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3009121

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA -_ -= ~ -:
SOUTH BEND DIVISION

UNIVERSITY OF NOTRE DAME,
Plaintiff, v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services; THOMAS PEREZ, in his official capacity as Secretary of the U.S. Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the U.S. Department of the Treasury; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; U.S. DEPARTMENT OF LABOR; and U.S. DEPARTMENT OF THE TREASURY,
Defendants.

Case NO;-!7
~'Jil 0

COMPLAINT 1. This lawsuit is about one of America's most cherished freedoms: the freedom to practice one's religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are, and will continue to be, freely available in the United States, and nothing prevents the Govemment itself from making them more widely available. But the right to such services does not authorize the Govemment to force the University of Notre Dame ("Notre Dame") to pay for, facilitate access to, and/or become entangled in the provision of products, services, practices, and speech that are contrary to its sincerely held religious beliefs. It does not authorize the Govemment to coerce Notre Dame to participate in a program whose central financial premise-"cost neutrality" through reductions in the number ofchildbi11hs-is antithetical to Notre Dame's faith. Finally, it

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does not authorize the Government to require Notre Dame to facilitate and appear to endorse practices that Catholic doctrine considers morally wrong. See, e.g., Advertisements of Colorado Consumer Health Initiative, including one depicting female youth next to male youth and stating "OMG he's hot! Let's hope he's as easy to get as this birth control. My health insurance covers the pilL which means all I have to worry about is getting him between the covers." (attached as Exhibit A). Notre Dame's Catholic mission-paI1icularly its mission as an educator of youth in a Catholic tradition-dictates that it avoid facilitation or affiliation with objectionable products, services, practices, and mores that are inextricably inte11wined with the law challenged in this case. Because the U.S. Government Mandate requires Notre Dame pay for, facilitate access to, and/or become entangled in the provision of products, services, practices, and speech that that are contrary to its sincerely held religious beliefs, the Mandate would require Notre Dame to commit scandal, which in Catholic theology is defined as leading by words or example others to engage in wTongdoing. Put simply, it offends Notre Dame's sincerely held religious beliefs to play any role in the law from which the Government refuses to exempt Notre Dame.
2. Through this lawsuit, Notre Dame does not seek to impose its religious beliefs on others. It simply asks that Notre Dame be permitted to act according to its faith and in ways that articulate the moral standards to \vhich it adheres. Notre Dame seeks only to protect its right to the free exercise of its religion, its right to be recognized as a religious institution, its right to avoid being forced to pay for, facilitate access to, and/or become entangled in the provision of products and services that violate its religious beliefs, and its right not to be compelled ~o speak, or to be silent, in a way that implies acceptance or endorsement of practices directly at odds with its religious teachings.

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3. The U.S. Government Mandate that lies at the heart of this lawsuit has a well documented and tortured history of modifications, amendments, and changed enforcement policies. The reason the history is tortured is simple: the Mandate impinges on fundamental rights of religion and free speech, and the Government has been caught up in fruitless and unsuccessful attempts to work around those rights. But instead of recognizing the inalienable rights of all religious organizations, the Government has instead acknowledged and exempted only a small class of religious entities, and required the rest-like Notre Dame-to "certify" its beliefs in a way never before required, and nonetheless to participate and become entangled in a program antithetical to its faith. The now final U.S. Government Mandate continues to coerce Notre Dame to violate its beliefs, and Notre Dame has regrettably been forced to bring this lawsuit to protect its rights.
4. The U.S. Government Mandate also improperly attempts to sever Notre Dame from the Roman Catholic Church. Notre Dame sincerely believes in the unity of the Catholic Church. including that Catholic educational institutions, especially Notre Dame, are by definition the "heart of the church" or Ex Corde Ecclesiae. Notre Dame's mission isjust as central to Catholic faith and life as the mission of Catholic houses of worship. Yet, the U.S. Government Mandate would limit the definition of "religious employers" to houses of worship, attempting to sever the Church from its heart and to divide the unified Church. The U.S. Government Mandate would thus turn the broad right to Religious Exercise into a narrow Right to Worship.
5. The U.S. Government Mandate, including the narrow exemption for cert~in "religious employers," is irreconcilable with the First Amendment, the Religious Freedom Restoration Act ("RFRA"), and other laws. The Government has not shown any compelling need to attempt to sever Notre Dame from the Church, nor to force Notre Dame to pay for,

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facilitate access to, and/or become entangled in the provision of abOliion-inducing drugs, sterilization, contraception, and related counseling services (the "objectionable products and services'").
6. Additionally, the Government has not shown a compelling need to force Notre Dame to be part of a vehicle that inevitably encourages and counsels members of a Catholic community to use these products and procedures at issue, in effect normalizing them. Nor has the Government shown a compelling need to force Notre Dame to accept a purported promise of "cost neutrality" that is expressly premised on reductions in the number of childbirths as a costsaving measure-a premise antithetical to its sincerely held Catholic religious beliefs.
7. The Government also has not shown that the U.S. Government Mandate is narrowly tailored to advancing its interest in increasing access to these services, since these services are already widely available and nothing prevents the Government from making them even more widely available by providing or paying for them directly through a duly-enacted law.
8. The Government, therefore, cannot justify its decision to force Notre Dame, in violation of its sincerely held religious beliefs, to be an unwilling participant in the U.S Government Mandate and the process through which it is implemented.
BACKGROUND I. PRELIMINARY MATTERS
9. Plaintiff Notre Dame is a nonprofit Indiana corporation with a principal place of business in Notre Dame, Indiana. It is organized exclusively for charitable, religious, educational, and scientific purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code. It is also an educational organization under Section 170(b)(1 )(A)(ii) of the Internal Revenue Code.

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10. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services ("HHS"). She is sued in her official capacity.
11. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
12. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.
13. Defendant U.S. Depmiment of Health and Human Services is an executive agency of the United States within the meaning of RPRA and the Administrative Procedure Act ("APA").
14. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
15. Defendant U.S. Depmiment of the Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
16. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702; 28 U.S.c. §§ 2201, 2202; and 42 U.S.C. § 2000bb-l(c).
17. An actual, justiciable controversy currently exists between Plaintiff and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Notre Dame will be required to be act in contravention of its sincerely held religious beliefs, as described below.
18. Notre Dame has no adequate or available administrative remedy, or, in the alternative, any effOli to obtain an administrative remedy would be futile.
19. This Court has subject-matter jurisdiction over this action under 28 U.S.c. §§ 1331, 1343(a)(4), and 1346(a)(2).
20. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1).

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University of Notre Dame 21. Notre Dame is an academic community of higher learning, organized as an independent, national Catholic research university located in Notre Dame, Indiana. Founded in

1842 by a priest of the Congregation of Holy Cross and officially chmiered in 1844, it seeks to provide a Catholic educational environment that prepares students spiritually and intellectually for their future vocations and careers.

22. Notre Dame's Catholic educational mission is furthered by its leadership. Each of

Notre Dame's seventeen Presidents has been a priest from the Congregation of Holy Cross, United States Province of Priests and Brothers. Current-President Rev. John 1. Jenkins has

miiculated a vision of Notre Dame as a preeminent research university with a distinctive Catholic character and an unsurpassed commitment to undergraduate education.
Notre Dame currently serves more than 11,500 undergraduate and graduate students annually and it is consistently rated one of the best universities in the country.

24. In total, Notre Dame employs over 5,000 full- and part-time employees and is the

largest employer in St. Joseph County, Indiana. Offering over 60 undergraduate majors and 70 graduate programs, including the

nation's oldest Catholic law school, Notre Dame pursues the highest academic achievement in every discipline, integrating faith and reason in pursuit of truth.
26. Notre Dame provides a distinctive voice in higher education that is at once rigorously intellectual and unapologetically committed to the moral principles and ethic~ of the Catholic Church.

Notre Dame's Religious Beliefs 27. Faith is at the heart of Notre Dame's educational mission. In accordance with the apostolic constitution Ex Corde Ecclesiae, which governs and defines the role of Catholic

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colleges and universities, Notre Dame embraces the riclmess of the Catholic intellectual tradition, "consecrat[ing] itself without reserve to the cause of truth." It aims to provide a forum where, through free inquiry and open discussion, the various lines of Catholic thought may intersect with the arts, sciences, and every other area of human scholarship.
28. In accordance with the apostolic constitution Ex Corde Ecclesiae, Notre Dame believes and teaches that "besides the teaching, research and services common to all Universities," it must "bring[] to its task the inspiration and light of the Christian message." "Catholic teaching and discipline are to influence all university activities," and "[a]ny official action or commitment of the University [must] be in accord with its Catholic identity." "In a word, being both a University and Catholic, it must be both a community of scholars representing various branches of human knowledge, and an academic institution in which Catholicism is vitally present and operative."
29. To carry out that religious mission, Notre Dame both lives and teaches its students how to live Catholic moral teachings both inside and beyond the church doors. This religious mission is the heart of the Church and cannot be severed from it. Indeed, Notre Dame is the ideal fusion of Catholic worship (with daily and weekly Catholic mass) and living Catholic moral teachings (educating future leaders in a society of scholars that is enriched in every way by Catholic intellectual and cultural traditions). It would violate Notre Dame's religious beliefs, including the beliefs articulated in Ex Corde Ecclesiae, to sever Notre Dame from the Catholic Church.
30. The Catholic Church's well-established religious beliefs are articulated in the Catechism of the Catholic Church. One of the central tenets of the Catholic faith is belief in the sanctity of human life and the dignity of all persons. Thus, the Church believes that the "dignity

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of the human person is rooted in his creation in the image and likeness of God." Catechism of the Catholic Church ~ 1700.
31. One outgrowth of belief in human life and dignity is the Church's wellestablished belief that "[h]uman life must be respected and protected absolutely from the moment of conception." Id. ~ 2270. As a result, the Church believes that abOliion is prohibited and that it cannot facilitate, endorse, or appear to endorse the provision of abortion-inducing products. Id. ~~ 2271-72.
32. Catholic teachings prohibit any action which "render[s] procreation impossible" and, more specifically, regard direct sterilization as "unacceptable." Id. ~~ 2370,2399.
33. Catholic teachings also prohibit the use of contraceptives to impede conception. Consequently, artificial contraception and sterilization cannot be used for the purpose of impeding procreation. Id.'-; 2370. The Church, however, does not oppose the use of drugs commonly used as contraceptives when a physician prescribes the medication for noncontraceptive purposes.
34. The Catholic moral tradition forbids "scandal," which in the theological context is defined as encouraging by words or example other persons to engage in wrongdoing. "Scandal is an attitude or behavior which leads another to do evil. The person who gives scandal becomes his neighbor's tempter." Id. ~ 2284. Scandal is pariicularly grave when associated with those "who by nature or office are obliged to teach and educate others." Id. ~ 2285. Scandal in this sense can be caused not only when an individual or institution deliberately acts to cOlllItJ.it or condone some \\'rong-doing, but also when it appears to do so through its actions. It is Notre Dame's sincerely held religious belief that it cannot become entangled with, or appear to facilitate, endorse, or accept, that which it believes to be contrary to Catholic faith.

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Notre Dame's Health Insurance Plans 35. Notre Dame offers health insurance plans to eligible employees and students.

36. Notre Dame's employee health plans are self-insured. That is, Notre Dame does

not contract with a separate insurance company that pays for its employees' medical costs.

Instead, Notre Dame functions as the insurance company underwriting its employees' medical

expenses. Notre Dame canies no stop loss or catastrophic coverage to supplement its self-

insured employee health plan.

37. The Notre Dame employee health plans are administered by a third party

administrator, Meritain Health, Inc. ("Meritain"). Meritain handles the administrative aspects of

Notre Dame's self-insured employee health plans, but Meritain bears none of the risks for

benefits nor is it obligated to pay health care providers. Notre Dame pays Meritain

administrative fees based on the number of individuals covered by its plans.

38. Approximately 5,200 employees at Notre Dame are eligible for coverage under

Notre Dame's self-insured health plans. These health plans cover approximately 4,600

employees and 11,000 total individuals, including dependents.

39. Notre Dame offers its students a fully-insured health plan through Aetna.

40. Over 11,000 students at Notre Dame are eligible for coverage under Notre

Dame's student health plan. The Notre Dame student health plan covers approximately 2,600

students and 2,700 total individuals, including dependents.

41. Consistent with Roman Catholic teachings, Notre Dame's employee and ,student

health plans do not cover abOliion-inducing products, contraceptives (when used for

contraceptive purposes), or sterilization. Notre Dame's employee and student health plans cover

drugs commonly used as contraceptives only when prescribed with the intent of treating another

medical condition, not with the intent to prevent pregnancy.

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42. Notre Dame's employee and student health plans have undergone a number of changes and amendments since March 23,2010, and, accordingly, do not meet the Affordable Care Act's definition of a "grandfathered" health plan. Additionally, the Notre Dame plans have not included and do not include a statement in any plan materials provided to participants or beneficiaries that Notre Dame believes the plans are grandfathered, as is required to maintain the status ofa grandfathered health plan. 26 C.F.R. § 54.9815-1251T(a)(2)(i).
4.':">. Notre Dame does not appear to qualify as an entity described in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Notre Dame does not qualifY as a "religious employer" under the exemption to the U.S. Government Mandate.
44. Notre Dame's employee health plan year starts on January 1st. 45. Notre Dame's student health plan year starts on August 15th. II. STATUTORY AND REGULATORY BACKGROUND Statutory Background 46. In March 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152,124 Stat. 1029 (2010) (collectively, the "Affordable Care Act" or the ·'Ace). The Affordable Care Act established many new requirements for "group health plan[s],"
r broadly defined as "employee welfare benefit plan[s \vithin the meaning of the Employee
Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1002(1), that "provide[] medical care ... to employees or their dependents." 42 U.S.C. § 300gg-91 (a)(1).
47. As relevant here, the Act requires an employer's group health plan to cover certain women's "preventive care." Specifically, it indicates that "[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for ...

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with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph." 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits "cost sharing requirements," the health plan must pay for the full costs of these "preventive care" services without any deductible or co-payment.
48. "[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010." Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726,41,731 (July 19,2010) ("Interim Final Rules"); 42 U.S.C. § 1801l. These so-called "grandfathered health plans do not have to meet the requirements" of the U.S. Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that "98 million individuals will be enrolled in grandfathered group health plans in 2013." Id. at 41,732.
49. Federal law provides several mechanisms to enforce the requirements of the Act, including the U.S. Government Mandate. For example:
a. Under the Internal Revenue Code, certain employers who fail to offer "full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan" will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
b. Under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to a penalty of $1 00 a day per affected beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro,

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Congo Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the "preventive care" provision of the Affordable Care Act).
c. Under ERISA, plan participants can bring civil actions against insurers for
unpaid benefits. 29 U.S.C. § 1132(a)(l)(B); see also Congo Research Serv., RL 7-5700.
d. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as
incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Congo Research Serv., RL
7-5700 (asse11ing that these penalties can apply to employers and insurers who violate the "preventive care" provision of the Affordable Care Act). Regulatory Background - Defining "Preventive Care" and the Narrow Exemption
(1) The Original Mandate 50. On July 19,2010, Defendants issued interim final rules addressing the statutory requirement that group health plans provide coverage for women's "preventive care." 75 Fed. Reg. at 41,726 (citing 42 U.S.c. § 300gg-13(a)(4». 51, To develop the definition of "preventive care," HHS outsourced its deliberations to the Institute of Medicine ("10M"), a non-governmental "independent" organization. At the close of this process, on July 19,2011, the 10M issued a final report recommending that "preventive care" for women be defined to include "the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity." Inst. Of Med., Clinical Preventive Services for Women: Closing the Gaps," at 218-19 (2011) ("10M Report").

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52. Less than two weeks after the 10M Report was released, HHS issued a press release on August 1,2011, announcing that it would adopt the 10M's definition of "preventive care," including all "FDA-approved contraception methods and contraceptive counseling." See U.S. Dept. of Health and Human Services, "Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost," available at http://wvvw.hhs.gov/news/press/2011pres/OS/2011 OSO 1b.html. Under the final definition, the category of mandatory "preventive care" extends to "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." See HRSA: "Women's Preventive Services: Required Health Plan Coverage Guidelines," available at http://v,\vw .hrsa.goY/womensguidelines.
53. The Government's definition of mandatory "preventive care" also includes abortion-inducing products. For example, the FDA has approved "emergency contraceptives" such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
54. On August 3, 2011, shortly after announcing its definition of "preventive care," the Government proposed a nalTOW exemption from the Mandate for a small category of "religious employers" that met all of the following four criteria: "( 1) The inculcation of religious values is the purpose of the organization"; "(2) The organization primarily employs per~ons who share the religious tenets of the organization"; "(3) The organization serves primarily persons \\'ho share the religious tenets of the organization"; and "(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the

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Internal Revenue Code of 1986, as amended." 76 Fed. Reg. 46,621,46,626 (Aug. 3,2011) (codified at 45 C.F.R. § 147. 130(a)(iv)(B)).
55. As the Government itself admitted, this narrow exemption was intended to protect only "the unique relationship between a house of worship and its employees in ministerial positions." Id. at 46,623. It provided no protection for religious universities, elementary and secondary schools, hospitals, and charitable organizations.
56. Despite pleas for expansion of the exemption, the Government at first refused to reconsider its position. Instead, the Government "finalize [d], without change," the narrow exemption as originally proposed. 77 Fed. Reg. 8,456, 8,729 (Feb. 15, 2012). At the same time, the Government announced that it would offer "a one-year safe harbor from enforcement" for religious organizations that remained subject to the Mandate. Id. at 8,728.
57. A month later, under continuing public pressure, the Government issued an Advance Notice of Proposed Rulemaking ("ANPRM") that, it claimed, set out a solution to the religious-liberty controversy created by the Mandate. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The ANPRM did not revoke the Mandate, but instead offered hypothetical "possible approaches" that \vould, in the Government's view, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507.
58. Alternatives were offered by many religious leaders. ERISA, for example, has long excluded "church plans" from its requirements, more broadly defined to cover civil law corporations, including organizations like Notre Dame, that share common religious bOl1ds and convictions with a church. See 29 U.S.c. §§ 1002(33)(C)(iv), 1003.

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(2) The Government's Refusal To Recognize The Rights of Religious Organizations Like Notre Dame By Instead Subjecting Them To An "Accommodation" Antithetical To Notre Dame's Religious Beliefs
59. On February 1, 2013, the Government issued a Notice of Proposed Rulemaking

C'NPRM"), largely adopting the proposals contained in the ANPRM. The NPRM, like the

Government's previous proposals, was once again met with strenuous opposition, including over

400,000 comments. For example, the U.S. Conference of Catholic Bishops stated that "the

'accommodation' still requires the objecting religious organization to fund or otherwise facilitate

the morally objectionable coverage. Such organizations and their employees remain deprived of

their right to live and work under a health plan consonant with their explicit religious beliefs and

commitments." Comments of U.S. Conference of Catholic Bishop (Mar. 20, 2013) at 3,

available at http://w"\vw.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-

Comments-3-20-final.pdf.

60. Despite this opposition, on June 28, 2013, the Government issued a final rule that

adopted substantially all of the NPRM's proposal without significant change. See 78 Fed. Reg.

39870 (July 2,2013) ("Final Rule").

61. The Final Rule makes two primary changes to the Mandate. As described below,

neither of these changes relieves the unlawful burdens placed on Notre Dame.

62. First, the Final Rule makes what the Government concedes to be a non-

substantive, cosmetic change to the definition of "religious employer." In particular, it

eliminates the first three prongs of that definition, such that, under the new definition, ar: exempt

"religious employer" is simply "an organization that is organized and operates as a nonprofit

entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986,

as amended." 78 Fed. Reg. at 39,874 (codified at 45 C.F.R. § 147.131(a)). As the Government

has admitted, this new definition does "not expand the universe of employer plans that would

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qualify for the exemption beyond that which was intended in the 2012 final rules." 78 Fed. Reg. at 8,461. Instead, it continues to "restrict[]the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders." ld. In this respect, the Final Rule mirrors the intended scope of the original "religious employer" exemption, which focused on "the unique relationship between a house of worship and its employees in ministerial positions." 76 Fed. Reg. at 46,623. Religious organizations that have a broader mission-such as Notre Dame-are still not, in the Government's view, "religious employers."
63. The "religious employer" exemption, moreover, creates an official, Governmentfavored category of religious groups that are exempt from the Mandate, while denying this favorable treatment to all other religious groups. The exemption applies only to those groups that are "referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code." This category includes only (i) "churches, their integrated auxiliaries, and conventions or associations of churches," and (iii) "the exclusively religious activities of any religious order." The IRS has adopted an intrusive fourteen (14)-factor test to determine whether a group meets these qualifications. See Foundation ofHuman Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009). Among these fourteen (14) factors is whether the group has" a recognized creed and form of worship," "a definite and distinct ecclesiastical government," "a formal code of doctrine and discipline," "a distinct religious history," "an organization of ordained ministers," "a literature of its own," "established places of worship," "regular congregatjons, "regular religious services," "Sunday schools for the religious instruction of the young," and "schools for the preparation of its ministers." ld. Not only do these factors favor some religious groups at the expense of others, but they also require the Government to make intrusive

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judgments regarding religious beliefs, practices, and organizational features to determine which groups fall into the favored category.
64. Second, the Final Rule establishes an illusory "accommodation" for certain nonexempt objecting religious entities that qualify as "eligible organizations." To qualify as an "eligible organization," a religious entity must (1) "oppose[] providing coverage for some or all of [the] contraceptive services"; (2) be "organized and operate[] as a non-profit entity"; (3) "hold[] itself out as a religious organization"; and (4) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance company or, if the religious organization is self-insured, to its third party administrator. 26 C.F.R. § 54.98162713A(a). The provision of this self-certification then automatically requires the insurance issuer or the third party administrator to provide or arrange "payments for contraceptive services" for the organization's employees, without imposing any "cost-sharing requirements (such as a copayment coinsurance, or a deductible)." Id. § 54.9816-2713A(b)(2), (c)(2). The objectionable coverage, moreover, is directly tied to the organization's health plan, lasting only as long as the employee remains on that plan. See 29 C.F.R. § 2590.715-2713; 45 C.F.R. § 147.131 (c)(2)(i)(B). In addition, self-insured organizations are prohibited from "directly or indirectly, seek[ing] to influence the[ir] third party administrator's decision" to provide or procure contraceptive services. 26 C.F.R. § 54.9815-2713.
65. This so-called "accommodation", which exists solely to avoid entities like Notre Dame's rightful exemption from the Mandate, by definition binds Notre Dame to the prQcess of providing the objectionable products and services and thereby fails to address Notre Dame's sincerely held religious beliefs. The Catholic moral tradition requires avoiding "scandal," which in the theological context is defined as leading by words or example other persons to engage in

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\\'rongdoing. Scandal is particularly grave when associated with those "who by nature or office are obliged to teach and educate others." Catechism o/the Catholic Church ~ 2285. Under the original version of the Mandate, a non-exempt religious organization'S decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. Under the Final Rule, a non-exempt religious organization'S decision to offer a group health plan still results in the provision of coveragenow in the form of "payments"-for ab0l1ion-inducing products, contraception, sterilization, and related counseling. 26 C.F.R. § 54.9816-2713A(b)-(c). Some have argued that the accommodation in the Final Rule, unlike the original version, does not compel Notre Dame to act against its beliefs because third pariies are purportedly "arranging" the "payments." However, what is germane is that in both scenarios, Notre Dame's decision to provide a group health plan, and execution of the self-celiification, triggers the provision of "free" objectionable coverage to Notre Dame's employees in a manner contrary to its beliefs. The provision of the objectionable products and services is directly tied to Notre Dame's insurance policies and Notre Dame's self-certification, and the objectionable "payments" are available only so long as an employee is on the Notre Dame's health plan. See 29 C.F.R. § 2590.715-2713 (for self-insured employers, the third pmiy administrator "will provide or arrange separate payments for contraceptive services ... for so long as [employees] are enrolled in [their] group health plan"); 45 C.F.R. § 147.131 (c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must "[p]rovide separate payments for any contraceptive services ... for plan pmiicipants an? beneficiaries for so long as they remain enrolled in the plan"). Moreover, the regulations compel Notre Dame to pay for, facilitate access to, and/or become entangled in the provision of objectionable drugs and services in ways that will lead many to think Notre Dame condones

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these services, and hence undermines the role of Notre Dame, a Catholic educational institution, to educate others on a matter of religious and moral significance. It is incumbent upon Notre Dame to extricate itself from any process that leads others to violate the faith. The accommodation does not extricate Notre Dame from the process.
66. For self-insured organizations, moreover, the self-certification constitutes the religious organization's "designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits." 78 Fed. Reg. at 39,879 (emphasis added). The act and consequences of submitting the self-certification causes Notre Dame to become associated with the Mandate in a way that causes scandal in violation of its religious beliefs. Employer health plans offered by non-exempt religious organizations-such as Notre Dame's employee health plans-are the vehicle by which "free" abortion-inducing products, contraception, sterilization, and related counseling would be delivered to Notre Dame's employees.
67. By its Mandate, the Government requires, through threats of crippling fines and other pressure, Notre Dame to become entangled with and facilitate-through offering health care coverage and then ce11ifying and appointing others to directly offer objectionable products and services-a process that creates an unacceptable burden to Notre Dame in calTying out its religious mission, and one contrary to Catholic beliefs. Should it do so, Notre Dame is then precluded from interfering with communications by its "designated agent" to participants regarding the access to and availability of morally objectionable products and services..By definition, these communications would occur due to Notre Dame's status as health plan sponsor and its decision to self-ce11ify-a circumstance that would create scandal, according to the Catholic tradition, and lead some to believe that Notre Dame condones the objectionable

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serVIces. Nor, through coerced participation in this scheme, can Notre Dame ensure disassociation w'ith targeted communications such as those advertised to Notre Dame's employee participants and students that seek to normalize practices contrary to Notre Dame's mission. See, e.g., Advertisements of Colorado Consumer Health Initiative, including one depicting female youth next to male youth and stating "OMG he's hot! Let's hope he's as easy to get as this birth control. My health insurance covers the pill, which means all I have to worry about is getting him between the covers." (Exhibit A). Because such communications would result from Notre Dame's participation as plan sponsor and submission of its self-certification, Notre Dame would become associated with the Mandate in a way that causes scandal, and Notre Dame therefore cannot comply with the Mandate consistent with its religious beliefs.
68. Similarly, to avoid scandal, Notre Dame cannot appear to endorse the litany of concepts that underlie the Mandate and that are contrary to its religious beliefs: e.g., (i) that it is a moral societal goal to encourage a reduction in the overall cost of health care by reducing the number of mothers or children who may require expensive post child birth care, (ii) that pregnancy is a condition for which there should be "preventive services", and (iii) that increased access to contraception, sterilization, and/or abortion-inducing drugs as proposed by the Governn1ent necessarily improves public health.
69. It is Notre Dame's sincerely held religious belief that it cannot become entangled with, or appear to facilitate, endorse, or accept, that which it believes to be contrary to the Catholic faith. Notre Dame believes that its participation in the U.S. Government Mand,ate would cause scandal and therefore Notre Dame cannot comply with the Mandate consistent with its religious beliefs.

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70. The U.S. Government Mandate also requires Notre Dame to subsidize the objectionable products and services, and thus directly participate in a way that causes scandal.
71. For organizations that procure insurance through a separate insurance provider (as Notre Dame does with its student health plans), the Government asserts that the cost of the objectionable products and services will be "cost neutral" and, therefore, that Notre Dame will not actually be paying for it. But this rests on the implausible assumption that "cost savings" from "fewer childbirths" will be at least as large as the direct costs of paying for contraceptive products and services and the costs of administering individual policies. 78 Fed. Reg. at 8,463.
72. Further, the premise underlying the Government's entire theory of cost neutrality-that the cost to insurance companies of providing contraceptive coverage will be offset by reducing the costs those insurance companies would otherwise payout for "pregnancies and childbirths" (which will allegedly occur at a lower rate due to the use of contraceptives)-is ineconcilable with Catholic doctrine regarding the immorality of atiificial interference with procreation. 78 Fed. Reg. at 39,877; Catechism o/the Catholic Church" 2370,2399.
73. More importantly, even if the Government's "cost-neutral" assertion were true, it is inelevant. Premiums previously paid by the objecting employers such as Notre Dame to cover, for example, "childbirths," will now be redirected to pay for contraceptive products and services-the objectionable services. Thus, many will reasonably conclude that Notre Dame is still required to pay for the objectionable products and services.
74. For Notre Dame's self-insured employee health plan, the Government's ':costneutral" assumption is likewise implausible. The Government asserts that third patiy administrators required to provide or procure the objectionable products and services will be compensated by reductions in user fees that they otherwise would pay for participating in

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federally-facilitated health exchanges. See 78 Fed. Reg. at 39,882. Such fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third party administrators. Such regulatory regimes, however, may not fully compensate the regulatory entities for the costs and risks incurred. As a result, few if any third party administrators are likely to pm1icipate in this regime, and those that do are likely to increase fees charged to the self-insured organizations.
75. Either way, as with insured plans, self-insured organizations likewise will be required to subsidize contraceptive products and services notwithstanding the so-called "accommodation. "
76. Moreover, Notre Dame is required to pay for prescriptions dispensed each month at the pharmacy at Notre Dame's Wellness Center on campus. Notre Dame receives a credit for amounts it pays that are later reimbursed by third party insurers. If the U.S. Government Mandate were to be enforced, Notre Dame would have to pay its on-campus pharmacy for contraceptive products and would receive a credit for those payments only when Meritain paid for the products as directed by the Mandate. In other words, Notre Dame would be forced to "float" the cost of contraceptive products until those costs were reimbursed by Meritain. By absorbing the cost of the objectionable services until any subsequent reimbursement, Notre Dame v/ould be forced to directly pay for the provision of these objectionable products and services in violation of its religious beliefs.
77. For all of these reasons, the U.S. Government Mandate continues to requ~re Notre Dame to act in violation of its sincerely held religious beliefs.
78. In sum, the Final Rule fails to alleviate the burden that the U.S. Government Mandate imposes on Notre Dame's religious beliefs.

