Shaking Down the Thunder from the Sky: Notre Dame's Challenge to the Contraception Mandate

28 February 2014 Wisconsin Appellate Law Blog

The Supreme Court will inevitably decide to what extent the Religious Freedom Restoration Act protects religiously affiliated employers from providing insurance coverage for contraceptive services, as is generally required under the Affordable Care Act. But in the meantime, the Seventh Circuit has entered the discussion by affirming the denial of the University of Notre Dame’s motion for a preliminary injunction in University of Notre Dame v. Sebelius (No. 13-3853)

Notre Dame filed suit late in 2013, challenging the ACA’s requirement that it either (1) provide contraceptive services to its employees; or (2) sign a form refusing to provide coverage for the services and submit it to its insurance plan administrators, which would then (as required by the ACA) provide the services directly and receive reimbursement from the government. Notre Dame argued that both options would require it to violate its religious beliefs, but failing to take either step would expose the university to pay prohibitive fines (potentially $250 million a year).

Within a week of filing suit, Notre Dame moved for a preliminary injunction, which the district court denied. Notre Dame appealed the denial under 28 U.S.C. § 1292(a), and the Seventh Circuit affirmed the denial. In a 2-1 decision, the court held that completing the form and sending it on to Notre Dame’s third party administrators would not “substantially burden” the university under the RFRA. Under Judge Posner’s reasoning for the majority, it was the federal government, not submission of the form, that triggered the provision of contraceptive services. Thus, completion of the simple form couldn’t burden Notre Dame.

In a strong dissent, Judge Flaum noted that the ACA requires Notre Dame to perform an action that it did not have to perform before, and that, at least to the University, the purpose and effect of the new action was to accomplish something that Notre Dame thought religiously forbidden. With no evidence in the record to undermine the sincerity of Notre Dame’s belief on this point, Judge Flaum argued that the court should have deferred to Notre Dame’s honestly held beliefs, in accordance with the RFRA.

Apart from the merits of the case, Judge Posner also made an interesting point about appellate courts’ role in reviewing preliminary injunctions granted at the outset of cases. Because Notre Dame sought a preliminary injunction only a week after filing suit, and the district court stayed all proceedings pending appeal, the record before the Seventh Circuit was “virtually a blank.” Considering this lack of evidence and the “unavoidable haste” with which the district court had to make its decision, review of the decision is necessarily highly deferential. The Seventh Circuit thus strikes an important note of caution about the danger of rushing to the courthouse as fast as you can to get your injunction motion filed. Time is typically of the essence, but getting the bulk of your evidence before the court is, too. A sparse injunction record has consequences.

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