November 1, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:13-cv-03292 -
Thomas M. Durkin, Judge.
EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge.
Brothers, Inc. ("Ozinga Brothers") is a
family-owned firm supplying ready-mix concrete products and
services to builders primarily in the Chicago metropolitan
area. The company, along with its owners and senior managers
(collectively, "Ozinga") filed this suit in 2013,
challenging the so-called contraception mandate emanating
from the Patient Protection and Affordable Care Act of 2010
(the "Affordable Care Act"), 124 Stat. 119 (Mar.
23, 2010). The mandate is embodied in federal regulations
implementing a requirement of the Affordable Care Act that
non-exempt and non-grandfathered group health plans provide
specified preventative-health services to plan participants
without cost-sharing; among those services are contraceptives
approved by the Food and Drug Administration. See 42
U.S.C. § 300gg-13(a)(4); 45 C.F.R. §
147.130(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv);
26 C.F.R. § 54.9815-2713(a)(1)(iv);
preventative service guidelines) (visited April 26, 2017).
Employers who refuse to provide such services are subject to
substantial fines. See 26 U.S.C. § 4980H.
Ozinga regards certain of the contraceptives covered by the
mandate as potential abortifacients, the use of which is
proscribed by the firm owners' and managers'
religious tenets. Invoking the Religious Freedom Restoration
Act ("RFRA"), 42 U.S.C. § 2000bb, et
seq., among other statutory and constitutional
provisions, Ozinga sought declaratory and injunctive relief
barring the enforcement of the mandate.
time Ozinga filed suit in 2013, the government had
established an accommodation for certain religious employers
that provided for alternate means of ensuring employee access
to the contraceptive services specified by the mandate
without payment or direct involvement by an objecting
employer. 76 Fed. Reg. 46, 621, at 46, 623 (Aug. 3, 2011);
77 Fed. Reg. 8725 (Feb. 15, 2012); see also
78 Fed. Reg. 39, 870, at 39, 873-882 (July 2, 2013)
(simplifying and clarifying criteria identifying employers
eligible for exemption); 45 C.RR. §147.131(a) &
b(2)(i). However, the accommodation was not then available to
any for-profit employers like Ozinga Brothers. Ozinga's
complaint highlighted the discrepancy See R. 1
¶¶ 105-08, 112-16, 170-76, 206, 227-28, 245. At the
same time, the complaint made no allegation suggesting that
an extension of the accommodation to for-profit firms would
be insufficient to resolve Ozinga's religious objections
to the mandate.
suit was part of an initial wave of lawsuits challenging the
application of the contraception mandate to for-profit firms.
In the first such cases to reach this court, we held that the
objecting closely-held firms were entitled to preliminary
injunctions barring enforcement of the mandate. We concluded
that the firms were likely to prevail on their claims under
the RFRA that the mandate substantially burdened the
religious rights of both the firms and their owners,
see § 2000bb-l(a), and that the government was
unlikely to show that it had employed the least restrictive
means of furthering its asserted interest in increasing
access to contraceptives, see § 2000bb-l(b).
Korte v. Sebelius, 528 R App'x 583 (7th Cir.
2012) (non-precedential decision) ("Korte
I") (granting interim relief pending appeal);
Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013)
(same); Korte v. Sebelius, 735 F.3d 654 (7th Cir.
2013) ("Korte II") (holding plaintiff
companies were entitled to preliminary injunctive relief).
opposition from the government, and in light of our decisions
in Korte I and Grote, the district court
granted Ozinga's motion for a preliminary injunction
barring enforcement of the mandate against Ozinga Brothers;
it also stayed further proceedings pending our resolution of
the merits of the Korte and Grote appeals.
first wave of litigation culminated in the Supreme
Court's decision in Burwell v. Hobby Lobby Stores,
Inc., 134 S.Ct. 2751 (2014). Hobby Lobby
concluded that the contraception mandate, as applied to
closely-held private firms whose owners objected on religious
grounds to one or more types of contraceptives covered by the
mandate, substantially burdened the exercise of religion by
those owners-and by extension, their companies-in view of the
fines to which the firms were subject if they did not comply
with the mandate. Id. at 2768-79. The Court reasoned
that the mandate was not the least restrictive means of
furthering the government's interest in making
contraceptives widely available, given that the government
could (among other alternatives), extend the existing
accommodation for religiously-affiliated, not-for-profit
employers to closely-held for-profit employers. Id.
at 2782-83. The Court left open the question whether that
accommodation in its particulars "complies with RFRA for
purposes of all religious claims." Id. at 2782;
see also id. at 2763 n.9.
wake of the Hobby Lobby decision, the government in
July 2015 extended the accommodation to closely held
for-profit employers who object to the mandate on religious
grounds. 80 Fed. Reg. 41, 318, at 41, 322-328 (July 14,
2015); see 45 C.F.R. § 147.131(b)(2)(ii).
meantime, a second wave of litigation challenging the
contraception mandate had commenced in federal courts around
the country. This round of litigation was instigated by
various not-for-profit, religiously-affiliated employers to
whom the accommodation had been available from the start.
