### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 1 3

- 3853
U NIVERSITY OF N OTRE D AME , Plaintiff

- Appell ant ,

v.

S YLVIA M ATHEWS B URWELL , Secretary of U.S. Dep artment of

Health & Human Services
, et al.
, Defendant s

- Appell ee s , and

J ANE D OE 3 , Interven ing Appellee

.

____________________ Appeal from t he 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 A PRI L 22, 2015

— D ECIDED M AY 19, 2015

____________________ Before P OSNER , F LAUM , and H AMILTON , Circuit Judges

. P OSNER , Circuit Judge

. The Affordable Care Act requires providers of health insurance (including both health insu rance companies and companies th at a dminister self

- insured2 No. 13

- 3853

empl oyer health plans on behalf of the employer

— such comp a nies are called “third party administrators” ) to cover certain preventive services without cost to the insured, i ncluding, “ with respect to women, such additional preventive

c are

... as provided for in comprehensive guidelines su pported by the Health Resources and Services Admini str ation ” of the D e partment 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 specif ying such care have been promulgated by the Department and include , so far as bears on this case, “ all Food and Drug Adminis t ration approved contraceptive methods .” Health Resources & Services Administration , “Women’ s Preven tive Services Guidelines,” www.hrsa.gov/ womens guidelines (visited May 14, 2015, as were the other websites cited in this opinion)

. A bout half of all pregnancies in the United States are u nintended, and 40 pe r cent of them end in abortion and many others i n premature births or ot h er birth problems. Institute of Medicine, Clinical Preve n tive Services for Women: Closing the Gaps 102

– 03 (2011 ), www.nap.edu/ catalog.php? record_id= 13181 ; Lawren ce B. Finer & Mia R. Zolna, “Shifts in Intended and Uni n tended Pregnancies in the United States, 2001

– 2008,” 104 Am. J. Pub. Health S43 , S44 (2014). Many of the u nintended pregnancies are teen pregnancies, and contrace ptive use has been found to be positiv ely correlated with d ecreased teen pregnancy. John S. Santelli & Andrea J. Meln ikas, “Teen Fertility in Transition: Recent and Historical Trends in the Uni t ed States ,” 31 Ann. Rev. Pub. Health 371 , 375

– 76, 379 ( 2010 ). B ecause out

- of

- pocket expenditures on female contraceptives can be su b stantial for many women
, see Su

- Ying Liang et al., “Women’s Out

- of

- Pocket Expend i-No. 13

- 3853 3

tures and Dispensing Pa t terns for Oral Contraceptive Pills Between 1996 and 2006,” 83 Co n traception 528, 531 (2011) , the provision of such cont race p tives without cost to the user can be expected to increase contraceptive use and so reduce the number both of uni n tended pregnancies and of abortions. See Jeffrey F. Peipert et al., “Preventing Unintended Pre gnancies by Providing No

- Cost Contraceptive s,” 120 Obste trics & Gynecology 1291, 1295

– 96 (2012). Furthermore, “w o men who can successfully delay a first birth and plan the su bsequent timing and spa c ing of their children are more likely than others to enter or stay in school and to have more o pportun ities for employment and for full social or p o litical 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. Bai ley et al., “The Opt

- in Revol ution? Contraception and the Gender Gap in Wages
, ” 4 Ame rican Economic Journal: Applied Economics, July 2012, pp. 251

– 52. For a compact and convincing summary of the ben e fits to society in general and women in particular of ine x pensive 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 provide s health benefits to both its employees and its students. It self

- insures its e mploy ees’ medical expenses , but has hired Meritain Health, Inc. to administer the employee health plan without provi ding any insurance coverage ; Me r itain is therefore the third

party administra tor of the university’s employee health plan

. To take care of its st udents’ medical needs, Notre Dame has a contract with Aetna , Inc., the well

- known health care and health insurance company ( and Meritain’s parent); the co n-4 No. 13

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tract gives the students the option of obtaining health insu rance from Aetna at rates negotiated by N otre Dame

. Me ri t ain administers coverage for some 4600 employees of Notre Dame (out of a total of 5200 ) and 6400 dependents of e mployees

. Aetna insures 2600 st u dents and 100 depend ents; Notre Dame has about 11,000 students , most of whom have coverage under either their parents’ health insurance pol icies or under their own policies rather than under the Aetna Notre Dame Health Plan

. Because Catholic doctrine forbids the use of contrace ptives to prevent pregnancy (the “rhythm” method of avoi ding pre g nancy, w hich is permitted, is a form of abstention,
not of contraception), Notre Dame has never paid for contr aceptives for its employees or permitted Aetna to insure st udents under the Aetna Notre Dame Health Plan (or any ot her Aetna plan) for the expense of cont ra ceptives. Cogn i zant of the religious o b jections of Catholic and a number of other religious inst i tutions to contraception , and mindful of the dictate of the Religious Fre e dom Restoration Act, 42 U.S.C. § § 2000bb

- 1(a), (b), that “Government shall not su b s tantially burden a person’s exercise of religion even if the burden r esults from a rule of general applicability,” unless “it demo nstrates that application of the burden to the pe r son

— (1) is in furtherance of a compelling governmental i n terest; and (2) is the least restrictive means of furthering that compelling go vernme n tal interest,” some months after the enact ment of the Affordable Care Act the government offer ed a religious e xemption from the contraception guide lines. See “ Group Health Plans and Health Insurance Issuers Relating to Co verage 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. R eg. 8725, 8727

– 29 (Feb. 15, 2012).No. 13

- 3853 5

At first the exemption was limited to churches and so e xcluded religious institutions that are incorporated as no nprofit ( rather than as religious ) institutions , such as Notre Dame

. The exclusion precipitated the filing in 2012 of a fe deral suit by the university against the government, claiming that the con tr a ceptive regulations infringed rights conferred on the university by both the First Amendment and the Rel igious Freedom Restoration Act. T hat suit was dismissed on standing and ripeness grounds
, the government having promised that Notre Dame wouldn’t hav e to comply with the regulations for one year, during which new regul a tions would be issued

. University of Notre Dame v. S e belius , 2012 WL 6756332 , at *3

– 4 (N.D. Ind. Dec. 31, 2012) ; see “ Ce r tain 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 enlarge d 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 it s scope

. But to exercise its right conferred by the new regul a tions to opt out of having to pay for contraceptive coverage either directly (with or without the admini s trative assistance of a third

- party administrator, such as Meritain) or through a health insurer, such as Aetna, the unive r sity had to fill o ut

“ EBSA Form 700

— Certification

. ” See 45 C.F.R. § 147.131(b)(4). The form ( www. dol.gov/ ebsa/ pdf/ preventive

ser vi ces eligible organiza tion cer tification form.pdf ) is short, its meat the following sentence: “I certify that, on account of r eligious objections, the organization opposes providing co verage for some or all of any contraceptive services that6 No. 13

