Notre Dame University of v. Sebelius et al

Filing 40

OPINION AND ORDER: DENYING Plf University of Notre Dame's Motion for a Preliminary Injunction 9 . Signed by Chief Judge Philip P Simon on 12/20/2013. (nac) Modified dkt text on 12/27/2013 (kjp).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNIVERSITY OF NOTRE DAME,

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Plaintiff,
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vs.
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KATHLEEN SEBELIUS, in her official
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capacity as Secretary, United States
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Department of Health and Human Services, )
et al.,
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Defendants.
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3:13-cv-01276-PPS

OPINION AND ORDER
DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Notre Dame seeks a preliminary injunction against enforcement of the part of the
Affordable Care Act that requires employers to provide employees with health insurance that
covers contraceptive services. Notre Dame objects to providing contraceptive care on religious
grounds, and that of course is its prerogative. But the law provides religious employers like
Notre Dame an out by allowing it to file a certification saying it refuses to provide such services.
If Notre Dame takes that tack, someone else provides the coverage, and not on Notre Dame’s
dime. Notre Dame nonetheless claims that by formally opting out, it would trigger, or authorize,
a third party’s provision of contraception, and it objects to that.
Notre Dame wants to eat its cake, and have it still, at the expense of Congress,
administrative agencies, and the employees who will be affected. Notre Dame is free to opt out
of providing the coverage itself, but it can’t stop anyone else from providing it. But that is
essentially what Notre Dame is requesting. Notre Dame is not being asked to do or say anything
it doesn’t already do, and wouldn’t do regardless of the outcome of this case; the only thing that

changes under the healthcare law is the actions of third parties. Notre Dame can’t claim to be
“pressured” to do something it has done, will do, and would do regardless of the contraception
requirement. If Notre Dame opts out of providing contraceptive coverage, as it always has and
likely would going forward, it is the government who will authorize the third party to pay for
contraception. The government isn’t violating Notre Dame’s right to free exercise of religion by
letting it opt out, or by arranging for third party contraception coverage.
For these reasons and as outlined more fully below, because I find that Notre Dame is not
likely to succeed on the merits, a preliminary injunction is not warranted.
FACTUAL and LEGAL BACKGROUND
Notre Dame is a nonprofit Catholic university, and the largest employer in St. Joseph
County, Indiana. Compl. ¶¶ 9, 21, 24. Notre Dame views its Catholic faith as integral to its
educational mission. Id. ¶¶ 27-29. It adheres to the Catholic Church’s document governing
Catholic universities, known as Ex Corde Ecclesiae. Affidavit of John Affleck-Graves ¶ 12. It
subscribes to the Catholic beliefs “that life begins at conception and that artificial interference
with life and conception is immoral.” And so it opposes any artificial impediment to conception.
Memo. ISO Motion for Preliminary Injunction at 1; Compl. ¶¶ 32-33. Notre Dame is therefore
opposed to “pay[ing] for, [facilitate[ing] access to, and/or becom[ing] entangled in the provision
of products, services, practices and speech” that propound contraception. Memo. ISO Motion for
Preliminary Injunction at 1. It also believes that it must avoid giving anyone the impression that
it condones the use of contraception, which would constitute “scandal,” defined as “encouraging
by words or example other persons to engage in wrongdoing.” Compl. ¶ 34.

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Notre Dame’s employee healthcare is self-insured, meaning that Notre Dame underwrites
its employees’ medical expenses itself. Although Notre Dame is financially responsible, it
contracts with a third party administrator (a “TPA”) to administer the health plan. Id. ¶¶ 36-37.
Notre Dame offers its students the option of purchasing health insurance through Aetna. Id. ¶ 39.
Neither plan covers contraceptive services due to Notre Dame’s religious objections. Id. ¶ 41.
1.

Background on the Affordable Care Act

Congress enacted the Patient Protection and Affordable Care Act, Pub. L. 111-148, 124
Stat. 119 (2010) (the “ACA”) in 2010, substantially overhauling the nation’s healthcare legal and
regulatory framework. The ACA requires health insurance to cover certain preventive services
without cost to the insured. 42 U.S.C. § 300gg-13. Insurance plans that don’t include the
required coverage face stiff penalties: $100 per affected individual per day of noncompliance, 26
U.S.C. § 4980D(a), (b), or $2,000 per year per employee if an employer who is required to
provide insurance decides not to, 26 U.S.C. § 4980H(a), (c)(1). But certain healthcare plans are
grandfathered, which essentially means that if they remain as they were before the ACA was
enacted, they don’t have to comply with the preventive services requirements. See 42 U.S.C. §
18011(a)(2). It is undisputed that Notre Dame’s plan isn’t grandfathered. Compl. ¶ 42.
Initially, the preventive care coverage requirements did not include various services
specific to women’s needs. See 155 CONG. REC. S11985, S11986 (daily ed. Nov. 30, 2009)
(statement of Sen. Mikulski). But the ACA was later amended to add preventive care specific to
women. § 2713(a)(4), 124 Stat. at 131 (codified at 42 U.S.C. § 300gg-13(a)(4)). The law doesn’t
list the specifics, instead leaving that to “comprehensive guidelines supported by the Health
Resources and Services Administration.” Id.

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The problem was that there weren’t guidelines for preventive care and screening for
women, so the Department of Health and Human Services asked the Institute of Medicine
(“IOM”) to make recommendations. Inst. of Med., Committee on Preventive Services for
Women, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS, 2 (2011), available
at http://www.nap.edu/catalog.php?record_id=13181. The IOM convened a committee of
specialists that recommended that the guidelines include support and counseling addressing a
battery of issues including, of primary relevance here, “the full range of Food and Drug
Administration-approved contraceptive methods, sterilization procedures, and patient education
and counseling for women with reproductive capacity.” Id. at 10. (This is the requirement Notre
Dame opposes, and for the sake of convenience I will refer to the requirement using the
shorthand “contraception” or “contraceptive.”) These approved methods include options that are
prescription-only (oral contraceptives and intrauterine devices) and non-prescription (condoms,
spermicides and emergency contraceptives). Id. at 105. The government adopted guidelines
consistent with the IOM’s recommendations on an interim basis in 2011, albeit subject to an
exemption for religious employers. See 76 Fed. Reg. 46,621 (Dep’ts of Treas., Labor, Health &
Human Svcs. Aug. 3, 2011).
2.

Rulemaking Under the ACA

The adoption of guidelines with a narrow religious exemption was perhaps the moment
that the contours of this controversy began to take shape. An organization qualified for
exemption from the contraception requirement as a religious employer if: (1) its purpose was the
inculcation of religious values; (2) it primarily employed people who shared its religious tenets;
(3) it primarily served people who shares its religious tenets; and (4) it was a nonprofit under

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sections 6033(a)(1) and 6033(a)(3)(A)(I) or (iii) of the Internal Revenue Code of 1986. 76 Fed.
Reg. 46,621, 46,626. But the final (and current) regulations reduced the definition to just
number (4) above; the first three requirements were discarded. See 45 C.F.R. § 147.131(a).
What that means is that the exemption applies to “churches, their integrated auxiliaries, and
conventions or associations of churches” and “the exclusively religious activities of any religious
order.” 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). The upshot of all this was that, as originally
drafted, employees covered under exempt organizations’ health insurance as defined in the tax
code – i.e. church employees – could not receive cost-free contraceptive services. But the
“religious employer” exemption didn’t apply to religious based non-profits like Notre Dame.
That was the balance originally struck by the drafters of the regulations.
A tremendous outcry over this perceived disparity in the regulations ensued. Why would
churches be exempt but not church affiliated entities? So in 2012 the government said that it
would forego enforcement against non-profits with religious objections to contraception, like
Notre Dame, for a year while it considered developing an accommodation that would apply to
those entities. See 77 Fed. Reg. 8725, 8728-29 (Feb. 15, 2012).
At this point, in mid-2012, Notre Dame filed a case on similar grounds to its current one.
But that case was dismissed without prejudice because Notre Dame lacked standing then, and the
case wasn’t yet ripe. See Univ. of Notre Dame v. Sebelius, 2012 U.S. Dist. LEXIS 183267 (N.D.
Ind. Dec. 31, 2012).
In July 2013 the government published the final regulations, which now include
accommodation for an “eligible organization,” meaning an organization that “(1) [o]pposes
providing coverage for some or all . . . contraceptive services . . . on account of religious