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III. THE U.S. GOVERNMENT MANDATE IMPOSES A SUBSTANTIAL BURDEN ON NOTRE DAME'S RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Notre Dame's Religious Beliefs 79. Since the founding of this country, our law and society have recognized that
individuals and institutions are entitled to freedom of conscience and religious practice. Absent a compelling reason, no government authority may compel any group or individual to act contrary to their religious beliefs. As noted by Thomas Jefferson, "[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority."
80. The U.S. Government Mandate violates Notre Dame's right of conscience by forcing it to participate in an employer-based scheme to provide insurance coverage to which it strenuously objects on moral and religious grounds.
81. It is a core tenet of Notre Dame's religion that abortion, contraception, and sterilization are serious moral wrongs.
82. Notre Dame's Catholic beliefs, therefore, prohibit it from associating with, providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization.
83. Notre Dame's religious beliefs are deeply and sincerely held. 84. The U.S. Government Mandate, therefore, requires Notre Dame to do precisely what its sincerely held religious beliefs prohibit-pay for, facilitate access to, and/or become entangled in the provision of objectionable products and services or else incur crippling sanctions. 85. The U.S. Government Mandate, therefore, imposes a substantial burden on Notre Dame's religious beliefs.
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86. The U.S. Government Mandate's exemption for "religious employers" does not apply to Notre Dame.
87. The so-called "accommodation" also does not alleviate the burden the Mandate imposes on Notre Dame's religious freedom.
88. Not\vithstanding the so-called "accommodation," Notre Dame is still financially penalized or required to pay for, facilitate access to, and/or become entangled in the provision of the objectionable products and services in violation of its sincerely held religious beliefs.
89. The unity of the Catholic Church is also a core tenet of Notre Dame's Catholic beliefs.
90. Notre Dame's Catholic beliefs in the unity of the Church includes its belief that it is the heart of the Church, performing and living a religious educational mission that is just as religious and just as significant as worship.
91. Notre Dame's Catholic beliefs, therefore, are violated by severing or attempting to sever it from the Catholic Church.
92. Notre Dame's beliefs in the unity of the Catholic Church are deeply and sincerely held.
93. The U.S. Government Mandate attempts to sever the Catholic Church, dividing it into a "worship" arm whose religious beliefs are respected and an "educational and charitable" arm whose religious beliefs are trampled.
94. The U.S. Government Mandate, therefore, imposes a substantial burden qn Notre Dame's religious beliefs.
95. Finally, Notre Dame cannot avoid the U.S. Government Mandate without incurring crippling fines. If it eliminates its employee health plans, it is subject to annual fines of

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$2,000 per full-time employee. If Notre Dame keeps its health plans but refuses to provide or facilitate the objectionable coverage, it is subject to fines of $1 00 a day per affected beneficiary. The fines, therefore, coerce Notre Dame into violating its religious beliefs.
96. If Notre Dame offers a student health plan consistent with its Catholic values, it is subject to fines of $100 a day per affected beneficiary. Declining to offer a student health plan would negatively impact Notre Dame's effolis to recruit and retain students.
97. In short, while the President claims to have "found a solution that works for everyone" and that ensures that "religious liberty will be protected," his promised "accommodation" does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Notre Dame's religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability
98. The U.S. Government Mandate is not a neutral law of general applicability. It offers mUltiple exemptions from its requirement that employer-based health plans include or facilitate coverage for aboliion-inducing products, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations that disagree with Notre Dame's religious beliefs regarding abOliion and contraception, and thus targets religious organizations for disfavored treatment.
99. For example, the U.S. Government Mandate exempts all "grandfathered" plans from its requirements, thus excluding tens of millions of people from the mandated coverage. As the Government has admitted, while the numbers are expected to diminish over time, "98 million individuals viill be enrolled in grandfathered group health plans in 2013." 75 Fed. Reg. at 41,732. Elsewhere, the government has put the number at 87 million. See "Keeping the Health
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Plan You Have" (June 14,2010), available at http://wvvw.healthcare. govInews/factsheets/201 0106/keeping-the-health-plan-you-havegrandfathered.html. And according to one district court last year, "191 million Americans belong[ed] to plans which may be grandfathered under the ACA." Newland v. Sebelius, 881 F. Supp. 2d 1287, 1291 (D. Colo. 2012).
100. Similarly, small employers (i.e., those with fewer than 50 employees) are exempt from certain enforcement mechanisms to compel compliance with the Mandate. See 26 U.S.C. § 4980H(a) (exempting small employers from the assessable payment for failure to provide health coverage).
101. In addition, the U.S. Government Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the Internal Revenue Code. The Government cannot justify its protection of the religiousconscience rights of the nalTOW category of exempt "religious employers," but not of Notre Dame and other religious organizations that remain subject to the Mandate.
102. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many' Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser, stating: "Wouldn't you think that people who want to reduce the number of

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abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much." In addition, the Mandate was modeled on a California law that was motivated by discriminatory intent against religious groups that oppose contraception.
103. Consequently, on information and belief, Notre Dame alleges that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
104. The U.S. Government Mandate is not narrowly tailored to serve a compelling governmental interest.
105. The Government has no compelling interest in forcing Notre Dame to violate its sincerely held religious beliefs by requiring it to participate in a scheme for the provision of abortion-inducing products, sterilization, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious.
106. Moreover, abortion-inducing products, sterilization, contraceptives, and related education and counseling are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Notre Dame does inhibits any individual from exercising that right.
107. Even assuming the interest was compelling, the Government has numerous alternative means of furthering that interest without forcing Notre Dame to violate its rdigious beliefs. For example, the Government could provide or pay for the objectionable services through expansion of its existing network of family planning clinics funded by HHS under Title X or through other programs established by a duly enacted law. Or, at a minimum, it could have

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created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government, therefore, cannot possibly demonstrate that requiring Notre Dame to violate its conscience is the least restrictive means of furthering its interest.
108. Accordingly, Notre Dame seeks a declaration that the u.s. Government Mandate
cannot lawfully be applied to it, an injunction barring its enforcement, and an order vacating the Mandate. IV. THE U.S. GOVERNMENT MANDATE THREATENS NOTRE DAME WITH
IMMINENT INJURY THAT SHOULD BE REMEDIED BY A COURT 109. The U.S. Government Mandate is causing serious, ongoing hardship to Notre Dame that merits relief now.
110. On June 28, 2013, Defendants finalized the u.s. Government mandate, including
the narrow "religious employer" exemption and the so-called "accommodation" proposed in the NPRM. By the terms of the Final Rule and its transitional safe harbor, Notre Dame must comply with the Mandate by the beginning of the next plan year on or after January 1, 2014.
Ill. For Notre Dame's employee healthcare plan, the next plan year begins on January 1,2014.
112. For Notre Dame's student healthcare plan, the next plan year begins on August 15,2014.
113. Defendants have given no indication that they will not enforce the essential provisions of the Mandate that impose a substantial burden on Notre Dame's rights. Consequently, absent the relief sought herein, Notre Dame will be required to pay for, facilitate access to, and/or become entangled in the provision of abOliion-inducing products,

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contraception, sterilization, and related education and counseling, in violation of their sincerely-

held religious beliefs.

114. The U.S. Government Mandate and its uncertain legality, moreover, undermine

Notre Dame's ability to hire and retain employees, thus placing them at a competitive

disadvantage in the labor market relative to organizations that do not have a religious objection

to the Mandate.

115. Notre Dame, therefore, needs judicial relief now in order to prevent the serious,

ongoing harm that the U.S. Government Mandate is already imposing on it.

V. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA
116. Notre Dame repeats and realleges each of the foregoing allegations in this

Complaint.

117. RFRA prohibits the Government from substantially burdening an entity's exercise

of religion, even if the burden results from a rule of general applicability, unless the Government

demonstrates that the burden fmihers a compelling governmental interest and is the least

restrictive means of furthering that interest.

118. RFRA protects organizations as well as individuals from Government-imposed

substantial burdens on religious exercise.

119. RFRA applies to all federal law and the implementation of that law by any

branch, department, agency, instrumentality, or official of the United States.

120. The U.S. Government Mandate requires Notre Dame to pay for, facilitate access

to, and/or become entangled in the provision of products, services, practices, and speech that are

contrary to their religious beliefs.

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121. The U.S. Government Mandate attempts to sever Notre Dame from the Church, in violation of Notre Dame's belief in the unity of the Church.
122. The U.S. Government Mandate substantially burdens Notre Dame's exercise of religion.
123. The Government has no compelling governmental interest to require Notre Dame to comply with the U.S. Government Mandate.
124. Requiring Notre Dame to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
125. By enacting and threatening to enforce the U.S. Government Mandate against Notre Dame, Defendants have violated RFRA.
126. The U.S. Government Mandate also requires student health plans, including the one currently offered by Notre Dame, to facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling in a manner that is directly contrary to their religious beliefs.
127. To require Notre Dame's student health plan to facilitate access to services that violate Notre Dame's religious beliefs substantially burdens Notre Dame's exercise of religion.
128. The Government has no compelling interest to require Notre Dame's student health plan to facilitate access to services that violate Notre Dame's beliefs.
129. Requiring Notre Dame's student health plan to facilitate access to services that violate Notre Dame's religious beliefs is not the least restrictive means of furthering a compelling governmental interest.
130. Notre Dame has no adequate remedy at law.

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131. Defendants are imposing an immediate and ongoing harm on Notre Dame that wanants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 132. Notre Dame repeats and realleges each of the foregoing allegations in this Complaint. 133. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity's exercise ofreligion. 134. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 135. The U.S. Government Mandate requires Notre Dame to become entangled w"ith, pay for, and/or facilitate practices and speech that are contrary to its religious beliefs. 136. The U.S. Government Mandate attempts to sever Notre Dame from the Church, in violation of Notre Dame's belief in the unity of the Church. 137. The U.S. Govermnent Mandate substantially burdens Notre Dame's exercise of religion. 138. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers mUltiple exemptions from its requirement that employer-based health plans include or facilitate access to abortion-inducing products, sterilization, contraception, and related e?ucation and counseling. 139. The U.S. Government Mandate is not a neutral law of general applicability because it was passed with discriminatory intent.

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140. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech, free association, and freedom from excessive government entanglement with religion.
141. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
142. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
143. By enacting and tlu'eatening to enforce the U.S. Government Mandate, the Government has burdened Notre Dame's religious exercise in violation of the Free Exercise Clause of the First Amendment.
144. The Government also requires student health plans, including the one currently offered by Notre Dame, to facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling in a manner that is directly contrary to its religious beliefs.
145. To require Notre Dame's student health plan to facilitate access to products and services that violate its religious beliefs substantially burdens Notre Dame's exercise of religion.
146. The Government has no compelling government interest to require Notre Dame's student health plan to facilitate access to products and services that violate Notre Dame's religious beliefs.
147. Requiring Notre Dame's student health plan to facilitate access to produ~ts and services that violate Notre Dame's religious beliefs is not the least restrictive means of furthering a compelling governmental interest.
148. Notre Dame has no adequate remedy at law.

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149. Defendants are imposing an immediate and ongoing harm on Notre Dame that

warrants relief.

COUNT III Compelled Speech in Violation of the Free Speech Clause of the First Amendment
150. Notre Dame repeats and realleges each of the foregoing allegations in this

Complaint.

151. The First Amendment protects against the compelled affirmation of any religious

or ideological proposition that the speaker finds unacceptable.

152. The First Amendment protects organizations as well as individuals against

compelled speech.

153. Expenditures are a fOlm of speech protected by the First Amendment.

154. The First Amendment protects against the use of a speaker's money to support a

viewpoint that conflicts with the speaker's religious beliefs.

155. The U.S. Government Mandate would compel Notre Dame to provide health care

plans to its employees and students that include or facilitate access to products and services that

violate its religious beliefs.

156. The U.S. Government Mandate would compel Notre Dame to become entangled

with, subsidize, promote, and facilitate education and counseling services regarding these

objectionable products and services.

157. The U.S. Government Mandate would compel Notre Dame to issue a ce~ification

of its beliefs that in turn, would result in the provision of objectionable products and services to

Notre Dame's employees and students. The issuance of the certification itself is compelled

speech, the consequences of which cause Notre Dame to become entangled in the provision of

products, services, and practices that violate its religious beliefs.

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158. By imposing the U.S. Government Mandate, Defendants are compelling Notre

Dame to become entangled with, publicly subsidize or facilitate the activity and speech of

private entities that are contrary to its religious beliefs, and compelling Notre Dame to engage in

speech that will result in the provision of objectionable products and services to Notre Dame's

employees and students.

159. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict

scrutiny.

160. The U.S. Government Mandate furthers no compelling governmental interest.

161. The U.S. Government Mandate is not nanowly tailored to further a compelling

governmental interest.

162. For the same reasons, Defendants' requirement that student health plans, like the

one cunently offered by Notre Dame, facilitate access to abortion-inducing products,

sterilization, contraception, and related education and counseling, also violates the Free Speech

Clause of the First Amendment.

163. Notre Dame has no adequate remedy at law.

164. Defendants are imposing an immediate and ongoing harm on Notre Dame that

wanants relief.

COUNT IV
Prohibition of Speech in Violation of the First Amendment
165. Notre Dame repeats and realleges each of the foregoing allegations in thi~

Complaint.

166. The First Amendment protects the freedom of speech, including the right of

religious groups to speak out to persuade others to refrain from engaging in conduct that may be

considered immoral.

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167. The Mandate violates the First Amendment freedom of speech by imposing a gag

order that prohibits Notre Dame from speaking out in any way that might "influence," "directly

or indirectly," the decision of a third party administrator to provide or procure contraceptive

products and services to Notre Dame's employees, or the means by which a third party

administrator provides or procures these services.

168. Notre Dame has no adequate remedy at law.

169. Defendants are imposing an immediate and ongoing harm on Notre Dame that

wan-ants relief.

COUNT V Official "Church" Favoritism and Excessive Entanglement with Religion
in Violation of the Establishment Clause of the First Amendment
170. Notre Dame repeats and realleges each of the foregoing allegations in this

Complaint.

171. The Establishment Clause of the First Amendment prohibits the Government from

adopting an official definition of a "religious employer" that favors some religious groups while

excluding others.

172. The Establishment Clause also prohibits the Government from becoming

excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices,

and organizational features to determine whether they meet the Government's favored definition.

173. The "religious employer" exemption violates the Establishment Clause in two

ways.

174. First, it favors some religious groups over others by creating an official definition

of "religious employers." Religious groups that meet the Government's official definition

receive favorable treatment in the form of an exemption from the Mandate, while other religious

groups do not. Moreover, the "religious employer" discriminates in favor of religious

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denominations that consist primarily of "houses of worship," "integrated auxiliaries," or

"religious orders," and against denominations, like the Catholic faith, that also exercise their

religion through schools, health care facilities, charitable organizations, and other ministries.

175. Second, even if it were permissible for the Government to favor some religious

groups over others, the "religious employer" exemption would still violate the Establishment

Clause because it requires the Government to determine whether groups qualify as "religious

employers" based on intrusive judgments about their beliefs, practices, and organizational

features. The exemption turns on an intrusive fourteen (14)-factor test to determine whether a

group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the

Internal Revenue Code. These fourteen (14) factors probe into matters such as whether a

religious group has "a distinct religious history" or "a recognized creed and form of worship."

But it is not the Government's place to determine whether a group's religious history is

"distinct," or whether the group's "creed and form of worship" are "recognized." By directing

the Government to partake of such inquiries, the "religious employer" exemption runs afoul of

the Establishment Clause prohibition on excessive entanglement with religion.

176. Notre Dame has no adequate remedy at Imv.

177. Defendants are imposing an immediate and ongoing harm on Notre Dame that

wanants relief.

VI. PRAYER FOR RELIEF WHEREFORE, Notre Dame respectfully prays that this Court:

1. Enter a declaratory judgment that the U.S. Government Mandate violates Notre

Dame's rights under RFRA;

2. Enter a declaratory judgment that the U.S. Government Mandate violates Notre

Dame's rights under the First Amendment;

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3. Enter an injunction prohibiting the Defendants from enforcing the U.S. Government Mandate against Notre Dame;
4. Enter an order vacating the U.S. Government Mandate; 5. Enter a declaratory judgment that Defendants' requirement that student health
plans facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling violates Notre Dame's rights under RFRA and the First Amendment; enter an injunction prohibiting the Defendants from enforcing that requirement against Notre Dame; and enter an order vacating the requirement; 6. Award Notre Dame's attorneys' and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
Respectfully submitted, this the 3rd day of December, 2013.
By: ~2~ Matthew A. Kairis (OH No. 5502) Melissa D. Palmisciano (OH No. 80027) JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus,OH 43216 (614) 469-3939

COI-I 49934 I

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Carol A. Hogan (IL No. 06202430) Brian J. Murray (IL No. 6272767) JONES DAY 77 West Wacker Drive Chicago, lL 60601 (312) 782-8585
Leon F. DeJulius, Jr. (PA No. 90383) Alison M. Kilmartin (PA No. 306422) JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219-2514 (412) 391-3939
Marianne Corr (DC No. 358051) UNIVERSITY OF NOTRE DAME Vice President and General Counsel 203 Main Building Notre Dame, IN 46556 (574) 631-5000
Counsel for University of Notre Dame

COI- I49934 I

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 case 3:13-cv-01276-PPS-CAN document 40 filed 12/20/13 page 1 of 39

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

UNIVERSITY OF NOTRE DAME,

)

)

Plaintiff, )

)

vs.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary, United States

)

Department of Health and Human Services, )

et al.,

)

)

Defendants.

)

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

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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
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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. 1:13-
cv-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
3The 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
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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
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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
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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)”).
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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
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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.
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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
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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
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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).
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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.
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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
34

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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
37

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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
4Korte 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.
5I 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

39

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

UNIVERSITY OF NOTRE DAME,

)

)

Plaintiff,

)

)

vs.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary, United States

)

Department of Health and Human Services, )

et al.,

)

)

Defendants.

)

3:13-cv-01276-PPS

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION PENDING APPEAL

On Friday, December 20, 2013, I entered an order denying Notre Dame’s motion for 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. (DE

40.) Within an hour, Notre Dame had filed its notice of interlocutory appeal pursuant to 28

U.S.C. § 1292(a)(1) and a motion for a preliminary injunction pending appeal. (DE 43, 41.)

Nothing had changed within that short span of time. I remain persuaded of my analysis of the

issues.

Fed.R.Civ.P. 62(c) authorizes the trial court to grant an injunction pending an appeal of

the denial of an injunction. The appellate court has the same power under Rule 62(g). “[A]n

application with regard to an injunction ordinarily must be made in the first instance to the

district court under Rule 62(c) and it is only if relief is not obtained there that the appellate court

will consider acting under Rule 62(g).” Wright, Miller, et al., 11 Fed. Prac. & Proc. Civ. § 2904

(3d ed. 2013).

Notre Dame’s cursory motion offers no new arguments, relying entirely on its briefing and oral argument in support of its earlier request for a preliminary injunction. (DE 42 at 2.) The same standard for preliminary injunctive relief is cited. Eli Lilly & Co. v. Natural Answers, Inc., 233 F.3d 456, 461 (7th Cir. 2000). I have already concluded, after as thorough an analysis as I was able to muster, 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.” (DE 40 at 39.) The same conclusion precludes my issuance of the requested preliminary injunction pending appeal. I will deny Notre Dame’s motion, and the university is of course free to request the same relief from the Seventh Circuit.
CONCLUSION Plaintiff University of Notre Dame’s Motion for a Preliminary Injunction Pending Appeal (DE 41) is DENIED. SO ORDERED. ENTERED: December 23, 2013
/s/ Philip P. Simon Philip P. Simon, Chief Judge United States District Court
2

 
 Case: 13-3853 Document: 53

Filed: 02/21/2014 Pages: 44

In the
United States Court of Appeals

No. 13‐3853

For the Seventh Circuit
____________________

UNIVERSITY OF NOTRE DAME,

Plaintiff‐Appellant,

v.

KATHLEEN SEBELIUS, Secretary of U.S. Department of Health & Human Services, et al.,
Defendants‐Appellees,

and

JANE DOE 1, et al.,

Intervening‐Appellees.

____________________

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

ARGUED FEBRUARY 12, 2014 — DECIDED FEBRUARY 21, 2014 ____________________
Before POSNER, FLAUM, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The Affordable Care Act requires providers of health insurance (including companies that administer self‐insured employer health plans) to cover cer‐

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tain preventive services without cost to the insured, includ‐ ing, “with respect to women, such additional preventive care and screenings … as provided for in comprehensive guide‐ lines supported by the Health Resources and Services Ad‐ ministration.” 42 U.S.C. § 300gg‐13(a)(4); see also 45 C.F.R. § 147.130(a)(iv), 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). Guidelines specifying such preventive care have now been promulgated, and they include “all Food and Drug Admini‐ stration approved contraceptive methods, sterilization pro‐ cedures, and patient education and counseling for all women with reproductive capacity.” Health Resources & Services Administration, “Women’s Preventive Services Guidelines,” www.hrsa.gov/womensguidelines (visited Feb. 21, 2014, as were the other websites cited in this opinion). To simplify exposition, we’ll refer to all methods of female pre‐ vention of pregnancy as “contraceptives.” (Male contracep‐ tives are not covered by the guideline.)
The health concerns that motivated the inclusion of con‐ traception in the guidelines on needs of women for preven‐ tive care begin with the fact that about half of all pregnancies in the United States are unintended, and 40 percent of them end in abortion and many others in premature births or oth‐ er birth problems. Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 102–03 (2011), www.nap.edu/catalog.php?record_id=13181; Lawrence B. Finer & Mia R. Zolna, “Shifts in Intended and Unintended Pregnancies in the United States, 2001–2008,” 104 Am. J. Pub. Health S43, S44 (2014). Many of the unintended pregnancies are teen pregnancies; contraceptive use has been found to be positively correlated with decreased teen pregnancy. John S. Santelli & Andrea J. Melnikas, “Teen Fertility in Transition: Recent and Historical Trends in the United States,” 31 Ann.

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Rev. Pub. Health 371, 375–76, 379 (2010). Because out‐of‐ pocket expenditures on female contraceptives can be sub‐ stantial for many women, see Su‐Ying Liang et al., “Wom‐ en’s Out‐of‐Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills Between 1996 and 2006,” 83 Con‐ traception 528, 531 (2011), the provision of such contracep‐ tives without cost to the user can be expected to increase contraceptive use and so reduce the number both of unin‐ tended pregnancies and of abortions. See Jeffrey F. Peipert et al., “Preventing Unintended Pregnancies by Providing No‐ Cost Contraceptives,” 120 Obstetrics & Gynecology 1291, 1295–96 (2012). Furthermore, “women who can successfully delay a first birth and plan the subsequent timing and spac‐ ing of their children are more likely than others to enter or stay in school and to have more opportunities for employ‐ ment and for full social or political participation in their community.” Susan A. Cohen, “The Broad Benefits of Invest‐ ing in Sexual and Reproductive Health,” 7 Guttmacher Rep. on Public Policy, March 2004, pp. 5, 6; see also Martha J. Bai‐ ley et al., “The Opt‐in Revolution? Contraception and the Gender Gap in Wages,” pp. 19, 26 (National Bureau of Econ. Research Working Paper No. 17922, 2012), www.nber.org/ papers/w17922.pdf.
Like other universities, the University of Notre Dame provides health benefits to both its employees and its stu‐ dents. It self‐insures its employees’ medical expenses, but has hired Meritain Health, Inc. to administer the employee health plan without providing any insurance coverage (Mer‐ itain is therefore what is called a “third‐party administrator” of a health plan). To take care of its students’ medical needs, Notre Dame has a contract with Aetna (which happens to be Meritain’s parent) that gives the students the option of ob‐

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taining health insurance from Aetna. Meritain administers coverage for some 4600 employees of Notre Dame (out of a total of 5200) and 6400 dependents of employees. Aetna in‐ sures 2600 students and 100 dependents; Notre Dame has about 11,000 students. But many of them have coverage un‐ der their parents’ health insurance policies.
Because Catholic doctrine forbids the use of contracep‐ tives (the “rhythm” method of avoiding pregnancy, which is permitted, is a form of abstention, not of contraception), Notre Dame has never paid for contraceptives for its em‐ ployees or permitted Aetna to insure, under the Aetna Notre Dame Health Plan, Notre Dame students for the expense of contraceptives. Cognizant of the religious objections of Catholic institutions to contraception, and mindful of the dictate of the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb‐1(a), (b), that “Government shall not substantially burden a person’s exercise of religion even if the burden re‐ sults from a rule of general applicability,” unless “it demon‐ strates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling gov‐ ernmental interest,” the government, some months after the enactment of the Affordable Care Act, created by adminis‐ trative regulation a religious exemption from the guidelines. See “Group Health Plans and Health Insurance Issuers Re‐ lating to Coverage of Preventive Services,” 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(1)(iv)); see also 77 Fed. Reg. 8725, 8727–29 (Feb. 15, 2012). But at first it was narrowly drafted and as a result excluded Catholic institutions that, like Notre Dame, are in‐ corporated as nonprofit rather than religious institutions. That precipitated the filing in 2012 of a federal suit by Notre

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Dame against the government, claiming that the contracep‐ tive regulations infringed rights conferred on the university by both the First Amendment and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb‐1. That suit was dis‐ missed on standing and ripeness grounds, the government having promised that Notre Dame wouldn’t have to comply with the regulations for one year, during which time new regulations would be issued. University of Notre Dame v. Se‐ belius, 2012 WL 6756332, at *3–4 (N.D. Ind. Dec. 31, 2012); see “Certain Preventive Services Under the Affordable Care Act,” 77 Fed. Reg. 16501, 16502–03 (Mar. 21, 2012).
The new regulations were issued as promised—and, as expected, they enlarged the exemption. See “Coverage of Certain Preventive Services Under the Affordable Care Act,” 78 Fed. Reg. 39870, 39875–90 (July 2, 2013); 29 C.F.R. § 2590.715‐2713A(a); 45 C.F.R. § 147.131(b). As a result, Notre Dame now came within its scope. To exercise its right thus conferred to opt out of having to pay for coverage for con‐ traceptives, either directly or through a health insurer, such as Aetna, the university had to fill out “EBSA Form 700— Certification.” See 45 C.F.R. § 147.131(b)(4). The form (www. dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcer tificationform.pdf) is short, its meat the following sentence: “I certify that, on account of religious objections, the organi‐ zation opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.” The form states that “the organiza‐ tion or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self‐insured health plans)

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in order for the plan to be accommodated with respect to the contraceptive coverage requirement.” So Notre Dame was required to give copies both to Aetna and to the employee plan’s third‐party administrator, Meritain.
The Affordable Care Act requires providers of health in‐ surance (including third‐party administrators of self‐insured health plans, even though they are conduits rather than ul‐ timate payors of plan benefits) to pay for contraceptives for women, see 45 C.F.R. §§ 147.131(c)(2)(i)(B), (ii); 29 C.F.R. § 2590.715‐2713A(b)(3); the form alerts Aetna and Meritain that since Notre Dame is not going to pay, they will have to pay. The companies have neither religious objections to pay‐ ing for contraception nor financial objections. The govern‐ ment will reimburse at least 110 percent of the third‐party administrator’s (Meritain’s) costs, 45 C.F.R. § 156.50(d)(3), and Aetna can expect to recoup its costs of contraceptive coverage from savings on pregnancy medical care, since there will be fewer pregnancies if contraception is more broadly available, at no cost, to Notre Dame’s female em‐ ployees and students, as well as from other regulatory off‐ sets. See “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39877–78.
The regulations require Aetna and Meritain, but not Notre Dame, to inform the university’s female employees and students that those companies will be covering their contraceptive costs. See 26 C.F.R. § 54.9815‐2713A(d); 29 C.F.R. § 2590.715‐2713A(d). The companies may either “pro‐ vide payments for contraceptive services” themselves or, al‐ ternatively, “arrange for an issuer or other entity to provide payments for” those services; either way, they may not “im‐ pos[e] any cost‐sharing requirements (such as a copayment,

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coinsurance, or a deductible), or impos[e] a premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.” 29 C.F.R. §§ 2590.715‐ 2713A(b)(2), (c)(2). The regulations thus seek an accommoda‐ tion between the secular interests that motivate the mandate to provide contraceptive services to women free of charge and the interests of religious institutions that provide health services. Accommodation is consistent with the balancing act required by the Religious Freedom Restoration Act (“substantial burden,” “compelling governmental interest,” “least restrictive means”).
When the new regulations were promulgated in July of last year, Notre Dame did not at first bring a new suit (re‐ member that its previous suit, brought when the university was excluded from opting out of contraceptive coverage, had been dismissed on jurisdictional grounds, and those grounds are irrelevant to a suit challenging the new regula‐ tions). Months passed. Not until December did the univer‐ sity file the present suit. The delay in suing was awkward, since the regulations were to take effect with respect to the employee health plan—and did take effect—on January 1 of this year. “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39889. (The student health plan, however, the Aetna plan, has until Au‐ gust of this year to comply. See id.; University of Notre Dame, 2013–2014 Student Injury and Sickness Insurance Plan 3, 5, http://uhs.nd.edu/assets/108455/nd_brochure_1314.pdf.)
With the January deadline for compliance with the regu‐ lations applicable to the employee plan looming, the univer‐ sity, less than a week after filing its second suit on December

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3, moved for the entry of a preliminary injunction. The dis‐ trict court denied the motion on December 20, and Notre Dame filed its appeal from that denial the same day. On De‐ cember 31, the last day before it would be penalized for vio‐ lating the regulations, Notre Dame signed EBSA Form 700 and thereby opted out of paying for contraceptive coverage for its employees.
Because the appeal asks us to reverse the district court’s denial of a preliminary injunction, we need to emphasize the limitations on our consideration of the appeal that result from its interlocutory character (that is, from the fact that it was before completion of the litigation in the district court). The lawsuit was only a few weeks old when the district judge suspended all proceedings in his court pending our consideration of the appeal. The parties have thus had little opportunity to present evidence. So the question before us is not whether Notre Dame’s rights have been violated but whether the district judge abused his discretion in refusing to grant a preliminary injunction. That depends on such con‐ siderations as whether Notre Dame will experience irrepara‐ ble harm if denied preliminary relief—that is, harm that cannot be eliminated by a final judgment in favor of Notre Dame—as well as on the likelihood that the university will win its case when the case is finally tried in the district court. Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735, 740–41 (7th Cir. 2013). We empha‐ size that with the evidentiary record virtually a blank, every‐ thing we say in this opinion about the merits of Notre Dame’s claim and the government’s (and intervenors’) re‐ sponse is necessarily tentative, and should not be considered a forecast of the ultimate resolution of this still so young liti‐ gation.

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An initial puzzle is that the university hasn’t told us what exactly it wants enjoined at this stage in the litigation. It has gone ahead and signed the EBSA Form 700 and sent copies to Aetna and Meritain, and the latter has notified Notre Dame’s employees of the contraceptive coverage that it is offering them. (Aetna has not notified the students; remem‐ ber that it has until August to do so.) The university has thus complied with the statute, albeit under duress. The penalties for violating the applicable regulations are indeed stiff: $100 per day for “each individual to whom such failure relates,” 26 U.S.C. § 4980D(b)(1), which would cost Notre Dame roughly $685,000 per day, assuming plausibly that half the 13,700 covered employees, students, and dependents are women—thus $250 million per year. There is an annual cap on such penalties of $500,000, but it is applicable only to un‐ intentional violations of the regulations. § 4980D(c)(3). If Notre Dame dropped its employee health plan, the penalty would be only $2,000 per full‐time employee per year, 26 U.S.C. §§ 4980H(a), (c)(1), or roughly $10 million a year. That is well within Notre Dame’s ability to pay but is still a num‐ ber large enough to capture a university administrator’s at‐ tention.
But we are left with the question: what does Notre Dame want us to do? Tell it that it can tear up the form without in‐ curring a penalty for doing so, even though the govern‐ ment’s regulations require the religious institution to retain it after signing it, 26 C.F.R. § 54.9815‐2713A(a)(4), though not to submit it to the government? But what effect would that have—except to rescind the university’s exemption from the requirement of paying for the contraceptive services that Meritain is now offering as a consequence of Notre Dame’s choosing to exempt itself from the contraception regula‐

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tions? No certification, no exemption. We imagine that what the university wants is an order forbidding Aetna and Mer‐ itain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court. But we can’t issue such an order; neither Aetna nor Meritain is a defendant (the university’s failure to join them as defen‐ dants puzzles us), so unless and until they are joined as de‐ fendants they can’t be ordered by the district court or by this court to do anything. Furthermore, while a religious institu‐ tion has a broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to pre‐ vent other institutions, whether the government or a health insurance company, from engaging in acts that merely of‐ fend the institution. Lyng v. Northwest Indian Cemetery Protec‐ tive Ass’n, 485 U.S. 439, 450–51 (1988); Bowen v. Roy, 476 U.S. 693, 699–700 (1986).
The regulation to which Notre Dame takes the sharpest exception states that “the copy of the self‐certification [EBSA Form 700] provided by the eligible [to opt out] organization [Notre Dame] to a third party administrator [Meritain] (in‐ cluding notice of the eligible organization’s refusal to admin‐ ister or fund contraceptive benefits) … shall be an instru‐ ment under which the plan is operated, [and] shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered under § 2590.715‐2713(a)(1)(iv) of this chapter to which the eligible organization objects on religious grounds.” 29 C.F.R. § 2510.3‐16. Notre Dame treats this regulation as making its mailing the certification form to its third‐party administrator the cause of the provision of contraceptive services to its em‐ ployees, in violation of its religious beliefs. Not so. Since

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there is now a federal right, unquestioned by Notre Dame, to female contraceptive services, the effect of the university’s exercise of its religious exemption is to throw the entire bur‐ den of administration of the right on the entities (Aetna and Meritain) that provide health services to Notre Dame’s stu‐ dents and staff. The university is permitted to opt out of providing federally mandated contraceptive services, and the federal government determines (enlists, drafts, con‐ scripts) substitute providers, and naturally they are the pro‐ viders who are already providing health services to the uni‐ versity personnel.
Fearing the penalties for violating the contraceptive regu‐ lation, the university has complied and as a result Aetna and Meritain have been designated to provide the Notre Dame staff and students with female contraceptive services. Unlike the Little Sisters of the Poor, who filed their suit in Septem‐ ber of last year, well before the January 1 deadline for com‐ pliance with the contraceptive regulation, and obtained a stay pending appeal—equivalent to a preliminary injunc‐ tion—before having to comply, see Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 893 (Dec. 31, 2013), Notre Dame filed suit at the last minute. It could have sued in July, when the regulations were amended to include Notre Dame as a religious organization entitled to continue refusing to pay for contraceptive services.
Still, Notre Dame’s compliance has not mooted the case. One can imagine an alternative form of relief to turning the clock back; and being able to imagine an alternative form of relief is all that’s required to keep a case alive after the pri‐ mary relief sought is no longer available. Hoosier Environ‐ mental Council v. U.S. Army Corps of Engineers, 722 F.3d 1053,

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1057–58 (7th Cir. 2013). For example, the university could ask the district court (because the case is before us on an in‐ terlocutory appeal, our ruling will not end the litigation) to order the government to notify all of Notre Dame’s students and employees of the university’s exemption from having to provide contraception and of its opposition to having to no‐ tify Aetna and Meritain of their duties under the Affordable Care Act with regard to contraceptive services.
But here we need to remind the reader that the only issue before us is whether Notre Dame is entitled to a preliminary injunction. It faces an uphill struggle for that relief. One rea‐ son is that “because of the uncertainty involved in balancing the considerations that bear on the decision whether to grant a preliminary injunction—an uncertainty amplified by the unavoidable haste with which the district judge must strike the balance—we appellate judges review his decision defer‐ entially.” Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F.3d 786, 795 (7th Cir. 2013). Another obstacle is that a sine qua non for such relief is proof of irreparable harm if the injunction is denied: “A plaintiff seeking a preliminary injunction must establish that he is … likely to suffer irrepa‐ rable harm in the absence of preliminary relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).“For if the harm can be fully repaired in the final judgment, there is no reason to hurry the adjudicative proc‐ ess.” Kraft Foods Group Brands LLC v. Cracker Barrel Old Coun‐ try Store, Inc., supra, 735 F.3d at 740. As we cannot figure out what Notre Dame wants in the way of preliminary relief, we cannot make a determination that it will suffer irreparable harm if we affirm the denial of such relief.

