Near the end of his life, a 79-year-old Thomas Jefferson wrote to Dr. Benjamin Waterhouse about “this blessed country of free inquiry and belief, which has surrendered its creed and conscience to neither kings nor priests.”1 Had he foreseen the controversies to come nearly two hundred years later, he might have added a word about the federal judiciary. In July 2015, the Seventh Circuit in Wheaton College v. Burwell2 (Wheaton College II) affirmed the denial of a preliminary injunction for Wheaton College, a religious institution in Illinois that has resisted the Affordable Care Act’s requirement that group health insurance plans cover the provision of certain contraceptives. In so holding, the court adjudged the College “incorrect” in its belief that “as the trigger-puller or facilitator [it] share[d] responsibility for the extension of [emergency contraception] coverage to its students, faculty, and staff.”3 To the extent it relied on this conclusion to reject the substantiality of the burden upon Wheaton College’s religious exercise, the Seventh Circuit’s reasoning eschews the best reading of Burwell v. Hobby Lobby Stores, Inc.’s4 substantiality analysis and presents a troubling submission of questions of “creed and conscience” to judicial scrutiny.
Congress passed the Patient Protection and Affordable Care Act5 in 2010 to expand the availability of health care coverage. Implementing the Act’s “minimum essential coverage” requirements,6 the federal government in July 2013 issued final regulations requiring group health insurance plans to cover, among other things, all FDA-approved contraceptives for “women with reproductive capacity.”7 But along with that Mandate, the government offered an accommodation to religious institutions: if they filled out Employee Benefits Security Administration (EBSA) Form 700 to designate a third-party administrator, the administrator would itself provide any objected-to contraceptives.8
One such institution, Wheaton College, is a small, liberal arts school near Chicago that seeks to “serve[] Jesus Christ and advance[] His Kingdom through excellence in liberal arts and graduate programs that educate the whole person to build the church and benefit society worldwide.”9 In pursuing its mission, the College believes that, as “followers of Jesus Christ,” its members must “uphold the God-given worth of human beings, from conception to death, as the unique image-bearers of God.”10 That belief, Wheaton maintains, “forbid[s] it from participating in, providing access to, paying for, designating others to pay for, training others to engage in, or otherwise supporting abortion.”11 Combined with its belief that life begins at conception, this leads the College to oppose any drug that might terminate a fertilized egg.12
Wheaton was unsatisfied with the government’s proposed accommodation. The “accommodation,” it objected, “still require[d] Wheaton to play a central role in the government’s scheme, because [Wheaton] must designate an agent to pay for the objectionable services on Wheaton’s behalf, and it has to take steps to trigger and facilitate that coverage.”13 That left the College complicit, in its view, in the sinful termination of human life.14 In December 2013, Wheaton sued,15 alleging that the regulations violated the First and Fifth Amendments and the Religious Freedom Restoration Act (RFRA),16 which requires the government to justify any law that substantially burdens religious exercise as the least restrictive means to achieve a compelling governmental interest.17 Wheaton asked the U.S. District Court for the Northern District of Illinois for a permanent injunction barring enforcement of the Mandate against the College.18 It also sought a preliminary injunction in light of the fact that Hobby Lobby19 — a similar case potentially relevant to Wheaton’s claims — was pending before the Supreme Court.20
In June 2014, the district court denied the request for a preliminary injunction. Undertaking the four-pronged inquiry for injunctive relief,21 it concluded there was “no question” that Wheaton had no adequate remedy at law and would suffer irreparable harm if the injunction did not issue, and that “at least in the short term[,] . . . the balance of harms strongly weigh[ed] in [Wheaton]’s favor.”22 Nevertheless, the court declined to issue a preliminary injunction, reasoning that those factors were irrelevant if Wheaton could not demonstrate a likelihood of prevailing on the merits.23 And Wheaton was unlikely to prevail, the court reasoned, because it could not demonstrate a substantial burden warranting relief from the regulations, as required by RFRA.24 That was because “[f]ederal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services.”25 On June 30, hours after the Supreme Court issued its decision in Hobby Lobby, the district court denied Wheaton’s motion for reconsideration.26 The Seventh Circuit affirmed in a brief, unpublished decision that same day.27