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would othe rwise be required to be co v ered; the organization is organized and operates as a nonprofit entity; and the o rganization holds itself out as a religious organiz a tion. ” The form states that “the organization or its plan must provide a copy of this certificat ion to the plan’s health insu r ance issuer (for insured health plans) or a third party administr a tor (for self

- insured health plans) in order for the plan to be acco mmodated with respect to the contraceptive coverage r equirement.” So Notre Dame , if it decid ed to sign the exem ption form, would have to give copies to both Aetna and Me ritain. As noted at the outset of this opinion, the Affordable Care Act requires providers of health insurance (including third

- party administr a tors of self

- insured health plans
, even though they are conduits rather than ultimate payors of plan benefits ) to provi d e contraceptive co v erage for women . See also 45 C.F.R. § § 147.131(c)(2)(i)(B), (ii); 29 C.F.R. § 2590.715

- 2713A(b)(3)

. T he exemption form if signed by Notre Dame and sent to Aetna and Meritain would ther e fore inform them that since Notre Dame was not going to pay for contrace ptive coverage of its students and staff, Aetna and Meritain would have to pay

. Aetna (inclu d ing its Meritain subsidiary) has neither religious nor fin ancial obje c tion s to paying for contraception

. Regarding the cost to these companies , the government will reimburse at least 110 percent of the third

party administrator’s (Meritain’s) costs, 45 C.F.R. § 156.50(d)(3), while Aetna can expect to recoup its c osts of contraceptive coverage from sa v ings 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 regulatoryNo. 13

- 3853 7

offsets

. Se e “Coverage of Ce r tain Preventive Services Under the Affordable Care Act,” s u pra , 78 Fed. Reg. at 39877

– 78.
The regulations require d Aetna and Meritain
, if Notre Dame signed and sent the exemption fo r m

— but not Notre Dame

— to inform the university’s female e mployees and students that those companies would be covering their co ntraceptive 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, altern atively, “arrange for an insurer or other entity to provide payments for” those services , but they could not “i m pos[e] any cost

- sharing requirements (such as a copayment, coi nsurance, or a deductible), or impos[e] a premium, fee, or other charge, or any portion the reof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or benef i ciaries.” 29 C.F.R. § § 2590.715

- 2713A(b)(2), (c)(2). The regulations thus sought an accommodation between the secular interests that had motiva ted the requirement to provide contraceptive services to women free of charge and the interests of religious objectors . Accommodation is co nsi s tent with the balancing act required by the Religious Fre e dom Restoration Act , which as we noted re quires co nside r a tion of “subst antial burden ” (on the institution unwil ling to provide contraceptive services ) , a “compelling go vernmental inter est ” in that provision, and the “least restri ctive means” that is fe a sible for rea l izing the govern ment’s interest.
When the ac commodation was promulgated in July of 2013 , Notre D ame did not at first bring a new suit (reme mber that its previous suit, brought when the university was8 No. 13

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excluded from opting out of contraceptive coverage, had been di s missed on jurisdictional grounds , an d 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 w as awkward, since the regulations were to take effect with r esp ect to the employee health plan

— and did take effect

— on Jan u ary 1 , 2014

. “Coverage of Certain Preventive Services Under the Affordable Care Act,” supra , 78 Fed. Reg. at 39889. ( T he student health plan
, provided by Aetna
, had until A ugust 2014 to comply

. See id

. ; University of Notre Dame, 2013

– 2014 Student Injury and Sickness Insuranc e 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 secon d suit on D ecem ber 3
, 2014, asked the district court to issue a preliminary injunction that would prevent the government from enfor cing the regulation against it pending a trial

. The district judge denied the m o tion on December 20 , and Notre Dame filed its appeal from that denial the same day. O n D e cember 30 we denied the university’s emergency motion for an i njunction pending appeal. The next day

— the last day b e fore it would be penalized for violating the regulations

— the un iversity signed EBSA Form 700 and thereby opted out of
pr o viding contraceptive coverage for its employees

. On Ja nuary 28 it filed with us a second appeal from the denial of the pr e liminary injunction that it had sought. Later it signed the same form regarding Aetna.
The lawsuit had been o nly a few weeks old when Notre Dame appealed, and so the district judge suspended all pr oceedings in his court pending our resolution of the appealNo. 13

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(which as just noted had become two appeals). The parties had thus had only a slender window in which to pre sent e vidence , and very little had been presented

. Because of Notre Dame’s focus on obtaining relief at the appellate level, there has been no r e sumption of proceedings in the district court
, and as a result there is very little evidence in the record b efo re us . That is one reason why, in a decision issued on Fe bruary 21, 2014 , we declined (with one member of the panel dissenting) to reverse the district judge’s denial of the pr eliminary 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 Ci r cuit also r uled in favor of the government, Michigan Catholic Co nference & Catholic Fa m ily 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
, s u pra

. 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 ( Unive r s ity 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. Pet i tion for

wr it of certiorari granted. Judgment vacated, and case r emanded to the United States Court of Appeals for the Se venth 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 b ack in this court, the parties filed pos ition stat e ments , after which we heard oral argument for an hour and fifty minutes . The discussion of issues that fo l lows in this opinion is based on the position statements and oral10 No. 13

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argument, on portions of our orig inal opi n ion, and on the Hobby Lobby d e cision. Our previous opinion had expressed puzzlement about what exactly the university wanted us to en join . It had by that time signed EBSA Form 700 and sent copies to Ae t na and Meritain , thus obtaining the statutory a c commod a tion, and the companies had notified Notre Dame’s emplo y ees and students that they (the companies , not the unive r sity ) would be providing contraceptive cover age. We now have (we think) a clearer idea of what the university wants

. It
wants us to e njoin the government from forbidding Notre Dame to bar Aetna and Me ritain from providing contrace ptive coverage to any of the university’s students or emplo yees. Because of its contractual relations with the two comp anies, which continue to provide health insurance co v erage and administration for medical services apart from contr aception 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

— wi th both of which, to repeat, it continues to have contra c t ual relations

— to provide any contraceptive coverage to Notre Dame students or staff. The result would be that the st udents and staff currently lacking coverage other than from Aetna or Meritain woul d have to fend for themselves, see king contraceptive coverage elsewhere in the health i n surance

ma r ket.
Notre Dame does not forbid its students or staff to use contraception or to obtain reimbursement from health insu rance companies for their purchase of c ontraceptives

. Its o bjection that it asks us to ratify by issuing a preliminary i njunction is to Aetna’s and Me ritain ’s being legally obligatedNo. 13

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to make contracepti ve coverage available to Notre Dame students and staff

. It regards its contractual relationsh ip with those companies as making the unive r sity a conduit between the suppliers of the coverage and the un i versity’s students and employees

. In the university’s words, t he contrace p tion regulation imposes a substantial burden on i t by forcing the universi ty to “ identify[] and contract[] with a third party willing to provide the very services Notre Dame deems o bjectionable.”