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Another requirement for preliminary relief is that the plaintiff be likely to win its suit in the district court. The Su‐ preme Court’s decision in the Winter case states flatly that “a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits.” 555 U.S. at 20. So hav‐ ing explained the other objections to the appeal let’s turn to the merits.
Notre Dame’s principal claim is that by requiring the university to fill out EBSA Form 700 and give copies to Aet‐ na and Meritain, the government has “substantially bur‐ den[ed] a person’s exercise of religion” (the university is a nonprofit corporate “person”; cf. 1 U.S.C. § 1; Korte v. Se‐ belius, 735 F.3d 654, 674 (7th Cir. 2013)), and that no “compel‐ ling governmental interest” justifies that burdening. Reli‐ gious Freedom Restoration Act, supra. But the university has not yet shown that there is a substantial burden. The form is two pages long—737 words, most of it boring boilerplate; the passages we quoted earlier, the only ones of conse‐ quence, consist of only 95 words. Signing the form and mail‐ ing it to Meritain and Aetna could have taken no more than five minutes. The university claims that there are other pa‐ perwork requirements; there aren’t. The only colorable bur‐ den it complains about has nothing to do with time or cost; it is that by filling out the form and sending it to the compa‐ nies it “triggers” their coverage of the contraception costs of the university’s female employees and students, and that this makes the university an accomplice in the provision of contraception, in violation of Catholic doctrine, which in the name of avoiding “scandal” forbids the encouragement (equivalent to aiding and abetting) of sinful acts.

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The “trigger” theory was stated clearly, which is not to say convincingly, in a recent district court decision where we read that “the self‐certification form requires the [religious] organizations to do much more than simply protest or ob‐ ject. The purpose of the form is to enable the provision of the very contraceptive services to the organization’s employees that the organization finds abhorrent.” East Texas Baptist University v. Sebelius, 2013 WL 6838893, at *20 (S.D. Tex. Dec. 27, 2013). The key word is “enable,” and it’s inaccurate. Fed‐ eral law, not the religious organization’s signing and mailing the form, requires health‐care insurers, along with third‐ party administrators of self‐insured health plans, to cover contraceptive services. By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna and Merit‐ ain would still be required by federal law to provide the ser‐ vices to the university’s students and employees unless and until their contractual relation with Notre Dame terminated. (Obviously if they were no longer providing any health benefits to the university’s students and staff they would not be providing them with any contraceptive services or cover‐ age.)
Notre Dame says no—that had it not filled out the form, Meritain and Aetna wouldn’t have been authorized to pro‐ vide contraceptive services because neither would have been a “plan administrator” under section 3(16) of ERISA, 29 U.S.C. § 1002(16), and thus would not have been plan fiduci‐ aries entitled to make expenditures (as for costs of contra‐ ceptives) on behalf of the plan. As the plan’s sponsor, Notre Dame is alone authorized to designate a plan fiduciary, 29 U.S.C. § 1102(a)(2), and it made that designation in the form and thus is complicit in the provision of contraceptives to the university’s students and staff.

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This argument was made for the first time at oral argu‐ ment, and so has been forfeited. In any event it’s unconvinc‐ ing. For one thing it fails to distinguish between Meritain and Aetna—the latter is the students’ health insurer and so already a plan fiduciary, 29 U.S.C. § 1002(21)(A), and there‐ fore required by the Affordable Care Act to provide (come August) contraceptive coverage to plan members whether or not Notre Dame signs the form. 45 C.F.R. §§ 147. 130(a)(1)(iv), 147.131(f). Even as to Meritain, although “many agreements between third party administrators and plan sponsors prohibit third party administrators from serving as fiduciaries,” “Coverage of Certain Preventive Services Un‐ der the Affordable Care Act,” supra, 78 Fed. Reg. at 39879, “many” is not “all” or even “most.” Notre Dame has pre‐ sented no evidence that its contract with Meritain forbids the latter to be a plan fiduciary.
Moreover, the university has not been told to name Mer‐ itain as a plan fiduciary. Rather, the signed form “shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered.” 29 C.F.R. § 2510.3‐16(b) (emphasis added). Treated and designated by whom? By the government. The delivery of a copy of the form to Meritain reminds it of an obligation that the law, not the university, imposes on it—the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it. Notre Dame’s signing the form no more “triggers” Meritain’s obli‐ gation to provide contraceptive services than a tortfeasor’s declaring bankruptcy “triggers” his co‐tortfeasors’ joint and several liability for damages. Meritain must provide the ser‐ vices no matter what; signing the form simply shifts the fi‐ nancial burden from the university to the government.

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The parties have not told us the terms of Notre Dame’s contracts with these providers. For all we know, the con‐ tracts permit the university at any time to “disable” them from providing medical services, including contraceptive services, simply by ceasing to do business with them. Stu‐ dents and employees would make their own health insur‐ ance arrangements—most students already do (76 percent), and so do many staff (12 percent). Notre Dame would be off the hook without having to sign the certification form.
The following example may help make clear the fallacy in Notre Dame’s “triggering” metaphor. Suppose the United States, like Canada and many other foreign nations, had a “single payer” health care system. That means the govern‐ ment pays the cost of covered medical services (if the United States had such a system, it would be the equivalent of Med‐ icare for everyone), rather than employers, health insurers, and patients, though patients may in a single‐payer system be charged directly for some of the expense of the medical care provided by the system, as distinct from indirectly through taxes. Now suppose our hypothetical single‐payer system paid the full expense of female contraceptives. We don’t think Notre Dame would argue that the system placed a “substantial burden” on the university’s compliance with Catholic doctrine. Notre Dame does not deny the existence of legitimate secular interests, some noted at the outset of this opinion, that can justify a federal program of paying for medical expenses, including contraceptive expenses. (For a summary of those interests, see “Coverage of Certain Pre‐ ventive Services Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39872–73.) In fact we know it wouldn’t object, at least on religious grounds, because it advised the district court that one method by which the government could

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“achieve its asserted interests without forcing Notre Dame to violate its religious beliefs” would be for the government to “directly provide contraceptive[s]” to the university’s staff and students and another method would be for it to “di‐ rectly offer insurance coverage for contraceptive services”: in either case a single‐payer system, at least for contraceptives. The main difference between such a system and the Afford‐ able Care Act is that under the Act the government—instead of providing medical services directly—uses private insur‐ ance providers and health plan administrators, such as Aetna and Meritain, as its agents to provide medical ser‐ vices, subsidized by the government.
If the government is entitled to require that female con‐ traceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization docu‐ ment to those companies, which under federal law are obli‐ gated to pick up the tab, could be thought to “trigger” the provision of female contraceptives.
Consider this further example illustrative of our doubts. Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who’s been called up tells the selective service system that he’s a conscientious ob‐ jector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and ex‐ cuses him. But as the Quaker leaves the selective service of‐ fice, he’s told: “you know this means we’ll have to draft someone in place of you”—and the Quaker replies indig‐ nantly that if the government does that, it will be violating

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his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to “trigger” the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non‐Quaker replacement? That seems a fantastic suggestion. Yet confronted with this hypothetical at the oral argument, Notre Dame’s counsel acknowledged its applicability and said that drafting a replacement indeed would substantially burden the Quaker’s religion.
Another way to see the error of thinking that by signing the certification form Notre Dame was “enabling” Aetna and Meritain to violate its religious freedom is to ask what would happen if the university refused to sign the form while adhering to its long‐standing refusal to pick up any part of the cost of contraceptives. The answer is that the fe‐ male employees and students would still have a federal right to free contraceptives from Meritain and Aetna unless Notre Dame stopped offering health services to its students en‐ tirely. Health groups would lose no time in acquainting those employees and students with their federal rights.
To nail down the fallacy of the “trigger” or “enablement” interpretations of the certification form we need only parse carefully its instructions—the statement that “the organiza‐ tion or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self‐insured health plans)

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in order for the plan to be accommodated with respect to the con‐ traceptive coverage requirement” (emphasis added). Remember that “accommodation” in this context means accommodat‐ ing the Affordable Care Act to religious beliefs. The accom‐ modation in this case consists in the organization’s (that is, Notre Dame’s) washing its hands of any involvement in con‐ traceptive coverage, and the insurer and the third‐party ad‐ ministrator taking up the slack under compulsion of federal law. Notre Dame is telling Aetna and Meritain: “we’re ex‐ cused from the new federal obligation relating to contracep‐ tion,” and in turn, the government tells those insurance companies “but you’re not.” This is a warning, not a trigger. It enables nothing. The sole “enabler” is the federal statute that Notre Dame has been allowed to opt out of.
The university argues alternatively that if the form isn’t a trigger, its health plans are the “conduit” through which the employees and students obtain contraceptive coverage, mak‐ ing Notre Dame complicit in sin. But the university’s lawyer told us at oral argument that his client would have no prob‐ lem if each of its female employees signed and mailed to Meritain (and its students mailed to Aetna) a form saying “I have insurance through Notre Dame, but the university won’t cover contraceptive services, so now you must cover them.” We can’t see how that would make the health plan less of a “conduit.”
The university has still another argument: that the con‐ traception regulation imposes a substantial burden on it by forcing the university to “identify[] and contract[] with a third party willing to provide the very services Notre Dame deems objectionable.” It’s true that Meritain could exit its contract with Notre Dame without liability if it didn’t want

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to provide contraceptive services. See “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39880. But as Meritain does not object to pro‐ viding them and is doing so already, the “burden” alleged by Notre Dame is entirely speculative and so not a ground for equitable relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 104–05 (1983).
The novelty of Notre Dame’s claim—not for the exemp‐ tion, which it has, but for the right to have it without having to ask for it—deserves emphasis. United States law and pub‐ lic policy have a history of accommodating religious beliefs, as by allowing conscientious objection to the military draft— and now exempting churches and religious institutions from the Affordable Care Act’s requirements of coverage of con‐ traceptive services. What makes this case and others like it involving the contraception exemption paradoxical and vir‐ tually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself im‐ poses a substantial burden on their religious faiths. The clos‐ est analogues we have found are cases in which churches seeking rezoning or variances claim that the process for ob‐ taining permission is so cumbersome as to constitute a sub‐ stantial burden on religious practice. E.g., Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005), and cases cited there. Consider also United States v. Friday, 525 F.3d 938, 947–48 (10th Cir. 2008), in which a member of a tribe had been prosecuted for killing, without a permit to do so, a bald eagle, for use in a religious ceremony. The court expressed skepticism that the permitting process itself might have imposed a substantial burden on a religious exercise. Cf. United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (per curiam).

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The process of claiming one’s exemption from the duty to provide contraceptive coverage is the opposite of cumber‐ some. It amounts to signing one’s name and mailing the signed form to two addresses. Notre Dame may consider the process a substantial burden, but substantiality—like com‐ pelling governmental interest—is for the court to decide. Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011). Other‐ wise there would have been no need for Congress in the Re‐ ligious Freedom Restoration Act to prefix “substantial” to “burden.”
Notre Dame can derive no support from our decision in Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013), heavily cited in the university’s briefs. The question in that case was whether two for‐profit companies that had health plans for their em‐ ployees could refuse, because of the religious beliefs of their Catholic owners, to comply with the contraceptive regula‐ tion. We ordered the district court to enter a preliminary in‐ junction against enforcing the mandate against the employ‐ ers. But Notre Dame is authorized to refuse, and it has re‐ fused. Provided it overcomes the intervenors’ “sincerity” at‐ tack in the district court when the litigation resumes there (see below), it will be in the same position that we allowed the company owners in the Korte case to occupy pending the resolution of their case: fully entitled to thumb its nose at the contraceptive regulation.
We need to say something about the three Notre Dame students whom we have allowed to intervene. They had filed a timely motion in the district court to intervene in that court under Fed. R. Civ. P. 24. Having stayed the litigation pending the resolution of this appeal, the district judge did not rule on it, so the students moved for leave to intervene in

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this court. Although the Federal Rules of Appellate Proce‐ dure do not provide for intervention other than in cases in‐ volving review of certain administrative rulings, interven‐ tion is permitted in other cases as a matter of federal com‐ mon law, with Rule 24 supplying the standard for determin‐ ing whether to permit intervention in a particular case. Au‐ tomobile Workers v. Scofield, 382 U.S. 205, 217 n. 10 (1965); Si‐ erra Club, Inc. v. EPA, 358 F.3d 516, 517–18 (7th Cir. 2004). The student intervenors in our case express concern that the university is seeking to obtain a ruling from this court that may thwart their right to contraception under the Affordable Care Act. The concern is natural though perhaps exagger‐ ated, since Notre Dame has complied fully with the Act, but we decided that the concern was sufficient to warrant inter‐ vention. And we decided to permit the intervenors to par‐ ticipate under pseudonyms because of the privacy interest involved in contraceptive use and their concern that they might be subjected to harassment were their identities re‐ vealed. When the litigation in the district court resumes, they presumably will be allowed to intervene in the district court.
In the brief they’ve filed in this court they say they in‐ tend, when litigation in the district court resumes, to press the issue of “sincerity.” To obtain the contraceptive exemp‐ tion, or other exemptions from secular requirements, the leadership of a religious organization must actually believe, not simply pretend, that its religious teachings require the exemption. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428–29 (2006); International So‐ ciety for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 441 (2d Cir. 1981). Although the government has not questioned Notre Dame’s sincerity, the intervenors’ brief has. It inti‐

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mates that a plausible inference from the timing and tactics employed by Notre Dame in this litigation is that in chal‐ lenging the contraception regulation the university is re‐ sponding to outside pressures. We express no opinion on whether the intervenors will be able to substantiate their doubts about the sincerity of Notre Dame’s opposition to the use of contraceptives, when, upon the resumption of the liti‐ gation in the district court, they have an opportunity to pre‐ sent evidence.
For now the important point is that Notre Dame has failed to demonstrate a substantial burden. We find support for this conclusion in Judge David Tatel’s dissent from the grant (made without accompanying explanation) of an in‐ junction pending appeal in Priests for Life v. U.S. Dep’t of Health & Human Services, No. 13‐5368, and Roman Catholic Archbishop of Washington v. Sebelius, No. 13‐5371 (D.C. Cir. Dec. 31, 2013) (per curiam):
Because Congress has imposed an independent obliga‐ tion on insurers to provide contraceptive coverage to Ap‐ pellants’ employees, those employees will receive contra‐ ceptive coverage from their insurers even if Appellants self‐ certify—but not because Appellants self‐certify. … In other words, it was Congress that “authorized” insurers to pro‐ vide contraceptive coverage to Appellants’ employees— services those employees will receive regardless of wheth‐ er Appellants self‐certify.
… Although we must accept Appellants’ assertion that the scheme itself violates their religious beliefs, we need not accept their legal conclusion that their purported in‐ volvement in that scheme qualifies as a substantial burden under RFRA. Cf. Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008) (“Accepting as true the factual allegations

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that Kaemmerling’s beliefs are sincere and of a religious nature—but not the legal conclusion, cast as a factual alle‐ gation, that his religious exercise is substantially bur‐ dened—we conclude that Kaemmerling does not allege facts sufficient to state a substantial burden on his religious exercise.”). Appellants’ participation is limited to comply‐ ing with an administrative procedure that establishes that they are, in effect, exempt from the very requirements they find offensive. See id. at 678 (“An inconsequential or de minimis burden on religious practice does not rise to [the level of a substantial burden under RFRA], nor does a burden on activity unimportant to the adherent’s religious scheme.”). At bottom, then, Appellants’ religious objec‐ tions are to the government’s independent actions in man‐ dating contraceptive coverage, not to any action that the government has required Appellants themselves to take. But Appellants have no right to “require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699 (1986). Religious organizations are required to file many forms with the government, such as applications for tax exemptions, even though they may have religious objections to a whole host of government policies and programs.
Id. at 3–4 (emphases in original). See also Judge Jackson’s district court decision in the Roman Catholic Archbishop case, denying preliminary relief. 2013 WL 6729515 (D.D.C. Dec. 20, 2013).
Notre Dame doesn’t place all its eggs in the RFRA “sub‐ stantial burden” basket, but only two of its other arguments warrant discussion. (The rest add nothing to its RFRA ar‐ guments.) The first is that the exemption for religious em‐ ployers (essentially churches, as distinct from other religious

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organizations, such as Catholic universities, see 45 C.F.R. § 147.130(a)(1)(iv)(B)) violates the establishment clause of the First Amendment because it favors certain types of religious organizations (churches or other houses of worship) over others (like Notre Dame). The religious employer doesn’t have to sign or mail a certification form in order to claim its exemption; its exemption from the contraceptive guideline appears to be automatic. See, e.g., 45 C.F.R. § 147.130 (a)(1)(iv)(A); U.S. Health Resources & Services Administra‐ tion, “Women’s Preventive Services Guidelines,” supra; U.S. Department of Labor, “Affordable Care Act Regulations and Guidance,” www.dol.gov/ebsa/healthreform/regulations/ coverageofpreventiveservices.html. But religious employers, defined as in the cited regulation, have long enjoyed advan‐ tages (notably tax advantages) over other entities, 26 U.S.C. §§ 6033(a)(3)(A)(i), (iii), without these advantages being thought to violate the establishment clause. See, e.g., Walz v. Tax Commission of City of New York, 397 U.S. 664, 666, 672–73 (1970). The establishment clause does not require the gov‐ ernment to equalize the burdens (or the benefits) that laws of general applicability impose on religious institutions. A law exempting churches or other religious property from prop‐ erty taxes will benefit religious denominations that own a great deal of property, to the disadvantage of denominations with modest property holdings (such as storefront churches). This unequal effect does not condemn the law.
Notre Dame’s second non‐RFRA claim, which is more substantial, is that the regulations violate the free‐speech clause of the First Amendment by providing that an exempt organization, such as Notre Dame, “must not, directly or in‐ directly, seek to interfere with a third party administrator’s arrangements to provide or arrange separate payments for

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contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrange‐ ments.” 29 C.F.R. § 2590.715‐2713A(b)(1)(iii); 26 C.F.R. § 54.9815‐2713A(b)(1)(iii). Obviously there are forms of “in‐ fluence” that are not protected by the speech, press, or peti‐ tion for redress of grievances clauses of the First Amend‐ ment. But most speech or writing intended to influence someone’s decision—to persuade someone to do or not do something—is protected.
There is a great variety of female contraceptives, see U.S. Food & Drug Administration, “Birth Control; Medicines To Help You,” www.fda.gov/forconsumers/byaudience/forwo men/freepublications/ucm313215.htm, including a great va‐ riety just of contraceptive pills. Mayo Clinic, “Choosing a Birth Control Pill,” www.mayoclinic.org/best‐birth‐control‐ pill/art‐20044807. Notre Dame’s student health service might have views concerning the relative medical risks of different female contraceptives; it would certainly be entitled to communicate those views to its third‐party administrator, Meritain. It’s true that the regulation requires provision of “all” FDA‐approved female contraceptives, but the health service could try to persuade the administrator to recom‐ mend to the physicians in its network one FDA‐approved drug over another, such as progestin IUDs over copper ones, or even to advise the FDA to alter its list of approved female contraceptives. The university has a responsibility for the health and safety of its students and staff.
A footnote in the commentary to the regulation states that “nothing in these final regulations prohibits an eligible organization from expressing its opposition to the use of

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contraceptives.” “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39880 n. 41. That’s not very reassuring. The example we gave was not of a statement of opposition to the use of contraceptives, but of a statement intended to influence the choice of contra‐ ceptives that the third‐party administrator or the health in‐ surance provider would cover. The footnote is an unsatisfac‐ tory afterthought.
Against this it can be argued that the regulation is only about “payments,” and not about the provision of contracep‐ tives, as in our example of student health services’ being concerned with the safety of particular contraceptives. At the oral argument the government’s lawyer said that the regula‐ tion, despite its wording, is not limited to wrangling over payments; that it also concerns the provision of contracep‐ tives, as in our example of an attempt at influence that can‐ not be prohibited without infringing freedom of speech. The regulations specify the contraceptives that health plans must provide for women—namely “all Food and Drug Admini‐ stration approved contraceptive methods, sterilization pro‐ cedures, and patient education and counseling for all wom‐ en with reproductive capacity,” U.S. Health Resources & Services Administration, “Women’s Preventive Services Guidelines,” supra—and the government’s lawyer seemed (no stronger word is possible) to imply that for Notre Dame to urge a plan not to provide a specific such contraceptive, even because of a sincere health concern by the university, would violate the “influence” regulation.
We’re troubled by the seeming vagueness of the regula‐ tion as drafted and as further muddied by the footnote in the commentary (why isn’t it in the regulation itself?), and we

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fear that it may have pernicious consequences if understood to forbid or inhibit the kind of discussion between the uni‐ versity and the contraceptives providers sketched in the pre‐ ceding paragraphs. But the parties have failed to place the issue in focus. Notre Dame hasn’t told us what it wants to say but fears to say (except that it at least wants to be able to tell Meritain not to provide contraceptive coverage at all— which sounds like urging civil disobedience) and the gov‐ ernment hasn’t clearly embraced an interpretation of the regulation that would give rise to the concerns we’ve ex‐ pressed. The issue must, for now, be left for further explora‐ tion in the district court.
Two loose ends remain to be tied up. They relate to mo‐ tions that Notre Dame filed in this court after filing its ap‐ peal but before oral argument. First was a motion it filed on January 20, six days after the students’ motion to intervene was granted, asking us to dismiss its appeal or in the alterna‐ tive to order a limited remand to the district court; the stated purpose of either alternative was to provide Notre Dame with an opportunity to depose the three student intervenors. We took the motion under advisement, the appeal having been scheduled for imminent oral argument with expedited briefing underway and the intervenors having not yet filed their brief, which made the motion premature. It was appar‐ ent that the appeal would be refiled after discovery relating to the intervenors or resumed if we ordered a limited re‐ mand in lieu of dismissal. So dismissal or remand would be an interruption rather than a termination—a source of delay harmful to both parties and disruptive of this court’s sched‐ ule.

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We have the authority to dismiss an appeal at the appel‐ lant’s request. Fed. R. App. P. 42(b); United States v. Hager‐ man, 549 F.3d 536, 538 (7th Cir. 2008). But it is authorization, not command. E.g., Albers v. Eli Lilly & Co., 354 F.3d 644, 646 (7th Cir. 2004) (per curiam). As in the case just cited, here we have thought it “best … to carry through so that the invest‐ ment of public resources already devoted to this litigation will have some return.” So the motion has remained pend‐ ing, and is now moot in light of our affirming the denial of preliminary relief to Notre Dame.
On January 28 the university filed a renewed motion for an injunction pending appeal—it had filed such a motion on December 23, but we had denied that motion a week later when we ordered expedited briefing of the appeal. The sole ground for the renewed motion was the Supreme Court’s order of January 24 in the Little Sisters case, 2014 WL 272207. That ground was an odd one for Notre Dame to assert, be‐ cause the university disagrees with the Court’s order. The Court’s order conditioned the injunction pending appeal in that case on the Little Sisters’ sending a letter to the govern‐ ment declaring its opposition to paying for contraceptive services—and at the oral argument of our case Notre Dame told us that it would consider sending such a letter an in‐ fringement of its religious freedom. Another distinction be‐ tween that case and this one is that unlike Meritain, Little Sisters’ third‐party administrator, Christian Brothers, is a “church plan” administrator and so wouldn’t provide con‐ traceptive services anyway, or be required to do so. We now deny the renewed motion for an injunction pending appeal as moot because the appeal has been resolved.

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Chief Judge Simon’s denial of preliminary relief in the district court is
AFFIRMED.

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FLAUM, Circuit Judge, dissenting. While Notre Dame’s ap‐ peal from the district court’s denial of a preliminary injunc‐ tion was pending before this court, we granted the students’ motion to intervene. Notre Dame then moved to dismiss the appeal in order to conduct additional discovery in the dis‐ trict court. Dismissal would not prejudice the government or the student‐intervenors. Nor would it inhibit this court’s re‐ view of the ultimate issues at a later stage in the proceed‐ ings. Because I see no reason not to “accept plaintiffs’ deci‐ sion to proceed to trial without interim relief,” Creaton v. Heckler, 781 F.2d 1430, 1431 (9th Cir. 1986), I would grant Notre Dame’s motion and dismiss this appeal.
The majority does not agree, however, and so the appeal remains before us. Faced with the merits, I conclude that Notre Dame has made out a credible claim under the Reli‐ gious Freedom Restoration Act. I therefore would grant the university a preliminary injunction forbidding the govern‐ ment from penalizing Notre Dame for refusing to comply with the self‐certification requirement.
I.
Notre Dame filed an emergency motion for an injunction pending appeal on December 23, 2013. At that point, its at‐ tention was fixed on the looming January 1, 2014 deadline, the date that the mandate and relevant regulations would go into effect. The court denied the motion on December 30 and ordered expedited briefing. The following day, the universi‐ ty—“forced,” in its words, “to choose between potentially ruinous fines and compliance with the Mandate”—opted to submit its self‐certification form while it continued to litigate this appeal. See Notre Dame Issues Statement on Contraceptive Care Injunction Denial, WNDU.com (Dec. 31, 2013), available

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at http://tinyurl.com/kyhn6op (last visited Feb. 20, 2014). On January 14, the day after Notre Dame filed its opening brief, the court granted the students’ motion to intervene. The stu‐ dents intended to, and in fact later did, advance a number of arguments that the government had not pursued in the dis‐ trict court. Shortly thereafter, Notre Dame moved to dismiss its appeal. The government took no position on the motion for voluntary dismissal, and the students opposed it. The motion was taken under advisement.
Federal Rule of Appellate Procedure 42 permits us to dismiss an already‐docketed appeal “on the appellant’s mo‐ tion on terms agreed to by the parties or fixed by the court.” Fed. R. App. P. 42(b). Even where the parties do not agree on terms, we apply a “presumption in favor of dismissal,” Al‐ bers v. Eli Lilly & Co., 354 F.3d 644, 646 (7th Cir. 2004)—as well we should, for normally it makes very little sense to force an appellant into court against his will. This presump‐ tion would appear to be stronger when the appeal is an in‐ terlocutory one. Such a dismissal will not prejudice any fu‐ ture determination on the merits and will put the appellee in no worse position than if the appellant had not taken an ap‐ peal to begin with. At the same time, however, this presump‐ tion may be overcome by other prudential considerations. Appellate review is not a “bargaining chip” to be played and then casually conceded after a bad card is dealt. Id. (citing U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994)).
Invoking the Albers case, the student‐intervenors accuse Notre Dame of “procedural gamesmanship” for moving to dismiss the appeal after its pleas for urgent relief earlier in the litigation. But for Notre Dame, the circumstances of this

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case changed significantly on January 1, by which point the expedited briefing schedule had already been set. They changed yet again on January 14, when the student‐ intervenors entered the case. Certainly Notre Dame is not the first party to reassess the wisdom of taking an appeal in light of later developments. Cf. Tyndale House Publishers, Inc. v. Sebelius, No. 13‐5108, 2013 WL 2395168 (D.C. Cir. May 3, 2013) (granting the government’s opposed motion for volun‐ tary dismissal in a contraceptive‐mandate case brought by a for‐profit religious employer). In my judgment, if the univer‐ sity is willing to return to the district court and forego any chance at a preliminary injunction, we should not hold it to an expedited schedule that it did not request and to an ap‐ peal involving parties and arguments that it did not antici‐ pate.
Importantly, Notre Dame has not “sought dismissal for the purpose of evading appellate determination.” United States v. Wash. Dep’t of Fisheries, 573 F.2d 1117, 1118 (9th Cir. 1978). To the contrary, the university tells us that it “fully ex‐ pects to be back in this Court—either from its appeal or the Government’s appeal … following the district court’s ruling on a permanent injunction.” This is a far cry from a case like Albers, where counsel for the appellant “essentially conced[ed]” that he decided after oral argument to dismiss the appeal for opportunistic reasons, in order to “try again, with a different client, at a different time or in a different court.” 354 F.3d at 646.
This case is also very much unlike United States v. Hager‐ man, where we denied an imputed motion for voluntary dismissal because it arose “with the appeal fully briefed and the merits free from doubt.” 549 F.3d 536, 538 (7th Cir. 2008).

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Notre Dame requested dismissal a week before the govern‐ ment’s and intervenors’ briefs were due; Notre Dame’s reply brief (which addressed a number of the intervenors’ new ar‐ guments) was due a week after that. More to the point, and with respect for my colleagues’ views, I do not find the ques‐ tion in this case to be clear cut. There have been nineteen cases challenging the application of the mandate to religious nonprofits to date, and every plaintiff besides Notre Dame has received an injunction.1 In contrast to Hagerman, the mer‐

1 Most plaintiffs received a preliminary injunction in the district court. See Ave Maria Found. v. Sebelius, No. 13‐cv‐15198, 2014 WL 117425 (E.D. Mich. Jan. 13, 2014); Catholic Diocese of Beaumont v. Sebelius, No. 1:13‐cv‐ 709, 2014 WL 31652 (E.D. Tex. Jan. 2, 2014); Roman Catholic Diocese of Fort Worth v. Sebelius, No. 4:12‐cv‐314 (N.D. Tex. Dec. 31, 2013) (Doc. 99); Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12‐cv‐ 92, 2013 WL 6858588 (E.D. Mo. Dec. 30, 2013); Diocese of Fort Wayne‐S. Bend v. Sebelius, No. 1:12‐cv‐159, 2013 WL 6843012 (N.D. Ind. Dec. 27, 2013); Grace Schs. v. Sebelius, No. 3:12‐cv‐459, 2013 WL 6842772 (N.D. Ind. Dec. 27, 2013); E. Tex. Baptist Univ. v. Sebelius, No. H‐12‐3009, 2013 WL 6838893 (S.D. Tex. Dec. 27, 2013); S. Nazarene Univ. v. Sebelius, No. 13‐ 1015, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013); Geneva Coll. v. Sebelius, No. 12‐0207, 2013 WL 6835094 (W.D. Pa. Dec. 23, 2013); Reaching Souls Int’l, Inc. v Sebelius, No. 13‐1092, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013); Legatus v. Sebelius, No. 12‐12061, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013); Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12‐2542, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013); Zubik v. Sebelius, No. 2:13‐cv‐1459, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013). A handful lost in the district court but later received an injunction on appeal. See Little Sisters of the Poor v. Sebelius, No. 13‐cv‐2611, 2013 WL 6839900 (D. Colo. Dec. 27, 2013), injunction pending appeal granted, No. 13A691 (U.S. Jan. 24, 2014); Mich. Catholic Conf. v. Sebelius, No. 1:13‐CV‐1247, 2013 WL 6838707 (W.D. Mich. Dec. 27, 2013), injunction pending appeal granted, No. 13‐2723 (6th Cir. Dec. 31, 2013); Catholic Diocese of Nashville v. Sebelius, No. 3:13‐1303, 2013 WL 6834375 (M.D. Tenn. Dec. 26, 2013), injunction pending appeal granted, No. 13‐6640 (6th Cir. Dec. 31, 2013); Roman Catholic Archbishop of Wash. v.

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its in this case are hardly “free from doubt.” Id. I suggest that granting the motion to dismiss the appeal is the more pru‐ dential approach.
II.
On the merits, I believe that Notre Dame has made out a credible claim that the Patient Protection and Affordable Care Act and accompanying regulations are a substantial burden on its exercise of religion. Accordingly, I would grant the university’s request for a preliminary injunction. See Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011) (setting forth the legal standard for a preliminary injunc‐ tion); cf. ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (noting that the “loss of First Amendment freedoms, for even minimal periods of time,” constitutes an irreparable injury for which damages are not an adequate remedy).
The Religious Freedom Restoration Act provides that a federal law may not “substantially burden a person’s exer‐ cise of religion” unless the government “demonstrates that application of the burden to the person … is in furtherance of a compelling governmental interest” and “is the least re‐ strictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb‐1. For purposes of this litiga‐ tion, the government concedes that the least‐restrictive‐ means exception does not apply, so we need only decide

Sebelius, No. 13‐1441, 2013 WL 6729515 (D.D.C. Dec. 20, 2013), injunction pending appeal granted, No. 13‐5371 (D.C. Cir. Dec. 31, 2013); Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 13‐1261, 2013 WL 6672400 (D.D.C. Dec. 19, 2013), injunction pending appeal granted, No. 13‐5371 (D.C. Cir. Dec. 31, 2013).

