The 7th Circuit in a 2-1 ruling refused to grant a preliminary injunction to Notre Dame University, which would have freed the university from participating in reform’s requirement to provide contraceptives at no cost to all women.
In so doing the court criticized the university’s argument that signing an EBSA Form 700 — expressing objections to the contraceptive mandate and announcing that its third-party administrator and insurer would cover contraceptives — was a form of “enabling” and “triggering” contraceptive coverage it objected to (Univ. of Notre Dame v. Sebelius, No. 13-3853 (7th Cir., Feb. 21, 2014)).
Background
Notre Dame never covered contraceptives, either through the plan that it self-insures or through the insured plan it offers employees.
In 2012, Notre Dame sued the federal government, claiming that the contraceptive mandate infringed its rights under the First Amendment and the Religious Freedom Restoration Act. Since then, the government broadened the exception for organizations with religious objections to providing such coverage, but allowed them to opt out if they objected in a government form, which had a due date of Jan. 1, 2014. But because Notre Dame waited so long to file suit, it was unable to get an injunction before the end of the year. So, on Dec. 31, it submitted the EBSA Form 700 to ensure compliance with the reform law.
The Decision
In its lawsuit against the government, Notre Dame sought the preliminary injunction, which a federal district court denied. The appeals court said discovery had not been completed by the district court, so it limited its inquiry to whether the district judge abused his discretion in refusing to grant the injunction. “With the evidentiary record virtually a blank, everything we say in the opinion about the merits of Notre Dame’s claim is necessarily tentative, and should not be considered a forecast” of the ultimate resolution, the ruling written by Circuit Judge Richard Posner said.
Posner said the court was bemused about the kind of relief the university was seeking. It had filled out the required government form — telling concerned parties it objected and wouldn’t pay — so it is already exempted itself from the regulation.
It would have been logical for the university to ask for an order forbidding its third-party administrator (Meritain) and the insurer of an alternative insured plan it offered (Aetna) from providing any contraceptive coverage to Notre Dame staff or students pending a final district court ruling. But Notre Dame failed to add either Meritain or Aetna as a defendant, so that was unattainable. If Notre Dame objected to the complicity involved in filling out the EBSA Form 700, it should have filed suit earlier, and it might have received a stay.
But the problem with the schools plea for a preliminary injunction was that Notre Dame failed to demonstrate that it accommodation imposed a “substantial burden” on the university. The university failed to demonstrate a substantial burden because: (1) the EBSA Form 700 is short and easy to fill out; (2) under the accommodation, federal law — not the university — orders the TPA/insurer to deliver contraceptives; and (3) the federal government or the insurer — again, not the university — pays for the drugs.