But the scanty record contains no evidence to support the conduit theory

. Although Notre Dame is the final arbiter of its rel i gious be liefs, it is for the court s to determine whether the law actually forces Notre Dame to act in a way that would vi o late those beliefs. As far as we can determine from the very limited record, the only “conduit” is between the companies and Notre Dame studen ts and staff ; the unive r s ity has stepped aside. Thus it tells its stu dents (and we a ssume its staff as well) that “t he Un i versity of Notre Dame honors the moral teachings of the Catholic Church. Ther efore, for example, University Health Services may prescr ibe contraceptive medications to treat approved medical cond itions, but not to prevent pregnancy. To comply with federal law, Aetna St u dent Health provides coverage for additional women’s health products or proc e dures that the University objects to based o n its religious beliefs. This coverage is sep arate 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 St u dent Health should check with their own ins urance plans regar ding federally

- mandated women’s health coverage.” Unive rsity of Notre Dame Health Services, “FAQ

- Aetna Student Health,” http://uhs.nd.edu/insurance

- bil ling/faq

- aetna

- stud e12 No. 13

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n t

- health

- ans/ (emphasis added)

. There thus is no suggestion that Notre Dame is involved at all in Aetna’s and Me ritain’s
contrace p tion coverage.
When the case was last before us
, in 2014, the university’s la w yer had similarly arg ued that Notre Dame’s health plans

were the “conduit” through which the employees and st udents obtain ed 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 emp loyees 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 contr a ceptive services, so now you must cover them.” It’s difficult to see how that would make the he alth plan any less of a “con duit ” between Notre Dame and Ae t na/Meritain.
It’s not even clear that by forcing Aetna/Meritain to pr ovide Notre Dame’s students and staff with contraception coverage the government is forcing Notre Dame to do bus iness with an entity that is providing an objectionable service
to the Notre Dame community. For the government autho rizes a third

- party admi n istrator to “arrange for an issuer or other entity” to pay for contraception coverage and bill the

e x pense to the government. 29 C.F.R. § 2590.715

- 2713A(b)(2)(ii)

. Notre Dame thus could ask Meritain to ou tsource contraception coverage for both students and staff to an entity that does no business with Notre Dame . T he un iversity would have no contra c tual relationship with that e ntit y and so would not be involved even indirectly in the pr ovision of contraceptive coverage to its students and emplo yees

.No. 13

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A further problem with Notre Dame’s quest for a pr e li minary injunction is the absence from the record of its co ntracts with Aetna and M eritain . We are not told what the d uration of the contracts is, whether or in what circumstances they are termin a ble by Notre Da me before their expiration date
, or what the f i nancial consequences to the companies might be given that the federal government reimburses health in su r ers’ contraception payouts generously. S o far as contraception is concerned, health insurers are merely i ntermediaries between the federal government and the co nsumers. We are led in turn to wonder whether the gover nment

— which rarely provides health services directly to p atients but rather uses health care companies to provide those services as the government’s agents

— might without offen ding Notre Dame’s religious scruples hire Aetna and Meritain to pr o vide that coverage . That would b e simpler and more direct than the government’s shopping for other health i nsurance companies to be its agents in dealing with Notre Dame ’s st u dent s and staff

. It is irregular , moreover, for a court to be asked to enjoin nonparties . For all we know, Aetna and its subsidiar y value the opportunity to provide contraception coverage with gene r ous reimbursement by the federal government

. (The record, consistent with its sparseness, contains almost not hing about Aetna or Meritain .) Their business is providing hea lth care, health care administration, and health insu r ance, and Notre Dame wants unilaterally to exclude them from a possibly lucrative chunk of that business. When the unive r s ity, albeit under protest
, signed and mailed the e x emption form, Aetna and Merit ain reasonably believed that they had an economic opport u nity

— that for the first time they would be providing contraceptive coverage to the Notre Dame14 No. 13

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community. ( Remember that before the Affor d able Care Act was passed they provided no such coverage to the comm unity.) They have had no opportunity to intervene in the di strict court, where proceedings have been suspended pen ding Notre Dame’s appellate submissions culmina t ing in this

case.
Notre Dame takes particular umbrage at the regulation under the Afforda ble Care Act which states that “ if the elig ible 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 administr a tor [Meritain] , the self

- certificati on shall be an instrument under which the plan is operated, [and] shall be treated as a desi gnation of the third party administrator as the plan admini strator under section 3(16) of ERISA for any contraceptive services required to be covered under § 2590.7 15

- 2713(a)(1)(iv) of this chapter to which the eligible organiz ation objects on religious grounds.” 29 C.F.R. § 2510.3

- 16 (b)

. (What a mouthful!) Notre Dame treats this regulation as ha v ing made its mailing of the cert i fication form to its third

party admin istrator (Meritain) the cause of the pr o vision of contraceptive services to its employees in violation of its r eligious beliefs. That’s not correct. Since there is now a federal right, unquestioned by Notre Dame, to contraceptive se rvices, the effect of th e un i versity’s exercise of its religious exemption is to throw the entire burden of admin i stration on the entities (Aetna and Meritain) that now provide contr aceptive coverage to Notre Dame’s students and staff. The university is permitted to opt out of pr oviding federally mandated contraceptive services, and the federal gover nment determines (enlists, drafts, conscripts) substitute pr oviders, and it is not surpri s ing that they are the providersNo. 13

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who already are providing health services to university st uden ts and staff

. The university argues that by conditioning its right not to provide contraceptive coverage for its students and staff on its signing EB SA Form 700 and giving copies to Aetna and Merit ain , the government has
, in violation of RFRA
, “su bstantial ly burden[ed] a person’s exercise of religion ” (the unive r sity is a nonprofit corporate “ per son” ; 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 burde ning

. It notes tha t the Catholic concept of “scandal ” forbids the encouragement (equivalent to aiding and abetting) of sinful acts ; a 2013 af fid avit by Notre Dame’s exec u tive vice

president defines “ ‘ scandal ’

... in the theological context ... as encouraging by words or example other persons to e ngage in wrongd o ing.” Of course in invoking the exemption the university also throws the entire administrative and f inancial burden of providing contraception on the health i nsurer and third

- party administrator, which are secular o rganiz a tions that unlike the university have no aversion to providing contraceptive coverage. The result is to lift a bu rden from the university’s shoulders. Alternatively Notre Dame charges that the government has “coerce[d] [it] into serving as the crucial lin k b e tween contraceptive providers and recipients.” That’s a recursion to the “conduit” theory, and ignores that as a result of the university’s signing the exemp tion form
, students and staff

now deal directly with Aetna and Meritain, bypassing Notre Dame

. It is f ederal law, rather than the religious organiz ation’s sig n ing and mailing the form, that requires health

- care insurers, along with third

- party admi n istrators of self

-16 No. 13

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insured health plans, to cover contraceptive services. By r efusing to fill out the f orm 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 e mployees