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whether the burden that the Affordable Care Act imposes on Notre Dame is substantial.
In Korte v. Sebelius, this court said that a substantial bur‐ den arises “when the government ‘put[s] substantial pres‐ sure on an adherent to modify his behavior and to violate his beliefs.’” 735 F.3d 654, 682 (7th Cir. 2013) (quoting Thomas v. Review Bd. of Ind. Emp’t Div., 450 U.S. 707, 718 (1981)). Put another way, government action substantially burdens reli‐ gious exercise if it “necessarily bears direct, primary, and fundamental responsibility for rendering religious exer‐ cise … effectively impracticable.” Civil Liberties for Urban Be‐ lievers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (in‐ terpreting a parallel provision in the Religious Land Use and Institutionalized Persons Act).
It is clear that if Notre Dame were forced to pay for con‐ traceptive coverage against its religious beliefs or else incur significant monetary penalties, this would be a substantial burden. See Korte, 735 F.3d at 682–85. Unlike the for‐profit plaintiffs in Korte, however, the university has an additional choice: a specially crafted accommodation “whereby the ob‐ jecting employer gives notice to its insurance carrier and the insurer issues a separate policy with the mandated cover‐ age.” Id. at 662. This accommodation permits a religious or‐ ganization to discharge its obligations to provide contracep‐ tive coverage by “self‐certif[ying], in a form and manner specified by the [government],” that the organization “op‐ poses providing coverage for some or all … contraceptive services … on account of religious objections,” “is organized and operates as a nonprofit entity,” and “holds itself out as a religious organization.” 26 C.F.R. § 54.9815‐2713A(a). Among other things, the organization must provide a copy

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of the self‐certification form, known as EBSA Form 700, to its insurance issuer or third‐party administrator; those entities are then required to offer segregated contraceptive services directly to plan participants and beneficiaries. Id. § 54.9815‐ 2713A(b)–(c). However, if the organization does not self‐ certify—and also does not provide the required, religiously objectionable coverage—it continues to face the same “ruin‐ ous fines” that constituted a substantial burden in Korte. 735 F.3d at 684.
I do not question that the accommodation is the govern‐ ment’s good‐faith attempt to meet religious objectors half‐ way, and it makes this a somewhat closer case than Korte. Nevertheless, by putting substantial pressure on Notre Dame to act in ways that (as the university sees it) involve the university in the provision of contraceptives, I believe that the accommodation still runs afoul of RFRA.
The district court reasoned that the self‐certification scheme is not a substantial burden because the scheme does not require the university to modify its behavior in any way. According to the court, “Notre Dame need only step aside from contraception coverage, as it has always done and most assuredly would always do.” Similarly, the government tells us that by self‐certifying, the university “is simply complet‐ ing a form conveying that the University does not intend to provide contraceptive coverage.”
I do not view the required act so mechanistically. The ac‐ commodation does not merely require the religious organi‐ zation to “step aside from contraceptive coverage.” It re‐ quires the organization to perform a new act that it did not have to perform before: completing and delivering to its in‐ surer or third‐party administrator the official EBSA Form

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700. In the university’s eyes, this form’s “purpose and ef‐ fect”—evident from the face of the regulations—“is to ac‐ complish what the organization finds religiously forbidden and protests.” E. Tex. Baptist Univ. v. Sebelius, No. H‐12‐3009, 2013 WL 6838893, at *20 (S.D. Tex. Dec. 27, 2013). As to health plans administered by third‐party administrators in particular, the form flatly states that it is “an instrument un‐ der which the plan is operated.” Having to submit the EBSA Form 700, Notre Dame maintains, makes it “complicit in a grave moral wrong” by involving it with a system that de‐ livers contraceptive products and services to its employees and students.
The majority has trouble accepting this position, in part due to the university’s statement that its signature will “trigger” contraceptive coverage, because the majority un‐ derstands federal law to require contraceptive coverage re‐ gardless of what Notre Dame signs or does not sign. But see Roman Catholic Archbishop of Wash. v. Sebelius, No. 13‐1441, 2013 WL 6729515, at *17, *22 (D.D.C. Dec. 20, 2013) (distin‐ guishing between group health insurers, which have an in‐ dependent obligation under the regulations to provide con‐ traceptive coverage, and third‐party administrators, which do not). Yet we are judges, not moral philosophers or theo‐ logians; this is not a question of legal causation but of reli‐ gious faith. Notre Dame tells us that Catholic doctrine pro‐ hibits the action that the government requires it to take. So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.2

2 The intervenors insinuate that sincerity is at issue, hinting at the possi‐ bility of last‐minute influence by a group called the Sycamore Trust. While the district court may find a warrant for this suggestion once dis‐

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The district court relied in part on Bowen v. Roy, 476 U.S. 693 (1986), and derivatively Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008), which the court thought foreclosed Notre Dame’s objection to a mere “administrative tool, used to relieve Notre Dame of liability for not providing contra‐ ceptive payments.” I do not read Roy as cutting so broadly. In fact, five justices in that case expressed the view that the plaintiffs “were entitled to an exemption” from an analogous “administrative” requirement—“that welfare recipients pro‐ vide a social security number on their application.” Michael W. McConnell, Free Exercise Revisionism and the Smith Deci‐ sion, 57 U. Chi. L. Rev. 1109, 1127 (1990) (emphasis added).
Roy involved a Free Exercise Clause challenge to federal regulations governing state‐run food‐stamp programs. The plaintiff Roy, a member of the Abenaki tribe, had sought benefits for his two‐year‐old daughter. Roy objected to two distinct aspects of the regulations. First, he objected to a re‐ quirement that each applicant furnish a social security num‐ ber on the application. Second, he challenged a requirement that states utilize social security numbers in administering the program (principally to prevent abuse or waste). See 476 U.S. at 699. Roy refused to furnish his daughter’s number because he feared its use would “rob” her spirit and dimin‐ ish her spiritual purity. Id. at 696. During the litigation, it be‐ came clear that the government had somehow obtained a social security number for Roy’s daughter independently. Id. at 697. The government argued that the case had become moot, but Roy disagreed. Id.

covery proceeds, so far as I can determine, there is currently no basis in the record for concluding that Notre Dame has been insincere in advanc‐ ing this litigation.

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As the district court in this case correctly noted, the Court squarely rejected Roy’s free exercise challenge to the state’s use of the social security number, concluding that the First Amendment does not “require the Government to conduct its own internal affairs in ways that comport with the reli‐ gious beliefs of particular citizens.” 476 U.S. at 699. But a ma‐ jority of justices indicated that the requirement that appli‐ cants furnish a social security number was a different matter. Five justices either concluded or strongly suggested that the government could not require an applicant to provide the number on a benefits application if the applicant had a sin‐ cere religious objection to doing so.
Justice O’Connor, joined by Justices Brennan and Mar‐ shall, determined that the requirement burdened Roy’s exer‐ cise of religion, and that the government had “failed to show that granting a religious exemption to those who legitimate‐ ly object to providing a Social Security number will do any harm to its compelling interest.” 476 U.S. at 732 (O’Connor, J., concurring in part and dissenting in part). Justice White agreed; he would have enjoined both the provision and use requirements. Id. at 733 (White, J., dissenting). Finally, Jus‐ tice Blackmun would have remanded the case to determine whether the issue was moot. However, he stated that if the issue were squarely presented, he would have agreed with Justice O’Connor and held that the government could not deny assistance based on a parent’s religious refusal to pro‐ vide a social security number. Id. at 714–16 (Blackmun, J., concurring in part).
To be sure, because only four justices actually reached the question, this conclusion does not constitute part of Roy’s

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holding. Nevertheless, it provides a useful framework for analyzing the facts of this case.3
Under Roy’s approach, it is clear that RFRA does not au‐ thorize religious organizations to dictate the independent actions of third‐parties, even if the organization sincerely disagrees with them. See 476 U.S. at 700 (noting that Roy could “no more prevail on his religious objection to the Gov‐ ernment’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”). That is true whether the third‐party is the government, an insurer, a stu‐ dent, or some other actor. Cf. Korte, 735 F.3d at 684 (“[I]t goes without saying that [the plaintiffs] may neither inquire about nor interfere with the private choices of their employees on these subjects.”); Roman Catholic Archdiocese of N.Y. v. Sebe‐ lius, No. 12‐2542, 2013 WL 6579764, at *13 (E.D.N.Y. Dec. 16, 2013) (“[I]t seems unlikely that placing new legal obligations on the third‐parties with whom plaintiffs contract could be a substantial burden on plaintiffsʹ religion.”). So long as the government does not require the university itself to take ac‐ tion, RFRA does not give Notre Dame a right to prevent the government from providing contraceptives to its students and employees. Indeed, at oral argument, counsel for Notre Dame acknowledged that the university would have no ob‐ jection if the students or employees had to opt in to receive contraceptive coverage from insurers.

3 Although Roy is a Free Exercise Clause case, not a RFRA case, “Con‐ gress was clear that RFRA codifies pre‐Smith free‐exercise jurispru‐ dence.” Korte, 735 F.3d at 679 (referring to Employment Division v. Smith, 494 U.S. 872 (1990)).

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But the self‐certification requirement is different. It is one thing for the government to take independent action. It is quite another for the government to “force[]” the university “to cooperate actively with the Government by themselves providing” the EBSA Form 700—a form that, in Notre Dame’s view, endorses the provision of contraceptives to its students and employees. Roy, 476 U.S. at 714 (Blackmun, J., concurring in part). That type of compulsion takes this case out of the realm of independent action and into the sort of “direct, primary, and fundamental” pressure that renders “religious exercise … effectively impracticable.” Civil Liber‐ ties for Urban Believers, 342 F.3d at 761.
The Supreme Court’s recent decision to grant a tempo‐ rary injunction in a similar RFRA challenge suggests to me that a majority of justices may continue to hold this view of free exercise rights (although now as a statutory matter, and not a constitutional one). See Little Sisters of the Poor v. Sebe‐ lius, No. 13‐cv‐2611, 2013 WL 6839900 (D. Colo. Dec. 27, 2013), injunction pending appeal granted, No. 13A691, 2014 WL 272207 (U.S. Jan. 24, 2014). Notably, the burden on the plain‐ tiffs in Little Sisters appears less significant than the one on Notre Dame. The government tells us that Little Sisters pro‐ vides group health insurance through a self‐insured “church plan” that, because of a peculiar twist in ERISA, is itself ex‐ empt from the requirement to assume responsibility for con‐ traceptive coverage. Under the current regime, the form that Little Sisters refuses to sign is entirely unconnected to the actual provision of contraceptive services, yet the Supreme Court still granted the requested injunction. Should the mandate be enforced in this case, by contrast, Notre Dame will continue to self‐certify as part of a scheme that will ac‐ tually deliver products and services to which the university

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has a religious objection. I am well aware that the order in Little Sisters “should not be construed as an expression of the Court’s views on the merits.” 2014 WL 272207, at *1. Howev‐ er, I believe the Court’s action strengthens the case for a pre‐ liminary injunction here, where the burden is, if anything, more concrete.
Now that Notre Dame has signed the self‐certification form, the majority doubts whether we could grant the uni‐ versity any form of meaningful relief. I agree that we cannot enjoin the university’s insurers from providing contraceptive coverage or require the government to forbid the insurers from doing so. However, this only underscores the point that Notre Dame does not (and cannot) take issue with the independent actions of third‐parties. Meaningful relief fol‐ lows from what Notre Dame does object to: a regulation that requires it either to pay for contraceptive services or self‐ certify that it has a religious objection in order to avoid sub‐ stantial fines. I would therefore enjoin the government from enforcing the penalty against Notre Dame for not providing contraceptive coverage—even if Notre Dame revokes or fails to maintain its EBSA Form 700, refuses to make the form available for examination upon request, or takes any action otherwise inconsistent with 26 C.F.R. § 54.9815‐2713A.
III.
My conclusion is not intended to disparage the govern‐ ment’s efforts at accommodation in this difficult area. Espe‐ cially after Employment Division v. Smith, 494 U.S. 872 (1990), how best to accommodate the twin demands of religious faith and secular policy has become a challenging political problem as much as a legal one. Our interpretation of RFRA can only go so far in solving it. Cf. Lyng v. Nw. Indian Ceme‐

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tery Protective Ass’n, 485 U.S. 439, 452 (1988) (“[L]egislatures and other institutions,” not courts, must “reconcile the vari‐ ous competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours.”). Whatever the eventual outcome of this litigation, it would be unfortunate if it dissuaded ei‐ ther the government or religious institutions from taking further steps toward mutually acceptable accommodation.

*

*

*

Because dismissal of this appeal is no longer an option, I conclude that Notre Dame has shown a likelihood of success on the merits, and that it has met the other requirements for a preliminary injunction. I would therefore reverse the dis‐ trict court’s order denying relief. I respectfully dissent.

 
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In the
United States Court of Appeals

For the Seventh Circuit
____________________

No. 13-3853

UNIVERSITY OF NOTRE DAME,

Plaintiff-Appellant,

v.

SYLVIA MATHEWS BURWELL, Secretary of U.S. Department of Health & Human Services, et al., Defendants-Appellees,

and

JANE DOE 3,

Intervening Appellee. ____________________

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

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

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employer health plans on behalf of the employer—such companies are called “third party administrators”) to cover certain preventive services without cost to the insured, including, “with respect to women, such additional preventive care … as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” of the Department of Health and Human Services. 42 U.S.C. § 300gg-13(a)(4); see also 45 C.F.R. § 147.130(a)(1)(iv); 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). Guidelines specifying such care have been promulgated by the Department and include, so far as bears on this case, “all Food and Drug Administration approved contraceptive methods.” Health Resources & Services Administration, “Women’s Preventive Services Guidelines,” www.hrsa.gov/womensguidelines (visited May 14, 2015, as were the other websites cited in this opinion).
About half of all pregnancies in the United States are unintended, and 40 percent of them end in abortion and many others in premature births or other birth problems. Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 102–03 (2011), www.nap.edu/catalog.php?record_id= 13181; Lawrence B. Finer & Mia R. Zolna, “Shifts in Intended and Unintended Pregnancies in the United States, 2001– 2008,” 104 Am. J. Pub. Health S43, S44 (2014). Many of the unintended pregnancies are teen pregnancies, and contraceptive use has been found to be positively correlated with decreased teen pregnancy. John S. Santelli & Andrea J. Melnikas, “Teen Fertility in Transition: Recent and Historical Trends in the United States,” 31 Ann. Rev. Pub. Health 371, 375–76, 379 (2010). Because out-of-pocket expenditures on female contraceptives can be substantial for many women, see Su-Ying Liang et al., “Women’s Out-of-Pocket Expendi-

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

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tract gives the students the option of obtaining health insurance from Aetna at rates negotiated by Notre Dame. Meritain administers coverage for some 4600 employees of Notre Dame (out of a total of 5200) and 6400 dependents of employees. Aetna insures 2600 students and 100 dependents; Notre Dame has about 11,000 students, most of whom have coverage under either their parents’ health insurance policies or under their own policies rather than under the Aetna Notre Dame Health Plan.
Because Catholic doctrine forbids the use of contraceptives to prevent pregnancy (the “rhythm” method of avoiding pregnancy, which is permitted, is a form of abstention, not of contraception), Notre Dame has never paid for contraceptives for its employees or permitted Aetna to insure students under the Aetna Notre Dame Health Plan (or any other Aetna plan) for the expense of contraceptives. Cognizant of the religious objections of Catholic and a number of other religious institutions to contraception, and mindful of the dictate of the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-1(a), (b), that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless “it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest,” some months after the enactment of the Affordable Care Act the government offered a religious exemption from the contraception guidelines. See “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services,” 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(1)(iv)); see also 77 Fed. Reg. 8725, 8727–29 (Feb. 15, 2012).

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At first the exemption was limited to churches and so excluded religious institutions that are incorporated as nonprofit (rather than as religious) institutions, such as Notre Dame. The exclusion precipitated the filing in 2012 of a federal suit by the university against the government, claiming that the contraceptive regulations infringed rights conferred on the university by both the First Amendment and the Religious Freedom Restoration Act. That suit was dismissed on standing and ripeness grounds, the government having promised that Notre Dame wouldn’t have to comply with the regulations for one year, during which new regulations would be issued. University of Notre Dame v. Sebelius, 2012 WL 6756332, at *3–4 (N.D. Ind. Dec. 31, 2012); see “Certain Preventive Services Under the Affordable Care Act,” 77 Fed. Reg. 16501, 16502–03 (Mar. 21, 2012). The new regulations were issued as promised—and as expected they enlarged the exemption. See “Coverage of Certain Preventive Services Under the Affordable Care Act,” 78 Fed. Reg. 39870, 39875– 90 (July 2, 2013); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R. § 147.131(b). As a result, Notre Dame now came within its scope.
But to exercise its right conferred by the new regulations to opt out of having to pay for contraceptive coverage either directly (with or without the administrative assistance of a third-party administrator, such as Meritain) or through a health insurer, such as Aetna, the university had to fill out “EBSA Form 700—Certification.” See 45 C.F.R. § 147.131(b)(4). The form (www.dol.gov/ebsa/pdf/preventive serviceseligibleorganizationcertificationform.pdf) is short, its meat the following sentence: “I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that

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would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.” The form states that “the organization or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.” So Notre Dame, if it decided to sign the exemption form, would have to give copies to both Aetna and Meritain.
As noted at the outset of this opinion, the Affordable Care Act requires providers of health insurance (including third-party administrators of self-insured health plans, even though they are conduits rather than ultimate payors of plan benefits) to provide contraceptive coverage for women. See also 45 C.F.R. §§ 147.131(c)(2)(i)(B), (ii); 29 C.F.R. § 2590.7152713A(b)(3). The exemption form if signed by Notre Dame and sent to Aetna and Meritain would therefore inform them that since Notre Dame was not going to pay for contraceptive coverage of its students and staff, Aetna and Meritain would have to pay. Aetna (including its Meritain subsidiary) has neither religious nor financial objections to paying for contraception. Regarding the cost to these companies, the government will reimburse at least 110 percent of the thirdparty administrator’s (Meritain’s) costs, 45 C.F.R. § 156.50(d)(3), while Aetna can expect to recoup its costs of contraceptive coverage from savings on pregnancy medical care (since there will be fewer pregnancies if contraception is more broadly available, at no cost, to Notre Dame’s female employees and students) as well as from other regulatory

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offsets. See “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39877–78.
The regulations required Aetna and Meritain, if Notre Dame signed and sent the exemption form—but not Notre Dame—to inform the university’s female employees and students that those companies would be covering their contraceptive costs. See 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d). The companies could either “provide payments for contraceptive services” themselves or, alternatively, “arrange for an insurer or other entity to provide payments for” those services, but they could not “impos[e] any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impos[e] a premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.” 29 C.F.R. §§ 2590.7152713A(b)(2), (c)(2).
The regulations thus sought an accommodation between the secular interests that had motivated the requirement to provide contraceptive services to women free of charge and the interests of religious objectors. Accommodation is consistent with the balancing act required by the Religious Freedom Restoration Act, which as we noted requires consideration of “substantial burden” (on the institution unwilling to provide contraceptive services), a “compelling governmental interest” in that provision, and the “least restrictive means” that is feasible for realizing the government’s interest.
When the accommodation was promulgated in July of 2013, Notre Dame did not at first bring a new suit (remember that its previous suit, brought when the university was

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excluded from opting out of contraceptive coverage, had been dismissed on jurisdictional grounds, and those grounds were irrelevant to a suit challenging the new regulations). Not until December 2013 did the university file the present suit, challenging the accommodation. The delay in suing was awkward, since the regulations were to take effect with respect to the employee health plan—and did take effect—on January 1, 2014. “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39889. (The student health plan, provided by Aetna, had until August 2014 to comply. See id.; University of Notre Dame, 2013–2014 Student Injury and Sickness Insurance Plan 3, 5, http://uhs.nd.edu/assets/108455/nd_brochure_1314.pdf.)
With the January deadline for compliance looming, the university, less than a week after filing its second suit on December 3, 2014, asked the district court to issue a preliminary injunction that would prevent the government from enforcing the regulation against it pending a trial. The district judge denied the motion on December 20, and Notre Dame filed its appeal from that denial the same day. On December 30 we denied the university’s emergency motion for an injunction pending appeal. The next day—the last day before it would be penalized for violating the regulations—the university signed EBSA Form 700 and thereby opted out of providing contraceptive coverage for its employees. On January 28 it filed with us a second appeal from the denial of the preliminary injunction that it had sought. Later it signed the same form regarding Aetna.
The lawsuit had been only a few weeks old when Notre Dame appealed, and so the district judge suspended all proceedings in his court pending our resolution of the appeal

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(which as just noted had become two appeals). The parties had thus had only a slender window in which to present evidence, and very little had been presented. Because of Notre Dame’s focus on obtaining relief at the appellate level, there has been no resumption of proceedings in the district court, and as a result there is very little evidence in the record before us. That is one reason why, in a decision issued on February 21, 2014, we declined (with one member of the panel dissenting) to reverse the district judge’s denial of the preliminary injunction sought by Notre Dame. University of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014). A few months later, in an almost identical case, the Sixth Circuit also ruled in favor of the government, Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014), vacated and remanded, 2015 WL 1879768 (April 27, 2015), and afterward was joined by the D.C. Circuit in Priests for Life v. U.S. Dept. of Health & Human Services, supra.
Notre Dame continued filing appellate petitions, the most notable being a petition for certiorari, granted by the Supreme Court on March 9 of this year in an order (University of Notre Dame v. Burwell, 135 S. Ct. 1528) that states in its entirety: “On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S.Ct. 2751 (2014).” With the case now back in this court, the parties filed position statements, after which we heard oral argument for an hour and fifty minutes. The discussion of issues that follows in this opinion is based on the position statements and oral

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argument, on portions of our original opinion, and on the Hobby Lobby decision.
Our previous opinion had expressed puzzlement about what exactly the university wanted us to enjoin. It had by that time signed EBSA Form 700 and sent copies to Aetna and Meritain, thus obtaining the statutory accommodation, and the companies had notified Notre Dame’s employees and students that they (the companies, not the university) would be providing contraceptive coverage. We now have (we think) a clearer idea of what the university wants. It wants us to enjoin the government from forbidding Notre Dame to bar Aetna and Meritain from providing contraceptive coverage to any of the university’s students or employees. Because of its contractual relations with the two companies, which continue to provide health insurance coverage and administration for medical services apart from contraception as a method of preventing pregnancy, Notre Dame claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain— with both of which, to repeat, it continues to have contractual relations—to provide any contraceptive coverage to Notre Dame students or staff. The result would be that the students and staff currently lacking coverage other than from Aetna or Meritain would have to fend for themselves, seeking contraceptive coverage elsewhere in the health insurance market.
Notre Dame does not forbid its students or staff to use contraception or to obtain reimbursement from health insurance companies for their purchase of contraceptives. Its objection that it asks us to ratify by issuing a preliminary injunction is to Aetna’s and Meritain’s being legally obligated

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to make contraceptive coverage available to Notre Dame students and staff. It regards its contractual relationship with those companies as making the university a conduit between the suppliers of the coverage and the university’s students and employees. In the university’s words, the contraception regulation imposes a substantial burden on it by forcing the university to “identify[] and contract[] with a third party willing to provide the very services Notre Dame deems objectionable.”
But the scanty record contains no evidence to support the conduit theory. Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs. As far as we can determine from the very limited record, the only “conduit” is between the companies and Notre Dame students and staff; the university has stepped aside. Thus it tells its students (and we assume its staff as well) that “the University of Notre Dame honors the moral teachings of the Catholic Church. Therefore, for example, University Health Services may prescribe contraceptive medications to treat approved medical conditions, but not to prevent pregnancy. To comply with federal law, Aetna Student Health provides coverage for additional women’s health products or procedures that the University objects to based on its religious beliefs. This coverage is separate from Notre Dame. Students enrolled in Aetna Student Health may call Aetna customer service at 877-378-9492 for more information. Students not covered by Aetna Student Health should check with their own insurance plans regarding federally-mandated women’s health coverage.” University of Notre Dame Health Services, “FAQ-Aetna Student Health,” http://uhs.nd.edu/insurance-billing/faq-aetna-stude

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nt-health-ans/ (emphasis added). There thus is no suggestion that Notre Dame is involved at all in Aetna’s and Meritain’s contraception coverage.
When the case was last before us, in 2014, the university’s lawyer had similarly argued that Notre Dame’s health plans were the “conduit” through which the employees and students obtained contraceptive coverage, making Notre Dame complicit in sin. But the lawyer also had said that his client would have no problem if each of its female employees signed and mailed to Meritain (and its students mailed to Aetna) a form saying “I have insurance through Notre Dame, but the university won’t cover contraceptive services, so now you must cover them.” It’s difficult to see how that would make the health plan any less of a “conduit” between Notre Dame and Aetna/Meritain.
It’s not even clear that by forcing Aetna/Meritain to provide Notre Dame’s students and staff with contraception coverage the government is forcing Notre Dame to do business with an entity that is providing an objectionable service to the Notre Dame community. For the government authorizes a third-party administrator to “arrange for an issuer or other entity” to pay for contraception coverage and bill the expense to the government. 29 C.F.R. § 2590.7152713A(b)(2)(ii). Notre Dame thus could ask Meritain to outsource contraception coverage for both students and staff to an entity that does no business with Notre Dame. The university would have no contractual relationship with that entity and so would not be involved even indirectly in the provision of contraceptive coverage to its students and employees.

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A further problem with Notre Dame’s quest for a preliminary injunction is the absence from the record of its contracts with Aetna and Meritain. We are not told what the duration of the contracts is, whether or in what circumstances they are terminable by Notre Dame before their expiration date, or what the financial consequences to the companies might be given that the federal government reimburses health insurers’ contraception payouts generously. So far as contraception is concerned, health insurers are merely intermediaries between the federal government and the consumers. We are led in turn to wonder whether the government—which rarely provides health services directly to patients but rather uses health care companies to provide those services as the government’s agents—might without offending Notre Dame’s religious scruples hire Aetna and Meritain to provide that coverage. That would be simpler and more direct than the government’s shopping for other health insurance companies to be its agents in dealing with Notre Dame’s students and staff.
It is irregular, moreover, for a court to be asked to enjoin nonparties. For all we know, Aetna and its subsidiary value the opportunity to provide contraception coverage with generous reimbursement by the federal government. (The record, consistent with its sparseness, contains almost nothing about Aetna or Meritain.) Their business is providing health care, health care administration, and health insurance, and Notre Dame wants unilaterally to exclude them from a possibly lucrative chunk of that business. When the university, albeit under protest, signed and mailed the exemption form, Aetna and Meritain reasonably believed that they had an economic opportunity—that for the first time they would be providing contraceptive coverage to the Notre Dame

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community. (Remember that before the Affordable Care Act was passed they provided no such coverage to the community.) They have had no opportunity to intervene in the district court, where proceedings have been suspended pending Notre Dame’s appellate submissions culminating in this case.
Notre Dame takes particular umbrage at the regulation under the Affordable Care Act which states that “if the eligible organization provides a copy of the self-certification [EBSA Form 700] of its objection to administering or funding any contraceptive benefits … to a third party administrator [Meritain], the self-certification shall be an instrument under which the plan is operated, [and] shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered under § 2590.7152713(a)(1)(iv) of this chapter to which the eligible organization objects on religious grounds.” 29 C.F.R. § 2510.3-16(b). (What a mouthful!) Notre Dame treats this regulation as having made its mailing of the certification form to its thirdparty administrator (Meritain) the cause of the provision of contraceptive services to its employees in violation of its religious beliefs. That’s not correct. Since there is now a federal right, unquestioned by Notre Dame, to contraceptive services, the effect of the university’s exercise of its religious exemption is to throw the entire burden of administration on the entities (Aetna and Meritain) that now provide contraceptive coverage to Notre Dame’s students and staff. The university is permitted to opt out of providing federally mandated contraceptive services, and the federal government determines (enlists, drafts, conscripts) substitute providers, and it is not surprising that they are the providers

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who already are providing health services to university students and staff.
The university argues that by conditioning its right not to provide contraceptive coverage for its students and staff on its signing EBSA Form 700 and giving copies to Aetna and Meritain, the government has, in violation of RFRA, “substantially burden[ed] a person’s exercise of religion” (the university is a nonprofit corporate “person”; cf. 1 U.S.C. § 1; Korte v. Sebelius, 735 F.3d 654, 674 (7th Cir. 2013)), and that no “compelling governmental interest” justifies that burdening. It notes that the Catholic concept of “scandal” forbids the encouragement (equivalent to aiding and abetting) of sinful acts; a 2013 affidavit by Notre Dame’s executive vicepresident defines “‘scandal’ … in the theological context … as encouraging by words or example other persons to engage in wrongdoing.” Of course in invoking the exemption the university also throws the entire administrative and financial burden of providing contraception on the health insurer and third-party administrator, which are secular organizations that unlike the university have no aversion to providing contraceptive coverage. The result is to lift a burden from the university’s shoulders.
Alternatively Notre Dame charges that the government has “coerce[d] [it] into serving as the crucial link between contraceptive providers and recipients.” That’s a recursion to the “conduit” theory, and ignores that as a result of the university’s signing the exemption form, students and staff now deal directly with Aetna and Meritain, bypassing Notre Dame. It is federal law, rather than the religious organization’s signing and mailing the form, that requires health-care insurers, along with third-party administrators of self-

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insured health plans, to cover contraceptive services. By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be required to provide the services to the university’s students and employees.
Notre Dame says no—that had it not filled out the form, Meritain wouldn’t have been authorized to provide contraceptive services because it would have been a “plan administrator” under section 3(16) of ERISA, 29 U.S.C. § 1002(16), and thus not a plan fiduciary entitled to make expenditures (as for contraception coverage) on behalf of the plan. The university argues that it alone is authorized to designate a plan fiduciary, 29 U.S.C. § 1102(a)(2), and that it made that designation in the form that it mailed to the company and thus is complicit in the provision of contraceptives to the university’s staff. This version of Notre Dame’s “triggering” argument does not apply to Aetna, which is the students’ health insurer and so already a plan fiduciary, 29 U.S.C. § 1002(21)(A), required therefore by the Affordable Care Act to provide contraceptive coverage to plan members whether or not Notre Dame signs the form. 45 C.F.R. §§ 147. 130(a)(1)(iv), 147.131(f). Even as to Meritain, although “many agreements between third party administrators and plan sponsors prohibit third party administrators from serving as fiduciaries,” “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39879, “many” is not “all” or even “most.” Notre Dame has presented no evidence that its contract with Meritain forbids the latter to be a plan fiduciary (remember that the contract is not in the record).

