A month after rehearing the University of Notre Dame’s request for a preliminary injunction that it need not comply with the Affordable Care Act’s contraception mandate, the 7th Circuit Court of Appeals again affirmed the denial of the school’s request.
Judges Richard Posner and David Hamilton concluded Notre Dame is not entitled to preliminary injunction relief at this point, as the trial court record is sparse because Notre Dame proceeded with appeals in this case instead of handling the matter at the trial court level.
Notre Dame claims that the workaround to the school providing contraceptive coverage for its female employees insured by Meritain or its students insured by Aetna would make it “complicit in the sin of contraception.” Notre Dame is allowed under law to sign the EBSA Form 700 and send copies to the insurers notifying them that it is opting out of providing contraceptive coverage. By completing that form, it allows the insurers to work directly with its customers and cuts Notre Dame out of the administration and payment of the contraception.
The federal court denied Notre Dame’s request for preliminary injunction and the 7th Circuit agreed in 2014. But the university petitioned to the Supreme Court of the United States, which sent the matter back to the 7th Circuit in light of Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014). At oral arguments, the judges remained dubious of the schools’ assertions and also seemed perplexed as to why the case came back to the court.
“In the university’s words, the contraception regulation imposes a substantial burden on it by forcing the university to ‘identify and contract with a third party willing to provide the very services Notre Dame deems objectionable,’” Posner wrote. “But the scanty record contains no evidence to support the conduit theory.”
Posner pointed to the lack of the insurers’ contracts with Notre Dame in the record and noted that at this stage in the litigation, with no trial having been conducted, the appeals court has no basis for concluding that any of the university’s proposed alternatives would avoid imposing an unreasonable cost either on the government or on Notre Dame’s students and employees.
Hamilton concurred in separate opinion, writing that this case needs a trial on the merits, as the legal and factual landscapes shaping the issues have shifted a good deal since the university filed this suit in December 2013, just a month before the mandate took effect.
In his dissent, Judge Joel Flaum wrote that in light of Hobby Lobby, Notre Dame has articulated a substantial burden for purposes of the Religious Freedom Restoration Act.
“As a result, strict scrutiny governs our consideration of Notre Dame’s challenge here, and the government has the burden of demonstrating that the challenged accommodation is the lease restrictive means of serving a compelling interest,” Flaum wrote. “In my view, the government has not satisfied that charge. Accordingly, I respectfully dissent, concluding that Notre Dame is entitled to a preliminary injunction pending the district court’s decision of this case on the merits.”
Flaum also dissented when the panel heard the first appeal in 2014.