. Notre Dame says no

— that had it not fil led out the form
, Meritain wouldn’t have been authori zed to pro vide contr aceptive services because it would have been a “plan admi nistrator” under se c tion 3(16) of ERISA, 29 U.S.C. § 1002(16), and thus not a plan fiduciary entitled to make e x penditures (as for contraception coverage ) on behalf of the plan. T he university argues that it alone is authorized to de s ignate 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 contracep tives to the unive r sity’s staff

. This version of Notre Dame’s “triggering” argument does not apply to Aetna, which is the st u dents’ health insurer and so already a plan fiduciary, 29 U.S.C. § 1002(21)(A), required therefore by the Affordable Care Act to provide contrace p tive cover age 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 serv ing as fiduciaries, ” “Coverage of Certain Preventive Services U nder the Affor d able Care Act,” supra , 78 Fed. Reg. at 39879, “many” is not “all” or even “most .” Notre Dame has pr esented no evidence that its contract with Me r itain forbids the latter to be a plan fiduc i ary (remember that the contract is not in the record)

.No. 13

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Nor has the univ ersity 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 a dministrator under section 3(16) of ERISA for any contrace ptive se r vices required to be cover ed.” 29 C.F.R. § 2510.3

- 16(b) (e m phasis added). Treated and d esignated 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 unive r sity, imposes on it

— the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it. Notre Dame’s sig ning the form no more “triggers” Meritain’s obligation to provide contraceptive services than a tortfeasor’s declaring ban k ruptcy “triggers” his co

- tortfeasors’ joint and several liabilit y for damages. Meritain must provide the se r vices 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 pa yer” 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 Me dicare for everyone), rather than employer s, health insu r ers, and patients, though patients may be charged directly for some of the expense of the medical care provided by the sy stem, as distinct from indirectly through taxes

. If our hyp othetical single

- payer system paid the full expense of f e male contraceptives , Notre Dame couldn’t a r gue that the system placed a “substantial burden” on the university’s compl iance with Catholic doctrine, for Notre Dame does not deny the existence of the legitimate secular interests noted at the outset of this opini on that justify a federal program of pa y-18 No. 13

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ing for contraceptive expenses

. (For a summary of those i nterests, see “Coverage of Certain Preventive Services U n der the Affordable Care Act,” supra , 78 Fed. Reg. at 39872

– 73 .) It

even a d vised the district court tha t to “achieve its asserted interest s without forcing Notre Dame to violate its r e ligious beliefs” the government could “directly provide contrace ptive [ s ] ” to the university’s staff and students or , altern a tiv ely, “directly offer insurance coverage for cont racepti ve se rvices

. ” The cons e quence in either case would be a single

payer system for contraceptives . The main difference b etween such a system and the Affordable Care Act is that u nder the Act the government
, instead of provi d ing medical services directl y , uses private insurance providers and health plan administrators as its agents to provide medical services subs i dized by the government

. If the government is entitled to require that female co ntraceptives be provided to women free of charge, it is u nclea r how signing the form that declares Notre Dame’s a uthorized r e fusal to pay for contraceptives for its students or staff, and its mailing the authorization document to those companies , which under federal law are obl i gated to pick up the tab
, could be thou ght to “trigger” the provision of co ntra ce p tive coverage

. But we must

— we have been ordered by the Supreme Court to

— consider the bearing on our analysis of Bu r well v. Hobby Lobby Stores, Inc ., 134 S. Ct. 2751 (2014). The case ( a nticipated by our decision in Korte v. Sebelius
, supra ) involved
t hree closely held for

- profit corporations whose owners o bjected on religious grounds to having (by virtue of the co ntraception provisions of the Affordable Care Act and the regulations issued under it) to provide insura nce cove r ageNo. 13

- 3853 19

for their employees’ purchase of contraceptives that can d estroy a fertilized ovum, such as “mornin g after” pills and intrauterine contraceptive devices (IUDs); the owners’ obje ctions were thus objections not to contraceptives as such but
to w hat they consider ed to be abortif a cients. The question was whether RFRA should be interpreted to apply to nonr eligious institutions owned by persons having sincere rel igious objections to their institutions’ having to comply with the ACA’s contraceptive re g u lations. The Court held that it should be so interpreted, and therefore the institutions would be entitled to the “accommod a tion,” that is, to fill out form FSBA 700 and mail it to their health insurers: “ HHS has already established an accommodation for nonprofit organ izations with religious objections. Under that accommod ation, the organization can self

- certify that it opposes provi ding coverage for particular contraceptive services. If the o rganization makes such a certification, the organization’s i ns urance issuer or third

- party administrator must ‘[e]xpressly exclude contraceptive coverage from the group health insu rance coverage provided in connection with the group health plan’ and ‘[p]rovide separate payments for any contrace ptive services required to be covered’ without i m posing ‘any
cost

- sharing requirements ... on the eligi ble o r ganization, the group health plan, or plan partici pants or beneficiaries. ’” 134 S. Ct. at 2782 (cit a tions 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 protest ing

— which shows how different the two cases are. The companies in Hobby Lobby requested the accommodation; Justice Ke n n edy, concurring in Hobby Lobby , described the accommod a tion as an “existing, recognized, workable, and already i m pl emented framework to provide coverage” for employees of20 No. 13

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“ an objecting e m ployer.” 134 S. Ct. at 2786

. Notre Dame , in contrast, deems the accommodation a violation of its rel igious rights.
The Supreme Co urt 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 . B ut it gave no examples; perhaps it remanded our case for f urther co n si deration of that possibility. We’ve suggested in this opinion that Notre Dame could as an alternative to the official a ccomm o dation direct Meritain to delegate to companies that have no contractual relationship with Notre Dame (as Aetna and Mer itain do) the provision of contraception cove r age to the university’s students and staff. Then Notre Dame would be outside the loop

. Notre Dame does note possible alterna tives, such as a single

- payer sy s tem in which Notre Dame women would apply directly to the go v ernment for reimbursement of their costs of buying contraceptives . But at this stage in the litig ation , with no trial having been conducted, we have no basis for concluding that any of the university’s proposed altern atives would avoid imposing an unreasonable cost either on the government or on Notre Dame’s students and emplo yees. The government, as we said, typically provides medical services , including reimbursement of costs incurred by me dical providers
, indirectly, through health insurance comp anies such as Aetna. Does Notre Dame expect the go v ernment to establish a federal c ontracept ion a gency to which Notre Dame women should send the bills for the contrace p tives they buy? Alternatively, must every woman who wants r eimbursement of contrace p tive costs pick a health insuranceNo. 13