These employers contested the adequacy of the accommodation,
which imposes certain procedural requirements on an objecting
employer, to protect their religious interests. This court
rejected the challenges brought by these not-for-profit
employers in multiple decisions. See Univ. of Notre Dame
v. Burwell, 786 F.3d 606 (7th Cir. 2015), cert,
granted, j. vacated, & remanded, 136 S.Ct. 2007
(2016); Wheaton Coll. v. Burwell, 791 F.3d 792 (7th
Cir. 2015); Grace Schools v. Burwell, 801 F.3d 788
(7th Cir. 2015), cert, granted, ], vacated, &
remanded, 136 S.Ct. 2010, 2011 (2016). Ultimately, when
the Supreme Court tookup this line of challenges in Zubik
v. Burwell, 136 S.Ct. 1557 (2016) (per curiam), the
Court declined to reach the merits of the issues presented.
Instead, the Court remanded these cases to the lower courts
in order to afford the parties an opportunity to see if the
accommodation could be modified in such a way as to address
the religious concerns of the objecting employers while
continuing to meet the government's interest in making
contraceptive services available to employees. The government
solicited public comments on possible modifications, 81 Fed.
Reg. 47, 741 (July 22, 2016); the period for such comments
has closed, and potential revisions to the accommodation are
second wave of litigation challenging the sufficiency of the
accommodation was in full swing in September 2015 when the
parties in this case came before the district court with
competing proposals as to what form of permanent injunctive
relief they viewed as appropriate in view of the Supreme
Court's decision in Hobby Lobby. Notwithstanding
the fact that the regulatory accommodation had by this time
been expanded to include closely held for-profit employers,
Ozinga believed it was entitled to a broad injunction
precluding enforcement of any regulation promulgated in
furtherance of the mandate, including the newly-revised
accommodation. The government, by contrast, asked the court
to enter an injunction limited to the original version of the
contraception mandate, which of course had made no
accommodation available to for-profit employers. The court
decided to adopt the government's proposal (R. 53) and
entered a permanent injunction limited to the mandate as it
existed prior to the Supreme Court's decision in
Hobby Lobby (R. 54). But the injunction provided
that "nothing herein prevents plaintiffs from filing a
new civil action to challenge the accommodations or any other
post-Hobby Lobby changes in statute or
regulation." R. 54 at 2-3.
contends on appeal that the district court abused its
discretion and otherwise erred in entering the more limited
injunction proposed by the government rather than the
injunction that Ozinga itself proposed. Ozinga reasons that
the injunction as entered provides no lasting relief to the
plaintiffs because it is limited to a state of affairs
pre-dating Hobby Lobby-one that no longer exists.
Ozinga makes other objections to the injunction, but we need
not reach the merits of these challenges. We agree with
Ozinga that it was error for the court to enter an injunction
directed to a version of the regulatory framework that has
been superseded-although not on the grounds that Ozinga has
advanced. In fact, for the reasons that follow, we conclude
that it was error for the court to enter any injunctive
relief at all once the regulatory accommodation was revised
to include for-profit employers like Ozinga Brothers. At that
point, the case was moot.
suit was focused exclusively on the mandate as it was
originally adopted, with no accommodation addressed to
closely held for-profit employers like Ozinga Brothers that
object to the mandate on religious grounds. Ozinga's
complaint was that the accommodation was limited to
not-for-profit employers and that for-profit employers, like
Ozinga Brothers, were categorically excluded from the
accommodation. Nothing in the complaint presented any
question as to the adequacy of the accommodation itself, nor
at any time during the pendency of the suit did the
plaintiffs seek to amend their complaint to challenge the
particulars of the accommodation (beyond who could invoke
it), notwithstanding the second wave of litigation by other
employers presenting such challenges. See R. 53 at 3
(district court's ...