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objections; (2) is organized and operates as a nonprofit entity; (3) holds itself out as a religious
organization; and (4) self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. 39,870,
39,874 (Jul. 2, 2013); see also 26 C.F.R. § 54.9815-2713A(a). When I refer to “the
accommodation” in this Opinion, this is what I’m referring to. There is no dispute that this
accommodation applies to Notre Dame. To take advantage of the accommodation, an
organization need only complete an opt-out form (available at
http://www.dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf) with
the name of the organization and certifying individual and contact information, then sign and
date it. The form need only be completed once, with a copy provided to any health insurer or
third party administrator (“TPA”) of the insurance plan. See 78 Fed. Reg. 39,870, 39,875. The
form lists the criteria for eligible organizations, and on the back it tells the TPA that the
certifying eligible organization is opting out of covering contraceptive services and refers the
TPA to relevant code sections outlining its obligations. See 78 Fed. Reg. 39,870, 39,879.
The explanation of the accommodation wouldn’t be complete without discussing how
contraceptive services are paid for. The employer and its health insurance plan don’t pay a dime.
Notre Dame self-insures its employee healthcare, Compl. ¶¶ 36-37, so I’ll focus on the
mechanics relevant to that setup. As far as Notre Dame’s involvement, they fill out the form
stating they are opposed to contraceptive services on religious grounds, and their work is done.
At that point the ball is in the court of the TPA to pay for contraceptive services or arrange for
payments through an insurer or other entity. Contraception costs are recouped by an insurance
company that participates in a federally-run health insurance exchange – the insurer gets a fee
adjustment. That money doesn’t just cover the money paid out for contraception, but “include[s]

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an allowance for administrative costs and margin.” 78 Fed. Reg. 39,870, 39,880-81; see also 26
C.F.R. § 54.9815-2713A(b)(2); 45 C.F.R. § 156.50 (d). So to summarize: the TPA doesn’t rely
on the opted-out organization for any amount of money related to contraception – its
contraception coverage, administrative costs, and even a profit margin are covered by the
government-run healthcare marketplace.
The regulations say that eligible organizations may not interfere with the TPA’s efforts to
arrange contraception payments, nor seek to influence the TPA’s decision to provide such
payments. 78 Fed. Reg. 39,870, 39,879-80. However, the prohibited behavior evidently requires
something more than expression of opinion, because its description is immediately followed by
footnote 41: “Nothing in these final regulations prohibits an eligible organization from
expressing its opposition to the use of contraceptives.” Id. at 39,880 n.41.
The Seventh Circuit has not addressed the situation posed by this case. It addressed
similar issues involving private employers’ religious objections to the contraception
requirements in Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013). However, that case, like many
of the others making their way through courts around the country, see, e.g., Sebelius v. Hobby
Lobby Stores, Inc., 723 F.3d 1114 (10th Cir. 2013), cert. granted, 82 U.S.L.W. 3328 (U.S. Nov.
26, 2013) (No. 13-354), has as its plaintiffs closely held corporations and their individual
owners, so the accommodation doesn’t apply to them. The Seventh Circuit must have thought
that difference to be important because early on in its opinion it discussed the religious
exemption and accommodation at length, even though they were not at issue in that case. I can
only assume that they did it to show the contrast between how religious employers are treated
under the regulations – they are given an accommodation – while for-profit employers with

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conscientious religious objections are not. It is this distinction that Korte found to be “notabl[e].”
Korte, 735 F.3d at 662. More on Korte in a moment, but suffice it to say that Notre Dame is in
an entirely different position than the plaintiffs in Korte.
3.

The Procedural Posture of this Case

Finally, before diving into the merits of the legal arguments, I would be remiss if I did
not take a moment to discuss Notre Dame’s litigation tactics in this case. The offending
regulations were published in July 2013 and are set to go into effect on January 1, 2014. See 78
Fed. Reg. at 39,870 (Jul. 2, 2013). Yet Notre Dame chose to wait until December to file this
lawsuit, although it certainly saw the case coming down the pike many months earlier. It then
waited another six days – until December 9 – to ask for a preliminary injunction. The
government promptly responded and then Notre Dame filed its oversized reply brief on
December 16, and a hearing on the motion was set for December 19. Notre Dame told me they
needed an answer on their request for an injunction within 24 hours of the hearing – meaning by
today. All of which raises a question of Notre Dame’s own view of the injury it faces under the
accommodation. Notre Dame certainly knew about the proposed regulations long ago, as
evidenced by its premature filing of a case on the same basis as the current matter. See Univ. of
Notre Dame v. Sebelius, 2012 U.S. Dist. LEXIS 183267 (N.D. Ind. Dec. 31, 2012).
Notre Dame tells me that the urgency is due to the TPA’s internal deadlines to prepare
coverage and contact beneficiaries. Affleck-Graves Affidavit ¶ 64; Suppl. Affleck-Graves
Affidavit ¶ 14. It filed a supplemental declaration explaining its tardiness three days before oral
argument, and four days before what the TPA says is its final deadline. See Suppl. AffleckGraves Affidavit; Meritain Affidavit. The affidavit detailing excuses for the late filing of this

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lawsuit are frankly a little hard to swallow. It states that Notre Dame needed over five months to
analyze the final regulations and the accommodation. Suppl. Affleck-Graves Affidavit ¶¶ 6-9.
Yet Exhibit D attached to Notre Dame’s motion is a letter from the Office of the General
Counsel of the United States Conference of Catholic Bishops, and is dated March 20, 2013. The
letter raises exactly the grounds of Notre Dame’s complaint with respect to the accommodation
for self-insured religious nonprofits, citing a description of the accommodation as proposed. See
Plaintiff’s Memo. ISO Preliminary Injunction, Ex. D. at 20-22. Notre Dame also claims that it
didn’t get details on how its TPA would handle contraceptive coverage until December. Suppl.
Affleck-Graves Affidavit ¶ 11. But it seems clear to me that Notre Dame could have certainly
pressed its TPA sooner if it needed information. In sum, Notre Dame has in many ways created
its own emergency, and I am left to wonder why.
In any event, and despite the time crunch, I have given full consideration to Notre
Dame’s motion. In doing so I have reviewed extensive briefing and exhibits from the parties,
statutes and legislative records, voluminous regulations, and opinions addressing related issues
from courts around the country. As mentioned, I heard oral argument yesterday, December 19,
2013. Finally, I received and have considered a brief filed by the American Civil Liberties
Union as amicus curiae.1
DISCUSSION
Notre Dame seeks a preliminary injunction claiming that its rights under the Constitution
and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 et seq (“RFRA”), are being

1
I also received late in the day yesterday a motion to intervene in this lawsuit filed by three Notre Dame
students which largely supports the government’s position but makes additional arguments as well. [Docket Entries
(“DE”) 33, 34]. Given the press of time, and since Notre Dame has not had an opportunity to respond to the
arguments, I have not considered the motion to intervene.

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violated. To prevail it must show “a likelihood of success on the merits, that it has no adequate
remedy at law, and that it will suffer irreparable harm if preliminary relief is denied.” Eli Lilly &
Co. v. Natural Answers, Inc., 233 F.3d 456, 461 (7th Cir. 2000) (citations omitted). If it meets
that burden, I must then analyze the balance of equities, taking into account irreparable harm that
would result to the nonmoving party and the consequences to nonparties. As the Seventh Circuit
has stated: “These considerations are interdependent: the greater the likelihood of success on the
merits, the less net harm the injunction must prevent in order for preliminary relief to be
warranted.” Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010). This is the “sliding scale”
approach as some Seventh Circuit cases refer to it. See e.g. Ty, Inc. v. Jones Group, Inc., 237
F.3d 891, 895 (7th Cir. 2001).
The first element, the likelihood of success on the merits, is the key inquiry in this case
and is dispositive here on both the RFRA claim and the constitutional claims.2
I.