- 3853 21

company , maybe on the basis of a Google search, to contract with? This seem to be what the university has in mind when it says in its p o sition statement that it has no “objection to a system in which its employees or students coordinated with

an independent i n surer to provide coverage that ‘would not involve Notre Dame’” (emphasis in orig i nal). But b ecause 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 ent itled to such coverage automatically by vi r tue of being Notre Dame student s or employee s . See Brigitte C. Madrian & Dennis F. Shea , “The Power of Suggestion: I n ertia in 401(k) Participation and Savings Behavior,” 116 Quarterly Journal of Economics 1149 ( 2001 ), comparing e m ployee participation in employer

- sponsored sa v ings plans under “opt

- in” and “opt

out” enrollment and finding that there is much greater pa rticipation when one has to opt out in order to fo r go it. The Supreme Court pertinently observed in its Hobby Lobby opinion that the official accommodation (the acco mmodation that Notre Dame wants to escape from) would not i m pede “ women’s receipt of benefits by requiring them to take steps to learn abo ut, and to sign up for, a new gover nment funded a n d admini s tered 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

r e ceipt of such benefits

. Notre Dame says in its position statement that the go vernment has “ many alternative ways of prov i ding free co ntraceptive coverage without using the health plans of objec ting relig ious non

- profits as the conduit ” (emphasis added). Put to one side the question in what sense st u dents and staff22 No. 13

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dealing directly as they now do with Aetna and Meritain are “using” Notre Dame’s health plans

— plans that exclude co ntraception coverage. Our present concern is that Notre Dame has thus far failed to explain the “many a l ternative ways” (els ewhere it r e fers to “the myriad ways” or “any number of ways” in which the government can provide free contrace ptive coverage to Notre Dame’s students and staff)

— and it admits that it (that is, Notre Dame) “opposes man y of these alternatives on po l icy grou nds.” It lists the following “myriad ways”: The government could
(i) directly provide contraceptive services to the few ind ividuals who do not receive it under their health plans; (ii) offer grants to entities that already provide contrace ptive 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 se rvices; (iv) grant tax credits or deductions to women who pu rchase contraceptive services; or (v) allow Notre Dame and other Catholic non

- profit o rga n izations to comply with the Mandate [what we are calling the accommodation or official accommodation] by providing coverage for methods of family pla n ning consistent with Catholic beliefs (i.e., Natural Family Planning training an d materials).
Numbe r v is not contraception at all; iv elides all consi deration of the costs and complications of the administrative machinery for providi ng tax incentives to consumers; o ptions i through iii similarly would involve cumbersome a dministrati ve machinery and at the same time impose a bu r-No. 13

- 3853 23

den on Notre Dame’s female students and employees who
want to obtain contr a ceptives

. Nor does Notre Dame explain how a government pr ogram that directly or indirectly provided contraception co verage to Notre Dam e employees

— as Notre Dame suggests

— would avoid complicity in sin

. Were Notre Dame to hire an

u n employed person who, by virtue of becoming employed by Notre Dame , o b tained contraception coverage for the first time , would not the university be “triggering” t he new e mployee’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 r equirement of provi d ing contraceptive coverage to employees and (if the instit u tion is a colle ge or university) students. It can in the altern a tive notify the Department of Health and Human Services. That was the alternative chosen by another instit u tion of higher learning that was unwilling to provide contraceptive coverage or even sign the FSBA 7 00. In Whe a ton College v. Burwell , 134 S. Ct. 2806 (2014) (per cur iam), the Supreme Court said that “i f the applicant informs the Secr e tary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and h as religious objections to providing coverage for co ntrace p tive services, the respondents are enjoined from e nforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related reg ulations pending final di sposition of appellate review. To meet the condition for injunction pending appeal, the appl icant need not use the form prescribed by the Go v ernment, EBSA Form 700, and need not send copies to health insu rance issuers or third

- party admi n istrators. ” We ass ume that24 No. 13

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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 Se rvices of its desire to be exempt on religious grounds from providing contrace p tiv e coverage; undoubt edly the Secr etary would agree.

Notre Dame tells us that it likewise objects to that alte rnative . But based on the sparse record before us
, there is a strong argument that given the government’s legitimate i nterest in the provision of co ntraceptive coverage to women without cost to them, notice to the government would strike the proper balance between legitimate go v ernmental and sincere religious interests. That was the a c commodation sought and received by Wheaton Co l lege. 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 b ecause he believed that use of that unique identifier would harm her spirit. He wanted an accomm od a tion 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 admi ni stration. The Supreme Court refused. It said that “Roy may

no more prevail on his religious objection to the Gover nment’s use of a Social Security number for his daughter than he could on a si n cere religious objection to th e size or color of the Governme n t’s filing cabinets.” Id . at 700. The very word “accommodation” implies a balance of competing i nterests; and when we compare the burden on the gover nment or third parties of having to establish some entirely new method of providing contraceptive coverage with theNo. 13

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bu r den on Notre Dame of simply notifying the governmen t that the ball is now in the government’s court, we cannot conclude that Notre Dame has yet established its right to the injunctive r e lief that it is seeking before trial. The mandate to cover contraceptive care as part of any broad health insu rance packa ge provided by employers (or in the case of ed ucational institutions, students as well) was intended to mi nimize financial, administrative, and logistical obstacles to such cove r age. See 78 Fed. Reg. 39888 (July 2, 2013), rejecting alternative proposals an d explaining the importance of mi nimizing costs and logistical and administrative obstacles to contraceptive coverage; see a l so Priests for Life v. U.S. Dept. of Health & Human Services
, supra , 772 F.3d at 265. All of Notre Dame’s suggested alternatives wo uld impose significant f inancial, administrative, and l o gistical obstacles by requiring
women to sign up for separate coverage either with a go vernment agency or with another private insurer

. Such obst acles were considered by the Supreme Court in Hobby Lob by in support of the same accommodation that Notre Dame r efuses to a c cept. We emphasize in closing the tentative character of the analysis in this opinion. The record is insufficiently deve loped to enable us to rule definitively on Notre Dame’s claims

. The burden of establishing an entitle ment to a pr eliminary i n junction was of course on the university, not on the government

. The burden has not bee n carried. Chief Judge Simon’s denial of preliminary relief is ther e fore once again A F FIRMED

.26 No. 13

- 3853

H AMILTON , Circuit Judge , concurring. I join Judge Posner’s opinion in full . Notre Dame is not entitled to preliminary i njunctive relief at this point

. While the ultimate decision on the merits of this case remains uncertain, e q uitable conside rations weigh against a grant of a preliminary injunc tion now. An injunction would disrupt the status quo and temporarily cut off contraceptive coverage for hundreds or thousands of

women.
What th is case needs now is a trial on the merits where the relevant factual issues can be explored in depth. T he li mited factual record before us was made in the district court on an emergency basis in December 2013 . That record was also made without the partici pation of the intervenors, who would be affected most directly by the injunction Notre Dame seeks

. S ince th at time , also, the legal and factual lan dscapes shaping the i ssues have shifted a good deal.

