Argued February 12, 2014.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:13-cv-01276-PPS-CAN -- Philip P. Simon, Chief Judge.
For UNIVERSITY OF NOTRE DAME, Plaintiff - Appellant: Matthew A. Kairis, Attorney, JONES DAY, Columbus, OH.
For KATHLEEN SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services, JACOB J. LEW, in his official capacity as Secretary of the U.S. Department of the Treasury, THOMAS E. PEREZ, in his official capacity as Secretary of the U.S. Department of Labor, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, Defendants - Appellees: Adam C. Jed, Attorney, Alisa B. Klein, Attorney, Mark B. Stern, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Appellate Staff, Washington, DC.
For JANE DOE 1, JANE DOE 2, JANE DOE 3, Intervenor - Appellee: Ayesha N. Khan, Attorney, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, DC.
Before POSNER, FLAUM, and HAMILTON, Circuit Judges.
Posner, Circuit Judge.
The Affordable Care Act requires providers of health insurance (including companies that administer self-insured employer health plans) to cover certain preventive services without cost to the insured, including, " with respect to women, such additional preventive care and screenings... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration." 42 U.S.C. § 300gg-13(a)(4); see also 45 C.F.R. § 147.130(a)(iv), 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). Guidelines specifying such preventive care have now been promulgated, and they include " all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." Health Resources & Services Administration, " Women's Preventive Services Guidelines," www.hrsa.gov/womensguidelines (visited Feb. 21, 2014, as were the other websites cited in this opinion). To simplify exposition, we'll refer to all methods of female prevention of pregnancy as " contraceptives." (Male contraceptives are not covered by the guideline.)
The health concerns that motivated the inclusion of contraception in the guidelines
on needs of women for preventive care begin with the fact that about half of all pregnancies in the United States are unintended, and 40 percent of them end in abortion and many others in premature births or other birth problems. Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 102-03 (2011), www.nap.edu/catalog.php?record_id=13181; Lawrence B. Finer & Mia R. Zolna, " Shifts in Intended and Unintended Pregnancies in the United States, 2001-2008," 104 Am. J. Pub. Health S43, S44 (2014). Many of the unintended pregnancies are teen pregnancies; contraceptive use has been found to be positively correlated with decreased teen pregnancy. John S. Santelli & Andrea J. Melnikas, " Teen Fertility in Transition: Recent and Historical Trends in the United States," 31 Ann. Rev. Pub. Health 371, 375-76, 379 (2010). Because out-ofpocket expenditures on female contraceptives can be substantial for many women, see Su-Ying Liang et al., " Women's Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills Between 1996 and 2006," 83 Contraception 528, 531 (2011), the provision of such contraceptives without cost to the user can be expected to increase contraceptive use and so reduce the number both of unintended pregnancies and of abortions. See Jeffrey F. Peipert et al., " Preventing Unintended Pregnancies by Providing No-Cost Contraceptives," 120 Obstetrics & Gynecology 1291, 1295-96 (2012). Furthermore, " women who can successfully delay a first birth and plan the subsequent timing and spacing of their children are more likely than others to enter or stay in school and to have more opportunities for employment and for full social or political participation in their community." Susan A. Cohen, " The Broad Benefits of Investing in Sexual and Reproductive Health," 7 Guttmacher Rep. on Public Policy, March 2004, pp. 5, 6; see also Martha J. Bailey et al., " The Opt-in Revolution? Contraception and the Gender Gap in Wages," pp. 19, 26 (National Bureau of Econ. Research Working Paper No. 17922, 2012), www.nber.org/ papers/w17922.pdf.
Like other universities, the University of Notre Dame provides health benefits to both its employees and its students. It self-insures its employees' medical expenses, but has hired Meritain Health, Inc. to administer the employee health plan without providing any insurance coverage (Meritain is therefore what is called a " third-party administrator" of a health plan). To take care of its students' medical needs, Notre Dame has a contract with Aetna (which happens to be Meritain's parent) that gives the students the option of obtaining health insurance from Aetna. Meritain administers coverage for some 4600 employees of Notre Dame (out of a total of 5200) and 6400 dependents of employees. Aetna insures 2600 students and 100 dependents; Notre Dame has about 11,000 students. But many of them have coverage under their parents' health insurance policies.