Notre Dame is not likely to succeed on the merits

The sincerity of Notre Dame’s religious beliefs is of course essential to its religious
freedom claims. While I am not permitted to question the centrality of a belief to a plaintiff’s
religion, I am permitted to consider the issue of sincerity. Nelson v. Miller, 570 F.3d 868, 878
n.7 (7th Cir. 2009) (citing Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008) (citing Cutter v.
Wilkinson, 544 U.S. 709, 725 n.13, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005))). Notre Dame
opposes contraception, and also opposes the funding, encouragement or facilitation of its use, or

2

My jurisdiction to decide this matter is not in question. The contraception coverage requirement, the optout accommodation, and the penalties Notre Dame faces for noncompliance are an imminent potential injury which
confers Article III standing. Korte v. Sebelius, 735 F.3d 654, 667 (7th Cir. 2013); Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). Nor does the government challenge Notre Dame’s
standing to assert rights of speech and religious freedom, although Notre Dame is not a natural person. Korte
forecloses those arguments, see Korte, 735 F.3d at 682, as well as any argument under the Anti-Injunction Act. Id. at
669.

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being perceived as doing so. But whether opting out via the ACA accommodation constitutes a
modification of behavior or qualifies as funding, encouraging, facilitating or endorsing the use of
contraception are questions of fact and law, not of faith. With this thought in mind, I turn to the
individual claims being pressed here by Notre Dame.
A.

Religious Freedom Restoration Act

The Religious Freedom Restoration Act (“RFRA”) is Congress’s response to the
Supreme Court’s holding in Employment Division, Department of Human Resources of Oregon
v. Smith, 494 U.S. 872, 883-90, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), “that the religious
freedom guaranteed by the Free Exercise Clause of the First Amendment does not require
religious exemptions from facially neutral laws of general applicability.” Korte, 735 F.3d at 671.
Under RFRA, the government may not substantially burden a person’s exercise of religion, even
if the rule in question is one of general applicability, unless the government shows that the rule
“is in furtherance of a compelling governmental interest” and “is the least restrictive means of”
doing so. Id. at 672 (quoting 42 U.S.C. § 2000bb-1). In RFRA claims, as in First Amendment
claims, the preliminary injunction burdens track those borne at trial. Id. at 673. So the plaintiff
must first show that his religious exercise is burdened substantially, then the burden shifts to the
government to justify its actions under strict scrutiny. See id. at 673; Daly v. Davis, 2009 U.S.
App. LEXIS 6222, at *5-6 (7th Cir. Mar. 25, 2009).
1.

Substantial Burden Inquiry

In any RFRA case, the starting point is the plaintiff offering proof that the government
action in question actually substantially burdens religious exercise. Civil Liberties for Urban
Believers v. City of Chicago, 342 F.3d 752, 760 (7th Cir. 2003) [hereinafter “CLUB”]. What this

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means is that the burden must really be substantial; a minimal burden won’t suffice. CLUB, 342
F.3d at 761. To read RFRA otherwise would be to read the term “substantial” out of the statute.
To do so would mean that even the “slightest obstacle to religious exercise . . . —however minor
the burden it were to impose—could then constitute a burden sufficient to trigger” strict scrutiny.
Id.
The Seventh Circuit recently reiterated that the term “substantial burden” as used in
RFRA means to exert “substantial pressure on an adherent to modify his behavior and to violate
his beliefs.” Korte, 735 F.3d at 682 (emphasis added and internal quotations omitted). The
language “substantial pressure on an adherent to modify his behavior” comes from the Supreme
Court in the pre-RFRA case of Thomas v. Review Bd., 450 U.S. 707, 718, 101 S. Ct. 1425, 67 L.
Ed. 2d 624 (1981). See also Nelson v. Miller, 570 F.3d 868, 878, (7th Cir. 2009); Koger v.
Bryan, 523 F.3d 789, 799 (7th Cir. 2008).
So the inquiry focuses on whether the government is leaning on Notre Dame to modify
Notre Dame’s own actions, not on whether government action is offending the plaintiff’s
religious sensibilities. This much the Supreme Court has made clear: “A broad range of
government activities—from social welfare programs to foreign aid to conservation projects—
will always be considered essential to the spiritual well-being of some citizens, often on the basis
of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and
perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their
religion. The First Amendment must apply to all citizens alike, and it can give to none of them a
veto over public programs that do not prohibit the free exercise of religion.” Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 452, 108 S. Ct. 1319, 99 L. Ed. 2d 534 (1988).

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To break this down, if the government exerts pressure on the plaintiff to change his
actions so as to violate his beliefs, I can’t analyze the substantiality of the actions, or the
centrality of the violated belief to his religion—it’s the substantiality of the pressure that counts.
But this skips over the threshold question of whether the government is actually requiring the
plaintiff to modify his behavior so as to violate his beliefs.
So here’s the question as I see it: under the ACA accommodation, is the government
exerting substantial pressure on Notre Dame to change its own actions in a way that violates
Notre Dame’s sincerely held religious beliefs? Courts have used different language to try to
define and describe “substantial burden,” but it’s such a fact-dependent question that I think the
clearest way to approach it is to dive into other cases that have and haven’t met the RFRA
standard.
When I say “RFRA standard,” I mean the “substantial burden” standard as it has been
applied in cases brought under RFRA as well as under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”) and the Free Exercise Clause of the First Amendment
to the Constitution. “When the significance of a religious belief is not at issue, the same
definition of ‘substantial burden’ applies under the Free Exercise Clause, RFRA and RLUIPA.”
Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008); see also Korte, 735 F.3d at
682-83; CLUB, 342 F.3d at 760-61; Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1071
n.13 (9th Cir. 2008) (“That Lyng was a Free Exercise Clause, not RFRA, challenge is of no
material consequence. Congress expressly instructed the courts to look to pre-Smith Free
Exercise Clause cases, which include Lyng, to interpret RFRA.”)

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To set the stage for comparison, I’ll reiterate what Notre Dame claims is its substantial
burden. In order to opt out of the contraceptive mandate, Notre Dame must complete a
certification requesting the accommodation. Notre Dame claims that completing the form
“authorizes” its TPA and the government to provide contraceptive coverage, the taint of which
can be attributed to Notre Dame. Its critical to note at this point that if Notre Dame opts out of
providing contraception, it will have nothing to do with providing contraception. It won’t pay
actual or administrative costs, and the TPA won’t be looking to Notre Dame’s fees to make a
profit on the contraceptive program. Notre Dame obfuscates this point in its briefing, but as best
I can tell by my review of the regulations, there is simply no financial burden on Notre Dame if
it opts out.
Boiled to its essence, what Notre Dame essentially claims is that the government’s action
after Notre Dame opts out, in requiring the TPA to cover contraception, offends Notre Dame’s
religious sensibilities. And while I accept that the government’s and TPA’s actions do offend
Notre Dame’s religious views, it’s not Notre Dame’s prerogative to dictate what healthcare
services third parties may provide. As Notre Dame admitted at the hearing, Notre Dame had
already instructed its TPA in past years to not include contraception in its plan. If the preventive
care requirements didn’t exist, Notre Dame would continue to instruct its TPA not to cover
contraception. And even if Notre Dame were completely exempt from the contraception
requirement, it would have to certify to the TPA and the government that it is exempt to avoid
being fined for noncompliance. In fact, there is no conceivable set of facts under which Notre
Dame would not instruct its TPA not to include contraception on Notre Dame’s plan. So Notre
Dame isn’t modifying its behavior in the least. The only thing that is modified, then, under the

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accommodation, is that when Notre Dame tells the TPA not to provide contraception on Notre
Dame’s plan the government and the TPA pay for contraception.
In Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013), the Seventh Circuit found that the
ACA—as applied to for-profit closely-held corporations and their owners—was coercive in
threatening substantial fines for failure to modify their health insurance to cover contraception.
The court focused on plaintiffs’ choice––modifying their healthcare plans to pay for
contraception for employees who wanted it and whose doctors prescribed it, versus paying stiff
fines for balking. The burden found to be substantial in Korte was the plaintiff “being forced to
provide insurance coverage for these drugs and services in violation of their faith.” Id. at 684-85.
In other words, unlike this case, the government was coercing the plaintiff to change its health
plan to cover and pay for something that it objected to on religious grounds.
Notre Dame seems to think that Korte is essentially dispositive of this case. I fail to see
why. Korte wasn’t dealing with the ACA’s religious exemption and accommodation in any way.
Perhaps upon review of this case, Korte will be extended by the Seventh Circuit to say that the
filing of a certification is an alteration in Notre Dame’s behavior such that it constitutes a
substantial burden under RFRA. But contrary to Notre Dame’s view of it, Korte certainly
doesn’t compel such a finding. In my mind, this case differs greatly from Korte because the
accommodation removes the coercion facing private for-profit companies by offering a different
choice. As pointed out earlier, Korte itself recognized this important distinction when it stated
that the lack of an exemption or accommodation for the for-profit plaintiffs was “notabl[e],”
suggesting that the case might well have come out differently had the Korte plaintiffs had access
to the accommodation now available to Notre Dame. Id. at 662.