W here the law is evolving rapidly and the facts are co mp lex, the better course is usually full exploration of the ev idence and thorough findings of fact by the district court , r ather than reliance on sweeping legal doctrines and hypoth esized 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 d ismissal on issue with “i mportant 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, abs ent dec i-No. 13

- 3853 27

sive precedent, means what it ‘should be’)”); Nelson v. IPALCO Enterprises, Inc ., 2005 WL 1924332, at *3 (S.D. Ind. Aug. 11, 2005) (denying cross

- motions for summary jud gment to allow further factual development where applicable law was “emerging, controversial, and highly fact

sensitive”). The district court is best suited for those respo nsibilities even where

— and perhaps especially where

— the appellate courts are still debating the applicable law.
For now, however, t he Supreme Court has ordered us to reconsider our earlier interlocutory decision in light of Bu rwell 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 corpora tion that was not eligible for this accommodation. T he very existence of the accommodation for religious not

- for

- profits , however, persuaded the S upreme Court that the government could achieve its purpose of making contraceptives available to employees and their families without infringing on Hobby Lobby ’ s religious b eliefs . 134 S. Ct. at 2782

. The Court’s conclusion focused on how the accommod ation allowed the employer to avoid p aying for contraceptives contrary to the owners’ religious beliefs while still making them available to employees and their families in a conve nient and seamless way. In praising the accommodation, t he Court explained that the effect of the accommodation o n employees “would be precisely zero. Under that accomm odation, these women would still be entitled to all FDA

approved contraceptives without cost sharing.” 134 S. Ct. at 2760. Justice Kennedy’s concurring opinion embraced the28 No. 13

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accommodation as a fully sat isfactory alternative for acco mplishing the government’s objectives without infringing on Hobby Lobby’s religious beliefs. 134 S. Ct. at 2786

– 87 (Ke nnedy, J., concurring). He also made clear that neither he nor the other Justices in the majority expected t he government to create “a whole new program or burden on the Gover nment” to provide the accommodation needed by the for

profit employer

- plaintiffs. Id

. T he accommodation for religious not

- for

- profits thus made it fairly easy for the Hobby Lobby Court to f ind 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 e xtend the accommodation to religious owners of closely held businesse s

. What does Hobby Lobby teach us about this case? In d eci d ing Hobby Lobby , the Supreme Court was well aware of pending lawsuits like this one, in which religious not

- for

profits have challenged the accommodation itself as viola ting 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 pu rposes of all religious claims.” 134 S. Ct. at 2782 & n.40. Despite t his inconclusive comment
, it is useful to consi der 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) co mpelling governmental interest s ; and (3) less restrictive alte rnatives.No. 13

- 3853 29

1. Substantial Burden : Notre Dame reads Hobby Lobby as resolving conclusively in its favor the issue whether the a ccommodation substantial ly burdens its exercise of its rel igion. In Hobby Lobby , the Court found that the Affordable Care Act’s requirements for contraceptive coverage by for

profit employers substantially burdened the plaintiffs’ exe rcise of religion. The employers were required by law to co ntract and pay for contraceptive coverage to which the e mployers’ owners objected on sincere religious grounds. The alternatives to compliance would have imposed stiff fina ncial 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 el igibility for the religious accommodation. Notre Dame finds most helpful to its position the Hobby Lobby rejection of the government’s argument tha t the role of the employer in contracting and paying for contraceptive coverage was too remote from an employee’s use of contr aceptives to impose a substantial burden on the exercise of religion. F ederal courts had no business addressing whether the plaint iffs’ 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 pers on to perform an act that is i nnocent in itself but that has the effect of en abling or facilitating the commission of an i mmoral act by another. Arrogating the authority to provide a binding national answer to this r eligious and philosophical question, HHS and30 No. 13

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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 empl oyer’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 rel igious grounds. Notre Dame asserts, however, that the mere act of requesting the exemption substantially burdens its r eligious exercise because it still has an attenuated role in cau sing 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, apa rt 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 i mportant differe nces between th e cases : Notre Dame challen ge s 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

. A ny student of United States history learns the central role s that religious faith and tolerance have played in the se ttlement of this land and in the found ing of the British col onies and the modern States and the federal Republic. We have a long tradition of governing in ways that accomm o-No. 13

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date the free exercise of religion. Special treatment of rel igious faith and practice abounds. From conscientious obje ctor 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 a ccommodations, we respect diverse faiths
, and we govern with reasonable compromises that avoid unnecessary fri ction 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 Ci r. 2014)

. T rue, t here are rare cases in which courts have considered the po ssibility that an accommodation process itself might be too prolonged, intrusive, ineffective, and/or otherwise burde nsome. See, e.g., Saints Constantine & Helen Greek Orthodox Chu rch, 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 process es for seeking permits to kill prot ected wildlife for use in Nativ e American religious pra ctices.
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 r eferring for the objecti onable contraceptive care, a university official must only fill out a simple form asserting that Notre32 No. 13

- 3853

Dame is a not

- for

- profit employer that objects on religious ground s to the law’s contraceptive coverage requirements. The official must then send the for m to either the Depar tment of Health and Human Services or the insurer or third

party 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 Da me’s claim of a su bstantial 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, Not re Dame has requested the accommodation and provided the government with contact information for Aetna and Me ritain. The government requires no further action from Notre Dame. The government has informed Aetna and Meritain of their federal obligations to p rovide 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 a ctions. But the Court rejected precisely that argument when it was advanced by Roy. “The Federal Government’s use of a Social Security n umber for Little Bird of the Snow does notNo. 13

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itself in any degree impair Roy’s ‘freedom to believe, e xpress, and exercis e ’ his religion.” 476 U.S. at 700

– 01

. While t he Court acknowledged that “Roy's religious views may not accept this distinction between ind ividual and governmental conduct
, ” i d . at 701 n.6 , t he Court co ncluded that this was ultimately a legal question, not a rel igious one : “It is clear, however, that the Free Exercise Clause, and the Constitution generally, recognize such a distinction; for t he adjudication of a constitutional claim, the Constit ution, 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 exe rcise is a question of federal law. A ccord, Geneva College v. Secretary of the United States Dep’t of Health and Human Se rvices , 778 F.3d 422, 43 6

– 38 (3rd Cir. 2015) (courts must co nsider substantial burden issue under RFRA) ; Priests for Life v. Burwell , 772 F.3d 229, 2 47

– 49 (D.C. Cir. 2014); Michigan Cath olic Conference v. Burwell , 755 F.3d 372, 3 85

– 87 (6th Cir. 2014)
, remanded, 2015 WL 1879768 (April 27, 2015)

. Notre Dame a rgu es , however, that the consequence of its certification and exemption imposes the substantial burde n. The consequence is that federal law then requires other ent ities ( 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 t his 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 accomm odation for religious not

- for

- profits, or34 No. 13

- 3853

even not to provide any health insurance coverage at all

— those employees and students would receive contraceptive coverage through some form of health insurance. As we and other circuits have pointed out, the ir cov erage results from federal law , not from Notre Dame’s actions.

