception to death.” Wheaton as we
know interprets this to prohibit the use of emergency contraceptives, but do all its students and employees interpret
this broad statement in the same way? Must they? And what
about the dependents of members of the college community?
They don’t have to sign the Community Covenant and may
not share Wheaton’s religious beliefs. We haven’t been told
what happens to their coverage of emergency contraception
if the college prevails in its suit.
If the college is correct that the government has no real
stake in the provision of such coverage to members of the
Wheaton College community because they’re all signers of
the covenant, this actually undermines its case, by suggesting that its insurers are never asked to provide such coverage to members of the college community, making the college’s complaints academic. Queried at oral argument
whether any member of the community has ever been
known to violate any of the conditions in the Community
Covenant, or been expelled or otherwise punished for such a
violation, Wheaton’s lawyer said he was unaware of any.
(The college’s student handbook, 59 pages of fine print,
which is not in the appellate record but is available online at
www.wheaton.edu/~/media/Files/Student-Life/StudentHand
book-2014-15.pdf, makes clear that students are required to
adhere to the Community Covenant and describes a wide
range of sanctions, but the covenant does not mention con-

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traceptives or contraception coverage.) If the implicit prohibition of emergency contraception is totally effective—and
Wheaton College has presented no evidence, or even alleged, that it is not—the terms of its contracts with its insurers are indeed academic. It’s as if the Affordable Care Act
had entitled sterile women to emergency contraceptives.
The college refers in its brief to a hypothetical “dissatisfied Wheaton employee who wants” insurance coverage for
emergency contraceptives. It doesn’t say there are any such
employees, however, and implies there are not; for it says
that “Wheaton’s employees and students choose to work at
or attend Wheaton because they share its religious beliefs
and wish to help Wheaton further its mission. Wheaton
would violate their implicit trust in the organization and
detrimentally alter its relationship with them if it were to violate its religious beliefs regarding abortion.” No one is asking Wheaton to violate its religious beliefs. Besides, if such a
“violation” would distress its staff and students, this implies
that they indeed adhere to the Community Covenant, and if
so Wheaton College need have no fear that any of them will
ever use the forbidden contraceptives. So far as we know it
has no such fear—its “dissatisfied” employee is a chimera.
The college tells us as we said that it has no objection
even to universal coverage by the government of emergency
contraception. Yet as that would give the college’s students
and employees access to the forbidden contraceptives free of
charge, the impact on Wheaton would be unaltered from
what it is now.
The college advances secondary grounds for the relief
that it seeks. One is that the government is discriminating
against the college because churches have been exempted

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from the contraception provisions in the Affordable Care Act
and therefore do not have to notify anyone of their unwillingness to provide their employees or parishioners with
coverage for contraception. Part of the relief it seeks is “requiring [the government] to treat Wheaton as an exempt ‘religious employer.’” But Wheaton College does not claim to
be a church, or explain how without some notification to the
government, or to its insurers, an organization that is not,
like a church, automatically exempt becomes known to the
government as having religious views that clash with, and
entitle it to opt out of, the federal law. At oral argument we
asked the college’s lawyer whether the college could incorporate itself as a religious organization; he said he didn’t
know.
Wheaton further argues that requiring it to ask for an exemption and to provide the government with the name of its
insurer violates its First Amendment rights by compelling it
to say something that it does not want to say. That would be
the equivalent of entitling a tax protester to refuse on First
Amendment grounds to fill out a 1099 form and mail it to
the Internal Revenue Service. Wheaton remains free to voice
its opposition to the use of emergency contraceptives. “Requiring Plaintiffs to give notice that they wish to opt out of
the contraceptive coverage requirement no more compels
their speech in violation of the First Amendment than does
demanding that a conscientious objector self-identify as
such.” Priests for Life v. U.S. Dept. of Health & Human Services,
772 F.3d 229, 271 (D.C. Cir. 2014).
The college argues that the government is violating
ERISA by designating a third-party administrator of
Wheaton College’s health plans to be the plan administrator

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for coverage of emergency contraception. As we know,
when notified that a provider of health insurance has religious objections to providing (through insurance companies
or directly) coverage for some government-approved medical procedure, the government directs the insurer(s) to provide the coverage itself. This direction constitutes what is
termed a “plan instrument,” and section 402(a) of ERISA, 29
U.S.C. § 1102(a), requires that every employee benefit plan
be established and maintained pursuant to a written instrument that must designate one or more named fiduciaries to
administer the plan. The plan instrument designates the plan
administrator; the governmental plan instrument in this
case—the government’s direction to the insurer—designates
the insurer as the plan administrator. 29 U.S.C.
§ 1002(16)(A)(i). What had been Wheaton’s plan, so far as
emergency contraception was concerned, the Affordable
Care Act made the government’s plan when Wheaton refused to comply with the Act’s provision on contraception
coverage.
Last the college argues that the government conduct that
it asks us to enjoin “violates the Administrative Procedure
Act because it is arbitrary, capricious, and contrary to law.”
But this just relabels the grounds for relief that we’ve discussed; there is no additional argumentation.
Quite apart from the merits of its arguments, or lack
thereof, Wheaton College has failed to satisfy two basic requirements for the issuance of a preliminary injunction. It
has failed to show that delaying a judgment in its favor to
the conclusion of proceedings in the district court would do
the college any harm. In the absence of any evidence or even
allegation that any member of the college community is vio-

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lating or is expected to violate or believed likely to violate
the college’s prohibition of emergency contraception, there is
no reason to think that even if the college’s merely notifying
the government of its objection to emergency contraception
could “trigger” emergency-contraception coverage it would
do so while this case was pending. The college has also
failed to match the relief it seeks to the illegalities it alleges.
Almost the entire weight of its case falls on attempting to
show that the government is trying to “use” the college’s
health plans, and it is this alleged use that it primarily asks
us to enjoin. But the government isn’t using the college’s
health plans, as we have explained at perhaps excessive
length. And the relief sought has no connection to
Wheaton’s complaints about allegedly forced speech and the
alleged violation of ERISA and the APA; nor has Wheaton
offered support for its claim to be treated as if it were a
church.
The denial of a preliminary injunction is therefore
AFFIRMED.