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The Supreme Court has held that the “government simply could not operate if it were
required to satisfy every citizen’s religious needs and desires.” Lyng v. Nw. Indian Cemetery
Protective Ass’n, 485 U.S. 439, 452, 108 S. Ct. 1319, 99 L. Ed. 2d 534 (1988). Lyng held that
the federal government did not violate plaintiffs’ free exercise of religion by building a road
through plaintiffs’ sacred areas. In so holding the Court noted that the concept of religious
freedom does not give one “a veto over public programs that do not prohibit the free exercise of
religion.” Id. Similarly, Notre Dame need only step aside from contraception coverage, as it has
always done and most assuredly would always do. By opting out it is not condoning or
supporting the government’s provision of access to contraception. But by refusing to formally
opt out, Notre Dame would exercise a veto on the ACA’s contraception requirement.
What’s more, case law makes clear that a third party’s objectionable use of a plaintiff’s
information doesn’t make a viable RFRA claim. The D.C. Circuit held in Kaemmerling v.
Lappin that a prisoner could not state a claim under RFRA based on the federal government’s
extraction and storage of his DNA from samples he provided. 553 F.3d 669, 679 (D.C. Cir.
2008). Plaintiff did not object to his provision of the tissue samples in itself, but to the
government’s actions afterwards in analyzing and storing the samples. Still, much the same as
Notre Dame’s argument in this case, the provision of the samples triggered the government’s
objectionable actions. The court pointed out that the objectionable course of action that occurs
after plaintiff provided the sample “does not call for [plaintiff] to modify his religious behavior
in any way—it involves no action or forbearance on his part, nor does it otherwise interfere with
any religious act in which he engages. Although the government’s activities . . . may offend
[plaintiff’s] religious beliefs, they cannot be said to hamper his religious exercise because they

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do not pressure him to modify his behavior and to violate his beliefs.” Id. (emphasis added,
but internal quotation marks and citation omitted). Similarly, Notre Dame doesn’t object to the
content of the certification form. How could it? The certification says that Notre Dame opposes
contraception on religious grounds. Notre Dame’s objection is to the consequence of the
certification and what third parties do with it down the line.
The Kaemmerling opinion discussed its similarity to one of the bases for the Lyng
decision, Bowen v. Roy, 476 U.S. 693, 106 S. Ct. 2147, 90 L. Ed. 2d 735 (1986), “where the
Supreme Court held that the state’s use of a Native American child’s Social Security number in
determining eligibility for federal welfare benefit programs did not impair her parents’ freedom
to exercise their religious beliefs, a tenet of which was that use of the number beyond her control
would ‘rob [her] spirit.’” Kaemmerling, 553 F.3d at 680. The state’s administrative use of Social
Security numbers did not restrict plaintiffs’ beliefs or actions. This opinion was pre-RFRA, but
as noted above, the substantial burden standard is the same. The Court’s language makes it clear
that the government’s generally applicable administrative tools do not pose a substantial burden
on plaintiff’s religious exercise. “[Plaintiff] 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. The Free Exercise
Clause affords an individual protection from certain forms of governmental compulsion; it does
not afford an individual a right to dictate the conduct of the Government’s internal procedures.”
Bowen v. Roy, 476 U.S. 693, 700, 106 S. Ct. 2147, 90 L. Ed. 2d 735 (1986).
The self-certification form is just such an administrative tool, used to relieve Notre Dame
of liability for not providing contraceptive payments. It tells the government and the TPA that

17

Notre Dame is opting out, and it certifies that Notre Dame is eligible to do so. In sum, the
certification merely denotes Notre Dame’s refusal to provide contraceptive care – a statement
that is entirely consistent with what Notre Dame has told its TPA in the past.
Also instructive is the Ninth Circuit’s en banc examination of the substantial burden
showing in Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1070 (9th Cir. 2008) (en banc),
cert. den’d, 556 U.S. 1281, 129 S. Ct. 2763 (2009). It confirms that Roy and Lyng are relevant to
the substantial burden analysis in the RFRA era. Plaintiff American Indians objected to the
blowing of artificial snow made from recycled wastewater onto a part of a ski mountain that was
also a sacred place in plaintiffs’ religion. The Ninth Circuit upheld the district court’s finding
that the government’s actions were not a substantial burden to religion under RFRA. The use of
recycled wastewater did “not force the Plaintiffs to choose between following the tenets of their
religion and receiving a governmental benefit,” nor did it “coerce the Plaintiffs to act contrary to
their religion.” Id. “The only effect of the proposed upgrades is on the Plaintiffs’ subjective,
emotional religious experience. That is, the presence of recycled wastewater on the Peaks is
offensive to the Plaintiffs’ religious sensibilities. . . . [U]nder Supreme Court precedent, the
diminishment of spiritual fulfillment—serious though it may be—is not a ‘substantial burden’ on
the free exercise of religion.” Id.
Similarly, while Notre Dame may disagree with the actions of the government and other
third parties, its own actions and speech are not required under the ACA to change in a manner
contrary to its sincerely held religious beliefs. Notre Dame may be unhappy with the outcome of
opting out, and find that action less spiritually fulfilling than it would otherwise, but it is not
being required to modify its own behavior.

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Nothing in the body of cases involving prisoner meal requests based on religious beliefs
commands a different result. Indeed, they counsel against issuing an injunction. This is
because, like this case, those cases turn on whether the plaintiff is being forced to modify his
behavior or risk violating his sincerely held religious beliefs. For example, in Nelson v. Miller,
570 F.3d 868 (7th Cir. 2009), a prison refused to provide the plaintiff a non-meat diet during
Lent. In trying to comply with his religious convictions, the plaintiff “lost so much weight that
he had to be hospitalized.” Id. at 880. This coerced modification of behavior was a substantial
burden. The same was true in Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008), where the court held
that the government imposes a substantial burden on an inmate when it puts pressure him to
“‘modify his behavior and violate his beliefs.’” Id. at 799 (quoting Thomas v. Review Bd., 450
U.S. 707, 718, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981)). In other words, it violates RLUIPA to
give a prisoner the Hobson’s choice of either starving himself or observing his religion. See also
Love v. Reed, 216 F.3d 682, 689-90 (8th Cir. 2000) (prison’s failure to accommodate religious
diet substantially burdens a plaintiff; fasting is not an option); Patel v. U.S. Bureau of Prisons,
515 F.3d 807, 814-15 (8th Cir. 2008) (no substantial burden where prisoner could purchase halal
[food prepared per Muslim law] vegetarian food on meat days and request other
accommodations to avoid contamination of vegetarian food by meat).
As far as I know, only three courts have reached the merits of the contraception opt-out.
One has upheld the accommodation. See Priests for Life v. U.S. Dep’t of Health & Human
Servs., No. 1:13-cv-1261-EGS (D.D.C. Dec. 19, 2013). Two others have struck it down. See
Roman Catholic Archdiocese of New York v. Sebelius, No. 12 Civ. 2542, 2013 U.S. Dist. LEXIS