T his 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 interpretati on 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 di ctate 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 t he extraordinary nature of Notre Dame’s objection to the go vernment’s accommodation and finding of substitutes for it. Federal law allows for exemption fr om 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 clai ming 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)

.No. 13

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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 b ecause the objector w ill 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 som eone else must substitute for him to e ngage in wrong doing , 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 cata strophe could be avoided by treating the substitute draftee as the least restrictive means to achieve a compe lling gover nmental 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 exemp tion is not entitled to raise a religious o bjection to the arrangements the government makes for a su bstitute. See Geneva College , 778 F.3d at 439 n.14 (making sim ilar point with example of employee who asks for time off to accommodate his religion, but wh o then objects to emplo yer’s substitution for him). And not coincidentally, the go vernment’s ability to find substitutes fits well with the S u-36 No. 13

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preme Court ’s decision, just a few days after it decided Ho bby 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 a nother religious college to invoke the exemption by notifying the government rather than its insurer. The Court pointed out: “Nothing in this o rder preclud es 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 t o 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 mist aken and attenuated objections

we re sufficient to invoke RFRA’s stringent l east

- restrictive

means 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 rad ical restructuring of government programs be sufficient u nder RFRA? And in contexts not involving national security and defense, would government accommodations of religion that require finding substitu tes all have to satisfy compe lling

- interest, least

- restrictive

- means scrutiny? For these reasons, RFRA should not be understood to recognize such mistaken views about substitutes as “su bstantial burdens” on reli gious belief. Accord, Geneva College
, 778 F.3 d 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,No. 13

- 3853 37

679

– 80 (D.C. Cir. 2008) (prisoner’s religious exercise not bu rdened by government’s analysis of DNA taken from his ti ssue sample).

2. Compelling Governmental Interest : Even if Notre Dame

can ultimately show a substantial burden on it s religious b elief , the next major issue under RFRA is whether imposing the burden on Notre Da me furthers a “compelling gover nmental interest

. ” 42 U.S.C. § 2000bb

– 1. In the abbreviated district court proceedings back in December 2013, the federal government did not contest th is 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 wo uld serve a compelling governmental interest. 134 S. Ct. at 2780. Justice Kennedy’s concurring opinion made clear that he viewed the governmental interest s as compelling

. I d . 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.”). A nd a ll four dissenting Ju stices viewed the government interests as compelling. Id . at 2799

– 2801 (Ginsburg, J., dissenting). The compelling inte rest s include women’s health
, the role that access to contr aception 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 factual38 No. 13

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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 w hether the accommodation for religious not

- for

- profits like Notre Dame is the least restrictive means of furthering the government’s interest , th e question demands much more exploration than was possible in the emergency proceedings in the district court back in December 2013. The ge neral mandate to cover contraceptive care as part of any broad health insurance package provided by emplo yers was intended to minimize financial, administrative, and logistical obstacles to such coverage. 78 Fed. Reg. at 39888 ( rejecting alternative propos als 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 not

for

- profits has also been designed to minimize those obst acles. Notre Dame’s suggested alternatives would all impose significant financial, administrative, and logistical obstacles by requiring women to sign up for sepa rate coverage, either with a government ag ency or another private insurer, and to pay additional costs unless the government paid for the pr ogram. Such obstacles were specifically considered in H obby Lobby . In debating whether the accommodation would su ffi ce for the for

- profit employers, the majority and dissent paid close attention to cost and to administrative and logist ical obstacles. See 134 S. Ct. at 2782

– 83 (under the accomm odation, plaintiffs’ employees would continue to receive co ntraceptive coverag e without cost sharing and with “minimal logistical and administrative obstacles”); id . at 2802 (Gin s-No. 13

- 3853 39

burg, J., dissenting) ( new government program as substitute would impose obstacles to effective coverage). Those co ncerns about effectiveness of alternativ es seem to have su bstantial 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 permi tted 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 e mployer

- based system of private health insurance that had evolved in our country
, rathe r than to substitute a new “si ngle 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 least

restrictive

- means analysis would need to consider such ra d ically different alternatives. In fact, Justice Kennedy’s Hobby Lobby concurrence e mphasized that the accommodation for religious not

- for

profits was an “existing, recognized, workable, and already

implemented framework to provide coverage” for emplo ye es 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 Go vernment has not met its burden of showing that it cannot a ccommodate the plaintiffs’ similar religious objections under this established framework .” Id . (emphasis added). He also commented that accommodation was possible “ without i mposition of a whole new program or burden on the Gover nment.” Id

.40 No. 13

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Consistent with those observat ions , I doubt that a hyp othetical 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 interest s . It also seems likely that such a program would impose the sort of logistical and administr ative 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 prelim inary injunction in this case.No. 13

- 3853 41

F LAUM , Circuit Judge , dissenting.

B y requiring health insurers to provide contracepti ve coverage , the Patient Protection and Affordable Care Act (“ACA”) forces Notre Dame to act in ways it says violat e its religious beliefs. The resultant burden on Notre Dame’s rights is substantial: because Notre Dame offer s health insurance to its students, and especially b ecause it
act s as a self

- insurer for its employees, the law turns Notre Dam e 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 cri ppling fines.
In light of the Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 2751 (2014)

— the dec ision the Court cited in asking us to reconsider this case

— Notre Dame has articulated a substantial burden for purposes of the Relig ious Freedom Restora tion Act (“RFRA”) , 42 U.S.C. § 2000bb et seq . As a result , strict scrutiny governs our consideration of Notre Dame’s cha llenge here , and t he 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 entitle d to a preliminary injunction pending the district court’s decision of this case on the merits.

* * *42 No. 13

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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 o rders from its edict, permitting them to offer employee health insurance that does not include coverage for co ntraception. Notre Dame seeks that same treatment
, b ecause it has the same religious o bjections to rendering available contraceptive health cover age for those it e mploys (and those that attend its school , in Notre Dame’s

case ) . At present, Notre Dame

— as a nonprofit religious organization that opposes providing contraceptive co ver age

— may ava il itself of what has become commonly referred to as “ the accommodation
, ” s ee 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 i nsurance 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 (neg otiating on their behalf to offer them an insurance plan through insurer Aetna). W hen Notre Dame invoked the accommodation , its relationship with bot h Meritain and Aetna changed because of the ACA. Meritain, its third

party administrator, became both authorized and r equired to offer contra ceptive coverage to Notre Dame’s employees

. S ee 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 cove rage only upon receipt of a valid self

- certification” (emphasis ad d-No. 13

- 3853 43

ed ) ). Aetna , as the insurer for the student plans, became obligated to segregate premium payments from Notre Dame’s students and to provide them with contraceptive coverage at Aetna’s expense , separate and apart from the insurance plan offered by the school

. S ee Hobby Lobby , 134 S. Ct. at 2763 (“When a group

- health

- insurance issuer r eceives notice that one of its clients has invoked this prov ision, the issuer must then exclude contracep tive 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 benef iciaries.” (citing 4 5 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 rel igious beliefs by forcing it to serve as a continuing link b etween Meritain and the contra ceptive services it provide s to Notre Dame’s employees. With regard to the student health plan, there seems to be outstanding disagreement over whether Notre Dame’s invoca tion of the accommodation “triggers” Aetna’ s obl igation 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 provid e full contraceptive coverage regardless [of] whether the applicant” invokes the accommodation, while Wheaton College “contends, by contrast, that the obligations of its health insurance i ssuer .. . are dependent on their receipt of notice that the44 No. 13

- 3853

applica n t objects to the contraceptive coverage requir ement.”)