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Nor has the university been ordered to name Meritain as a plan fiduciary. Rather, the signed form “shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered.” 29 C.F.R. § 2510.3-16(b) (emphasis added). Treated and designated by whom? By the government. The delivery of a copy of the form to Meritain reminds it of an obligation that the law, not the university, imposes on it—the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it. Notre Dame’s signing the form no more “triggers” Meritain’s obligation to provide contraceptive services than a tortfeasor’s declaring bankruptcy “triggers” his co-tortfeasors’ joint and several liability for damages. Meritain must provide the services no matter what; signing the form simply shifts the financial burden from the university to the government, as desired by the university.
Suppose the United States, like the United Kingdom, Canada, and many other foreign nations, had a “single payer” health care system. In such a system, the government pays the cost of specified medical services (if the United States had such a system, it would be the equivalent of Medicare for everyone), rather than employers, health insurers, and patients, though patients may be charged directly for some of the expense of the medical care provided by the system, as distinct from indirectly through taxes. If our hypothetical single-payer system paid the full expense of female contraceptives, Notre Dame couldn’t argue that the system placed a “substantial burden” on the university’s compliance with Catholic doctrine, for Notre Dame does not deny the existence of the legitimate secular interests noted at the outset of this opinion that justify a federal program of pay-

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ing for contraceptive expenses. (For a summary of those interests, see “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39872–73.) It even advised the district court that to “achieve its asserted interests without forcing Notre Dame to violate its religious beliefs” the government could “directly provide contraceptive[s]” to the university’s staff and students or, alternatively, “directly offer insurance coverage for contraceptive services.” The consequence in either case would be a singlepayer system for contraceptives. The main difference between such a system and the Affordable Care Act is that under the Act the government, instead of providing medical services directly, uses private insurance providers and health plan administrators as its agents to provide medical services subsidized by the government.
If the government is entitled to require that female contraceptives be provided to women free of charge, it is unclear how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and its mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to “trigger” the provision of contraceptive coverage.
But we must—we have been ordered by the Supreme Court to—consider the bearing on our analysis of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). The case (anticipated by our decision in Korte v. Sebelius, supra) involved three closely held for-profit corporations whose owners objected on religious grounds to having (by virtue of the contraception provisions of the Affordable Care Act and the regulations issued under it) to provide insurance coverage

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

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“an objecting employer.” 134 S. Ct. at 2786. Notre Dame, in contrast, deems the accommodation a violation of its religious rights.
The Supreme Court did leave open in Hobby Lobby the possibility that the accommodation sought and obtained there would not prevent religious beliefs or practices from being substantially burdened in some cases. But it gave no examples; perhaps it remanded our case for further consideration of that possibility. We’ve suggested in this opinion that Notre Dame could as an alternative to the official accommodation direct Meritain to delegate to companies that have no contractual relationship with Notre Dame (as Aetna and Meritain do) the provision of contraception coverage to the university’s students and staff. Then Notre Dame would be outside the loop.
Notre Dame does note possible alternatives, such as a single-payer system in which Notre Dame women would apply directly to the government for reimbursement of their costs of buying contraceptives. But at this stage in the litigation, with no trial having been conducted, we have no basis for concluding that any of the university’s proposed alternatives would avoid imposing an unreasonable cost either on the government or on Notre Dame’s students and employees. The government, as we said, typically provides medical services, including reimbursement of costs incurred by medical providers, indirectly, through health insurance companies such as Aetna. Does Notre Dame expect the government to establish a federal contraception agency to which Notre Dame women should send the bills for the contraceptives they buy? Alternatively, must every woman who wants reimbursement of contraceptive costs pick a health insurance

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company, maybe on the basis of a Google search, to contract with? This seem to be what the university has in mind when it says in its position statement that it has no “objection to a system in which its employees or students coordinated with an independent insurer to provide coverage that ‘would not involve Notre Dame’” (emphasis in original). But because it’s a bother for a person to shop for the “best” contraceptive coverage, the proposed solution would reduce the number of women with such coverage, compared to their being entitled to such coverage automatically by virtue of being Notre Dame students or employees. See Brigitte C. Madrian & Dennis F. Shea, “The Power of Suggestion: Inertia in 401(k) Participation and Savings Behavior,” 116 Quarterly Journal of Economics 1149 (2001), comparing employee participation in employer-sponsored savings plans under “opt-in” and “optout” enrollment and finding that there is much greater participation when one has to opt out in order to forgo it.
The Supreme Court pertinently observed in its Hobby Lobby opinion that the official accommodation (the accommodation that Notre Dame wants to escape from) would not impede “women’s receipt of benefits by requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit.” 134 S. Ct. at 2783. So far as we can tell from an undeveloped record, the alternatives suggested by Notre Dame would impede the receipt of such benefits.
Notre Dame says in its position statement that the government has “many alternative ways of providing free contraceptive coverage without using the health plans of objecting religious non-profits as the conduit” (emphasis added). Put to one side the question in what sense students and staff

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dealing directly as they now do with Aetna and Meritain are “using” Notre Dame’s health plans—plans that exclude contraception coverage. Our present concern is that Notre Dame has thus far failed to explain the “many alternative ways” (elsewhere it refers to “the myriad ways” or “any number of ways” in which the government can provide free contraceptive coverage to Notre Dame’s students and staff)—and it admits that it (that is, Notre Dame) “opposes many of these alternatives on policy grounds.”
It lists the following “myriad ways”: The government could
(i) directly provide contraceptive services to the few individuals who do not receive it under their health plans;
(ii) offer grants to entities that already provide contraceptive services at free or subsidized rates and/or work with these entities to expand delivery of the services;
(iii) directly offer insurance coverage for contraceptive services;
(iv) grant tax credits or deductions to women who purchase contraceptive services; or
(v) allow Notre Dame and other Catholic non-profit organizations to comply with the Mandate [what we are calling the accommodation or official accommodation] by providing coverage for methods of family planning consistent with Catholic beliefs (i.e., Natural Family Planning training and materials).
Number v is not contraception at all; iv elides all consideration of the costs and complications of the administrative machinery for providing tax incentives to consumers; options i through iii similarly would involve cumbersome administrative machinery and at the same time impose a bur-

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den on Notre Dame’s female students and employees who want to obtain contraceptives.
Nor does Notre Dame explain how a government program that directly or indirectly provided contraception coverage to Notre Dame employees—as Notre Dame suggests— would avoid complicity in sin. Were Notre Dame to hire an unemployed person who, by virtue of becoming employed by Notre Dame, obtained contraception coverage for the first time, would not the university be “triggering” the new employee’s access to contraception?
We point out, finally, that a religious institution does not have to sign FSBA 700 in order to exempt itself from the requirement of providing contraceptive coverage to employees and (if the institution is a college or university) students. It can in the alternative notify the Department of Health and Human Services. That was the alternative chosen by another institution of higher learning that was unwilling to provide contraceptive coverage or even sign the FSBA 700. In Wheaton College v. Burwell, 134 S. Ct. 2806 (2014) (per curiam), the Supreme Court said that “if the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.” We assume that

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Notre Dame could ask Aetna and Meritain to ignore its submission to them of the signed FSBA 700, and instead could itself inform the Secretary of Health and Human Services of its desire to be exempt on religious grounds from providing contraceptive coverage; undoubtedly the Secretary would agree.
Notre Dame tells us that it likewise objects to that alternative. But based on the sparse record before us, there is a strong argument that given the government’s legitimate interest in the provision of contraceptive coverage to women without cost to them, notice to the government would strike the proper balance between legitimate governmental and sincere religious interests. That was the accommodation sought and received by Wheaton College.
We are put in mind of Bowen v. Roy, 476 U.S. 693 (1986). Roy objected that any use of his daughter’s Social Security number would substantially burden his religious beliefs because he believed that use of that unique identifier would harm her spirit. He wanted an accommodation that would relieve him of the burden of providing the number in his applications for welfare and food stamps and prevent the government from using the number in its internal administration. The Supreme Court refused. It said that “Roy may no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets.” Id. at 700. The very word “accommodation” implies a balance of competing interests; and when we compare the burden on the government or third parties of having to establish some entirely new method of providing contraceptive coverage with the

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burden on Notre Dame of simply notifying the government that the ball is now in the government’s court, we cannot conclude that Notre Dame has yet established its right to the injunctive relief that it is seeking before trial. The mandate to cover contraceptive care as part of any broad health insurance package provided by employers (or in the case of educational institutions, students as well) was intended to minimize financial, administrative, and logistical obstacles to such coverage. See 78 Fed. Reg. 39888 (July 2, 2013), rejecting alternative proposals and explaining the importance of minimizing costs and logistical and administrative obstacles to contraceptive coverage; see also Priests for Life v. U.S. Dept. of Health & Human Services, supra, 772 F.3d at 265. All of Notre Dame’s suggested alternatives would impose significant financial, administrative, and logistical obstacles by requiring women to sign up for separate coverage either with a government agency or with another private insurer. Such obstacles were considered by the Supreme Court in Hobby Lobby in support of the same accommodation that Notre Dame refuses to accept.
We emphasize in closing the tentative character of the analysis in this opinion. The record is insufficiently developed to enable us to rule definitively on Notre Dame’s claims. The burden of establishing an entitlement to a preliminary injunction was of course on the university, not on the government. The burden has not been carried. Chief Judge Simon’s denial of preliminary relief is therefore once again
AFFIRMED.

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HAMILTON, Circuit Judge, concurring. I join Judge Posner’s opinion in full. Notre Dame is not entitled to preliminary injunctive relief at this point. While the ultimate decision on the merits of this case remains uncertain, equitable considerations weigh against a grant of a preliminary injunction now. An injunction would disrupt the status quo and temporarily cut off contraceptive coverage for hundreds or thousands of women.
What this case needs now is a trial on the merits where the relevant factual issues can be explored in depth. The limited factual record before us was made in the district court on an emergency basis in December 2013. That record was also made without the participation of the intervenors, who would be affected most directly by the injunction Notre Dame seeks. Since that time, also, the legal and factual landscapes shaping the issues have shifted a good deal.
Where the law is evolving rapidly and the facts are complex, the better course is usually full exploration of the evidence and thorough findings of fact by the district court, rather than reliance on sweeping legal doctrines and hypothesized or assumed facts. See Lalonde v. Textron, Inc., 369 F.3d 1, 6 (1st Cir. 2004) (vacating in part dismissal of ERISA case challenging actions of employee stock ownership plan and allowing for factual development where law was “neither mature nor uniform”); Doe v. Walker, 193 F.3d 42, 46 (1st Cir. 1999) (Boudin, J.) (vacating dismissal on issue with “important social and moral implications” where further factual development might make it unnecessary to decide hard case and in any event would be “likely to contribute to a more sensitive assessment of what the law ‘is’ (which, absent deci-

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sive precedent, means what it ‘should be’)”); Nelson v. IPALCO Enterprises, Inc., 2005 WL 1924332, at *3 (S.D. Ind. Aug. 11, 2005) (denying cross-motions for summary judgment to allow further factual development where applicable law was “emerging, controversial, and highly factsensitive”). The district court is best suited for those responsibilities even where—and perhaps especially where—the appellate courts are still debating the applicable law.
For now, however, the Supreme Court has ordered us to reconsider our earlier interlocutory decision in light of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. —, 134 S. Ct. 2751 (2014). The accommodation for religious not-for-profits like Notre Dame played a pivotal role in Hobby Lobby, but not in a way that helps Notre Dame in this case. Hobby Lobby Stores is a for-profit corporation that was not eligible for this accommodation. The very existence of the accommodation for religious not-for-profits, however, persuaded the Supreme Court that the government could achieve its purpose of making contraceptives available to employees and their families without infringing on Hobby Lobby’s religious beliefs. 134 S. Ct. at 2782.
The Court’s conclusion focused on how the accommodation allowed the employer to avoid paying for contraceptives contrary to the owners’ religious beliefs while still making them available to employees and their families in a convenient and seamless way. In praising the accommodation, the Court explained that the effect of the accommodation on employees “would be precisely zero. Under that accommodation, these women would still be entitled to all FDAapproved contraceptives without cost sharing.” 134 S. Ct. at 2760. Justice Kennedy’s concurring opinion embraced the

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accommodation as a fully satisfactory alternative for accomplishing the government’s objectives without infringing on Hobby Lobby’s religious beliefs. 134 S. Ct. at 2786–87 (Kennedy, J., concurring). He also made clear that neither he nor the other Justices in the majority expected the government to create “a whole new program or burden on the Government” to provide the accommodation needed by the forprofit employer-plaintiffs. Id.
The accommodation for religious not-for-profits thus made it fairly easy for the Hobby Lobby Court to find that a less restrictive and equally effective alternative was available to accomplish the government’s purposes, which the Court assumed were compelling. The Court’s solution was to extend the accommodation to religious owners of closely held businesses.
What does Hobby Lobby teach us about this case? In deciding Hobby Lobby, the Supreme Court was well aware of pending lawsuits like this one, in which religious not-forprofits have challenged the accommodation itself as violating their rights under the Religious Freedom Restoration Act. The majority opinion referred to this category of cases in footnote 9 and wrote later “We do not decide today whether an approach of this type [i.e., the accommodation] complies with RFRA for purposes of all religious claims.” 134 S. Ct. at 2782 & n.40.
Despite this inconclusive comment, it is useful to consider in turn the three principal issues under RFRA in light of the Court’s remand order after Hobby Lobby. Those issues are: (1) “substantial burden” on the exercise of religion; (2) compelling governmental interests; and (3) less restrictive alternatives.

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1. Substantial Burden: Notre Dame reads Hobby Lobby as resolving conclusively in its favor the issue whether the accommodation substantially burdens its exercise of its religion. In Hobby Lobby, the Court found that the Affordable Care Act’s requirements for contraceptive coverage by forprofit employers substantially burdened the plaintiffs’ exercise of religion. The employers were required by law to contract and pay for contraceptive coverage to which the employers’ owners objected on sincere religious grounds. The alternatives to compliance would have imposed stiff financial consequences, which the Court deemed a substantial burden. 134 S. Ct. at 2776–77. Notre Dame faces essentially the same financial consequences if it refuses to certify its eligibility for the religious accommodation.
Notre Dame finds most helpful to its position the Hobby Lobby rejection of the government’s argument that the role of the employer in contracting and paying for contraceptive coverage was too remote from an employee’s use of contraceptives to impose a substantial burden on the exercise of religion. Federal courts had no business addressing whether the plaintiffs’ religious beliefs about their moral complicity were reasonable. Id. at 2778. The Court explained:
This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and

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the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.
134 S. Ct. at 2778 (footnote omitted).
The accommodation for religious not-for-profits accepts an employer’s religious beliefs and provides a mechanism to provide coverage to employees and their families, while making sure that the employer need not contract, arrange, pay, or refer for the health care it finds objectionable on religious grounds. Notre Dame asserts, however, that the mere act of requesting the exemption substantially burdens its religious exercise because it still has an attenuated role in causing its employees and students to receive the objectionable coverage. Citing Hobby Lobby, Notre Dame asserts that its opinion or belief is beyond the reach of a federal court, apart from questions of sincerity.
It is not obvious that the reasoning of Hobby Lobby on the substantial burden issue extends to this case. There are important differences between the cases: Notre Dame challenges not the general rule but the accommodation itself, and it attempts to prevent the government from arranging for a substitute for the employer to pay for contraceptive care. Notre Dame also contends, in effect, that its religious belief can substitute for legal analysis regarding the operation of federal law.
Any student of United States history learns the central roles that religious faith and tolerance have played in the settlement of this land and in the founding of the British colonies and the modern States and the federal Republic. We have a long tradition of governing in ways that accommo-

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date the free exercise of religion. Special treatment of religious faith and practice abounds. From conscientious objector status in the military draft to federal and state tax codes, from compulsory school attendance laws to school lunch menus, from zoning law to employment law and even fish and wildlife rules, our governments at every level have long made room for religious faith by allowing exceptions from generally applicable laws. Through such exceptions and accommodations, we respect diverse faiths, and we govern with reasonable compromises that avoid unnecessary friction between law and faith.
As we pointed out in our first opinion in this case, the most extraordinary feature of this lawsuit is Notre Dame’s claim that the process of requesting the accommodation is itself a substantial burden on its religious exercise. Notre Dame v. Sebelius, 743 F.3d 547, 557–58 (7th Cir. 2014). True, there are rare cases in which courts have considered the possibility that an accommodation process itself might be too prolonged, intrusive, ineffective, and/or otherwise burdensome. See, e.g., Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005), and cases cited there dealing with land-use decisions, and United States v. Friday, 525 F.3d 938 (10th Cir. 2008), and cases cited there, dealing with processes for seeking permits to kill protected wildlife for use in Native American religious practices.
The accommodation in this case, however, poses no such burdens. To take advantage of the accommodation, so that Notre Dame can avoid contracting, paying, arranging, or referring for the objectionable contraceptive care, a university official must only fill out a simple form asserting that Notre

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Dame is a not-for-profit employer that objects on religious grounds to the law’s contraceptive coverage requirements. The official must then send the form to either the Department of Health and Human Services or the insurer or thirdparty administrator. Notre Dame has already done so, and it need do nothing more.
As Judge Posner’s opinion explains, Bowen v. Roy, 476 U.S. 693 (1986), weighs against Notre Dame’s claim of a substantial burden here. Roy had objected on religious grounds to the government’s use of his daughter’s Social Security number to administer federal benefits for the family. The Supreme Court rejected the challenge, holding: “The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Id. at 699.
Notre Dame’s position is analogous. At this point, Notre Dame has requested the accommodation and provided the government with contact information for Aetna and Meritain. The government requires no further action from Notre Dame. The government has informed Aetna and Meritain of their federal obligations to provide contraceptive coverage that Notre Dame has been exempted from providing. The government’s steps to have others substitute for Notre Dame are parallel to the internal procedures at issue in Roy.
Notre Dame disagrees, arguing that only it can answer what it says is the religious question of whether its religious exercise is substantially burdened by the government’s actions. But the Court rejected precisely that argument when it was advanced by Roy. “The Federal Government’s use of a Social Security number for Little Bird of the Snow does not

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itself in any degree impair Roy’s ‘freedom to believe, express, and exercise’ his religion.” 476 U.S. at 700–01.
While the Court acknowledged that “Roy's religious views may not accept this distinction between individual and governmental conduct,” id. at 701 n.6, the Court concluded that this was ultimately a legal question, not a religious one: “It is clear, however, that the Free Exercise Clause, and the Constitution generally, recognize such a distinction; for the adjudication of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the frame of reference.” Id. Under Roy, whether the government is causing a substantial burden on a person’s religious exercise is a question of federal law. Accord, Geneva College v. Secretary of the United States Dep’t of Health and Human Services, 778 F.3d 422, 436–38 (3rd Cir. 2015) (courts must consider substantial burden issue under RFRA); Priests for Life v. Burwell, 772 F.3d 229, 247–49 (D.C. Cir. 2014); Michigan Catholic Conference v. Burwell, 755 F.3d 372, 385–87 (6th Cir. 2014), remanded, 2015 WL 1879768 (April 27, 2015).
Notre Dame argues, however, that the consequence of its certification and exemption imposes the substantial burden. The consequence is that federal law then requires other entities (Meritain and Aetna) to step in as substitutes to provide contraceptive coverage directly to Notre Dame employees and students, respectively, and to their families. Notre Dame objects to this consequence on religious grounds and says it could avoid this consequence only by incurring burdensome financial penalties.
The problem with this argument is that regardless of Notre Dame’s choice—to provide contraceptive coverage, to invoke the accommodation for religious not-for-profits, or

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even not to provide any health insurance coverage at all— those employees and students would receive contraceptive coverage through some form of health insurance. As we and other circuits have pointed out, their coverage results from federal law, not from Notre Dame’s actions.
This is an issue not of moral philosophy but of federal law. Federal courts are not required to treat Notre Dame’s erroneous legal interpretation as beyond their reach—even if that interpretation is also a sincere and religious belief. Notre Dame is not entitled to nullify the law’s benefits for others based on this mistake of law, which is the foundation of its claim of a substantial burden.1
As in Roy, Notre Dame’s “religious views may not accept this distinction.” 476 U.S. at 701 n.6. But the courts cannot substitute even the most sincere religious beliefs for legal analysis. To do so would “afford an individual a right to dictate the conduct of the Government’s internal procedures,” which the Court has expressly rejected. Id. at 700.
A comparison to the military draft helps to illustrate the extraordinary nature of Notre Dame’s objection to the government’s accommodation and finding of substitutes for it. Federal law allows for exemption from military training and service for any person “who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” 50 App. U.S.C. § 456(j). (The process for claiming conscientious objector status is far more demanding than

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

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the accommodation to which Notre Dame objects, but that’s not my focus here.) Suppose a person’s religious faith leads him to believe that it is wrong for people to engage in war. He applies for conscientious objector status. The local draft board grants him the exemption.
But suppose a board member then points out that because the objector will not be drafted, someone else will be drafted in his place. He objects again, asserting, much as Notre Dame does here, that if his exemption means someone else must substitute for him to engage in wrongdoing, he will be morally responsible for it and his religious exercise will be substantially burdened. Citing RFRA, he therefore demands that he be exempted without a substitute.
As we said in our prior opinion, that seems a “fantastic suggestion.” Notre Dame, 743 F.3d at 556. Yet Notre Dame has embraced that reasoning. It argues that national catastrophe could be avoided by treating the substitute draftee as the least restrictive means to achieve a compelling governmental purpose. See Notre Dame Rule 54 Statement at 11 n.4. This seems wrong in two fundamental ways.
First, for reasons explained above, the arrangements the government makes to find substitutes for those given the benefit of a religious exemption are imposed as a matter of federal law, not as a result of the exemption itself. The party claiming the exemption is not entitled to raise a religious objection to the arrangements the government makes for a substitute. See Geneva College, 778 F.3d at 439 n.14 (making similar point with example of employee who asks for time off to accommodate his religion, but who then objects to employer’s substitution for him). And not coincidentally, the government’s ability to find substitutes fits well with the Su-

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preme Court’s decision, just a few days after it decided Hobby Lobby, in a RFRA case much more similar to this one. In Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), the Court issued an interim order allowing another religious college to invoke the exemption by notifying the government rather than its insurer. The Court pointed out: “Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” Id. at 2807. In other words, the Court’s order allowed the government to pass the notice on to the insurer so that the insurer could comply with its obligations under federal law. That order left Wheaton College essentially where Notre Dame is now.
Second, if even such mistaken and attenuated objections were sufficient to invoke RFRA’s stringent least-restrictivemeans test, fair governance where the law imposes burdens on individuals would become nearly impossible. In the draft context, the conscientious objector could argue, much as Notre Dame does here, in favor of an all-volunteer military as a less restrictive means. Should arguments for such radical restructuring of government programs be sufficient under RFRA? And in contexts not involving national security and defense, would government accommodations of religion that require finding substitutes all have to satisfy compelling-interest, least-restrictive-means scrutiny?
For these reasons, RFRA should not be understood to recognize such mistaken views about substitutes as “substantial burdens” on religious belief. Accord, Geneva College, 778 F.3d at 438; Priests for Life, 772 F.3d at 251, 256; Michigan Catholic Conference, 755 F.3d at 388; see generally Bowen v. Roy, 476 U.S. at 699–700; Kaemmerling v. Lappin, 553 F.3d 669,

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679–80 (D.C. Cir. 2008) (prisoner’s religious exercise not burdened by government’s analysis of DNA taken from his tissue sample).
2. Compelling Governmental Interest: Even if Notre Dame can ultimately show a substantial burden on its religious belief, the next major issue under RFRA is whether imposing the burden on Notre Dame furthers a “compelling governmental interest.” 42 U.S.C. § 2000bb–1. In the abbreviated district court proceedings back in December 2013, the federal government did not contest this issue because of our ruling in Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013), though the government preserved its right to dispute the issue in the future.
Hobby Lobby now shows that the government has a strong argument on the compelling-interest issue. The Hobby Lobby majority assumed that the burden on those plaintiffs would serve a compelling governmental interest. 134 S. Ct. at 2780. Justice Kennedy’s concurring opinion made clear that he viewed the governmental interests as compelling. Id. at 2786 (“It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”). And all four dissenting Justices viewed the government interests as compelling. Id. at 2799–2801 (Ginsburg, J., dissenting). The compelling interests include women’s health, the role that access to contraception plays in enabling women to participate fully and equally in society, and significant cost savings. See 78 Fed. Reg. 39870, 39873 & nn. 22, 23, & 24 (July 2, 2013) (final rules). The D.C. Circuit has explained in detail the factual

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bases for the government’s compelling interests. See Priests for Life, 772 F.3d at 257–64.
3. Least Restrictive Means: If the RFRA analysis proceeds to whether the accommodation for religious not-for-profits like Notre Dame is the least restrictive means of furthering the government’s interest, the question demands much more exploration than was possible in the emergency proceedings in the district court back in December 2013.
The general mandate to cover contraceptive care as part of any broad health insurance package provided by employers was intended to minimize financial, administrative, and logistical obstacles to such coverage. 78 Fed. Reg. at 39888 (rejecting alternative proposals and explaining importance of avoiding incremental costs and minimizing logistical and administrative obstacles for contraceptive coverage); Priests for Life, 772 F.3d at 265. The accommodation for religious notfor-profits has also been designed to minimize those obstacles.
Notre Dame’s suggested alternatives would all impose significant financial, administrative, and logistical obstacles by requiring women to sign up for separate coverage, either with a government agency or another private insurer, and to pay additional costs unless the government paid for the program. Such obstacles were specifically considered in Hobby Lobby. In debating whether the accommodation would suffice for the for-profit employers, the majority and dissent paid close attention to cost and to administrative and logistical obstacles. See 134 S. Ct. at 2782–83 (under the accommodation, plaintiffs’ employees would continue to receive contraceptive coverage without cost sharing and with “minimal logistical and administrative obstacles”); id. at 2802 (Gins-

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burg, J., dissenting) (new government program as substitute would impose obstacles to effective coverage). Those concerns about effectiveness of alternatives seem to have substantial merit. They deserve exploration in the district court.
The least-restrictive-means issue also presents a question of law for which the contours are not yet well-defined. The legal question is in essence the scope of imagination permitted in thinking of supposedly less restrictive means.
The heart of the Affordable Care Act was a decision to approach universal health insurance by expanding the employer-based system of private health insurance that had evolved in our country, rather than to substitute a new “single payer” government program to pay for health care, like the systems in place in the United Kingdom and Canada. I do not see support for Notre Dame’s view that a leastrestrictive-means analysis would need to consider such radically different alternatives.
In fact, Justice Kennedy’s Hobby Lobby concurrence emphasized that the accommodation for religious not-forprofits was an “existing, recognized, workable, and alreadyimplemented framework to provide coverage” for employees with an objecting employer. 134 S. Ct. at 2786 (Kennedy, J., concurring). In finding that the accommodation was a less restrictive alternative, Justice Kennedy noted that “the Government has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections under this established framework.” Id. (emphasis added). He also commented that accommodation was possible “without imposition of a whole new program or burden on the Government.” Id.

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Consistent with those observations, I doubt that a hypothetical new single-payer program for contraceptives, which would require separate registration or application, would be for RFRA purposes a “less restrictive” means of achieving the government’s interests. It also seems likely that such a program would impose the sort of logistical and administrative obstacles of such concern in Hobby Lobby.
Further fact-finding in the district court may cast the case in a different light, of course. But for all of these reasons, as well as those explained in Judge Posner’s opinion, I continue to agree that Chief Judge Simon properly denied a preliminary injunction in this case.

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FLAUM, Circuit Judge, dissenting.

By requiring health insurers to provide contraceptive coverage, the Patient Protection and Affordable Care Act (“ACA”) forces Notre Dame to act in ways it says violate its religious beliefs. The resultant burden on Notre Dame’s rights is substantial: because Notre Dame offers health insurance to its students, and especially because it acts as a self-insurer for its employees, the law turns Notre Dame into a conduit for the provision of cost-free contraception. It also compels Notre Dame to contract with parties—Meritain and Aetna—in a manner in which Notre Dame believes makes it complicit in moral wrong. Notre Dame’s only alternative is to endure crippling fines.

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

*

*

*

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The Catholic Church—like all religious employers—is exempt from the ACA’s contraceptive mandate. See Hobby Lobby, 134 S. Ct. at 2763. The U.S. Department of Health & Human Services excluded churches and religious orders from its edict, permitting them to offer employee health insurance that does not include coverage for contraception. Notre Dame seeks that same treatment, because it has the same religious objections to rendering available contraceptive health coverage for those it employs (and those that attend its school, in Notre Dame’s case). At present, Notre Dame—as a nonprofit religious organization that opposes providing contraceptive coverage—may avail itself of what has become commonly referred to as “the accommodation,” see e.g., 45 C.F.R. § 147.131(b), the effects of which Notre Dame says also violate its religious beliefs.
Notre Dame has two distinct roles as far as health insurance is concerned. With respect to its employees, Notre Dame acts as a self-insurer (hiring Meritain as the third-party administrator of its insurance plan). For its students, Notre Dame acts as an insurance broker (negotiating on their behalf to offer them an insurance plan through insurer Aetna). When Notre Dame invoked the accommodation, its relationship with both Meritain and Aetna changed because of the ACA. Meritain, its thirdparty administrator, became both authorized and required to offer contraceptive coverage to Notre Dame’s employees. See Wheaton Coll. v. Burwell, 134 S. Ct. 2806, 2814 n.6 (2014) (Sotomayor, J., dissenting) (noting that a religious university’s “third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification” (emphasis add-

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ed)). Aetna, as the insurer for the student plans, became obligated to segregate premium payments from Notre Dame’s students and to provide them with contraceptive coverage at Aetna’s expense, separate and apart from the insurance plan offered by the school. See Hobby Lobby, 134 S. Ct. at 2763 (“When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employees beneficiaries.”(citing 45 C.F.R. § 147.131(c)).
While Notre Dame is no longer obligated to pay for contraceptive services for its employees, it’s apparent to me that, at a minimum, the ACA thrusts Notre Dame into a facilitator’s role that, Notre Dame says, violates its religious beliefs by forcing it to serve as a continuing link between Meritain and the contraceptive services it provides to Notre Dame’s employees.
With regard to the student health plan, there seems to be outstanding disagreement over whether Notre Dame’s invocation of the accommodation “triggers” Aetna’s obligation to cover student contraception. See Wheaton Coll., 134 S. Ct. at 2807 (majority opinion) (“The Government contends that the applicant’s health insurance issuer … [is] required by federal law to provide full contraceptive coverage regardless [of] whether the applicant” invokes the accommodation, while Wheaton College “contends, by contrast, that the obligations of its health insurance issuer ... are dependent on their receipt of notice that the

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applicant objects to the contraceptive coverage requirement.”). But see 42 U.S.C. § 300gg–13(a) (“A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for— … (4) with respect to women, such additional preventive care and screenings … as provided for in comprehensive guidelines supported by the Health Resources and Services Administration … .”). But that question really is of no moment here, because Notre Dame also believes that being driven into an ongoing contractual relationship with an insurer—especially one that Notre Dame chose—that provides its students with contraception compels it to act in contravention of its beliefs.
In Notre Dame’s view, the ACA alters its relationships with both Meritain and Aetna in a way that renders Notre Dame morally complicit in the provision of contraception. Put simply, Notre Dame is too engaged in a process—the very premise of which offends its religion— that the church itself is exempted from entirely.
The majority appears to minimize the significance of Notre Dame’s position by focusing on its continued objection to the mandate in the face of a proffered accommodation. I believe that any inquiry into the rationality of that position is precluded by the Supreme Court’s decision in Hobby Lobby, which in my view underscores the legitimacy of Notre Dame’s religious objection. There, as here, HHS’s main argument was “basically that the connection between what the objecting parties must do … and the end that they find to be morally wrong … [was]

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simply too attenuated.” 134 S. Ct. at 2777. However, the Supreme Court made clear that this position, at least in this narrow context, is untenable. That’s because it “dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable).” Id. at 2778 (emphasis in original).
Like the plaintiffs’ challenge in Hobby Lobby, Notre Dame’s deeply held religious beliefs about contraception and the formation and prevention of human life “implicate[] a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Id. Notre Dame is no doubt differently situated than the Hobby Lobby plaintiffs, who had to directly provide contraceptive insurance. Nevertheless, the ACA also places Notre Dame in a position that contravenes its belief system. Yet the majority here sides with HHS, and “in effect tell[s] the plaintiff[] that [its] beliefs are flawed.”1 Id. The

1 To the extent the majority views Notre Dame’s burden as less substantial than the burden imposed on the plaintiffs in Hobby Lobby (and thus not actionable under RFRA) because Notre Dame is further removed from the direct provision of contraception, I suggest that analysis is flawed. Hobby Lobby instructs that, once we determine a religious belief is burdened, substantiality is measured by the se-

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Hobby Lobby Court, however, rejected that position. See id. (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine … the plausibility of a religious claim.” (quoting Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 887 (1990))). And so do I.
For that reason, the Hobby Lobby Court had “little trouble concluding” that “the HHS contraceptive mandate ‘substantially burden[ed]’ the exercise of religion” in view of the plaintiffs’ asserted beliefs.2 Id. at 2775. The Court thus proceeded to the compelling interest component of the RFRA test. See id. at 2779 (“Since the HHS con-
–––
verity of the penalties for non-compliance. 134 S. Ct. at 2759, 2775– 76. Because the contraceptive mandate forced the Hobby Lobby plaintiffs “to pay an enormous sum of money ... if they insist[ed] on providing insurance coverage in accordance with their religious beliefs, the mandate clearly impose[d] a substantial burden on those beliefs.” Id. at 2779. Here, Notre Dame faces the same penalties the Hobby Lobby plaintiffs faced: $100 per day for each affected individual. 42 U.S.C. § 300gg-22(b)(2)(C). “These sums are surely substantial.” Hobby Lobby, 134 S. Ct. at 2776.
2 I would be remiss not to note that just one week after the Supreme Court issued its opinion in Hobby Lobby, Wheaton College—which, on the basis of our first (and now vacated) decision in this case was denied a preliminary injunction in its own Seventh Circuit suit challenging the contraceptive mandate’s accommodation provision— sought and was granted emergency relief by the Supreme Court. Wheaton Coll., 134 S. Ct. at 2807. In granting the preliminary injunction, the Court necessarily found (at least for preliminary injunctive purposes) that the accommodation substantially burdened Wheaton College. Notre Dame challenges that same (though slightly revised) accommodation.

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

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

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gious practice, the burden shifts to the government to justify the burden under strict scrutiny”). Indeed, the government—in this very case—conceded in its brief to the district court that Korte dictates the issuance of a preliminary injunction if the court finds a substantial burden on Notre Dame’s religious beliefs. See Defs.’ Resp. in Opp’n to Pl.’s Mot. for Prelim. Inj., supra, at 15–16 (“Defendants recognize that a majority of the Seventh Circuit rejected these arguments [that the regulations satisfy strict scrutiny because they are narrowly tailored to serve compelling governmental interests in public health and gender equality] in Korte, and that this Court is bound by that decision.”). In Korte, we granted the preliminary injunction because the government had made minimal efforts “to explain how the contraception mandate is the least restrictive means of furthering its stated goals of promoting public health and gender equality.” 735 F.3d at 687. Korte, of course, was our iteration of Hobby Lobby, and it remains the law of this circuit—yet it appears not to instruct the majority.
The majority observes that Notre Dame has presented “possible alternatives” to the accommodation that would not infringe its religious exercise. Yet it concludes that Notre Dame has failed to present an adequate proposal for how the government can efficiently (and conveniently) implement and administer an alternative program. But to reiterate, Hobby Lobby expressly informs— consistent with Korte—that it is the government’s, not Notre Dame’s, burden to establish that the accommodation is the least restrictive means of advancing a compelling government interest. Moreover, the suggestion by the majority that any alternative method of advancing

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the government’s interests would likely be too costly or cumbersome to the government turns a blind eye to the Supreme Court’s latest teachings. What matters under RFRA is whether the means by which the government is attempting to advance its compelling interest is the least burdensome on Notre Dame’s religious beliefs. Accordingly, RFRA may require the government to start over and “creat[e] … entirely new programs,” and it “may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.” Hobby Lobby, 134 S. Ct. at 2781. For those reasons, the Supreme Court made clear that, in this sphere, “[t]he most straightforward way” of serving the Government’s interests would be for it to assume the cost of providing contraception “to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Id. at 2780. Here, as in Hobby Lobby, “HHS has not shown … that this is not a viable alternative.” Id. For that reason, I would reverse the decision of the district court denying Notre Dame a preliminary injunction.

 
 USDC IN/ND case 3:13-cv-01276-PPS-MGG document 76-1 filed 08/03/15 page 1 of 1

Case: 13-3853 Document: 00712579510

Filed: 08/03/2015 Pages: 1

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604

July 24, 2015 Before
RICHARD A. POSNER, Circuit Judge JOEL M. FLAUM, Circuit Judge DAVID F. HAMILTON, Circuit Judge

No. 13-3853
UNIVERSITY OF NOTRE DAME, Plaintiff-Appellant,
v.
SYLVIA MATHEWS BURWELL, Secretary of U.S. Department of Health and Human Services, et al.,
Defendants-Appellees,

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

and
JANE DOE 3, Intervening-Appellee.

O R D E R

On July 2, 2015, plaintiff-appellant filed a petition for rehearing and for rehearing en banc. All the judges on the original panel have voted to deny rehearing and none of the court’s active judges has requested a vote on whether to rehear the case en banc.* The petition is therefore DENIED.

* Judge Ann Claire Williams did not participate in the consideration of this petition for rehearing.