Because Catholic doctrine forbids the use of contraceptives (the " rhythm" method of avoiding pregnancy, which is permitted, is a form of abstention, not of contraception), Notre Dame has never paid for contraceptives for its employees or permitted Aetna to insure, under the Aetna Notre Dame Health Plan, Notre Dame students for the expense of contraceptives. Cognizant of the religious objections of Catholic institutions to contraception, and mindful of the dictate of the Religious Freedom Restoration Act, 42 U.S.C. § § 2000bb-1(a), (b), that " Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless " it demonstrates that application
of the burden to the person--(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest," the government, some months after the enactment of the Affordable Care Act, created by administrative regulation a religious exemption from the guidelines. See " Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services," 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(1)(iv)); see also 77 Fed. Reg. 8725, 8727-29 (Feb. 15, 2012). But at first it was narrowly drafted and as a result excluded Catholic institutions that, like Notre Dame, are incorporated as nonprofit rather than religious institutions. That precipitated the filing in 2012 of a federal suit by Notre Dame against the government, claiming that the contraceptive regulations infringed rights conferred on the university by both the First Amendment and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1. That suit was dismissed on standing and ripeness grounds, the government having promised that Notre Dame wouldn't have to comply with the regulations for one year, during which time new regulations would be issued. University of Notre Dame v. Sebelius, 2012 WL 6756332, at *3-4 (N.D. Ind. Dec. 31, 2012); see " Certain Preventive Services Under the Affordable Care Act," 77 Fed. Reg. 16501, 16502-03 (Mar. 21, 2012).
The new regulations were issued as promised--and, as expected, they enlarged the exemption. See " Coverage of Certain Preventive Services Under the Affordable Care Act," 78 Fed. Reg. 39870, 39875-90 (July 2, 2013); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R. § 147.131(b). As a result, Notre Dame now came within its scope. To exercise its right thus conferred to opt out of having to pay for coverage for contraceptives, either directly or through a health insurer, such as Aetna, the university had to fill out " EBSA Form 700--Certification." See 45 C.F.R. § 147.131(b)(4). The form (www. dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcer tificationform.pdf) is short, its meat the following sentence: " I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization." The form states that " the organization or its plan must provide a copy of this certification to the plan's health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement." So Notre Dame was required to give copies both to Aetna and to the employee plan's third-party administrator, Meritain.
The Affordable Care Act requires providers of health insurance (including third-party administrators of self-insured health plans, even though they are conduits rather than ultimate payors of plan benefits) to pay for contraceptives for women, see 45 C.F.R. § § 147.131(c)(2)(i)(B), (ii); 29 C.F.R. § 2590.715-2713A(b)(3); the form alerts Aetna and Meritain that since Notre Dame is not going to pay, they will have to pay. The companies have neither religious objections to paying for contraception nor financial objections. 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), and Aetna can expect to recoup its costs of contraceptive coverage from savings on pregnancy medical care, since there will be fewer pregnancies if contraception is more broadly available, at no cost, to Notre Dame's female
employees and students, as well as from other regulatory offsets. See " Coverage of Certain Preventive Services Under the Affordable Care Act," supra, 78 Fed. Reg. at 39877-78.
The regulations require Aetna and Meritain, but not Notre Dame, to inform the university's female employees and students that those companies will be covering their contraceptive costs. See 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d). The companies may either " provide payments for contraceptive services" themselves or, alternatively, " arrange for an issuer or other entity to provide payments for" those services; either way, they may not " impos[e] any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impos[e] a premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries." 29 C.F.R. § § 2590.715-2713A(b)(2), (c)(2). The regulations thus seek an accommodation between the secular interests that motivate the mandate to provide contraceptive services to women free of charge and the interests of religious institutions that provide health services. Accommodation is consistent with the balancing act required by the Religious Freedom Restoration Act (" substantial burden," " compelling governmental interest," " least restrictive means" ).
