### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 3853

U NIVERSITY OF N OTRE D AME

, Plaintiff

‐ Appellant

,

v.

K ATHLEEN S EBELIUS

, Secretary of U.S. Department of

Health & Human Services, et al.

, Defendants

‐ Appellees

,

and

J ANE D OE 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

.

____________________

A RGUED F EBRUARY 12, 2014

— D ECIDED F EBRUARY 21, 2014

____________________

Before P OSNER

, F LAUM

, and H AMILTON

, Circuit Judges

.

P OSNER

, Circuit Judge

. The Affordable Care Act requires

providers of health insurance (including companies that

administer self

‐ insured employer health plans) to cover cer

‐2 No. 13

‐ 3853

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.No. 13

‐ 3853 3

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

‐4 No. 13

‐ 3853

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 NotreNo. 13

‐ 3853 5

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)6 No. 13

‐ 3853

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,No. 13

‐ 3853 7

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 December8 No. 13

‐ 3853

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.No. 13

‐ 3853 9

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

‐10 No. 13

‐ 3853

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. SinceNo. 13

‐ 3853 11

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 1053,12 No. 13

‐ 3853

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.No. 13

‐ 3853 13

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.14 No. 13

‐ 3853

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.No. 13

‐ 3853 15

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.16 No. 13

‐ 3853

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 couldNo. 13

‐ 3853 17

“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 violating18 No. 13

‐ 3853

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)No. 13

‐ 3853 19

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 want20 No. 13

‐ 3853

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).No. 13

‐ 3853 21

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 in22 No. 13

‐ 3853

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

‐No. 13

‐ 3853 23

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 allegations24 No. 13

‐ 3853

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 religiousNo. 13

‐ 3853 25

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 for26 No. 13

‐ 3853

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 ofNo. 13

‐ 3853 27

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 we28 No. 13

‐ 3853

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.No. 13

‐ 3853 29

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.30 No. 13

‐ 3853

Chief Judge Simon’s denial of preliminary relief in the

district court is

A FFIRMED

.No. 13

‐ 3853 31

F LAUM

, 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), available32 No. 13

‐ 3853

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 thisNo. 13

‐ 3853 33

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).34 No. 13

‐ 3853

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 Sebeliu s, 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.No. 13

‐ 3853 35

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).36 No. 13

‐ 3853

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 copyNo. 13

‐ 3853 37

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 Form38 No. 13

‐ 3853

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

‐No. 13

‐ 3853 39

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.40 No. 13

‐ 3853

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 ’sNo. 13

‐ 3853 41

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 plaintiffs ʹ 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)).42 No. 13

‐ 3853

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 universityNo. 13

‐ 3853 43

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

‐44 No. 13

‐ 3853

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.