 
 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made th is 13th day of October 2017, by and between the entities and individuals listed in Exhibit A ("Plaintiffs") and the United States of America, acting by and through Eric D. Hargan, in hi s offic ial capacity as Acting Secretary of Health and Human Services; R. A lexander Acosta, in hi s offic ial capacity as Secretary ofLabor; Steven T. M nuchin, in his official capacity as Secretary of the Treasury; the United States Department of Health and Human Services; the United States Department ofLabor; and the United States Department of the Treasury (the "Government" or the " D epartme nts") (collectively, the " Parties").
R EC ITALS WHEREAS, there is now pending a series of lawsuits listed in Exh ibit B (collectively, the " Litigation'") in which Pla intiffs a llege that the Government has, among other things, vio lated the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-I et seq., by promulgating and enforcing regulations pursuant to 42 U.S.C. § 300gg-13 that required Plaintiffs to take actions that facilitated the prov is ion, through or in connection with their health plans, of Food and Drug Administration-approved contraceptive methods and abortifacients, as wel I as sterilization procedures and re lated patient education and counseling to which Plaintiffs object on relig ious grounds ("the Objectionable Coverage"). The regulations were found at 26 C.F.R. § 54.98 l 5-27 I 3A (Sept. 14, 20 15), 26 C.F. R. § 54.98 15-27 13(a)(l)(iv) (July 19, 2010), 29 C.F.R. § 2590.7 152713A (Sept. 14, 2015), 29 C.F. R. § 2590.715- 2713(a)(l)(iv) (July 19, 20 10), 45 C.F.R.
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§ 147.13 1 (Sept. 14, 20 15), and 45 C.F.R. § 147.l30(a)(l)(iv) (July 19, 20 10) (the ·' Regulations' ').
\\'HEREAS, the Departments of Hea lth and Huma n Services, Labor, and T reasury have issued new regulations afford ing Plaintiffs an exemption. 82 Fed. Reg. 47.792 (Oct. 13, 20 17), available at https://www.gpo.gov/ fd sys/pkg/F R-20 17-I 013/pd f/2 017-21851 .pdf.
WHEREAS, those new regulations state that " requiring certain objecting entities or indiv idua ls to choose between the Mandate, the accommodatio n, o r penalties fo r noncompliance imposes a substantia l burden on relig ious exercise under RFRA," that " the application of the Mandate to certa in o bjecting employers [i]s [not] necessary to serve a compelli ng governmental interest,"' and that "alternati ve approaches can further the interest the Departments prev ious ly identified behind the Mandate." 82 Fed. Reg. 47,792, 4 7,800. 47,806 (O ct. 13, 20 17), available at https://www.gpo.gov/fdsys/pkg/FR-20 17- 1013/pdf/20 17-2 185 1.pdf.
WH EREAS, recent Executi ve Orders establish that it is the po licy of the Government •·to vigorous ly enfo rce Federal law's robust protecti ons for re ligious freed om." and to '·exercise al l authority and discretion available ... to waive, defer, grant exem ptio ns from, o r delay the implementation o f any provision o r req uire ment of the [Affordab le Ca re] Act that wou ld impose ... a cost, fee, tax, pena lty, o r regulatory burden on ... health insurers, ... [o r] purchasers of hea lth insurance ." Executi ve Order 13798, Promoting Free Speech and Religio us Liberty 82 Fed. Reg.2 1,675 (May4, 20 17); Executi ve
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Order 13765, Minimizing the Economic Burden on the Patient Protectio n and Affordable Care Act Pending Repeal 82 Fed. Reg. 8,351 (Jan. 20, 2017).
WHEREAS, after yea rs of liti gatio n, the Supreme Court considered the claims m these cases and, instead of reso lving the legal issues, remanded the cases to allow the parties to "resolve any o utstanding issues between them." Zubik v. Burwell, 136 S. Ct. 1557, 1560(2016).
WHEREAS, the Supreme Court's remand orders provided that "the Government may not impose taxes o r penalties on [Plaintiffs] for fa il ure to provide the ... notice" required by the Regu lations. Id. at 1561.
WHEREAS, the new regulations, the Supreme Court's remand order, and the President's Executive Orders have placed this litigation in an extraordi nary posture.
WHEREAS, it is the desire of the Parties to resolve finally and permanently a ll disputes, asserted or unasserted, arising out o f, or related to the matters set forth , a lleged , embraced by, o r otherwi se referred to in the Litigation.
NOW THEREFORE, in consideration of the Rec itals and mutual promises contained herein, including the discontinuation of the pending Litigation, and fo r other good and valuable consideration hereby deemed rece ived , the Parties agree as follows :
TERMS OFAGREEMENT
I. The Paities agree that, under the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Affordable Care Act's "contraceptive mandate." if applied as set out in 26 C.F.R. § 54.98 l 5-27 l 3(a)(l )(iv) (July 19, 2010), 29 C.F.R. §2590.715- 2713(a)(l)(iv) (July 19, 20 10), and 45 C.F.R. § 147.130(a)( l)( iv) (Ju ly
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19, 2010), would .. impose(] a substantial burden on [Plaintiffs'] exercise of religion," id. at 2779, and "violate[] RFRA," id. at 2785. The Government therefore agrees that the "contraception mandate" as described in Hobby lobby cannot be legal ly enforced. under RFRA, against Plaintiffs or their health plans.
2. The Government agrees, with respect to all Plaintiffs, to abide by the terms of the permanent injunction in Zubik v. Sebelius, 13-cv- 1459, l3-cv-303. 20 13 WL 6922024 (W.D. Pa. Dec. 20, 20 13), as it relates to the Objectionable Coverage. The Government accordingly will treat Plaintiffs and their health plans, including their insurance issuers and/or third party administrators in connection with those health plans, as exempt from the Regulations or any materially similar regulation or agency policy. A materially similar regulation or agency policy includes any requirement that Plaintiffs, their insurance issuers, or their third-pa11y administrators provide any of the Objectionable Coverage through or in connection with Plaintiffs' health plans, wh ich means:
a. Plainti ffs (and their insurers and third-party administrators acting in connection with Plaintiffs' health plans) may provide health coverage without the Objectionable Coverage, and no procedure for providing any of the Objectionable Coverage may require any action by Plaintiffs;
b. If the Objectionable Coverage is provided, it may not be provided as part of any health plan sponsored by Plaintiffs, but instead must be provided through a separate and distinct health plan or other arrangement that is separate and distinct from Plaintiffs' health plan;
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c. Plaintiffs or the ir health plans may not be requ ired to pay fo r the provision of the Objectionable Coverage, either directly or indirectly (though Plai ntiffs are not excused from paying generally appl icable taxes);

d. An insurance or health plan card issued in conjunction with Plaintiffs ' hea lth plans may not be used by any person to obtain any of the products or services included within the Objecti onab le Coverage, or payment or reimbursement therefor:

e. No person may receive the Objectionable Coverage as an automatic consequence of enro llment in any health plan sponsored by Plaintiffs;

f.

If the Government seeks to prov ide the Objectionable Coverage to individuals

partic ipating in Plaintiffs' health plans, such provis ion may only be through

separate enrollments by those individuals in a separate and distinct hea lth pl an

or other separate and disti nct arrangement to obtain the Objectionable Coverage;

a nd

g. Any communications regarding the Objectionable Coverage, other than disc losures in plan documents required by federal law that the Obj ectionable Coverage is not covered by the plan or notice provided for in foo tnote I of this agreement, must be separate from communications relating to Plaintiffs' health plans.

3. The Government further agrees to withd raw any letters sent to Plaintiffs· issuers and/or third-party admini strators. pursuant to 29 C.F.R. §2590.715-27 13A and 45

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C.F. R. § 147.1 3 1, as they re late to the provision of any of the Objectionable Coverage with in 14 days of the effective date of this agreement. 1
4. The Government furth er agrees, in light of interim relief ordered by several courts. including the Supreme Court in Zubik, that neither Plaintiffs that are party to this Agreement nor their health plans, insurers, or third-party administrators acting in connection with Plainti ffs' health plans shall be subject to any penalties or other adverse consequences, since August 20 11 , as a result of their non-compIiance with any law or regulati on requiring the provision of the Objectionable Coverage that the government is prohibited from enforcing by the terms of this agreement.
5. Notwithstanding this Agreement, the Plaintiffs retain their full legal rights to challenge any new law, regulation, or other requirement that the government may enact or impose relating to the provision of Objectionable Coverage and to challenge or defend against such action on any grounds they choose (including the Constitution, federal law, and/or this Agreement). Nothing herein shall be construed as an admission or indication that any law, regulation, or other requirement wou ld be lawful or unobj ectionable to Plaintiffs.
6. The Parties agree to resolve all proceedings identified above and to fil e such papers as are necessary to terminate the Litigation. In all cases where appeals are current ly pending, the parties will file dismissals of appea l under Federal Rule of Appellate Procedure
1 The effective date of the withdrawal may be contingent on proper notice being given to participants. If contraception coverage is currently being offered by an issuer or third-party adm inistrator. the cessation of coverage wou ld be effective no sooner than the first day of the first plan year that begins thirty days after the date of this Settlement Agreement (to allow for the provision of notice to plan participants in cases where contraceptive bene fits will no longer be provided). Alternatively, sixty-days advance notice may be given pursuant to 42 U.S.C. § 300ggl 5(d)(4) if app licab le.
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42(b). After the appea ls are dism issed, the parties agree that they wil ljointly file stipulations of dismissal or motions fo r dismissa l under Federa l Rule of Civ il Procedure 41 (a), except in cases where there is a final judgment in the district court. This agreement shall not be effective until the Parties fil e dismissals of all appeals currently pending.
7. The Government agrees to pay Plaintiffs $3 million in costs and fees . 8. The Parties agree that this Agreement constitutes a good-fa ith settlement of the Litigation for good and va luable consideration and acknowledge that it is entered into freely and voluntarily. 9. The Parties further agree that thi s Agreement has been full y read and understood by them, and that each of them has received independent legal advice from their respective attorney(s) as to the effect and import of its prov isions. The Parties furth er agree that this Agreement is being entered into for the express purpose and intention of mak ing and entering inco a full and final compromise, adjustment, and settlement of all c laims which were or could have been asserted in the Litigation, whether or not referred to therein. I0. This Agreement constitutes the sole and entire agreement between Plaintiffs and the Government. and supersedes all prior agreements, negotiations, and discuss ions between the Parties with respect to the subject matter covered hereby. It is express ly understood and agreed that this Agreement may not be altered, amended, waived, mod ified, or otherwise changed except by writing, du ly executed by authorized representatives of Pla intiffs and the Gove rnment, respectively. The Parties furth er acknowledge and agree that they wi ll make no claim at any time or place that this Agreement has been orally supp lemented, mod ified, or altered.
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11. AII signatories represent that they have authority to enter into this Agreement on behalf of the ir respective clients.
12. This Agreement may be executed in counterparts. IN WITNESS WHEREOF, thi s Agreement is executed as of the date and year first indicated above.
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of!O

ON BEHALF OF THE GOVERNM ENT: Deputy Assistant Attorney General Civil Division, U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, District of Columbia 20530 Counsel.for Defendants
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EXHIBIT A

EXHIBIT A
The term "Plaintiffs," as used in the attached settlement agreement includes the fo llowing organ izations and individuals; their subsidi ari es, a ffili ates, and s uccessors; and re lated entities that offer coverage through the health plan of any signatory:
• The Roman Catholic Archdiocese of New York • The Roman Catholic Diocese of Rockville Centre, New York • Catholic Health Care System • Catholic Health Services of Long Island • Cardinal Spe llm an High School • Monsignor Farrell High School • Most Reverend David A. Zubik • Roman Catho lic Diocese of Pittsburgh • Catholic Charities of the Diocese of Pittsburgh, Inc. • Most Reverend Lawrence T. Persico • Roman Catholic Diocese of Erie • St. Martin Center, Inc. • Prince of Peace Center, Inc. • Erie Catho li c Preparatory School • Most Reverend Lawrence Brandt • Most Reverend Edward Matesic • Diocese of Greensburg • Catholic Charities of the Diocese of Greensburg • St. John the Evangelist Regional Catho lic School • Catho lic Diocese of Beaumont • Catholi c Charities of Southeast Texas • Catho li c Chari ties, Diocese of Fort Worth, Inc. • Uni versity of Dallas • Catholic Diocese of Biloxi, Inc.

• The Most Reverend Roger P. Morin, Bishop and President of The Cathol ic Diocese of Biloxi, Inc. and hi s successors in office, as Trustee fo r and on behalf of the Resurrection Catholic School and the Sacred Heart Catho lic School.
• De L'Eppe Deaf Center, Inc. • Catholic Social and Community Services, Inc. of Biloxi • Catholic Diocese of Jackson • The Most Reve rend Joseph N. Latino, Bishop and Chief Executive Officer of the
Catholic Diocese of Jackson, and his successors in office, in accordance with the discipline and government of the Roman Catho lic Church;
• Vicksburg Catho lic Schoo l, Inc. • St. Joseph Catholic School • Catholic Charities, Inc. of Jackson • St. Dominic-Jackson Memorial Hospi tal
• Catholic Diocese of Nashville
• Catholic Charities of Tennessee, Inc.
• Camp Marymount, Inc. • St. Mary Villa, Inc. • Mary, Queen of Angels, Inc.
• St. Cecilia Congregation • Aquinas College
• Michigan Catholic Conference
• Catholic Famil y Services d/b/a Catholic Chari ties Diocese of Kalamazoo • Franciscan Universi ty of Steubenville
• University of Notre Dame • Diocese of Fort Wayne-South Bend, Inc. • Catholic Charities of the Diocese of Fort Wa yne-South Bend, Inc. • St. Anne Home of the Diocese off0 11 Wayne-South Bend, Inc. • Franciscan All iance, Inc. • Specialty Physicians of Illinois, LLC • University of Sa int Francis of Fort Wayne, Ind iana, Inc.

• Our Sunday Visitor, Inc. • Archdiocese of St. Louis • Catholic Charities of St. Louis • Diocese of Cheyenne • Catho li c Charities of Wyoming • St. Joseph's Children's Home • St. Anthony Tri-Parish School (a.k.a, St. Anthony's Tri-Parish Catholic School) • Wyoming Catholic College • The Archdi ocese of Atlanta, an association of churches and schools • Archbishop Wilton 0. Gregory • Catholic Education of North Georgia, Inc. • CathoIic Charities of the Archdiocese of Atlanta, Inc. • The Roman Catho lic Diocese of Savannah; • The Most Rev. Gregory J. Hartmayer, OFM Conv., as Bishop and his successors in
office. • Donald W. Wuerl , Roman Catholic Archbishop of Washi ngton, and his s uccessors in
office, in accordance with the discipline and government of the Roman Catholic Church, a corporation sole (the Archdiocese of Washington) • Consortium of Catholic Academies of the Archdiocese of Washington, Inc. • Archbishop Can·o ll Hi gh School, Inc. • Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc. • Mary of Nazareth Elementary School, Inc. • Catholic Charities of the Archdiocese of Washington , Inc. • Victory Housing, Inc. • The Catholic Information Center, Inc. • The Catholic University of America • Thomas Aqu inas College

EXHIBITB

E XHIBIT B

District Court Roman Catholic Archdiocese ofN. Y. v. Sebelius , No. I2-cv-2542 (E.D.N.Y.). Zubik v. Sebelius,No. 13-cv-1459 (W.D. Pa.).
Persico v. Sebelius, No. l 3-cv-0303 (W.D. Pa.)
Brandl v. Burwell. , No. I4-cv-681 (W.D. Pa.).

Court of Appeals Catholic Health Care Sys. v. Burwell, No. 14-427, (2d Cir.)
Zubik v. Sec'y US Dep't of Health & Human Servs. , Nos. 14-1376, 14-1377 (3d Cir.) Brandl v. Burwell, Nos. 14-4087 & 14-3663 (3d Cir.)

Catholic Diocese ofBiloxi Inc. , et al. v. Burwell, No. l 4-cv-00146 (S.D. Miss.). Universily ofDallas v. Burwell, No. l 2-cv-00314 (N. D. Texas) Catholic Diocese ofBeaumont v. Sebelius, No. I :13-cv-709 (E.D. Texas) Michigan Catholic Co1?ference v. Sebelius, No. l 3-cv-1247 (W.D. Mich.) Catholic Diocese ofNashville v. Sebelius, No. 3:13-01303 (M.D . Tenn.)
Franciscan University a_(Steubenville v. Sebelius, No. 12-CV-440 (S.D. Ohio) University ofNotre Dame v. Sebelius No. 13-cv- 1276 (N.D. Ind.)
Diocese ofFt. Wayne-South Bend v. Burwell, No. 12-cv- 159, (N.D. Ind. 2013). Archdiocese ofSt. Louis v. Burwell, No. I3-cv-2300 (E.D. Mo.).

No ne
Catholic Diocese ofBeaumont v. Burwell, Nos. 14-40212, 14-1024 1, 14-1066 I. (5th Cir.),
Michigan Catholic Conference v. Burwell, Nos. 13-2723, 13-6640 (6th Cir.).
None
University ofNotre Dame v. Sebelius, No. 13-3853 (7th Cir.). Diocese ofFt. Wayne-South Bend v. Bunvell, No. 14-1431 (7th Cir.) Archdiocese ofSt. Louis, et al v. Burwell, No. 14-3016 (8th Cir.)

Diocese ofCheyenne v. Sebelius, No. I4-cv-00021 (0. Wyo.) Roman Catholic Archdiocese ofAtlanta v. Sebelius , No. 12-cv-03489 (N.0. Ga.). Roman Catholic Archbishop o.fWashington v. Sebelius, No. l 3-cv-144 l (0 .0.C.).

Diocese ofCheyenne v. Burwell, No. 14-8040 (10th Cir.). Roman Catholic Archdiocese ofAtlanta v. Burwell, Nos. 14-12890, 14-13239 (11th Cir.). Roman Catholic Archbishop ofWashington v. Burwell, Nos. 13-5371 , 14-5021 (0.C. Cir.)

2

 
 USDC IN/ND Case: 3:13-cv-1276 As of: 11/27/2017 01:50 PM EST 1 of 9 CASREF,CSSTAY,TERMED
U.S. District Court Northern District of Indiana [LIVE] USDC Northern Indiana (South Bend)
CIVIL DOCKET FOR CASE #: 3:13−cv−01276−PPS−MGG

Notre Dame University of v. Sebelius et al Assigned to: Chief Judge Philip P Simon Referred to: Magistrate Judge Michael G Gotsch, Sr Case in other court: USCA, 13−03853 Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 12/03/2013 Date Terminated: 10/24/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Notre Dame University of

represented by Matthew A Kairis Jones Day − Col/OH 325 John H McConnell Blvd Suite 600 PO Box 165017 Columbus, OH 43216−5017 614−281−3605 Fax: 614−461−4198 Email: makairis@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M Kilmartin Jones Day − Pit/PA 500 Grant St Suite 4500 Pittsburgh, PA 15219 412−391−3939 Fax: 412−394−7959 Email: amkilmartin@jonesday.com TERMINATED: 09/17/2015

Melissa D Palmisciano Jones Day − Col/OH 325 John H McConnell Blvd Suite 600 PO Box 165017 Columbus, OH 43216−5017 614−469−3950 Fax: 614−461−4198 Email: mpalmisciano@jonesday.com TERMINATED: 09/29/2016

V.
Defendant
Kathleen Sebelius in her official capacity as Secretary of the US Department of Health and Human Services

represented by Jacek Pruski AUSA US Department of Justice − Was/DC/20 Civil Division Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20530 202−616−2035 Fax: 202−616−8470 Email: jacek.pruski@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Saltman AUSA US Department of Justice − Was/DC/20/7314 Civil Division − Federal Programs Branch 20 Massachusetts Ave NW Rm 7314 Washington, DC 20530

USDC IN/ND Case: 3:13-cv-1276

As of: 11/27/2017 01:50 PM EST 2 of 9 202−532−4252 Fax: 202−616−8470 Email: julie.saltman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack US Department of Justice − Was/DC/6143 20 Massachusetts Ave NW Rm 6143 Washington, DC 20530 202−305−8550 Fax: 202−616−8470 Email: michael.c.pollack@usdoj.gov TERMINATED: 06/10/2014

Defendant
Thomas Perez in ihis official capacity as Secretary of the US Department of Labor

represented by Jacek Pruski AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 06/10/2014

Defendant
Jacob J Lew in his official capacity as Secretary of the US Department of the Treasury

represented by Jacek Pruski AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 06/10/2014

Defendant
US Department of Health and Human Services

represented by Jacek Pruski AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 06/10/2014

Defendant US Department of Labor

represented by

USDC IN/ND Case: 3:13-cv-1276

As of: 11/27/2017 01:50 PM EST 3 of 9 Jacek Pruski AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 06/10/2014

Defendant US Department of the Treasury

represented by Jacek Pruski AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 06/10/2014

V. Movant Jane Does 1 − 3
Amicus American Civil Liberties Union American Civil Liberties Union Foundation 125 Broad Street 18th Fl. New York, NY 10004 2125492633

represented by Ayesha Naseem Khan PHV Americans United for Separation of Church and State 1310 L St NW Ste 200 Washington, DC 20005 202−466−3234 Fax: 202−898−0955 Email: khan@au.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Seymour H Moskowitz Seven Napoleon Street Valparaiso, IN 46383 219−462−3008 Email: sy81741@gmail.com ATTORNEY TO BE NOTICED
represented by Jennifer K Lee American Civil Liberties Union − NY/NY 125 Broad St 18th Floor New York, NY 10004−2454 212−549−2601 Email: jlee@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC IN/ND Case: 3:13-cv-1276 As of: 11/27/2017 01:50 PM EST 4 of 9 Date Filed # Docket Text

12/03/2013

1 COMPLAINT against Jacob J Lew, Thomas Perez, Kathleen Sebelius, US Department of Health and Human Services, US Department of Labor, US Department of the Treasury (Filing fee $ 400.) Receipt #3009121, filed by Notre Dame University of. (Attachments: # 1 Civil Cover Sheet)(jld) (Additional attachment(s) added on 12/3/2013: # 2 Exhibit A) (jld). (Entered: 12/03/2013)

12/03/2013

2 NOTICE of Appearance by Matthew A Kairis on behalf of Notre Dame University of (jld) (Entered: 12/03/2013)

12/03/2013

3 Corporate Disclosure Statement by Notre Dame University of. (jld) (Entered: 12/03/2013)

12/03/2013

4 Summons Issued as to Jacob J Lew, Thomas Perez, Kathleen Sebelius, US Department of Health and Human Services, US Department of Labor, US Department of the Treasury. NOTE: Only copies that bear the seal of the court should be used for service of process. (jld) (Entered: 12/03/2013)

12/05/2013

5 NOTICE of Appearance by Alison M Kilmartin on behalf of Notre Dame University of (Kilmartin, Alison) (Entered: 12/05/2013)

12/05/2013

6 NOTICE of Appearance by Melissa D Palmisciano on behalf of Notre Dame University of (Palmisciano, Melissa) (Entered: 12/05/2013)

12/09/2013

7 MOTION for Temporary Restraining Order and Request for Hearing by Plaintiff Notre Dame University of. (Kairis, Matthew) (Entered: 12/09/2013)

12/09/2013

8 AFFIDAVIT re 7 MOTION for Temporary Restraining Order and Request for Hearing of Matthew A. Kairis by Notre Dame University of. (Kairis, Matthew) (Entered: 12/09/2013)

12/09/2013

9 MOTION for Preliminary Injunction and Request for Oral Argument by Plaintiff Notre Dame University of. (Kairis, Matthew) (Entered: 12/09/2013)

12/09/2013

10 AFFIDAVIT re 9 MOTION for Preliminary Injunction and Request for Oral Argument , 7 MOTION for Temporary Restraining Order and Request for Hearing of John Affleck−Graves by Notre Dame University of. (Kairis, Matthew) (Entered: 12/09/2013)

12/09/2013

11 MOTION for Leave to File Excess Pages for Memorandum of Law in Support of Motion for Temporary Restraining Order and Motion for Preliminary Injunction by Plaintiff Notre Dame University of. (Attachments: # 1 Exhibit 1 − Memorandum in Support, # 2 Exhibit A to Ex. 1 − Memorandum in Support, # 3 Exhibit B to Ex. 1 − Memorandum in Support, # 4 Exhibit C to Ex. 1 − Memorandum in Support, # 5 Exhibit D to Ex. 1 − Memorandum in Support, # 6 Exhibit E to Ex. 1 − Memorandum in Support, # 7 Exhibit F to Ex. 1 − Memorandum in Support, # 8 Exhibit G to Ex. 1 − Memorandum in Support, # 9 Exhibit H to Ex. 1 − Memorandum in Support)(Kairis, Matthew) (Entered: 12/09/2013)

12/10/2013

Chief Judge Philip P Simon added. Senior Judge James T Moody no longer assigned to case. (kwk) (Entered: 12/10/2013)

12/10/2013

12 Consent MOTION for Leave to File Excess Pages and to dispense with table of contents and table of authorities by Defendants Jacob J Lew, Thomas Perez, Kathleen Sebelius, US Department of Health and Human Services, US Department of Labor, US Department of the Treasury. (Pollack, Michael) (Entered: 12/10/2013)

12/10/2013

13 RESPONSE to Motion re 9 MOTION for Preliminary Injunction and Request for Oral Argument , 7 MOTION for Temporary Restraining Order and Request for Hearing filed by Jacob J Lew, Thomas Perez, Kathleen Sebelius, US Department of Health and Human Services, US Department of Labor, US Department of the Treasury. (Pollack, Michael) (Entered: 12/10/2013)

12/10/2013

14 ORDER REFERRING 7 MOTION for Temporary Restraining Order and Request for Hearing filed by Notre Dame University of to Judge Van Bokkelen. Parties are directed to contact Judge VanBokkelen's chambers at 219−852−6744 to schedule a hearing on Plaintiff's Motion. Signed by Chief Judge Philip P Simon on 12/10/13. (smp) (Entered: 12/10/2013)

12/1U1/S20D1C3 IN/1N5D OCRaDseE:R3g:1ra3n-tcinvg-11127M6otioAnsfoorf:L1ea1v/2e 7to/2F0il1e7Ex0c1e:s5s0PaPgMes.ENSotTre D5amofes9 Memorandum of Law in Support of Plaintiffs Motion for Temporary Restraining Order and Motion for Preliminary Injunction shall not exceed fifty (50) pages. Signed by Magistrate Judge Christopher A Nuechterlein on 12/11/13. (cck) (Entered: 12/11/2013)

12/11/2013

16 SUPPLEMENT to 10 Affidavit, Exhibit A attached to Affidavit of John Affleck−Graves filed by Notre Dame University of. (Kairis, Matthew) (Entered: 12/11/2013)

12/11/2013 17 NOTICE by Notre Dame University of Withdrawal of Motion for Temporary Restraining Order and Request for Hearing (Kairis, Matthew) (Entered: 12/11/2013)

12/11/2013

18 MEMORANDUM in Support of 9 MOTION for Preliminary Injunction and Request for Oral Argument , 7 MOTION for Temporary Restraining Order and Request for Hearing filed by Notre Dame University of. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Kairis, Matthew) (Entered: 12/11/2013)

12/11/2013

21 ORDER Setting Hearing on Motion 9 MOTION for Preliminary Injunction and Request for Oral Argument : ORAL ARGUMENT set for 12/19/2013 09:00 AM (CST) in US District Court − Hammond before Chief Judge Philip P Simon.. Signed by Chief Judge Philip P Simon on 12/11/13. (smp) (Entered: 12/12/2013)

12/12/2013

19 ORDER granting 12 Motion for Leave to File Excess Pages. Defendants' Brief in Opposition to Plaintiff's Motions for Temporary Restraining Order and for Preliminary Injunction shall not exceed twenty−nine (29) pages and need not include a table of contents and table of authorities. Signed by Magistrate Judge Christopher A Nuechterlein on 12/12/13. (cck) (Entered: 12/12/2013)

12/12/2013

20 MOTION for Leave to File Amicus Curiae Brief by Amicus American Civil Liberties Union. (Attachments: # 1 Addendum Proposed Amicus Brief)(Lee, Jennifer) (Entered: 12/12/2013)

12/13/2013

22 Consent MOTION for Leave to File Excess Pages for Reply Regarding Motion for Preliminary Injunction by Plaintiff Notre Dame University of. (Kairis, Matthew) (Entered: 12/13/2013)

12/16/2013

23 ORDER granting 22 Motion for Leave to File Excess Pages. Notre Dame's reply brief regarding its Motion for Preliminary Injunction shall not exceed twenty−five (25) pages. Signed by Magistrate Judge Christopher A Nuechterlein on 12/16/13. (cck) (Entered: 12/16/2013)

12/16/2013 24 AFFIDAVIT of John Affleck−Graves (Supplemental) by Notre Dame University of. (Kairis, Matthew) (Entered: 12/16/2013)

12/16/2013 25 AFFIDAVIT of Meritain Health, Inc. by Notre Dame University of. (Kairis, Matthew) (Entered: 12/16/2013)

12/16/2013

26 REPLY to Response to Motion re 9 MOTION for Preliminary Injunction and Request for Oral Argument filed by Notre Dame University of. (Attachments: # 1 Transcript Excerpt, # 2 EDNY Decision & Order, # 3 IOM Report)(Kairis, Matthew) (Entered: 12/16/2013)

12/17/2013

27 ORDER granting 20 ACLU's Motion for Leave to File amicus curiae brief. The ACLU will not be heard at oral argument regarding preliminary injunction. Signed by Chief Judge Philip P Simon on 12/17/13. (smp) (Entered: 12/18/2013)

12/19/2013

28 NOTICE by Jacob J Lew, Thomas Perez, Kathleen Sebelius, US Department of Health and Human Services, US Department of Labor, US Department of the Treasury Supplemental Authority (Attachments: # 1 Exhibit Priests for Life v. HHS)(Pollack, Michael) (Entered: 12/19/2013)

12/19/2013

29 APPLICATION for Attorney Ayesha Naseem Khan to Appear Pro Hac Vice on behalf of Jane Doe #1, Jane Doe #2, and Jane Doe #3 ; Receipt #3009282. (smp) (Entered: 12/19/2013)

12/19/2013 30 BRIEF in Opposition to 9 MOTION for Preliminary Injunction and Request for Oral Argument , 7 MOTION for Temporary Restraining Order and Request for

USDC IN/ND Case: 3:13-cv-1276 As of: 11/27/2017 01:50 PM EST 6 of 9 Hearing by Amicus Curiae filed by American Civil Liberties Union. (Lee, Jennifer) (Entered: 12/19/2013)

12/19/2013

31 ORDER granting 29 Application to Appear Pro Hac Vice of Attorney Ayesha Naseem Kahn PHV for Jane Doe #1−3. Signed by Chief Judge Philip P Simon on 12/10/13. (smp) Modified on 12/19/2013 (copy sent to attorney Kahn)(smp). (Entered: 12/19/2013)

12/19/2013 32 RESPONSE by Notre Dame University of to 28 Notice (Other), . (Kairis, Matthew) (Entered: 12/19/2013)

12/19/2013 33 VACATED per de 73 Order − MOTION to Intervene by Movant Jane Does 1 − 3. (Moskowitz, Seymour) Modified on 7/22/2014 (rmc). (Entered: 12/19/2013)

12/19/2013

34 MEMORANDUM in Support of 33 MOTION to Intervene and for Consideration of Intervenors' Arguments in Opposition to Plaintiff's Motion for Preliminary Injunction filed by Jane Does 1 − 3. (Attachments: # 1 Affidavit Declaration of Doe #1, # 2 Affidavit Declaration of Doe #2, # 3 Affidavit Declaration of Doe #3)(Moskowitz, Seymour) (Entered: 12/19/2013)

12/19/2013 35 Proposed Intervenors' ANSWER to 1 Complaint, pursuant to FRCP 24(c) by Jane Does 1 − 3.(Moskowitz, Seymour) (Entered: 12/19/2013)

12/19/2013

36 MOTION HEARING held on 12/19/2013 re 9 MOTION for Preliminary Injunction and Request for Oral Argument filed by Notre Dame University of before Chief Judge Philip P Simon. Pla appeared by atty Matthew A. Kairis. Dft appeared by atty Michael C. Pollack. Court hears oral argument on the motion. Court to issue ruling. Plf requests a TRO and argument was heard. (Court Reporter Sharon Boleck−Mroz.) (nac) (Entered: 12/20/2013)

12/20/2013

37 NOTICE by Notre Dame University of re 9 MOTION for Preliminary Injunction and Request for Oral Argument (Attachments: # 1 Exhibit A)(Kairis, Matthew) (Entered: 12/20/2013)

12/20/2013

38 TRANSCRIPT of Preliminary Injunction hearing held on December 19, 2013, before Judge Philip P. Simon. Court Reporter Sharon Boleck Mroz, Telephone number 219−852−6728. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

IMPORTANT: Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above matter. The parties have 7 calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. Within 21 days of the filing of the transcript, a Redaction Request − Transcript shall be e−filed with the Court. Access to this request will be restricted to the Court and attorneys of record in the case. If no such Notice and Redaction Request are filed, the transcript may be made remotely, electronically available to the public without redaction. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the Court Reporter. Counsel are strongly urged to share this notice with all clients so that an informed decision about the inclusion of certain materials may be made. The responsibility for redacting these personal identifiers rests solely with counsel and the parties. The Clerk and Court Reporter will not review each transcript for compliance with this rule.