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176432 (E.D.N.Y. Dec. 13, 2013) [hereinafter “RCANY”]; Zubik v. Sebelius, Nos. 13-cv-1459,
13-cv-0303, 2013 U.S. Dist. LEXIS 165922 (W.D. Pa. Nov. 21, 2013).
In Priests for Life, decided just yesterday, the court held—similar to this case—that the
accommodations “simply do not require Plaintiffs to modify their religious behavior.” No. 1:13cv-01261-EGS, slip op. at 24. Instead, it “is entirely the activity of a third party” to provide the
offending services, “and Priests for Life plays no role in that activity.” Id. at 24-25. For that
reason, the court held that there was no substantial burden being placed on the plaintiff, and so
the court dismissed the RFRA claim.3
The RCANY opinion relies on the same body of case law that I do, but in my view misses
a few key points. First, some necessary background: RCANY involves several plaintiffs, some
which are “religious employers” wholly exempt from the contraception requirement and some of
which are non-exempt organizations eligible for the accommodation. See RCANY, 2013 U.S.
Dist. LEXIS 176432, at *2, 15-16. In some cases the two types of organizations are affiliated,
and share a healthcare plan, but nonetheless the non-exempt organizations would be required to
self-certify under the accommodation. Id. at *48-49. RCANY granted summary judgment and an
injunction for the non-exempt plaintiffs based on RFRA, but not for the exempt plaintiffs. See id.
at *3-4, 63-64. RCANY noted that the plaintiffs in that case believe that the very act of
completing the opt-out form “authorizes” third parties to provide the services to which plaintiffs
object. Id. at *21-22. The RCANY court agrees with my view that it is the compulsion to act
3
The government filed the Priests for Life opinion as supplemental authority. (DE 28.) Notre Dame
responded, attempting to distinguish Priests for Life on the basis that the opinion noted that plaintiffs “have no
religious objection to filling out the self-certification.” (DE 32 at 1 (quoting Priests for Life, slip op. at 3-4).) Notre
Dame argues that it has a religious objection to filling out the form itself. This is a distinction without a difference.
As I’ve said, Notre Dame hasn’t, and can’t, object to the content of the form, it’s only the effect of opting out that
Notre Dame objects to, which it ties to the form. The Priests for Life plaintiffs argued, as Notre Dame does, that the
contraception requirements and accommodation have “no logical or moral distinction.” Priests for Life, No. 1:13-cv01261-EGS, slip op. at 9. The opinion noted that form of argument, and rejects it, as I do, because it “cast[s] as a
factual allegation” “the legal conclusion . . . that [] religious exercise is substantially burdened.” Id. at 24 n.5.

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contrary to religious beliefs that creates a substantial burden. Id. at *35-36, 46-47. But RCANY
sees the government as compelling plaintiffs to act by opting out, in completing the selfcertification. The RCANY court isn’t persuaded by the fact that plaintiffs would instruct, and
have in the past instructed, their TPAs not to cover contraception even without the ACA because
“the self-certification would still transform a voluntary act that plaintiffs believe to be consistent
with their religious beliefs into a compelled act that they believe forbidden.” Id. at *46.
But as I see it, the act isn’t changing, it’s the consequence of the act that is. In other
words, it’s not the self-certification form that “transforms” Notre Dame’s action into one it
objects to. Instead, it’s what the government and the TPA do, and Notre Dame can’t exercise its
RFRA rights to control the actions of others. Notre Dame isn’t being required to do anything
new or different – its action is the same, although, granted, the result is different due to the
actions of the TPA and the government. As I’ve said, Notre Dame may find the act of opting out
less spiritually fulfilling now, but that doesn’t make it a new action.
There is also something perplexing in RCANY. The court agreed with the non-exempt
plaintiffs that their opt-out through the self-certification form is compelled because plaintiffs
object to what will happen as a result. But that logic falls apart when the court moves on to the
exempt plaintiffs’ claim. They say their RFRA rights would be substantially burdened by
pressure to separate the health care plans for exempt and non-exempt organizations because
doing so would result in the non-exempt organization self-certifying, which in turn would result
in the provision of contraceptive coverage. Without much explanation the court dismisses that
argument:
[T]heir claim is that expelling the non-exempt organizations could
force those affiliates to provide coverage or self-certify, which in
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turn could mean that the [exempt] Diocesan plaintiffs’ prior act of
expulsion facilitated the provision of contraception. This religious
objection — which is not to the act itself, but instead is entirely
dependent on the conduct of third parties occurring after that
act — is quite similar to the claim rejected in Kaemmerling. 553
F.3d at 678. The [exempt] Diocesan plaintiffs have therefore
failed to demonstrate that the [contraception requirement]
Mandate imposes a substantial burden on their religious
exercise, and defendants are entitled to summary judgment on the
[exempt] Diocesan plaintiffs’ RFRA claims.
Id. at *49-50 (emphasis added).
The upshot of all of this is that RCANY essentially says that somehow adding another
degree of separation results in the alleviation of the substantial burden. I fail to see the logic in
this. What RCANY says about the exempt plaintiffs’ claims applies with equal force to a nonexempt plaintiff’s claim, as well, and as I noted previously, I agree that the claims are similar to
that in Kaemmerling.
The Zubik court, too, accepts plaintiffs’ characterization of opting out via the selfcertification form as “facilitate[ing]/initiat[ing] the provision of contraceptive products, services
and counseling.” Zubik, 2013 U.S. Dist. LEXIS 165922, at *80. When cast in that light, finding a
substantial burden is assured. But as I’ve said, while I accept that facilitating contraception is
sincerely odious to the plaintiff entities in these cases, I don’t have to accept without analysis
that opting out of providing contraception is a modification of behavior. The Zubik court even
says that it’s not plaintiffs’ action that has changed, but the result, through the actions of third
parties: “In all prior instances where the Government, an insurer, or a TPA has requested
employee names or other information from Plaintiffs, the reason the information was sought was
of no moment to Plaintiffs. Now, under the ‘accommodation,’ the reason the documentation is
required is so that contraceptive products, services, and counseling can be provided in direct
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contravention of Plaintiffs’ sincerely-held religious beliefs.” Id. at *82. Under Zubik, religious
nonprofits get to veto third party action when it reduces the nonprofits’ spiritual satisfaction in a
particular action.
To the extent that Notre Dame claims a burden imposed by having to find a TPA that will
cover contraception and enter a contract with that third party, the argument lacks factual support.
Notre Dame’s existing TPA is covering contraception. Notre Dame didn’t have to search for a
new TPA, or enter a new contract with the accommodation in mind. There’s no indication that
any TPAs in similar cases are refusing to pay for contraception. In fact, Notre Dame’s argument
is belied by the actions of its own TPA. It is the TPA’s deadline to send out the appropriate
paperwork that Notre Dame claims sets the December 20 deadline for this preliminary injunction
decision, rather than the law’s January 1, 2014 compliance deadline. See Meritain Affidavit ¶ 4;
Suppl. Affleck-Graves Affidavit ¶ 64; see also RCANY, 2013 U.S. Dist. LEXIS 176432, at *4041 (calling this argument “somewhat speculative” but not issuing a holding on it because the
self-certification ruling rendered it moot).
Notre Dame also throws in an argument about the government’s cost-neutrality
assumption. Memo. ISO Motion for Preliminary Injunction at 24-25. This is irrelevant to Notre
Dame’s position, because Notre Dame bears none of the cost under the accommodation – not for
the contraceptive care, the administration of that service, or providing the profit margin. Notre
Dame seems to be suggesting, disingenuously if it has reviewed the regulations on funding for
TPA-provided contraceptive services, that the government’s position is that the provision of
contraception will just pay for itself on the individual TPA’s balance sheet. The government

23

makes no such claim. The services will be paid for out of the federal insurance exchange, by
discounting the monthly fees insurers pay to participate in the exchange.
The final issue raised by Notre Dame relates to the effect of the contraception
requirements on their on-campus pharmacy. They do this by including a single, nearly identical
paragraph in their Complaint (¶ 76), Affleck-Graves Affidavit (¶ 53) and Memorandum in
Support of Motion for Preliminary Injunction (at 25). Notre Dame claims that it pays up front for
prescriptions dispensed from its on-campus pharmacy, which is run by Walgreens, and later gets
reimbursed by appropriate third parties. Notre Dame then claims that, under the contraception
requirement, it would have to pay for contraceptive products dispensed from its on-campus
pharmacy, and then get reimbursed later thus forcing it to “float” the cost. Missing in all this is
any allegation that Notre Dame’s pharmacy even sells contraception. Notre Dame offered
nothing to suggest that the contraception requirement will force them to carry contraception on
campus. And the government confirmed during oral argument that the ACA doesn’t require
pharmacies to carry contraception. Notre Dame’s confused and unsupported argument doesn’t
come close to meeting the plaintiff’s burden in seeking a preliminary injunction.
To sum up: In my view, Notre Dame isn’t being compelled to do anything it hasn’t done
before and won’t do in the future regardless of the outcome of this case, but it still seeks to
enjoin third parties from acting in a way Notre Dame finds objectionable. In other words, it isn’t
being asked to “modify its behavior.” Korte v. Sebelius, 735 F.3d 654, 682 (7th Cir. 2013). But
Notre Dame can’t be compelled to do something it would do anyway, like instruct its TPA not to
cover contraception on Notre Dame’s plan. To be clear, my holding isn’t that a compelled action
is de minimis. It’s that no action is being compelled at all because the action would be taken even

24

if no contraception requirement applied. And if there’s no compelled action that violates Notre
Dame’s religious beliefs, then there’s no substantial burden.
2.