. B ut see 42 U.S.C. § 300gg

– 13(a) (“A group health plan and a health insurance issuer offering group or i ndividual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sha ring 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 o f no moment here, because Notre Dame also believes that being driven into an ong oing contract ual relationship with an insurer

— especially

one that Notre Dame chose

— that provides its students with contraception compels it to act in contravention of its belie fs

. In Notre Dame’s view, the ACA alters its relationships with both Meritain and Aetna in a way that ren ders Notre Dame morally complicit in the provision of contr acep tion

. Put simply, Notre Dame is too engaged in a pr ocess

— the very premis e of which offe nds 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 o bjection to the mandate in the face of a proffered acco mmodation. I believe that an y inquiry into the rationality of that position is precluded by the Supreme Court’s d ecision 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 co nnect ion between what the objecting parties must do ... and the end that they find to be moral ly wrong ... [was]No. 13

- 3853 45

simply too attenuated.” 134 S. Ct. at 277 7

. 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 impose s a substantial burden on the abi lity of the objecting parties to conduct business in accor dance with their religious b eliefs ) 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 “impl icate[] a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a p erson to perform an act that is innocent in itself but that has the effect of enabling or f acilitating 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 provid e co ntracep tive insurance . Nevertheless, the ACA also places Notre Dame in a position that contravenes its belief sy stem. Yet the majo rity 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 su bstantial than the burden imposed on the plaintiffs in Hobby Lobby (and thus not actionable under RFRA) because Notre Dame is fu rther 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 s e-46 No. 13

- 3853

Hobby Lobby Court, however, rejected that position. See i d. (“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 ma ndate ‘substantially burden[ed]’ the exer cise of religion ” in view of the plaintiffs’ asserted beliefs

. 2 I d. at 2775 . T he Court thus proceeded to the compelling interest comp onent of the RFRA test. See i d. at 2779 (“Since the HHS co nverity of the penalties for non

- compliance. 134 S. Ct. at 2759, 2775

– 76. Because the contraceptive mandate forced the Hobby Lobby plai ntiffs “to pay an enormous sum of money ... if they insist[ed] on providing insurance coverage in accordance with their religious b eliefs, the mandate clearly impose[d] a s ubstantial 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 individ ual. 42 U.S.C. § 300gg

- 22(b)(2)(C). “These sums are surely substa ntial.” 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 cha llenging the contraceptive mandate ’s accommodation provision

— sought a nd was granted emergency relief by the Supreme Court. Wheaton Col l. , 134 S. Ct. at 2807

. In granting the preliminary injun ction, 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. –––No. 13

- 3853 47

traceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whet her HHS has shown that the mandate both ‘(1) is in fu rtherance 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 serv es 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. S ee Defs

. ’ Resp. in Opp’n to Pl.’ s Mot. for Pr elim. 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 su bstantial burden on plaintiff’s religious exercise, the reg ulations satisfy strict scrutiny because they are narrowly tailored to serve compelling government interests in pu blic 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 co mpelling 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 Go nzales v. O Centro Espírita Beneficente Uniao do Vegetal, 546 U.S. 418, 430

– 31 (2006)). “This requires us to ‘loo[k] b eyond broadly formulate d interests’ and to ‘scrutiniz[e] the asserted harm of granting specific exemptions to pa rticular reli gious claima nts

... .’” Id. (quoting O Centro , 54648 No. 13

- 3853

U.S. at 431). Nevertheless, the Court found it unnecessary to delve into the “features of [the] ACA that support [the] view” that the government lacks a compelling interest here (such as the fact that “many employees

— those co vered by grandfathered plans and those who work for employers with fewer than 50 em ployees

— may have no contraceptive coverage without cost sharing at all”), b ecause

— even assuming tha t 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)).
A s the Court noted, “[t]he least

- restrictive

- means standard is exceptionally demanding,” and it is the go vernment’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 o bjecting part[y].” Id. Here again, t he majorit y 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. Ho bby 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 demonst rate that ma ndating a plaintiff’ s compliance with the contraceptive

coverage requirement is ‘the least restrictive means of advancing a compelling interest.’ ” (emphasis in orig inal) (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 applic ation of a law or regulation substantially burdens his rel i-No. 13

- 3853 49

gious practice, the burden shifts to the government to ju stify the burden under strict scru tiny ”). Indeed, the go vernment

— in thi s very case

— conceded in its b rief to the district court that Korte dictates the issuance of a prelim inary injunction if the court finds a substantial burden on Notre Dame’s religious beliefs. S ee Defs

. ’ Resp. in Opp’n to Pl.’s Mot. for Prelim. Inj.
, supra , at 15

– 16 (“Defendant s recognize that a majority of the Seventh Circuit rejected these arguments [that the regulations satisfy strict scrut iny because they are narrowly tailored to serve compe lling 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 injun ction because the government had made minimal efforts “to explain how the contraception mandate is the least restrictive means of furthering its stated goals of promo ting pu blic 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 i nstruct the majority.

T he majority observes that Notre Dame has presented “possibl e altern atives” to the accommodation that would not infringe its religious exercise

. Yet it concludes that Notre Dame has failed to present a n adequate proposal for how the government can efficiently (and convenien tly) implement and administer an alternative program

. But t o reiterate, Hobby Lobby expressly informs

— consistent with Korte

— that it is the g overnment’s , not Notre Dame’s, burden to establish that the accommod ation is the least restrictive means of advancing a compe lling government interest . Moreover, the suggestion by the majority that any alternative method of advancing50 No. 13

- 3853

the government’s interests would likely be too costly or cumber some to the g overnment turns a blind eye to the Supreme Court’s latest teachings. What matters under RFRA is whether the means by which t he g overnment is attempting to advance its compelling interest is the least burdensome on Notre Dame’s religious beliefs. Accor dingly, RFRA may re quire the g overnment to start over and “creat[e] ... entirely new programs,” and it “may in

som e circumstances re quire the G overnment to expend additional funds to accommodate citizens’ religious b eliefs.” 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 object ion s .” Id. at 2780. Here, as in Hobby Lobby , “HHS has not shown ... that this is not a v iable alternative.” Id. For that reason, I would reverse the decision of the district court denying Notre Dame a pr eliminary injunction.