12/20/2013 12/20/2013

Notice of Intent to Redact due 1/6/2014. Redaction Request due 1/10/2014. Redacted Transcript Deadline set for 1/21/2014. Release of Transcript Restriction set for 3/20/2014. (sbm) (Entered: 12/20/2013)
39 NOTICE by Notre Dame University of re 9 MOTION for Preliminary Injunction and Request for Oral Argument of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kairis, Matthew) (Entered: 12/20/2013)
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). (Entered: 12/20/2013)

12/2U0/S20D1C3 IN/4N1D MCaOsTeI:O3N:1f3o-rcPvr-e1l2im7i6narAysInojfu:n1c1ti/o2n7P/2e0n1di7ng0A1:p5p0eaPl MbyEPSlaTintif7f Noof t9re Dame University of. (Kairis, Matthew) (Entered: 12/20/2013)

12/20/2013 42 BRIEF in Support of 41 MOTION for Preliminary Injunction Pending Appeal filed by Notre Dame University of. (Kairis, Matthew) (Entered: 12/20/2013)

12/20/2013

43 NOTICE OF INTERLOCUTORY APPEAL as to 40 Order on Motion for Preliminary Injunction, filed by Plaintiff Notre Dame University of. Filing fee $ 455, receipt number 0755−2243817. (Kairis, Matthew) (Entered: 12/20/2013)

12/20/2013 44 Docketing Statement re: 43 Notice of Interlocutory Appeal filed by Notre Dame University of. (Kairis, Matthew) (Entered: 12/20/2013)

12/23/2013

46 ***THIS REPLACES DOCUMENT 45 *** TRANSCRIPT REQUEST by Notre Dame University of for proceedings held on 12/19/2013 before Judge Simon, re 43 Notice of Interlocutory Appeal (Kairis, Matthew) Modified on 12/23/2013 to note this entry replaces DE 45 because of an incorrect document format −−− DE 46 has the correct format of the document (lyb). (Entered: 12/23/2013)

12/23/2013

47 Short Record Sent to US Court of Appeals re 43 Notice of Interlocutory Appeal. Appeal filing fees paid in the amount of $455.00 − Receipt # 0755−2243817. (Attachments: # 1 Notice of Interlocutory Appeal, # 2 Docketing Statement, # 3 Order being appealed, # 4 Docket sheet)(smp) (Entered: 12/23/2013)

12/23/2013

48 RESPONSE to Motion re 41 MOTION for Preliminary Injunction Pending Appeal filed by Jacob J Lew, Thomas Perez, Kathleen Sebelius, US Department of Health and Human Services, US Department of Labor, US Department of the Treasury. (Pollack, Michael) (Entered: 12/23/2013)

12/23/2013 49 ORDER denying 41 Plaintiff's Motion For Preliminary Injunction Pending Appeal. Signed by Chief Judge Philip P Simon on 12/23/2013. (nac) (Entered: 12/23/2013)

12/23/2013

52 USCA Case Number 13−3853 for 43 Notice of Interlocutory Appeal filed by Notre Dame University of. (Attachments: # 1 3(b) Fee Notice, # 2 Notice Vacating Fee Notice)(smp) (Entered: 12/27/2013)

12/26/2013

50 VACATED per de 73 Order − MOTION to Proceed Anonymously by Movant Jane Does 1 − 3. (Moskowitz, Seymour) Modified on 7/22/2014 (rmc). (Entered: 12/26/2013)

12/26/2013 51 MEMORANDUM in Support of 50 MOTION to Proceed Anonymously filed by Jane Does 1 − 3. (Moskowitz, Seymour) (Entered: 12/26/2013)

12/30/2013

56 ORDER of USCA as to 43 Notice of Interlocutory Appeal filed by Notre Dame University of DENYING emergency motion for an injunction. Briefing in the appeal is EXPEDITED. (smp) (Entered: 01/08/2014)

12/31/2013

53 Joint MOTION to Stay District Court Proceedings Pending Appeal by Plaintiff Notre Dame University of. (Attachments: # 1 Exhibit Seventh Circuit Order (Dec. 30, 2013))(Kairis, Matthew) (Entered: 12/31/2013)

01/02/2014

54 ORDER granting 53 Motion to Stay; proceedings before this Court wil be STAYED during the pendency of the appeal to the Seventh Circuit of the denial of Notre Dame's request for a preliminary injunction. Signed by Chief Judge Philip P Simon on 1/2/14. (smp) (Entered: 01/02/2014)

01/09/2014 63 Letter from 7th Circuit Court of Appeals requesting record on appeal. (lyb) (Entered: 01/13/2014)

01/10/2014

57 ACKNOWLEDGEMENT OF SERVICE Executed as to 1 Complaint, David A. Capp c/o Civil Process Clerk, United States Attorney Acknowledgement filed by Notre Dame University of. (Kilmartin, Alison) (Entered: 01/10/2014)

01/10/2014

58 ACKNOWLEDGEMENT OF SERVICE Executed as to 1 Complaint, Eric H. Holder, Jr., Attorney General of the United States, U.S. Department of Justice Acknowledgement filed by Notre Dame University of. (Kilmartin, Alison) (Entered: 01/10/2014)

01/1U0/S20D1C4 IN/5N9D SCUaMseM: O3N:1S3R-cevtu-1rn2e7d6ExeAcsuteodf:b1y1N/2ot7re/2D0a1m7e0U1n:i5v0erPsitMy oEf.SKTath8leeonf S9ebelius served on 12/6/2013, answer due 2/4/2014; US Department of Health and Human Services served on 12/6/2013, answer due 2/4/2014. (Kilmartin, Alison) (Entered: 01/10/2014)

01/10/2014

60 SUMMONS Returned Executed by Notre Dame University of. Jacob J Lew served on 12/9/2013, answer due 2/7/2014; Thomas Perez served on 12/9/2013, answer due 2/7/2014. (Kilmartin, Alison) (Entered: 01/10/2014)

01/10/2014

61 SUMMONS Returned Executed by Notre Dame University of. US Department of Labor served on 12/11/2013, answer due 2/10/2014. (Kilmartin, Alison) (Entered: 01/10/2014)

01/10/2014

62 SUMMONS Returned Executed by Notre Dame University of. US Department of the Treasury served on 12/13/2013, answer due 2/11/2014. (Kilmartin, Alison) (Entered: 01/10/2014)

01/13/2014

64 Transmitted Record on Appeal (1 volume of Pldgs. and 1 volume of a Transcript − both sent via Email) to US Court of Appeals re 43 Notice of Interlocutory Appeal. (lyb) (Entered: 01/13/2014)

01/15/2014

65 NOTICE of Docketing Record on Appeal (1 volume electronically) from USCA re 43 Notice of Interlocutory Appeal filed by Notre Dame University of. (Attachments: # 1 Receipt for transcript on 1/15/14)(smp) (Entered: 01/16/2014)

05/15/2014

66 MANDATE of USCA as to 43 Notice of Interlocutory Appeal filed by Notre Dame University of AFFIRMING the judgment of the District Court (Attachments: # 1 USCA Certified Opinion, # 2 USCA Certified Final Judgment)(smp) (Entered: 05/20/2014)

05/28/2014 67 NOTICE of Appearance by Jacek Pruski on behalf of All Defendants (Pruski, Jacek) (Entered: 05/28/2014)

06/09/2014

68 MOTION to Withdraw as Attorney Michael C. Pollack by Defendants Jacob J Lew, Thomas Perez, Kathleen Sebelius, US Department of Health and Human Services, US Department of Labor, US Department of the Treasury. (Pollack, Michael) (Entered: 06/09/2014)

06/10/2014

69 ORDER granting 68 Motion to Withdraw as Attorney. Attorney Michael C Pollack terminated. Signed by Magistrate Judge Christopher A Nuechterlein on 6/10/14. (slm) (Entered: 06/10/2014)

06/18/2014 70 STATUS REPORT Of The Parties by Notre Dame University of. (Kairis, Matthew) (Entered: 06/18/2014)

06/20/2014

71 ORDER continuing STAY 70 Status Report filed by Notre Dame University of. The parties are therefore ORDERED to promptly notify this Court when either a decision is made not to seek a writ of certiorari or when the Supreme Court proceedings are complete by filing a status report requesting a lift of the stay and proposing an appropriate schedule for an answer or other pleading responsive to the complaint, as well as for briefing on the pending motion to intervene. Signed by Chief Judge Philip P Simon on 6/20/2014. (rmc) (Entered: 06/23/2014)

07/11/2014

72 ORDER re 50 MOTION to Proceed Anonymously filed by Jane Does 1 − 3, 33 MOTION to Intervene filed by Jane Does 1 − 3. It is ORDERED: Because the case is stayed indefinitely, these motions are VACATED, SUBJECT TO REVIVAL when the stay ends. The stay order requires the parties to file a status report when proceedings before the Supreme Court terminate or if the plaintiff decides not to petition the Supreme Court. The parties are HEREBY FURTHER ORDERED to note in the status report that, with the lift of the stay, the intervenors motions (DE 33, 50) should be revived, or to show cause why that is not the case. Signed by Chief Judge Philip P Simon on 7/11/2014. (rmc) (Entered: 07/14/2014)

07/14/2014

73 (INCORRECT ENTRY − DOCKETED UNDER THE WRONG CASE NUMBER) ORDER FOR SETTLEMENT CONFERENCE: Settlement Conference set for 9/3/2014 at 1:00 PM in US District Court − Fort Wayne before Magistrate Judge Roger B Cosbey. To assist the court and to facilitate the conduct of the settlement conference, lead counsel for each side shall submit via e−mail to

USDC IN/ND Case: 3:13-cv-1276 As of: 11/27/2017 01:50 PM EST 9 of 9 cosbey_chambers@innd.uscourts.gov, a "Confidential Statement of the Case" on or before the end of the business day on August 29, 2014. Signed by Magistrate Judge Roger B Cosbey on 7/14/2014. (rmc) Modified on 7/17/2014 (mc). (Entered: 07/14/2014)

07/22/2014

***Deadlines/Hearings terminated. (rmc) (Entered: 07/22/2014)

04/17/2015

74 MANDATE of USCA Mandate is issued dismissing appellee Jane Doe 1; appellee Jane Doe 2. Record to be retained for use in remainder of this appeal. (Attachments: # 1 certified order)(kds) (Entered: 04/23/2015)

06/09/2015 75 NOTICE of Appearance by Julie Saltman AUSA on behalf of All Defendants (Saltman AUSA, Julie) (Entered: 06/09/2015)

08/03/2015

76 MANDATE of USCA − The decision of the district court is AFFIRMED. No record to be returned. (Attachments: # 1 certified order denying rehearing, # 2 certified opinion)(kds) Modified on 8/5/2015 to correct text (jld). (Additional attachment(s) added on 8/10/2015: # 3 Certified Final Judgment) (jld). (Entered: 08/05/2015)

09/16/2015 77 MOTION to Withdraw as Attorney by Plaintiff Notre Dame University of. (Kilmartin, Alison) (Entered: 09/16/2015)

09/17/2015

78 ORDER granting 77 Motion to Withdraw as Attorney. Attorney Alison M Kilmartin terminated.Approved by Magistrate Judge Christopher A Nuechterlein on 9/17/15. (slm) (Entered: 09/17/2015)

06/17/2016

79 CIRCUIT RULE 54 NOTICE of USCA: The Supreme Court remanded this case to the Circuit Court for further proceedings. Circuit Rule 54 requires that counsel for the parties file statements of their positions as to the action which ought to be taken by this Court on remand. (jld) (Entered: 06/20/2016)

07/13/2016

80 ORDER of USCA as to 43 Notice of Interlocutory Appeal filed by Notre Dame University of. Upon consideration of the Intervenor−Appellees Motion To Add Ann Doe as Pseudonymous Intervenor, filed on July 8, 2016, by AttorneyRichard B. Katskee, IT IS ORDERED that the motion is GRANTED. Ann Doe shall be added as an intervenor−appellee and is permitted to proceed under the pseudonym Ann Doe.(jld) (Entered: 07/15/2016)

08/17/2016

Magistrate Judge Michael G Gotsch, Sr added. Magistrate Judge Christopher A Nuechterlein no longer assigned to case. (slm) (Entered: 08/17/2016)

09/29/2016 81 MOTION to Withdraw as Attorney (Melissa D. Palmisciano) by Plaintiff Notre Dame University of. (Palmisciano, Melissa) (Entered: 09/29/2016)

09/29/2016

82 ORDER granting 81 Motion to Withdraw as Attorney. Attorney Melissa D Palmisciano terminated. Approved by Magistrate Judge Michael G Gotsch, Sr on 9/29/16. (slm) (Entered: 09/29/2016)

03/02/2017

83 ORDER: The clerk of court is DIRECTED to STATISTICALLY CLOSE this case. Within 90 days of the conclusion of the appeal, the parties are ORDERED to file a status report detailing the disposition of the appeal and proposing an appropriate schedule for resumption of these pleadings. ***Civil Case Terminated. Signed by Judge Philip P Simon on 3/2/2017. (jld) (Entered: 03/03/2017)

10/17/2017

84 MANDATE of USCA as to 43 Notice of Interlocutory Appeal filed by Notre Dame: Upon consideration of the JOINT STIPULATION OF DISMISSAL OF APPEAL, filed on October 16, 2017, by counsel for the parties, IT IS ORDERED that this appeal is DISMISSED pursuant to Federal Rule of Appellate Procedure 42(b). (No records to be returned) (Attachments: # 1 Certified Final Order)(nae) (Entered: 10/17/2017)

10/19/2017 85 NOTICE of Voluntary Dismissal by All Plaintiffs (Kairis, Matthew) (Entered: 10/19/2017)

10/24/2017

86 ORDER: The complaint is DISMISSED WITHOUT PREJUDICE re 85 Notice of Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Signed by Judge Philip P Simon on 10/24/2017. (tc) (Entered: 10/24/2017)

 
 11/27/2017

13-3853 Docket

General Docket Seventh Circuit Court of Appeals

Court of Appeals Docket #: 13­3853 Nature of Suit: 2440 Other Civil Rights University of Notre Dame v. Thomas E. Price, et al Appeal From: Northern District of Indiana, South Bend Division Fee Status: Paid

Case Type Information: 1) civil 2) us 3) ­

Originating Court Information: District: 0755­3 : 3:13­cv­01276­PPS­CAN Court Reporter: Sharon Boleck­Mroz, Court Reporter Trial Judge: Philip P. Simon, District Court Judge Date Filed: 12/03/2013 Date Order/Judgment: 12/20/2013

Date NOA Filed: 12/20/2013

Prior Cases: None

Current Cases: None

UNIVERSITY OF NOTRE DAME Plaintiff ­ Appellant
v.

Matthew A. Kairis, Attorney Direct: 614­469­3939 [COR LD NTC Retained] JONES DAY Suite 600 325 John H. McConnell Boulevard Columbus, OH 43215­2673

KATHLEEN SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services Terminated: 10/06/2014
Defendant ­ Appellee

SYLVIA MATHEWS BURWELL, in her official capacity as Secretary of the U.S. Department of Health and Human Services Terminated: 02/02/2017
Defendant ­ Appellee

NORRIS W. COCHRAN, Acting Secretary of the United States Department of Health and Human Services Terminated: 02/17/2017
Defendant ­ Appellee

THOMAS E. PRICE, Secretary of the United States Department of Health and Human Services
Defendant ­ Appellee

Adam C. Jed, Attorney [COR LD NTC Government Federal] DEPARTMENT OF JUSTICE Civil Division, Appellate Staff 950 Pennsylvania Avenue N.W. Washington, DC 20530­0000

Alisa B. Klein, Attorney [COR LD NTC Government Federal] DEPARTMENT OF JUSTICE Civil Division, Appellate Staff 950 Pennsylvania Avenue N.W. Washington, DC 20530­0000

https://ecf.ca7.uscourts.gov/cmecf/servlet/TransportRoom

Mark B. Stern, Attorney

Docketed: 12/23/2013 Termed: 10/17/2017
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13-3853 Docket
[COR LD NTC Government Federal] DEPARTMENT OF JUSTICE Civil Division, Appellate Staff 950 Pennsylvania Avenue N.W. Washington, DC 20530­0000

Megan Barbero, Attorney [NTC Government Federal] DEPARTMENT OF JUSTICE Civil Division, Appellate Staff 950 Pennsylvania Avenue N.W. Washington, DC 20530­0000

Laura Myron, Attorney [COR NTC Government Federal] DEPARTMENT OF JUSTICE Office of the Solicitor General 950 Pennsylvania Avenue N.W. Washington, DC 20530­0000

Patrick Nemeroff, Attorney [NTC Government Federal] DEPARTMENT OF JUSTICE Civil Division, Appellate Staff 950 Pennsylvania Avenue N.W. Washington, DC 20530­0000

Joshua Marc Salzman, Attorney [NTC Government Federal] DEPARTMENT OF JUSTICE Civil Division, Appellate Staff 950 Pennsylvania Avenue N.W. Washington, DC 20530­0000

JACOB J. LEW, in his official capacity as Secretary of the U.S. Department of the Treasury Terminated: 02/02/2017
Defendant ­ Appellee

ADAM J. SZUBIN, Acting Secretary of the Treasury Terminated: 02/17/2017
Defendant ­ Appellee

STEVEN T. MNUCHIN, Secretary of the Treasury Defendant ­ Appellee

Adam C. Jed, Attorney [COR LD NTC Government Federal] (see above)

Alisa B. Klein, Attorney [COR LD NTC Government Federal] (see above)

Mark B. Stern, Attorney [COR LD NTC Government Federal] (see above)

Megan Barbero, Attorney [NTC Government Federal] (see above)

Laura Myron, Attorney [COR NTC Government Federal] (see above)

Patrick Nemeroff, Attorney [NTC Government Federal] (see above)

Joshua Marc Salzman, Attorney [NTC Government Federal] (see above)

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THOMAS E. PEREZ, in his official capacity as Secretary of the U.S. Department of Labor Terminated: 02/02/2017
Defendant ­ Appellee EDWARD C. HUGLER, Acting Secretary of Labor Terminated: 05/04/2017
Defendant ­ Appellee R. ALEXANDER ACOSTA, Secretary of Labor
Defendant ­ Appellee
UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES
Defendant ­ Appellee
UNITED STATES DEPARTMENT OF LABOR Defendant ­ Appellee

13-3853 Docket
Adam C. Jed, Attorney [COR LD NTC Government Federal] (see above)
Alisa B. Klein, Attorney [COR LD NTC Government Federal] (see above)
Mark B. Stern, Attorney [COR LD NTC Government Federal] (see above)
Megan Barbero, Attorney [NTC Government Federal] (see above)
Laura Myron, Attorney [COR NTC Government Federal] (see above)
Patrick Nemeroff, Attorney [NTC Government Federal] (see above)
Joshua Marc Salzman, Attorney [NTC Government Federal] (see above)
Adam C. Jed, Attorney [COR LD NTC Government Federal] (see above)
Alisa B. Klein, Attorney [COR LD NTC Government Federal] (see above)
Mark B. Stern, Attorney [COR LD NTC Government Federal] (see above)
Megan Barbero, Attorney [NTC Government Federal] (see above)
Laura Myron, Attorney [COR NTC Government Federal] (see above)
Patrick Nemeroff, Attorney [NTC Government Federal] (see above)
Joshua Marc Salzman, Attorney [NTC Government Federal] (see above)
Adam C. Jed, Attorney [COR LD NTC Government Federal] (see above)

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UNITED STATES DEPARTMENT OF THE TREASURY Defendant ­ Appellee
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ JANE DOE 1 Terminated: 04/09/2015
Intervenor ­ Appellee JANE DOE 2 Terminated: 04/09/2015
Intervenor ­ Appellee JANE DOE 3
Intervenor ­ Appellee
https://ecf.ca7.uscourts.gov/cmecf/servlet/TransportRoom

13-3853 Docket
Alisa B. Klein, Attorney [COR LD NTC Government Federal] (see above)
Mark B. Stern, Attorney [COR LD NTC Government Federal] (see above)
Megan Barbero, Attorney [NTC Government Federal] (see above)
Laura Myron, Attorney [COR NTC Government Federal] (see above)
Patrick Nemeroff, Attorney [NTC Government Federal] (see above)
Joshua Marc Salzman, Attorney [NTC Government Federal] (see above)
Adam C. Jed, Attorney [COR LD NTC Government Federal] (see above)
Alisa B. Klein, Attorney [COR LD NTC Government Federal] (see above)
Mark B. Stern, Attorney [COR LD NTC Government Federal] (see above)
Megan Barbero, Attorney [NTC Government Federal] (see above)
Laura Myron, Attorney [COR NTC Government Federal] (see above)
Patrick Nemeroff, Attorney [NTC Government Federal] (see above)
Joshua Marc Salzman, Attorney [NTC Government Federal] (see above)
Richard Brian Katskee, Attorney Direct: 202­466­3234 [COR LD NTC Retained] AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Suite 400 1310 L Street N.W. Washington, DC 20005
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ANN DOE Intervenor ­ Appellee

13-3853 Docket
Richard Brian Katskee, Attorney Direct: 202­466­3234 [COR LD NTC Retained] (see above)

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13-3853 Docket

UNIVERSITY OF NOTRE DAME, Plaintiff ­ Appellant

v.

THOMAS E. PRICE, Secretary of the United States Department of Health & Human Services, et al., Defendants ­ Appellees

and

JANE DOE 3, et al., Intervening Appellees

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12/23/2013

1

U.S. civil case docketed. Fee due. Docketing statement filed. Transcript information sheet due by

63 pg, 491.26 KB 01/06/2014. Fee or IFP forms due on 01/06/2014 for Appellant University of Notre Dame. [1] [6540466]

[13­3853] (AD)

12/23/2013

2

Disclosure Statement filed by Attorney Matthew A. Kairis for Appellant University of Notre Dame. [2]

1 pg, 60.52 KB [6540476] (L­Yes; E­Yes; R­No) [13­3853] (Kairis, Matthew)

12/23/2013

3

Emergency motion filed by Appellant University of Notre Dame for injunction pending appeal. [3] [6540478]

138 pg, 3.23 MB [13­3853] (JR)

12/23/2013

4

Filed Seventh Circuit Transcript Information Sheet by Appellant University of Notre Dame. [4] [6540482]

2 pg, 147.7 KB [13­3853] (Kairis, Matthew)

12/23/2013

5

6 pg, 1.26 MB

Attorney Michael C. Pollack for TREA, LABR, HHS, Kathleen Sebelius, Thomas E. Perez and Jacob J. Lew in 13­3853 terminated and added Attorney(s) Adam C. Jed, Mark B. Stern, Alisa B. Klein for party(s) Appellee LABR Appellee HHS Appellee Thomas E. Perez Appellee TREA Appellee Jacob J. Lew Appellee Kathleen Sebelius, in case 13­3853 per disclosure statement. Disclosure statement filed by Attorney(s) Adam C. Jed, Mark B. Stern, Alisa B. Klein for party(s) Appellee LABR Appellee HHS Appellee Thomas E. Perez Appellee TREA Appellee Jacob J. Lew Appellee Kathleen Sebelius, in case 13­3853. [5] [6540489] (L­Yes; E­Yes; R­Yes) [13­3853]­­[Edited 12/23/2013 by SM to reflect added attorney.] (Klein, Alisa)

12/23/2013

6

1 pg, 95.58 KB

ORDER: Filed clerk's notice to Appellees Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS, LABR and TREA to file a response to APPELLANT UNIVERSITY OF NOTRE DAME'S EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL. Response due for Appellees Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health & Human Services, United States Department of Labor and United States Department of the Treasury by 12/27/2013 at noon. MJS [6] [6540527] [13­3853] (AD)

12/23/2013

7

1 pg, 88.23 KB

Notice to appellant VACATING the 12/23/2013 Circuit Rule 3(b) 14 day notice to file a motion to proceed in forma pauperis with the District Court Court or pay the docketing fee in the District Court. The notice was erroneously issued. The docketing fee was paid on 12/20/2013 by the appellant (see receipt #0755­ 2243817). The appellant's brief will be due on or before 02/03/2014 for the University of Notre Dame. [7] [6540564] [13­3853] (JR)

12/23/2013

8

Filed Appellant University of Notre Dame Citation of Additional Authority, per Circuit Rule 28(e). [8]

57 pg, 1.05 MB [6540647] [13­3853] (Kairis, Matthew)

12/27/2013

9

Filed Response in Opposition by Appellees Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS,

22 pg, 202.96 KB LABR and TREA to Emergency Motion for Injunction Pending Appeal. [9][6541175] [13­3853] (Jed, Adam)

12/27/2013

10

Filed Reply by Appellant University of Notre Dame Attorney Matthew A. Kairis to Appellee's response to

13 pg, 181.9 KB Appellant's emergency motion for an injunction pending appeal. [10][6541338] [13­3853] (Kairis, Matthew)

12/30/2013

11

2 pg, 109.38 KB

Order re: 1. Appellant University of Notre Dame's emergency motion for injunction pending appeal. 2. Opposition to plaintiff's' emergency motion for an injunction pending appeal. The emergency motion for an injunction pending appeal is DENIED. Briefing in the appeal is EXPEDITED and will proceed as follows: [3] 1. Appellant's brief due on or before 01/13/2014 for University of Notre Dame. 2. Appellees' brief due on or before 01/27/2014 for Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health & Human Services, United States Department of Labor and United States Department of the Treasury. 3. Appellant's reply brief, if any, is due on or before 02/03/2014 for Appellant University of Notre Dame. No extensions of time to file the briefs will be granted. Paper copies of the reply brief, if any, must be submitted to the clerk's office on the due date. Oral argument in the appeal will be scheduled during mid­February. JKL [11] [6541468] [13­3853] (CD)

01/08/2014

12

Filed Non­Party Motion of Jane Does 1­3 to Intervene as Appellees, to Proceed Using Pseudonyms, and

35 pg, 361.87 KB for Expedited Ruling by Jane Does 1­3. [6543273] [13­3853] [6543273] [13­3853] (Khan, Ayesha)

01/09/2014

13

1 pg, 96.66 KB

ORDER: Appellant and Appellees shall respond to the motion to intervene on, or before, January 13, 2014. Regardless of this court's ultimate decision on the motion to intervene, the proposed intervenors will, at a minimum, be permitted to file an amicus brief. [13] MJS [6543570] [13­3853] (AM)

01/09/2014

14

Notice to the District Court to transmit the record on appeal. [14] [6543573] [13­3853] (RS)

1 pg, 86.37 KB

01/09/2014

15

Argument set for Wednesday, February 12, 2014, at 9:30 a.m. in the Main Courtroom, Room 2721. Each

4 pg, 138.35 KB side limited to 25 minutes. [15] [6543583] [13­3853] (RS)

01/13/2014

16

Filed Response by Appellees Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS, LABR and TREA

2 pg, 74.46 KB to Motion to Intervene. [16][6544298] [13­3853] (Jed, Adam)

01/13/2014

17

Filed Response by Appellant University of Notre Dame to Proposed intervenors' motion to intervene. [17]

23 pg, 158.05 KB [6544523] [13­3853] (Kairis, Matthew)

01/13/2014

18

Submitted appellant brief by Matthew A. Kairis for Appellant University of Notre Dame. [18] [6544571] [13­

233 pg, 5.93 MB 3853] (Kairis, Matthew)

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01/13/2014

20

Appellant's brief filed by Appellant University of Notre Dame. Paper copies due on 01/21/2014

108 pg, 998.3 KB Electronically Transmitted. [20] [6544910] [13­3853] (SP)

01/13/2014

21

Filed Appendix by Appellant University of Notre Dame. [21] [6544911] Paper copies due on 01/21/2014

125 pg, 5.28 MB [13­3853] (SP)

01/14/2014

19

Filed Non­Party Reply of Jane Does 1­3 on in support of Motion to Intervene and to Proceed Using

12 pg, 447.12 KB Pseudonyms by Jane Does 1­3. [6544802] [13­3853]­­[Edited 01/14/2014 by ER ­ to reflect in support]

(Khan, Ayesha)

01/14/2014

22

2 pg, 118.12 KB

ORDER: The intervenors' request to litigate anonymously is GRANTED to the extent that the intervenors may proceed in this matter under the pseudonyms Jane Doe 1, Jane Doe 2, and Jane Doe 3. IT IS FURTHER ORDERED that the motion to intervene as appellees is GRANTED. Jane Does 1­3 are granted leave to proceed as intervening appellees. Their brief shall be due on or before January 27, 2014. [12] [12] MJS [22] [6544934] [13­3853] (ER)

01/15/2014

23

Original record on appeal filed electronically. Contents of record : 1 vol. of pleadings. [23] [6545214] [13­

896 pg, 9.97 MB 3853] (GW)

01/15/2014

24

Filed electronic transcript of proceedings held on 12/19/13. [24] [6545218] THIS TRANSCRIPT IS FOR INTERNAL COURT USE ONLY. Remote electronic access to the transcript is ONLY available through the District Court's PACER system. [13­3853] (GW)

01/17/2014

25

Motion filed by Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3 to add Jane Doe 4 as pseudonymous

12 pg, 372.35 KB intervenor and for expedited briefing and ruling on motion. [25] [6545815] [13­3853] (Khan, Ayesha)

01/17/2014

26

Order issued DENYING motion to add Jane Doe 4 as pseudonymous intervenor and for expedited briefing

1 pg, 96.53 KB and ruling, [25] MJS [26] [6546009] [13­3853] (FP)

01/20/2014

27

Motion filed by Appellant University of Notre Dame Motion for Limited Remand to Seek Discovery and

12 pg, 111.54 KB Supplement the Record, or in the Alternative, to Dismiss. [27] [6546140] [13­3853] (Kairis, Matthew)

01/21/2014

28

Filed Response by Appellees Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS, LABR and TREA

5 pg, 109.06 KB to Motion for Limited Remand or to Dismiss the Appeal. [28][6546450] [13­3853] (Jed, Adam)

01/22/2014

29

Filed Response in Opposition by Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3 to Motion for Limited

11 pg, 199.65 KB Remand to Seek Discovery and Supplement the Record, or in the Alternative, to Dismiss. [29][6546594]

[13­3853] (Khan, Ayesha)

01/22/2014

30

5 pg, 94.06 KB

Filed Reply by Appellant University of Notre Dame to Plaintiff­Appellant's motion for limited remand to seek discovery and supplement the record, or in the alternative, to dismiss. [30][6546785] [13­3853] (Kairis, Matthew)

01/22/2014

31

THIS ENTRY HAS BEEN REMOVED AS ENTERED IN ERROR. (AD)

01/22/2014

32

2 pg, 97.99 KB

ORDER re: 1) Plaintiff­Appellant’s Motion for Limited Remand to Seek Discovery and Supplement the Record, or in the Alternative, to Dismiss. 2) Government’s Response to Notre Dame’s Motion for Limited Remand Or, in the Alternative, to Dismiss its Appeal. 3) Intervenors­Appellees’ Opposition to Plaintiff­ Appellant’s Motion for Limited Remand to Seek Discovery and Supplement the Record, or in the Alternative, to Dismiss. 4) Plaintiff­Appellant’s Reply in Support of its Motion for Limited Remand to Seek Discover and Supplement the Record, or in the Alternative, to Dismiss. The appellant (University of Notre Dame) has moved for a limited remand or, in the alternative, dismissal of its appeal from the denial of a preliminary injunction. The motion is taken under advisement. The appeal will be argued as scheduled on February 12. MJS [32] [6546915] [13­3853] (AD)

01/27/2014

33

Submitted appellee brief by Adam C. Jed for Appellees Jacob J. Lew, Thomas E. Perez, Kathleen

48 pg, 395.38 KB Sebelius, HHS, LABR and TREA. [33] [6548067] [13­3853] (Jed, Adam)

01/27/2014

34

Submitted intervenor brief by Ayesha N. Khan for Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3. [34]

72 pg, 223.41 KB [6548083] [13­3853] (Khan, Ayesha)

01/27/2014

36

Appellee's brief filed by Appellees Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS, LABR and

48 pg, 335.44 KB TREA. Paper copies due on 02/04/2014 Electronically Transmitted. [36] [6548135] [13­3853] (RT)

01/27/2014

37

Intervenor brief filed by Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3. Paper copies due on

72 pg, 233.76 KB 02/04/2014 Electronically Transmitted. [37] [6548137] [13­3853] (RT)

01/28/2014

35

Motion filed by Appellant University of Notre Dame Renewed Motion for Injunction Pending Appeal. [35]

7 pg, 144.88 KB [6548113] [13­3853]­­[Edited 01/28/2014 by ER ­ Exhibit A attached] (Kairis, Matthew)

01/28/2014

38

1 pg, 96.31 KB

ORDER: Filed clerk's notice to Appellees Jane Doe 1, Jane Doe 2, Jane Doe 3, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS, LABR and TREA to file a response to PLAINTIFF­APPELLANT'S RENEWED MOTION FOR INJUNCTION PENDING APPEAL. Response due for Appellees Jane Doe 1, Jane Doe 2, Jane Doe 3, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health & Human Services, United States Department of Labor and United States Department of the Treasury by 02/04/2014. JKL [38] [6548306] [13­3853] (AD)

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01/28/2014

39

4 pg, 82 KB

13-3853 Docket
Motion filed by Appellant University of Notre Dame for Increased Word Limit for Reply Brief. [39] [6548318] [13­3853] (Kairis, Matthew)

01/28/2014

40

Order issued GRANTING Plaintiff­Appellant’s Motion for Increased Word Limit for Reply Brief. Appellant

1 pg, 95.96 KB may file a reply brief containing up to 10,000 words. [39] MJS [40] [6548399] [13­3853] (AD)

02/03/2014

41

Motion filed by Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3 for Enlarged and Divided Oral

4 pg, 32.84 KB Argument. [41] [6549536] [13­3853] (Khan, Ayesha)

02/03/2014

42

Submitted appellant reply brief by Matthew A. Kairis for Appellant University of Notre Dame. [42] [6549679]

49 pg, 230.96 KB [13­3853] (Kairis, Matthew)

02/03/2014

43

Appellant's reply brief filed by Appellant University of Notre Dame. Paper copies due on 02/10/2014

49 pg, 281.52 KB Electronically Transmitted. [43] [6549684] [13­3853] (RS)

02/03/2014

44

1 pg, 95.61 KB

ORDER re: Intervenors­appellees' motion for enlarged and divided oral argument, filed on 2/3/14. The motion is GRANTED. The total allotted time for oral argument on February 12, 2014, is increased to 30 minutes per side. Intervenors are granted leave to participate in the oral argument, using 10 minutes of the argument time allotted to appellees. [41]MJS [44] [6549701] [13­3853] (FP)

02/04/2014

45

21 pg, 5.5 MB

Filed Response in Opposition by Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3 to Plaintiff­Appellant's Renewed Motion for Injunction Pending Appeal. [45][6550070] [13­3853] (Khan, Ayesha)

02/04/2014

46

Filed Response in Opposition by Appellees Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS,

8 pg, 138.08 KB LABR and TREA to Appellant's Renewed Motion for an Injunction Pending Appeal. [46][6550082] [13­

3853] (Jed, Adam)

02/05/2014

47

40 pg, 8.58 MB

ORDER: 1. MOTION FOR INJUNCTION PENDING APPEAL, filed on 1/28/14. 2. INTERVENORS­ APPELLEES’ OPPOSITION TO PLAINTIFF­APPELLANT’S RENEWED MOTION FOR INJUNCTION PENDING APPEAL, filed on 2/4/14. 3. GOVERNMENT’S OPPOSITION TO NOTRE DAME’S RENEWED MOTION FOR INJUNCTION PENDING APPEAL, filed on 2/4/14. The plaintiff­appellant's renewed motion for injunction pending appeal and the responses to the motion are taken with the case for determination by the assigned merits panel. JKL [47] [6550260] [13­3853] (FP)

02/06/2014

48

Received argument confirmation from Matthew A. Kairis for Appellant University of Notre Dame. [48]

1 pg, 96.74 KB [6550659] [13­3853] (Kairis, Matthew)

02/06/2014

49

Received argument confirmation from Mark B. Stern for Appellees Jacob J. Lew, Thomas E. Perez,

1 pg, 19.98 KB Kathleen Sebelius, HHS, LABR and TREA. [49] [6550679] [13­3853] (Stern, Mark)

02/06/2014

50

Received argument confirmation from Ayesha N. Khan for Appellees Jane Doe 1, Jane Doe 2 and Jane

1 pg, 246.69 KB Doe 3. [50] [6550722] [13­3853] (Khan, Ayesha)

02/12/2014

51

Case heard and taken under advisement by panel: Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge and David F. Hamilton, Circuit Judge. [51] [6551939] [13­3853] (RS)

02/12/2014

52

Case argued by Mr. Matthew A. Kairis for Appellant University of Notre Dame, Ms. Ayesha N. Khan for Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3 and Mark B. Stern for Appellees LABR, HHS, TREA, Kathleen Sebelius, Jacob J. Lew and Thomas E. Perez. [52] [6551943] [13­3853] (RS)

02/21/2014

53

Filed opinion of the court by Judge Posner. AFFIRMED. We DENY the renewed motion for an injunction

44 pg, 292.44 KB pending appeal as moot because the appeal has been resolved. Richard A. Posner, Circuit Judge; Joel M.