When the new regulations were promulgated in July of last year, Notre Dame did not at first bring a new suit (remember that its previous suit, brought when the university was excluded from opting out of contraceptive coverage, had been dismissed on jurisdictional grounds, and those grounds are irrelevant to a suit challenging the new regulations). Months passed. Not until December did the university file the present suit. The delay in suing was awkward, since the regulations were to take effect with respect to the employee health plan--and did take effect--on January 1 of this year. " Coverage of Certain Preventive Services Under the Affordable Care Act," supra, 78 Fed. Reg. at 39889. (The student health plan, however, the Aetna plan, has until August of this year to comply. See id.; University of Notre Dame, 2013-2014 Student Injury and Sickness Insurance Plan 3, 5, http://uhs.nd.edu/assets/108455/nd_brochure_1314.pdf.)
With the January deadline for compliance with the regulations applicable to the employee plan looming, the university, less than a week after filing its second suit on December 3, moved for the entry of a preliminary injunction. The district court denied the motion on December 20, and Notre Dame filed its appeal from that denial the same day. On December 31, the last day before it would be penalized for violating the regulations, Notre Dame signed EBSA Form 700 and thereby opted out of paying for contraceptive coverage for its employees.
Because the appeal asks us to reverse the district court's denial of a preliminary injunction, we need to emphasize the limitations on our consideration of the appeal that result from its interlocutory character (that is, from the fact that it was before completion of the litigation in the district court). The lawsuit was only a few weeks old when the district judge suspended all proceedings in his court pending our consideration of the appeal. The parties have thus had little opportunity to present evidence. So the question before us is not whether Notre Dame's rights have been violated but whether the district judge abused his discretion in refusing to grant a preliminary injunction. That depends on such considerations as whether Notre Dame will experience irreparable harm if
denied preliminary relief--that is, harm that cannot be eliminated by a final judgment in favor of Notre Dame--as well as on the likelihood that the university will win its case when the case is finally tried in the district court. Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735, 740-41 (7th Cir. 2013). We emphasize that with the evidentiary record virtually a blank, everything we say in this opinion about the merits of Notre Dame's claim and the government's (and intervenors') response is necessarily tentative, and should not be considered a forecast of the ultimate resolution of this still so young litigation.
An initial puzzle is that the university hasn't told us what exactly it wants enjoined at this stage in the litigation. It has gone ahead and signed the EBSA Form 700 and sent copies to Aetna and Meritain, and the latter has notified Notre Dame's employees of the contraceptive coverage that it is offering them. (Aetna has not notified the students; remember that it has until August to do so.) The university has thus complied with the statute, albeit under duress. The penalties for violating the applicable regulations are indeed stiff: $100 per day for " each individual to whom such failure relates," 26 U.S.C. § 4980D(b)(1), which would cost Notre Dame roughly $685,000 per day, assuming plausibly that half the 13,700 covered employees, students, and dependents are women--thus $250 million per year. There is an annual cap on such penalties of $500,000, but it is applicable only to unintentional violations of the regulations. § 4980D(c)(3). If Notre Dame dropped its employee health plan, the penalty would be only $2,000 per full-time employee per year, 26 U.S.C. § § 4980H(a), (c)(1), or roughly $10 million a year. That is well within Notre Dame's ability to pay but is still a number large enough to capture a university administrator's attention.
But we are left with the question: what does Notre Dame want us to do? Tell it that it can tear up the form without incurring a penalty for doing so, even though the government's regulations require the religious institution to retain it after signing it, 26 C.F.R. § 54.9815-2713A(a)(4), though not to submit it to the government? But what effect would that have--except to rescind the university's exemption from the requirement of paying for the contraceptive services that Meritain is now offering as a consequence of Notre Dame's choosing to exempt itself from the contraception regulations? No certification, no exemption. We imagine that what the university wants is an order forbidding Aetna and Meritain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court. But we can't issue such an order; neither Aetna nor Meritain is a defendant (the university's failure to join them as defendants puzzles us), so unless and until they are joined as defendants they can't be ordered by the district court or by this court to do anything. Furthermore, while a religious institution has a broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 450-51, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988); Bowen v. Roy, 476 U.S. 693, 699-700, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986).