Strict Scrutiny

Because I’ve held that Notre Dame is not likely to succeed in showing that the ACA with
accommodation imposes a substantial burden on its religious exercise, the RFRA claim is
unlikely to succeed. An exception to the substantial burden prohibition isn’t necessary, so I don’t
need to reach an analysis of whether the law furthers a compelling government interest and is the
least restrictive means the government could use. See Korte v. Sebelius, 735 F.3d 654, 672 (7th
Cir. 2013).
B.

The Free Exercise Claim

The First Amendment provides that Congress shall make no law “prohibiting the free
exercise” of religion. “The Free Exercise Clause absolutely protects the freedom to believe and
profess whatever religious doctrine one desires. It also provides considerable, though not
absolute, protection for the ability to practice (through the performance or non-performance of
certain actions) one’s religion.” United States v. Indianapolis Baptist Temple, 224 F.3d 627, 629
(7th Cir. 2000) (citations omitted). In interpreting the Free Exercise Clause, the Supreme Court
has made it clear that their “cases establish the general proposition that a law that is neutral and
of general applicability need not be justified by a compelling governmental interest even if the
law has the incidental effect of burdening a particular religious practice. Neutrality and general
applicability are interrelated . . . .” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 531, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993) (citations omitted). But general

25

applicability, for Free Exercise purposes, “does not mean absolute universality.” Olsen v.
Mukasey, 541 F.3d 827, 832 (8th Cir. 2008).
A law is not neutral under Free Exercise analysis if its object “is to infringe upon or
restrict practices because of their religious motivation.” Lukumi, 508 U.S. 520, 533. Put another
way, “inequality results when a legislature decides that the governmental interests it seeks to
advance are worthy of being pursued only against conduct with a religious motivation.” Id. at
542-43.The analysis need not end with the text of the statute; the court is permitted to look for
evidence of non-neutrality. Id. at 533-34.
Congress enacted RFRA specifically to be more restrictive on government action than the
Free Exercise Clause. So failure under RFRA means failure under the Free Exercise Clause. See
e.g., Indianapolis Baptist Temple, 224 F.3d at 629; Fernandez v. Mukasey, 520 F.3d 965, 966 n.1
(9th Cir. 2008) (“Petitioners’ failure to demonstrate a substantial burden under RFRA
necessarily means that they have failed to establish a violation of the Free Exercise Clause, as
RFRA’s prohibition on statutes that burden religion is stricter than that contained in the Free
Exercise Clause.”); see also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546
U.S. 418, 424, 126 S. Ct. 1211, 163 L. Ed. 2d 1017 (2006) (“In Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), this
Court held that the Free Exercise Clause of the First Amendment does not prohibit governments
from burdening religious practices through generally applicable laws. . . . [We] held that the
Constitution does not require judges to engage in a case-by-case assessment of the religious
burdens imposed by facially constitutional laws. Id., at 883-890, 110 S. Ct. 1595, 108 L. Ed. 2d
876. Congress responded by enacting the Religious Freedom Restoration Act of 1993 (RFRA)”).

26

Notre Dame posits generally that both the contraception requirement and the
accommodation that lets Notre Dame opt out violate its Free Exercise rights. I disagree with both
theories. With respect to the requirement itself, the opt-out removes any burden the requirement
may impose by allowing Notre Dame to refuse to provide contraception as it’s always done. That
solution would be inadequate if the accommodation were itself a burden, but as I held with
respect to RFRA, it’s not. Because RFRA has the stricter standard, I need not further examine
the burden of the accommodation here.
More specifically, Notre Dame makes three arguments: First, it claims that the
requirement isn’t neutral because, essentially, most healthcare plans already cover contraception
and adding it to the others wouldn’t cost anything, so the only reason a plan wouldn’t cover
contraception is due to religious objection. Memo. ISO Motion for Preliminary Injunction at 37.
Second, Notre Dame argues that the contraception requirement isn’t generally applicable because
the ACA provides exemptions, but not to religious nonprofits. Id. at 36-37. Third, Notre Dame
claims that, with respect to the requirement, Free Exercise serves to reinforce other
Constitutional protections, “implicat[ing] the ‘hybrid’ rights of religious believers.” Id. at 37.
This last argument seems to be that education is a part of the Catholic religion, and the
requirement makes it impossible for Notre Dame to run an educational institution without being
involved with contraception. This pressure on religious belief in turn puts pressure on Notre
Dame to consider not running an educational institution, which violates its rights to freedom of
association and speech. Id. at 37-38. I will take up each of these arguments in turn.
Notre Dame first claims, supported only by inference, is that the contraceptive
requirement is aimed at religious objectors, and so is not neutral in application. But frankly there

27

is nothing to support this inference. And all of the evidence is decidedly to contrary. First, while
Notre Dame takes issue with the contraceptive requirements, which may be widely covered
already and cost-neutral to add where they’re not covered, I note that the women’s preventive
health care requirements include many services completely unrelated to contraception, many of
which Notre Dame does not appear to contest. See Inst. of Med., Committee on Preventive
Services for Women, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011),
available at http://www.nap.edu/catalog.php?record id=13181. Apart from women’s preventive
healthcare, the broader section of the ACA on “Coverage of Preventive Health Services” also
requires free coverage of immunizations and breast cancer screenings. See ACA § 2713. As
discussed previously, the ACA is meant to be a comprehensive overhaul of the nation’s
healthcare system, so it isn’t surprising that it lays out many types of coverage that must be
included in health insurance; it would be surprising if it didn’t. Describing what coverage
healthcare plans should include seems reasonable, given all of the other changes set out in the
ACA. For example, everyone must henceforth have health insurance. Large employers must
provide it and smaller employers need not, but individuals are required to get it if their employer
doesn’t offer it. See ACA §§ 1501 (requirement on individuals), 1511 (requirement on
employers). If the ACA didn’t lay out a battery of services that must be covered, insurers could
offer cut-rate plans that cover almost nothing to individuals buying insurance only to meet the
requirement on individuals. The fact that contraceptive services are included among a bevy of
other services that must be offered is not evidence that the government is targeting those who
object to contraception on religious grounds. On the contrary, the comprehensive approach to
women’s health issues laid out in the ACA proves the precise opposite.