Flaum, Circuit Judge, dissenting and David F. Hamilton, Circuit Judge. [53] [6554351] [13­3853] (AD)

02/21/2014

54

ORDER: Final judgment filed per opinion. With costs: yes. [54] [6554353] [13­3853] (AD)

1 pg, 862.64 KB

02/21/2014

102

INTERNET CITATION NOTE: Material from decision with internet citation. ATTACHED. [102] [13­3853]

82 pg, 2.84 MB (BF)

02/21/2014

103

INTERNET CITATION NOTE: Material from decision with internet citation. ATTACHED. Judge Flaum

1 pg, 255.53 KB Dissent. [103] [13­3853] (BF)

04/04/2014

55

Submitted petition for rehearing enbanc by Matthew A. Kairis for Appellant University of Notre Dame. [55]

22 pg, 162.01 KB [6564997] [13­3853] (Kairis, Matthew)

04/04/2014

56

Filed Petition for Rehearing and Petition for Rehearing Enbanc by Appellant University of Notre Dame.

22 pg, 184.98 KB Paper copies due on 04/07/2014 [56] [6565061] [13­3853] (SK)

04/08/2014

57

Sent clerk's copy of request to Appellees requesting 30 copies of their answer to the Petition for Rehearing

1 pg, 863.01 KB and Petition for Rehearing Enbanc filed by Appellant on 04/04/2014. Answer to Petition for Rehearing due

for Appellees by 04/22/2014. [6565703] [13­3853] (AM)

04/22/2014

58

Submitted answer to petition for rehearing enbanc by Ayesha N. Khan for Appellees Jane Doe 1, Jane Doe

24 pg, 101.21 KB 2 and Jane Doe 3. [58] [6570147] [13­3853] (Khan, Ayesha)

04/22/2014

59

Submitted answer to petition for rehearing enbanc by Adam C. Jed for Appellees Jacob J. Lew, Thomas E.

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23 pg, 289.6 KB Perez, Kathleen Sebelius, HHS, LABR and TREA. [59] [6570152] [13­3853] (Jed, Adam)

04/22/2014

60

Filed Answer to Petition for Rehearing and Petition for Rehearing Enbanc by Appellees Jacob J. Lew,

23 pg, 219.61 KB Thomas E. Perez, Kathleen Sebelius, HHS, LABR and TREA, per order. [60] [6570174] Paper copies due

on 04/25/2014 [13­3853] (RS)

04/22/2014

61

Brief deficiency letter sent to Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3. [61] [6570231] [13­3853]

2 pg, 93.94 KB (SK)

04/22/2014

63

Filed Answer to Petition for Rehearing and Petition for Rehearing Enbanc by Appellees Jane Doe 1, Jane

24 pg, 108.54 KB Doe 2 and Jane Doe 3. [63] [6570433] Paper copies due on 04/25/2014 [13­3853] (SK)

04/23/2014

62

Submitted answer to petition for rehearing enbanc by Ayesha N. Khan for Appellees Jane Doe 1, Jane Doe

24 pg, 101.96 KB 2 and Jane Doe 3. [62] [6570428] [13­3853] (Khan, Ayesha)

05/07/2014

64

ORDER: Appellant University of Notre Dame Petition for Rehearing and Petition for Rehearing Enbanc is

1 pg, 102.35 KB DENIED. * Judge Williams did not participate in consideration of whether to rehear the case en banc. [64]

[6573784] [13­3853] (FP)

05/15/2014

65

Mandate issued. No record to be returned. [65] [6575719] [13­3853] (SK)

2 pg, 90.34 KB

05/15/2014

FOR COURT USE ONLY: Certified copy of 02/21/2014 Final Order with Mandate sent to the District Court

48 pg, 1.73 MB Clerk. [6575722­2] [6575722] [13­3853] (SK)

06/24/2014

66

Notice from the Supreme Court that a motion for extension of time to file a Petition for Writ of Certiorari has

2 pg, 56.17 KB been GRANTED extending such time to 10/04/2014. [66] [6585128] [13­3853] (AM)

10/06/2014

67

Appellee Kathleen Sebelius has been substituted by Appellee Sylvia Mathews Burwell in 13­3853, pursuant to FRAP 43(c). [67] [6611035] [13­3853] (JR)

10/06/2014

68

1 pg, 54.1 KB

Filed notice from the Supreme Court of the filing of a Petition for Writ of Certiorari. 14­392 [68] [6611036] [13­3853] (JR)

03/09/2015

69

1 pg, 63.33 KB

Filed order from the Supreme Court GRANTING the Petition for Writ of Certiorari. 14­392. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014). The judgment or mandate of this Court will not issue for at least twenty­five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. [69] [6646653] [13­3853] (FP)

03/13/2015

70

1 pg, 862.76 KB

ORDER: The parties file statements of position in light of the Supreme Court's order dated March 9, 2015, granting the petition for a writ of certiorari, vacating this court's judgment, and remanding the case to this court for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 573 U.S. ____ (2014). University of Notre Dame v. Burwell, No. 14­392 (Mar. 9, 2015). The parties' statements of position are due by April 7, 2015. JKL [70] [6647860] [13­3853] (AD)

03/13/2015

71

2 pg, 91.5 KB

Argument set for Wednesday, April 22, 2015, at 2:30 p.m. in the Main Courtroom, Room 2721. Each side limited to 20 minutes. [71] [6647905] [13­3853] (RS)

04/07/2015

72

Filed Statement of position by Appellees Sylvia Mathews Burwell, Jacob J. Lew, Thomas E. Perez, HHS,

9 pg, 113.32 KB LABR and TREA to respond to court order of 3/13/2015. [72][6653576] [13­3853] (Klein, Alisa)

04/07/2015

73

Filed Circuit Rule 54 Statement of Position by Appellant University of Notre Dame , as ordered by this

20 pg, 129.33 KB court. [73] [6653611] [13­3853] (Kairis, Matthew)

04/07/2015

74

Filed Statement of position by Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3 to to respond to court

17 pg, 89.82 KB order of 3/13/2015. [74][6653632] [13­3853] (Khan, Ayesha)

04/07/2015

75

5 pg, 48 KB

Motion filed by Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3 to withdraw Jane Does 1 & 2. [75] [6653638] [13­3853] (Khan, Ayesha)

04/07/2015

76

Motion filed by Appellees Jane Doe 1, Jane Doe 2 and Jane Doe 3 to participate in oral argument. [76]

4 pg, 37.87 KB [6653647] [13­3853] (Khan, Ayesha)

04/09/2015

77

2 pg, 93.02 KB

ORDER: 1. Motion to withdraw Jane Does 1 & 2, filed on 4/7/2015. 2. Motion for divided oral argument, filed April 7, 2015. The motion to withdraw Jane Does 1 and 2 is GRANTED. The clerk of this court shall remove Jane Does 1 and 2 from the court's docket. Further, the motion for divided oral argument is GRANTED. Jane Doe 3 may use 5 minutes of the appellees' 20 minutes of argument time. [75] [76] MJG [77] [6654069] [13­3853] (FP)

04/10/2015

78

3 pg, 136.75 KB

Filed Supreme Court judgment in 14­392. 04/10/2015, The petition for writ of certiorari is GRANTED. The judgment is VACATED with costs, and the case is REMANDED to the United States Court of Apppeals for the Seventh Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014). University of Notre Dame shall recover from Sylvia Burwell, Secretary of Health and Human Services, et al. $300.00 for costs herein expended. [78] [6654484] [13­3853] (CD)

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79

1 pg, 247.92 KB

13-3853 Docket
Received argument confirmation from Matthew A. Kairis for Appellant University of Notre Dame. [79] [6654917] [13­3853] (Kairis, Matthew)

04/13/2015

80

Received argument confirmation from Mark B. Stern for Appellee Sylvia Mathews Burwell. [80] [6655122]

1 pg, 246.71 KB [13­3853] (Stern, Mark)

04/15/2015

81

Received argument confirmation from Ayesha N. Khan for Appellee Jane Doe 3. [81] [6655731] [13­3853]

1 pg, 235.42 KB (Khan, Ayesha)

04/17/2015

82

Mandate issued only as to Jane Doe 1 and Jane Doe 2. [82] [6656310] [13­3853] (SP)

2 pg, 90.18 KB

04/17/2015

FOR COURT USE ONLY: Certified copy of 04/09/2015 Order Dismissing a Party with Mandate sent to the

4 pg, 202.99 KB District Court Clerk. [6656317­2] [6656317] [13­3853] (SP)

04/22/2015

83

Case heard and taken under advisement by panel: Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge and David F. Hamilton, Circuit Judge. [83] [6657548] [13­3853] (LJ)

04/22/2015

84

Case argued by Mr. Matthew A. Kairis for Appellant University of Notre Dame, Ms. Ayesha N. Khan, Esq. for Appellee Jane Doe 3 and Mark B. Stern for Appellees LABR, HHS, TREA, Jacob J. Lew, Thomas E. Perez and Sylvia Mathews Burwell. [84] [6657549] [13­3853] (LJ)

05/19/2015

85

Filed opinion of the court by Judge Posner. AFFIRMED. Richard A. Posner, Circuit Judge; Joel M. Flaum,

50 pg, 319.94 KB Circuit Judge, dissenting, and David F. Hamilton, Circuit Judge, concurring. [85] [6663997] [13­3853] (FP)

05/19/2015

86

ORDER: Final judgment filed per opinion. With costs: yes. [86] [6664000] [13­3853] (FP)

1 pg, 606.51 KB

05/19/2015

101

INTERNET CITATION NOTE: Material from decision with internet citation. ATTACHED. [101] [13­3853]

64 pg, 3.25 MB (BF)

07/02/2015

87

Submitted petition for rehearing enbanc by Matthew A. Kairis for Appellant University of Notre Dame. [87]

22 pg, 162.2 KB [6674977] [13­3853] (Kairis, Matthew)

07/02/2015

88

Filed Petition for Rehearing and Petition for Rehearing Enbanc by Appellant University of Notre Dame.

22 pg, 187.51 KB Paper copies due on 07/06/2015 [88] [6675084] [13­3853] (AB)

07/07/2015

89

2 pg, 80.83 KB

Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Gregory M. Lipper for Appellee Jane Doe 3. [89] [6675956] (L­Yes; E­Yes; R­Yes) [13­3853] [Edited 07/08/2015 by MM to reflect the addition and termination of counsel.] (Lipper, Gregory)

07/24/2015

90

1 pg, 91.54 KB

ORDER: Appellant University of Notre Dame Petition for Rehearing and Petition for Rehearing Enbanc is DENIED. *Judge Ann Claire Williams did not participate in the consideration of this petition for rehearing. [90] [6680083] [13­3853] (CAG)

08/03/2015

91

Mandate issued. No record to be returned. [91] [6681989] [13­3853] (LJ)

2 pg, 90.61 KB

08/03/2015

FOR COURT USE ONLY: Certified copy of 05/19/2015 Final Order with Mandate sent to the District Court

54 pg, 591.3 KB Clerk. [6681992­2] [6681992] [13­3853] (LJ)

10/22/2015

92

Notice from the Supreme Court that a motion for extension of time to file a Petition for Writ of Certiorari has

2 pg, 53.42 KB been GRANTED, extending such time to 12/21/2015. [92] [6702238] [13­3853] (JR)

12/23/2015

93

Filed notice from the Supreme Court of the filing of a Petition for Writ of Certiorari. 15­812. [93] [6716981]

1 pg, 55.83 KB [13­3853] (CR)

05/17/2016

94

Filed order from the Supreme Court GRANTING the Petition for Writ of Certiorari. 15­812. The judgment or

2 pg, 71.14 KB mandate of the S.C. will not issue for at least 25 days pursuant to Rule 45. [94] [6750789] [13­3853] (AD)

05/23/2016

95

2 pg, 72.07 KB

Appearance form filed by Attorney Patrick G. Nemeroff for Appellees Sylvia Mathews Burwell, Jacob J. Lew, Thomas E. Perez, HHS, LABR and TREA. [95] [6752344] (L­No; E­Yes; R­No) [13­3853]­[Edited 05/23/2016 by VG ­ to reflect addition of counsel] (Nemeroff, Patrick)

05/23/2016

96

Filed Appellees Sylvia Mathews Burwell, Jacob J. Lew, Thomas E. Perez, HHS, LABR and TREA Citation

15 pg, 191.4 KB of Additional Authority, per Circuit Rule 28(e). [96] [6752351] [13­3853] (Nemeroff, Patrick)

05/26/2016

97

Filed Appellant University of Notre Dame Citation of Additional Authority, per Circuit Rule 28(e). [97]

12 pg, 220.84 KB [6753511] [13­3853] (Kairis, Matthew)

05/27/2016

98

2 pg, 96.28 KB

Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Richard B. Katskee for Appellee Jane Doe 3. [98] [6753819] (L­Yes; E­Yes; R­Yes) [13­3853]­­[Edited 05/27/2016 by AP­ Added Attorney Richard B. Katskee] (Katskee, Richard)

05/31/2016

99

2 pg, 96.38 KB

Appearance form filed by Attorney Joshua M. Salzman for Appellees Sylvia Mathews Burwell, Jacob J. Lew, Thomas E. Perez, HHS, LABR and TREA. [99] [6754265] (L­No; E­Yes; R­No) [13­3853]­­[Edited 05/31/2016 by CR to reflect addition of counsel] (Salzman, Joshua)

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100

2 pg, 96.36 KB

13-3853 Docket
Appearance form filed by Attorney Megan Barbero for Appellees Sylvia Mathews Burwell, Jacob J. Lew, Thomas E. Perez, HHS, LABR and TREA. [100] [6754268] (L­No; E­Yes; R­No) [13­3853]­­[Edited 05/31/2016 by CR to reflect addition of counsel] (Salzman, Joshua)

06/01/2016

104

Filed Notice of Intent to Withdraw by Appellee Jane Doe 3. [104] [6754906] [13­3853] (Lipper, Gregory)

2 pg, 71.93 KB

06/02/2016

Attorney Gregory M. Lipper terminated as counsel of record for Intervenor­Appellee Jane Doe 3 in 13­ 3853, pursuant to 6/1/2016 notice of intent to withdraw. [6755086­2] [6755086] [13­3853] (JR)

06/17/2016

105

3 pg, 114.05 KB

Filed Supreme Court judgment in 15­812 on 06/17/2016. The petition for writ of certiorari is GRANTED. The judgment of the above court in this cause is VACATED, and the case is REMANDED to the United States Court of Appeals for the Seventh Circuit in light of Zubik v. Burwell, 578 U. S. ___ (2016). (See order for details). [105] [6759196] [13­3853] (MM)

06/17/2016

106

1 pg, 88.92 KB

The Supreme Court has REMANDED this appeal to this court for further proceedings. The Supreme Court issued a certified copy of its judgment on 06/17/2016. IT IS ORDERED that a Circuit Rule 54 Statement is due by 07/08/2016. [106] [6759209] [13­3853] (MM)

06/22/2016

107

Filed Response by Appellees Jacob J. Lew, Thomas E. Perez, HHS, LABR and TREA to June 17, 2016

3 pg, 85.84 KB Court Order requesting Circuit Rule 54 Statement. [107][6760673] [13­3853] (Nemeroff, Patrick)

06/24/2016

108

Filed Response by Appellant University of Notre Dame Attorney Matthew A. Kairis to June 17, 2016 Court

4 pg, 86.86 KB Order requesting Rule 54 Statement. [108][6761576] [13­3853] (Kairis, Matthew)

07/08/2016

109

Circuit Rule 54 statement filed by Appellee Jane Doe 3. [109] [6765531] [13­3853]­­[Edited 07/08/2016 by

3 pg, 54.69 KB CR to reflect document filed] (Katskee, Richard)

07/08/2016

110

Filed Non­Party Motion to add pseudonymous intervenor by Ann Doe. [6765532] [13­3853] (Katskee,

15 pg, 82.03 KB Richard)

07/13/2016

111

1 pg, 95.97 KB

ORDER re: Intervenor­Appellees' Motion to Add Ann Doe as Pseudonymous Intervenor. [110] [110] The motion is GRANTED. Ann Doe shall be added as an intervenor­appellee and is permitted to proceed under the pseudonym Ann Doe. Ann Doe shall file a sealed disclosure statement with her true identity by 07/20/2016. JKL [111] [6766809] [13­3853] (MM)

07/19/2016

112

Sealed Disclosure Statement Filed by Attorney Richard Brian Katskee for Appellees Ann Doe and Jane Doe 3. Filed under SEAL per court's 7/13/2016 order. Motion by Appellees Ann Doe and Jane Doe 3 to proceed using a pseudonym. [112] [6768390] [13­3853]­­[Edited 07/19/2016 by JAD] (Katskee, Richard)

07/21/2016

113

Filed status report by Appellees Sylvia Mathews Burwell, Jacob J. Lew, Thomas E. Perez, HHS, LABR and

7 pg, 118.86 KB TREA. [113] [6769105] [13­3853] (Barbero, Megan)

07/25/2016

114

Filed status report by Appellant University of Notre Dame. [114] [6770250] [13­3853] (Kairis, Matthew)

5 pg, 95.35 KB

09/26/2016

115

Filed status report by Appellees Sylvia Mathews Burwell, Jacob J. Lew, Thomas E. Perez, HHS, LABR and

3 pg, 95.33 KB TREA. [115] [6785510] [13­3853] (Barbero, Megan)

09/26/2016

116

Filed status report by Appellees Ann Doe and Jane Doe 3. [116] [6785642] [13­3853] (Katskee, Richard)

3 pg, 79.53 KB

09/28/2016

117

Filed status report by Appellant University of Notre Dame. [117] [6786412] [13­3853] (Kairis, Matthew)

4 pg, 92.99 KB

10/13/2016

118

2 pg, 1.3 MB

Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Laura Myron for Appellees Sylvia Mathews Burwell, Jacob J. Lew, Thomas E. Perez, HHS, LABR and TREA. [118] [6789909] (L­No; E­Yes; R­No) [13­3853]­­[Edited 10/13/2016 by FP to reflect that atty. Myron is added to the docket.] (Myron, Laura)

11/30/2016

119

Filed status report by Appellees Sylvia Mathews Burwell, Jacob J. Lew, Thomas E. Perez, HHS, LABR and

3 pg, 82.58 KB TREA. [119] [6800799] [13­3853] (Barbero, Megan)

11/30/2016

120

Filed status report by Appellees Ann Doe and Jane Doe 3. [120] [6800962] [13­3853] (Katskee, Richard)

3 pg, 78.96 KB

12/02/2016

121

Filed status report by Appellant University of Notre Dame. [121] [6801788] [13­3853] (Kairis, Matthew)

4 pg, 73.21 KB

12/06/2016

122

1 pg, 94.69 KB

ORDER re: 1. Status report of 11/30/16. 2. Status report of 11/30/16. 3.Status report of 12/02/2016. Counsel for the parties file further status reports by February 28, 2016. JKL. [122] [6802337] [13­3853] (FP)

01/10/2017

123

Filed status report by Appellees Sylvia Mathews Burwell, Jacob J. Lew, Thomas E. Perez, HHS, LABR and

3 pg, 81.71 KB TREA. [123] [6810424] [13­3853] (Barbero, Megan)

01/18/2017

124

ORDER re: Status report of 01/10/2017. The parties shall file further status reports, as previously

1 pg, 118.29 KB scheduled, by 2/28/17. JKL [124] [6812389] [13­3853] (VG)

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02/02/2017

125

Appellee Sylvia Mathews Burwell has been substituted by Appellee Norris W. Cochran; Appellee Jacob J. Lew has been substituted by Appellee Adam J. Szubin; and Appellees Thomas E. Perez and Seth D. Harris have been substituted by Appellee Edward C. Hugler in 13­3853, 14­1430, 14­1431 & 15­3648, pursuant to FRAP 43(c). [125] [6815901] [13­3853, 14­1430, 14­1431, 15­3648] (JR)

02/17/2017

126

Appellee Norris W. Cochran has been substituted by Appellee Thomas E. Price, and Adam J. Szubin has been substituted by Appellee Steven T. Mnuchin, in 13­3853, 14­1430, 14­1431 & 15­3648, pursuant to FRAP 43(c). [126] [6819848] [13­3853, 14­1430, 14­1431, 15­3648] (JR)

02/28/2017

127

3 pg, 78.5 KB

Filed status report by Appellees Edward C. Hugler, Steven T. Mnuchin, Thomas E. Price, HHS, LABR and TREA. [127] [6821944] [13­3853] (Salzman, Joshua)

02/28/2017

128

4 pg, 88.7 KB

Filed status report by Appellant University of Notre Dame. [128] [6822152] [13­3853] (Kairis, Matthew)

02/28/2017

129

Filed status report by Appellees Ann Doe and Jane Doe 3. [129] [6822248] [13­3853] (Katskee, Richard)

2 pg, 72.92 KB

03/10/2017

130

2 pg, 90.54 KB

ORDER: Upon consideration of the parties' status reports filed on February 28, 2017, the court directs that the parties file another status report on May 1, 2017. In the report(s) for May 1, 2017, the court expects to see either a report of an agreement to resolve the case or detailed reports on the parties' respective positions. In the event no agreement is reported on or before May 1, 2017, the court will plan to schedule oral argument on the merits of the case on short notice after that date. JKL. [130] [6825031] [13­3853] (ER)

05/01/2017

131

Filed status report by Appellees Ann Doe and Jane Doe 3. [131] [6837984] [13­3853] (Katskee, Richard)

7 pg, 75.83 KB

05/01/2017

132

Filed status report by Appellant University of Notre Dame and Appellees Edward C. Hugler, Steven T.

6 pg, 112.62 KB Mnuchin, Thomas E. Price, HHS, LABR and TREA. [132] [6837987] [13­3853] (Klein, Alisa)

05/04/2017

133

Appellee/Respondent Edward C. Hugler & Thomas E. Perez have been substituted by Appellee/Respondent R. Alexander Acosta, as Secretary of Labor, in 13­3853, 14­1430, 14­1431, 15­3648, 16­4244, 17­1087, 17­1096, 17­1184, 17­1201, 17­1216, 17­1321, 17­1329 & 17­1555, pursuant to FRAP 43(c). [133] [6838781] [13­3853, 14­1430, 14­1431, 15­3648, 16­4244, 17­1087, 17­1096, 17­1184, 17­ 1201, 17­1216, 17­1321, 17­1329, 17­1555] (JR)

05/10/2017

134

1 pg, 121.12 KB

ORDER re: 1. Joint status report. 2. Status report of intervenors­appellees. IT IS ORDERED that the parties file a further status report by June 1, 2017. In the report(s) for June 1, the court expects to see either a report of an agreement to resolve the case or detailed reports on the parties' respective positions. JKL [134] [6839990] [13­3853] (VG)

06/01/2017

135

Filed status report by Appellant University of Notre Dame and Appellees R. Alexander Acosta, Ann Doe,

4 pg, 108.13 KB Jane Doe 3, Steven T. Mnuchin, Thomas E. Price, HHS, LABR and TREA. [135] [6844974] [13­3853]­­[Text

edited 06/01/2017 by JR, and to note that status report correctly refiled at doc. #136.] (Klein, Alisa)

06/01/2017

136

Filed status report by Appellant University of Notre Dame and Appellees R. Alexander Acosta, Steven T.

4 pg, 108.13 KB Mnuchin, Thomas E. Price, HHS, LABR and TREA. [136] [6844981] [13­3853] (Klein, Alisa)

06/01/2017

137

Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Carmen Green for Appellees Ann

2 pg, 219.17 KB Doe and Jane Doe 3. [137] [6845166] (L­No; E­No; R­No) [13­3853] (Katskee, Richard)

06/01/2017

138

Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Kelly Percival for Appellees Ann

2 pg, 219.44 KB Doe and Jane Doe 3. [138] [6845167] (L­No; E­No; R­No) [13­3853] (Katskee, Richard)

06/01/2017

139

Filed status report by Appellees Ann Doe and Jane Doe 3. [139] [6845169] [13­3853] (Katskee, Richard)

5 pg, 182.34 KB

06/05/2017

140

1 pg, 97.63 KB

ORDER re: 1. Joint Status Report. 2. Status Report of Intervenors­Appellees. The parties shall file a further status report by July 3, 2017. In the report(s), the court expects to see either a report of an agreement to resolve the case or detailed reports on the parties' respective positions. JKL. [140] [6845513] [13­3853] (CD)

07/03/2017

141

Filed status report by Appellant University of Notre Dame and Appellees R. Alexander Acosta, Steven T.

4 pg, 87.94 KB Mnuchin, Thomas E. Price, HHS, LABR and TREA. [141] [6851684] [13­3853] (Salzman, Joshua)

07/03/2017

142

Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Fatima Goss Graves for

2 pg, 430.42 KB Appellees Ann Doe and Jane Doe 3. [142] [6851689] (L­No; E­No; R­No) [13­3853] (Katskee, Richard)

07/03/2017

143

Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Mara Gandal­Powers for

2 pg, 276.89 KB Appellees Ann Doe and Jane Doe 3. [143] [6851690] (L­No; E­No; R­No) [13­3853] (Katskee, Richard)

07/03/2017

144

Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Gretchen Borchelt for Appellees

2 pg, 296.82 KB Ann Doe and Jane Doe 3. [144] [6851691] (L­No; E­No; R­No) [13­3853] (Katskee, Richard)

07/03/2017

145

Filed status report by Appellees Ann Doe and Jane Doe 3. [145] [6851692] [13­3853] (Katskee, Richard)

5 pg, 170.86 KB

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07/13/2017

146

1 pg, 98.08 KB

13-3853 Docket
ORDER re: 1. Joint Status Report. 2. Status Report of Intervenors­Appellees. The parties shall file a further status report by August 1, 2017. In the report(s), the court expects to see either a report of an agreement to resolve the case or detailed reports on the parties' respective positions. In particular, the appellees should detail what steps have been taken in the rulemaking process to reconsider the regulations at issue in the appeal and what additional steps, if any, remain to be taken. JKL. [146] [6854044] [13­3853] (CD)

08/01/2017

147

Filed status report by Appellees Ann Doe and Jane Doe 3. [147] [6857987] [13­3853] (Katskee, Richard)

6 pg, 180.45 KB

08/01/2017

148

4 pg, 85.8 KB

Filed status report by Appellant University of Notre Dame and Appellees R. Alexander Acosta, Steven T. Mnuchin, Thomas E. Price, HHS, LABR and TREA. [148] [6858140] [13­3853] (Salzman, Joshua)

08/04/2017

149

Filed Notice of Intent to Withdraw Carmen Green as Counsel for Intervenors­Appellees by Appellees Ann

2 pg, 149.84 KB Doe and Jane Doe 3. [149] [6858847] [13­3853] (Katskee, Richard)

08/14/2017

150

1 pg, 97.42 KB

ORDER re: 1. Joint status report. 2. Status report of intervenors­appellees. The partie shall file a further status report by August 31, 2017. In the report, the court expects to see either a report of an agreement to resolve the case or detailed reports on the parties’ respective positions. In particular, the appellees should detail what is the status of the Office of Management and Budget’s review of the draft interim final rule, and what additional steps, if any, remain to be taken. JKL. [150] [6861271] [13­3853] (CR)

08/31/2017

151

Filed status report by Appellant University of Notre Dame and Appellees R. Alexander Acosta, Steven T.

4 pg, 84.56 KB Mnuchin, Thomas E. Price, HHS, LABR and TREA. [151] [6865767] [13­3853] (Salzman, Joshua)

08/31/2017

152

Filed status report by Appellees Ann Doe and Jane Doe 3. [152] [6865881] [13­3853] (Katskee, Richard)

7 pg, 77.03 KB

10/02/2017

153

Filed status report by Appellees R. Alexander Acosta, Steven T. Mnuchin, Thomas E. Price, HHS, LABR

3 pg, 80.11 KB and TREA. [153] [6873296] [13­3853] (Salzman, Joshua)

10/02/2017

154

Filed status report by Appellees Ann Doe and Jane Doe 3. [154] [6873318] [13­3853] (Katskee, Richard)

7 pg, 76.68 KB

10/16/2017

155

3 pg, 90.83 KB

Joint motion filed by Appellant University of Notre Dame and Appellees R. Alexander Acosta, Ann Doe, Jane Doe 3, Steven T. Mnuchin, Thomas E. Price, HHS, LABR and TREA to dismiss case. [155] [6876730] [13­3853] (Kairis, Matthew)

10/17/2017

156

3 pg, 185.54 KB

ORDER re: Joint stipulation of dismissal of appeal, filed on 10/16/17. This appeal is voluntarily DISMISSED. See Fed. R. App. P. 42(b). All parties shall bear their own costs. Mandate issued, no record to be returned. Richard A. Posner*, Circuit Judge; Joel M. Flaum, Circuit Judge and David F. Hamilton, Circuit Judge. * Circuit Judge Posner retired on September 2, 2017. He participated in this case prior to his retirement, but he did not participate in the consideration of the joint stipulation of dismissal of appeal. See 28 U.S.C. § 46(d). [155][156][6877000] [13­3853] (FP)

10/17/2017

FOR COURT USE ONLY: Certified copy of 10/17/2017 Final Order with Mandate sent to the District Court

3 pg, 330.83 KB Clerk. [6877013­2] [6877013] [13­3853] (FP)

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 University of Notre Dame v. Burwell, 135 S.Ct. 1528

135 S.Ct. 1528 Supreme Court of the United States
UNIVERSITY OF NOTRE DAME, petitioner, v.
Sylvia BURWELL, Secretary of Health and Human Services, et al.
No. 14–392. | March 9, 2015.
Case below, 743 F.3d 547.

Opinion
On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ––––, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014).

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