The regulation to which Notre Dame takes the sharpest exception states that " the copy of the self-certification [EBSA Form 700] provided by the eligible [to opt out] organization [Notre Dame] to a third party administrator [Meritain] (including notice of the eligible organization's refusal
to administer or fund contraceptive benefits)... shall be an instrument under which the plan is operated, [and] shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered under § 2590.715-2713(a)(1)(iv) of this chapter to which the eligible organization objects on religious grounds." 29 C.F.R. § 2510.3-16. Notre Dame treats this regulation as making its mailing the certification form to its third-party administrator the cause of the provision of contraceptive services to its employees, in violation of its religious beliefs. Not so. Since there is now a federal right, unquestioned by Notre Dame, to female contraceptive services, the effect of the university's exercise of its religious exemption is to throw the entire burden of administration of the right on the entities (Aetna and Meritain) that provide health services to Notre Dame's students and staff. The university is permitted to opt out of providing federally mandated contraceptive services, and the federal government determines (enlists, drafts, conscripts) substitute providers, and naturally they are the providers who are already providing health services to the university personnel.
Fearing the penalties for violating the contraceptive regulation, the university has complied and as a result Aetna and Meritain have been designated to provide the Notre Dame staff and students with female contraceptive services. Unlike the Little Sisters of the Poor, who filed their suit in September of last year, well before the January 1 deadline for compliance with the contraceptive regulation, and obtained a stay pending appeal--equivalent to a preliminary injunction--before having to comply, see Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S.Ct. 893 (Dec. 31, 2013), Notre Dame filed suit at the last minute. It could have sued in July, when the regulations were amended to include Notre Dame as a religious organization entitled to continue refusing to pay for contraceptive services.
Still, Notre Dame's compliance has not mooted the case. One can imagine an alternative form of relief to turning the clock back; and being able to imagine an alternative form of relief is all that's required to keep a case alive after the primary relief sought is no longer available. Hoosier Environmental Council v. U.S. Army Corps of Engineers, 722 F.3d 1053, 1057-58 (7th Cir. 2013). For example, the university could ask the district court (because the case is before us on an interlocutory appeal, our ruling will not end the litigation) to order the government to notify all of Notre Dame's students and employees of the university's exemption from having to provide contraception and of its opposition to having to notify Aetna and Meritain of their duties under the Affordable Care Act with regard to contraceptive services.
But here we need to remind the reader that the only issue before us is whether Notre Dame is entitled to a preliminary injunction. It faces an uphill struggle for that relief. One reason is that " because of the uncertainty involved in balancing the considerations that bear on the decision whether to grant a preliminary injunction--an uncertainty amplified by the unavoidable haste with which the district judge must strike the balance--we appellate judges review his decision deferentially." Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F.3d 786, 795 (7th Cir. 2013). Another obstacle is that a sine qua non for such relief is proof of irreparable harm if the injunction is denied: " A plaintiff seeking a preliminary injunction must establish that he is...
likely to suffer irreparable harm in the absence of preliminary relief." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)." For if the harm can be fully repaired in the final judgment, there is no reason to hurry the adjudicative process." Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., supra, 735 F.3d at 740. As we cannot figure out what Notre Dame wants in the way of preliminary relief, we cannot make a determination that it will suffer irreparable harm if we affirm the denial of such relief.
Another requirement for preliminary relief is that the plaintiff be likely to win its suit in the district court. The Supreme Court's decision in the Winter case states flatly that " a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits." 555 U.S. at 20. So having explained the other objections to the appeal let's turn to the merits.
Notre Dame's principal claim is that by requiring the university to fill out EBSA Form 700 and give copies to Aetna and Meritain, the government has " substantially burden[ed] a person's exercise of religion" (the university is a nonprofit corporate " person" ; 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 burdening. Religious Freedom Restoration Act, supra. But the university has not yet shown that there is a substantial burden. The form is two pages long--737 words, most of it boring boilerplate; the passages we quoted earlier, the only ones of consequence, consist of only 95 words. Signing the form and mailing it to Meritain and Aetna could have taken no more than five minutes. The university claims that there are other paperwork requirements; there aren't. The only colorable burden it complains about has nothing to do with time or cost; it is that by filling out the form and sending it to the companies it " triggers" their coverage of the contraception costs of the university's female employees and students, ...