Case: University of Notre Dame v. Sebelius

On December 3, 2013, the University of Notre Dame, a religious nonprofit university, filed this lawsuit in the U.S. District Court for the Northern District of Indiana against the U.S. Department of Health and Human Services (HHS). Notre Dame alleged that the Affordable Care Act's (ACA) contraception insurance mandate, even with the accommodation for nonprofit religious organizations, violated the Establishment Clause and Free Speech Clause of the First Amendment and the Religious Freedom Restoration Act (RFRA). Notre Dame sought preliminary and permanent injunctions barring the government from enforcing the contraception insurance mandate to avoid a violation of Notre Dame's deeply held religious beliefs.

On December 20, 2013, the District Court (Judge Philip P. Simon) denied Notre Dame's motion for preliminary injunction. The Court found that the ACA's insurance accommodation, which allowed the head of an eligible organization to provide self-certification which in turn triggered a third-party administrator to provide contraception coverage to the organization's employees, did not impose a substantial burden on the free exercise of the religion. University of Notre Dame v. Sebelius, 988 F.Supp.2d 912 (N.D. IN. 2013) The same day, Notre Dame filed an interlocutory appeal with the U.S. Court of Appeals for the Seventh Circuit (No. 13-3853) and a motion for preliminary injunction with the District Court pending their appeal.

On December 23, 2013, the District Court denied the plaintiff's motion for injunction pending appeal and on December 30, 2013, the Seventh Circuit denied the plaintiff's emergency motion for injunction pending appeal.

On February 21, 2014, the Seventh Circuit (Judge Richard Posner) affirmed the District Court's denial of preliminary injunction. The Court of Appeals found that the ACA's insurance accommodation was consistent with the balancing act required by RFRA and therefore it did not substantially burden the free exercise of plaintiffs. University of Notre Dame v. Sebelius, 743 F.3d 547 (N.D. IN. 2014). On May 7, 2014, the Seventh Circuit denied plaintiffs' April 4, 2014, motion for rehearing.

Notre Dame sought review in the Supreme Court, and on March 9, 2015, the Court granted the writ of certiorari, vacated the judgment, and remanded the case to the Seventh Circuit for further consideration in light of its decision (after the Seventh Circuit's decision) in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). University of Notre Dame v. Burwell, 135 U.S. 1258 (2015) (cert. granted). In Hobby Lobby, the Supreme Court had held that the HHS regulations imposing the contraceptive mandate violated RFRA, when applied to closely held for-profit corporations. The Court emphasized, however, that alternative methods for meeting the government's asserted interest were available.

On remand, after hearing oral arguments on April 22, 2015, the Seventh Circuit affirmed the District Court's denial of preliminary injunction on May 19, 2015, holding that Notre Dame had still not met its burden of establishing an entitlement to a preliminary injunction. University of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015).

Notre Dame sought a rehearing en banc on July 2, 2015. The Seventh Circuit denied the request on July 24, 2015. On June 17, 2016, the Supreme Court remanded the case back to the Seventh Circuit in light of the per curiam decision in Zubik v. Burwell, 136 S.Ct. 1557 (2016) (Clearinghouse summary available here). In Zubik, the Supreme Court vacated a series of Court of Appeals decisions that concerned religious exemptions to the contraception mandate in the ACA and remanded those cases back to the lower courts to “afford an opportunity” for the parties and the Court of Appeals to further consider the burden imposed in requiring non-profit religious organizations (“challengers”) to fill out a form notifying the government that they objected to providing contraceptive coverage, and to arrive at an approach that would, going forward, accommodate challengers’ religious exercise while at the same time ensuring that women covered by the challengers’ health plans receive full and equal health coverage, including contraceptive coverage.

As it appeared that proceedings in the Seventh Circuit would continue for some time, the case was statistically closed in the district court on March 2, 2017, until the appellate proceedings concluded. The case remains ongoing in the Seventh Circuit.