28

The laws and regulations in question, as well as the legislative history, further show that
the ACA and related regulations were enacted for reasons neutral to religion. The Congressional
record indicates that the purpose of the women’s preventive healthcare requirements were not
related to religion. As articulated by its sponsor, the purpose of the women’s health
requirements is to “guarantee[] women access to lifesaving preventive services and screenings,”
and remedying gender discrimination in health insurance and the fact that “[w]omen are more
likely than men to neglect care or treatment because of cost.” 155 CONG. REC. S11985, S11986
(daily ed. Nov. 30, 2009) (statement of Sen. Mikulski). “Often those things unique to women
have not been included in health care reform. Today we guarantee it and we assure it and we
make it affordable by dealing with copayments and deductibles.” Id. at S11988.
What’s more, the relevant regulations were enacted based on the expert recommendations
of the Institute of Medicine (“IOM”), without religious motive. Inst. of Med., Committee on
Preventive Services for Women, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE
GAPS, 2 (2011), available at http://www.nap.edu/catalog.php?record id=13181. The IOM “was
established in 1970 by the National Academy of Sciences to secure the services of eminent
members of appropriate professions in the examination of policy matters pertaining to the health
of the public. The [IOM] acts under the responsibility given to the National Academy of
Sciences by its congressional charter to be an adviser to the federal government . . . .” Id. at iv.
The IOM recommended that the guidelines include support and counseling addressing a battery
of issues including, of primary relevance here, “the full range of Food and Drug
Administration-approved contraceptive methods, sterilization procedures, and patient education
and counseling for women with reproductive capacity.” Id. at 10. It is therefore abundantly clear

29

that the women’s health requirements in the ACA are entirely neutral and not intended to target
religion.
Notre Dame next argues that the contraception requirement isn’t generally applicable
because there are secular exemptions, specifically, rules applying to small businesses and to
grandfathered plans. But as the Priests for Life court noted, “[t]he existence of categorical
exemptions does not mean that the law does not apply generally.” Priests for Life v. U.S. Dep’t
of Health & Human Servs., No. 1:13-cv-01261-EGS (D.D.C. Dec. 19, 2013), slip op. at 34. The
Supreme Court made that point in United States v. Lee, 455 U.S. 252, 260-61, 102 S. Ct. 1051,
71 L. Ed. 2d 127 (1982), when it held that the social security tax requirements are generally
applicable despite the fact that the system contains categorical exemptions. The categories that
the ACA creates and of which Notre Dame complains are objectively delineated, without
reference to religion. They do not make the law not neutral.
Notre Dame’s final argument – its “hybrid” claim – all depends on its Free Exercise
argument, which I’ve explained doesn’t hold water. The accommodation doesn’t implicate Notre
Dame’s religious exercise, so there’s no resulting pressure on Notre Dame’s Free Speech and
Free Association rights to operate its university. None of Notre Dame’s constitutional claims are
likely to succeed. And because of this Notre Dame can’t reasonably argue that, although none of
its Constitutional rights is violated individually, the fact that it alleges more than one violation
somehow leads to a viable claim. Such a theory has been widely discredited, and for good
reason. Two losing claims don’t equal a winning one. See Mahoney v. District of Columbia,
662 F. Supp. 2d 74, 95 n.12 (D.D.C. 2009); Henderson v. Kennedy, 253 F.3d 12, 19 (D.C. Cir.
2001) (“For this argument to prevail, one would have to conclude that although the regulation

30

does not violate the Free Exercise Clause, and although they have no viable First Amendment
claim against the regulation, the combination of two untenable claims equals a tenable one. But
in law as in mathematics zero plus zero equals zero.” (citations omitted.)).
Based on the foregoing, I find that Notre Dame is unlikely to succeed on its Free
Exercise claim.
C.

The Establishment Clause Claim

The Constitution’s First Amendment says that Congress can “make no law respecting an
establishment of religion.” “The Establishment Clause prohibits government sponsorship of,
financial support for, and active involvement in religious activities.” United States v.
Indianapolis Baptist Temple, 224 F.3d 627, 630 (7th Cir. 2000). “The clearest command of the
Establishment Clause is that one religious denomination cannot be officially preferred over
another.” Larson v. Valente, 456 U.S. 228, 244, 102 S. Ct. 1673, 72 L. Ed. 2d 33 (1982). Under
the “Lemon Test,” the law in question has to have a secular legislative purpose, the primary
purpose must neither advance nor inhibit religion, and the government must avoid excessive
entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. Ed.
2d 745 (1971); see also Indianapolis Baptist Temple, 224 F.3d at 630. This doesn’t mean that
government has to cross the street when it sees religion coming; indeed, complete avoidance of
religion is often not possible. “The course of constitutional neutrality in this area cannot be an
absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is
to insure that no religion be sponsored or favored, none commanded, and none inhibited.” Walz
v. Tax Com. of New York, 397 U.S. 664, 669, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970).

31

Specifically, “the Supreme Court has held that the sorts of generally applicable
administrative and record keeping requirements imposed by tax laws may be imposed on
religious organizations without violating the Establishment Clause. The normal incidents of
collecting federal employment taxes simply do not involve the intrusive government
participation in, supervision of, or inquiry into religious affairs that is necessary to find excessive
entanglement.” Indianapolis Baptist Temple, 224 F.3d at 631 (collecting cases regarding state
sales and use tax, federal income tax, workers’ compensation program and social security tax).
In Walz, a real estate owner “sought an injunction in the New York courts to prevent the
New York City Tax Commission from granting property tax exemptions to religious
organizations for religious properties used solely for religious worship.” 397 U.S. at 666
(emphasis added). The tax exemption differentiated between religious organizations and the way
they used their property. The Supreme Court found the exemption constitutional, holding the
government “has not singled out one particular church or religious group . . . .” Id. at 673. The
exemption also applied to certain secular properties the government considered conducive to
“moral or mental improvement,” and still the exemption of only certain religious properties was
constitutional. Id. at 672-73.
Notre Dame argues that this case is governed by Larson, but I fail to see why. Reply ISO
Motion for Preliminary Injunction at 21. In Larson, the Supreme Court found that a Minnesota
law that specifically targeted less established churches was unconstitutional under Lemon. 456
U.S. at 254-55. But that is not at all what the ACA does. It doesn’t favor one religion over
another by creating exemptions for certain categories of employers and accommodations for
others.

32

Moreover, limited religious exemptions from generally applicable laws can take into
account considerations beyond the content of one’s religious beliefs. In Droz v. Comm’r,
plaintiff objected to a law exempting from social security taxes members of organized religions
that objected to social security taxes on religious grounds and that would provide for members
who needed assistance. 48 F.3d 1120, 1124-25 (9th Cir. 1995). Plaintiff argued that his beliefs
could mirror those of an exempt person, but he would still have to pay into social security
because he wasn’t a member of an eligible sect. Id. at 1124. The court found the law
constitutional. It declined to apply strict scrutiny because the law did not discriminate among
religions and applied a condition that had a secular purpose and did not advance or inhibit
religion. Id. at 1124-25.
Notre Dame alleges violation of the Establishment Clause by the grant of an exemption
only to a particular category of “religious employers,” and because identifying what groups are
in that category will excessively entangle the government with religion. Memo. ISO Motion for
Preliminary Injunction at 40. Notre Dame does not claim that the ACA discriminates among
faiths, but among institutions of the same faith that have different organizational structures. Nor
does Notre Dame argue here that the law does not have a secular legislative purpose, or that it
advances or inhibits religion. Nor could it. As I addressed above, the law has a secular purpose,
and the purpose does not involve advancing or inhibiting religion.
So my application of the Lemon test comes down to whether there is excessive
entanglement. While Notre Dame is unhappy with the distinction the law draws, I think the
argument that the distinction can’t be drawn without excessive government entanglement rings
hollow. An organization is exempt if it’s “organized and operates as a nonprofit entity and is

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referred to in sections 6033(a)(1) and 6033(a)(3)(A)(I) or (iii) of the Internal Revenue Code of
1986, as amended.” 45 C.F.R. § 147.131(a). The distinction is based on the tax code, and the
Supreme Court has upheld federal tax laws applied neutrally to religious and secular entities
alike. In this case, Notre Dame had no problem determining that it’s not exempt, and there is no
suggestion that the government was involved in that determination. Compl. ¶ 43. Furthermore,
an ACA determination based on corporate organization and tax code is surely less entangling
than the one the court found constitutional in Droz based on membership in a religious group and
specific tenets of that group’s faith.
Notre Dame is therefore unlikely to be able to demonstrate that the ACA and the
contraception opt-out violate its rights under the Establishment Clause.
D.

The Free Speech Claim

The concept of freedom of speech includes the right to be free from Congress telling
people what they must say. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,
547 U.S. 47, 61, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006) [hereinafter “FAIR”] (“Some of this
Court’s leading First Amendment precedents have established the principle that freedom of
speech prohibits the government from telling people what they must say.”); Hill v. Colo., 530
U.S. 703, 714-15, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000). However, to violate the right to
free speech, naturally a law must actually regulate speech. Even when a law conditioned federal
funding on schools allowing military recruiters on campus, there was no free speech violation
because letting the recruiters on campus didn’t mean that the schools were voicing their support
for the recruiters’ message. The law in question was constitutional because it “neither limits
what law schools may say nor requires them to say anything. Law schools remain free under the

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statute to express whatever views they may have . . . .” FAIR, 547 U.S. at 60 (citation omitted).
Notre Dame alleges two separate free speech violations: first, that the government
compels it to speak contrary to its beliefs, and second, that the regulations contain a “gag order”
prohibiting Notre Dame from speaking as it wishes. Reply ISO Motion for Preliminary
Injunction at 18-20. Neither argument is persuasive.
Notre Dame claims that the accommodation compels speech by requiring Notre Dame to
facilitate contraception and counseling that may support contraception, and by requiring the
completion of the certification form. I’ve explained at length my view that the government isn’t
forcing Notre Dame to do or say anything it wouldn’t do or say otherwise. Long before the ACA
Notre Dame told its TPA not to cover contraception, and it will continue to do so with or without
the ACA. It can’t be called compulsion for Notre Dame to do what it has done, does, and will do
anyway.
Furthermore, as the government points out, not a single court has upheld a Free Speech
challenge to the contraceptive-coverage regulations because most recognize that the certification
requirement regulates conduct, not speech. Opp. to Preliminary Injunction at 20 (citing, e.g., MK
Chambers Co. v. U.S. Dep’t of Health & Human Servs., No. 13-cv-11379, 2013 WL 1340719, at
*6 (E.D. Mich. Apr. 3, 2013); Conestoga Wood Specialities Corp. v. Sebelius, 917 F. Supp. 2d
394, 418 (E.D. Pa. 2013)).
With respect to whether the ACA imposes a gag order on speech, Notre Dame points to
the prohibition against “directly or indirectly, seek[ing] to interfere with a third party
administrator’s arrangements to provide or arrange separate payments for contraceptive services
for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third

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party administrator’s decision to make any such arrangements.” 26 C.F.R. 54.98152713A(b)(iii). Notre Dame does not include in its brief the text that immediately follows this
prohibition in the final reporting of the rules, which states “[n]othing in these final regulations
prohibits an eligible organization from expressing its opposition to the use of contraceptives.” 78
Fed. Reg. 39,870, 39,880 n.41.
The text accompanying the final rules could not be clearer that Notre Dame is free to
speak all it wants. The prohibition on influencing the TPA must involve something more than
expressing Notre Dame’s views. As the government put it, the regulations don’t prohibit speech,
but instead prevents “an employer’s improper attempt to interfere with its employees’ ability to
obtain contraceptive coverage from a third party by, for example, threatening the TPA with a
termination of its relationship because of the TPA’s” coverage of contraception. Opp. to
Preliminary Injunction at 22. Prohibiting this type of behavior is just as permissible as
prohibiting an employer from threatening employees regarding unionization, which is speech
that falls clearly outside the protection of the First Amendment. See NLRB v. Gissel Packing Co.,
395 U.S. 575, 618, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969).
In sum, because the regulations do not force Notre Dame to say anything, nor do they
prevent Notre Dame from forthrightly expressing its views regarding the topic of contraception,
Notre Dame’s free speech rights are not being infringed. Consequently, Notre Dame is unlikely
to succeed on its Free Speech claim.
II.

Balancing the Equities

The Supreme Court has held that a “plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in

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the absence of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L.
Ed. 2d 249 (2008). These requirements appear to be conjunctive, requiring the party seeking
injunction to show all of them. However, the Seventh Circuit’s sliding scale analysis referenced
earlier in this opinion requires me to consider and balance the harms to Notre Dame, the
government, and the public unless I find that Notre Dame has less than a “negligible chance of
success.” Lineback v. Spurlino Materials, 546 F.3d 491, 502 (7th Cir. 2008); Kiel v. City of
Kenosha, 236 F.3d 814, 815-16 (7th Cir. 2000). This simply means that a greater harm can
make up for a lesser likelihood of success. See, e.g., AM Gen. Corp. v. Daimlerchrysler Corp.,
311 F.3d 796, 804 (7th Cir. 2002); Green River Bottling Co. v. Green River Corp., 997 F.2d 359,
361 (7th Cir. 1993).
As an aside, the government noted in its Opposition to Preliminary Injunction its
objection to the sliding scale approach as inconsistent with the Supreme Court’s holding in
Winter. Opp. to Preliminary Injunction at 8 n.4. But the government also recognizes that I am
nonetheless bound to apply the sliding scale, although ultimately in this case I do not find that it
slides my decision to a grant of the preliminary injunction.
An injunction is an extraordinary remedy not to be issued lightly. “In exercising their
sound discretion, courts of equity should pay particular regard for the public consequences in
employing the extraordinary remedy of injunction. Thus, the Court has noted that ‘[t]he award of
an interlocutory injunction by courts of equity has never been regarded as strictly a matter of
right, even though irreparable injury may otherwise result to the plaintiff,’ and that ‘where an
injunction is asked which will adversely affect a public interest for whose impairment, even

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temporarily, an injunction bond cannot compensate, the court may in the public interest withhold
relief until a final determination of the rights of the parties, though the postponement may be
burdensome to the plaintiff.’” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13, 102 S. Ct.
1798 (1982) (citing Yakus v. United States, 321 U.S. 414, 440 (1944) (footnote omitted)).
As this opinion demonstrates, in my view of things Notre Dame has a low likelihood of
success on the merits. Still, I can’t say that it has no chance, particularly given the differing
outcomes in other courts. Turning to interests and harms, Notre Dame and the government are
basically in equipoise.4 In my mind the low likelihood of success necessarily bears on the
likelihood of irreparable injury – if it’s unlikely there will ultimately be a showing of a violation
of rights, then it’s unlikely that there will be a violation while the case is pending. I nonetheless
fully recognize that if I am incorrect and Notre Dame should ultimately prevail, then certainly
the violation of its religious rights in the interim is a substantial harm. But the government also
has strong interests in opposing the injunction. Congress has an interest in seeing a duly enacted
law legislating its intent put into effect. And administrative agencies have an interest in
enforcing carefully drafted regulations in their bailiwicks. As for the public interest, it is equally
split. The public – however one chooses to define that vague term – certainly has an interest in
the vindication of First Amendment rights. But it also has an interest in the full enforcement of
duly enacted laws. More specifically, the women who work for Notre Dame, as a subset of the
public, also have a very real stake in receiving the health care that the ACA affords to them.5
4

Korte touches on the government’s interests when it addresses RFRA’s strict scrutiny analysis, but there it
focuses on whether the government’s interest is compelling enough to meet strict scrutiny muster. The Seventh
Circuit accepts as legitimate the government’s interest in “broaden[ing] access to free contraception and sterilization
so that women might acheive greater control over their reproductive health,” although the court questions whether it
is of “surpassing importance.” Korte v. Sebelius, 735 F.3d 654, 686.
5
I note again the pending motion to intervene in this case filed by three Notre Dame students. See supra,
n.1. While I have not yet had an opportunity to fully consider the appropriateness of intervention here, the motion
demonstrates that the interest of affected women is not hypothetical.

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And finally, I can’t ignore Notre Dame’s waiting to file its case until mere weeks before the
wheels of the requirements were going to start to turn. Had Notre Dame acted more
expeditiously the harm that they now fear could have been avoided altogether. That put the
government and other interested third parties in the position of defending a case on the fly. That
would be fine if it was by necessity, but it wasn’t here. And the Seventh Circuit has noted that
“[d]elay in pursuing a preliminary injunction may raise questions regarding the plaintiff’s claim
that he or she will suffer irreparable harm if a preliminary injunction is not entered.” Ty, Inc. v.
Jones Group, Inc., 237 F.3d 891, 903 (7th Cir. 2001).
So while the interests for and against injunction are very closely balanced, I find that the
low likelihood of Notre Dame’s success on the merits tips the sliding scale towards denial of the
preliminary injunction that Notre Dame seeks.
CONCLUSION
For the foregoing reasons, plaintiff University of Notre Dame’s Motion for a Preliminary
Injunction (DE 9) is DENIED.
SO ORDERED.
ENTERED: December 20, 2013
/s/ Philip P. Simon
Philip P. Simon, Chief Judge
United States District Court

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