Wheaton filed an emergency application with the Supreme Court, and the Court granted a temporary injunction.28 In a short order issued three days after its decision in Hobby Lobby, the Court exempted Wheaton from the requirements of submitting EBSA Form 700 and sending copies to health insurance issuers or third-party administrators.29 It reasoned that Wheaton had already notified the government that it met the religious exemption requirements, and “[n]othing in [its] order preclude[d] the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.”30
Justice Sotomayor dissented.31 Largely echoing the district court’s analysis, she argued that Wheaton could not demonstrate a substantial burden because federal law, not Wheaton’s actions, was the causal mechanism behind the provision of contraceptives.32 Although Wheaton “believe[d] that authorizing its [third-party administrator] to provide these drugs in [its] place ma[de] it complicit in grave moral evil,”33 it was, as a matter of law, “mistaken.”34 Contraceptive coverage by a third-party administrator “would not result from any action by Wheaton; rather, in every meaningful sense, it would result from the relevant law and regulations.”35
The challenge, however, did not end there. Still appealing from the district court’s initial denial of a preliminary injunction, Wheaton maintained before the Seventh Circuit that the Court’s exemption was insufficient. The exemption, Wheaton argued, left it sinfully complicit, since its actions in opting out “triggered” the provision of contraceptives no less than filling out EBSA Form 700.36 It did not want to “notify its insurers or the government that it [was] claiming a religious exemption” or “give the government the insurers’ names so that the government [could] direct the insurers to provide emergency-contraception coverage.”37 Since the government already had that information and intended to so direct the insurers, Wheaton asked the Seventh Circuit for a preliminary injunction prohibiting the government from enforcing the contraceptive coverage requirements against the College, its insurers, and its third-party administrators.38
The Seventh Circuit denied this request. In an opinion by Judge Posner,39 the court concluded that “when Wheaton College tells us that it is being ‘forced’ to allow ‘use’ of its health plans to cover emergency contraceptives, it is wrong.”40 The College was compelled “only to notify its insurers . . . whether directly or by notifying the government . . . that it will not use its health plans to cover emergency contraception.”41 The government would then facilitate coverage through the insurers, who would notify the insured that the contraceptive coverage was not funded or administered by Wheaton. “Call this ‘using’ the health plans?” the court asked. “We call it refusing to use the health plans.”42
The Seventh Circuit also disagreed with Wheaton’s belief that its actions in opting out “triggered” the provision of contraceptive coverage. Though Wheaton believed that “as the trigger-puller . . . [it] share[d] responsibility for the extension of such coverage to its students, faculty, and staff,” the court admonished that “[t]hat also is incorrect.”43 As the Seventh Circuit saw it, “it is the law, not any action on the part of the college, that obligates insurers ‘to pick up the ball if [the college] decides, as is its right, to drop it.’”44 The court thus concluded that Wheaton was, as it wished, no longer involved in the provision of emergency contraceptives.45 Even apart from the merits, it reasoned, Wheaton had “failed to satisfy two basic requirements for the issuance of a preliminary injunction”46: 1) harm, since Wheaton had not produced evidence that any member of the College would be likely to violate its rules against emergency contraception even if it were covered, and 2) congruence between “the relief it [sought] [and] the illegalities it allege[d],” in light of the court’s conclusion that the government was not “using” Wheaton’s health plans.47
Though the circuits have split on this question,48 the best reading of Hobby Lobby’s substantiality analysis forecloses the Seventh Circuit’s “triggering” analysis in Wheaton College II. The Seventh Circuit’s analysis should sound familiar: it echoes Justice Sotomayor’s assertion, in dissent,49 that in believing its actions made it “complicit in grave moral evil,”50 the College was — as a matter of law — “mistaken.”51 It is nearly identical to her argument that “[a]ny provision of contraceptive coverage by Wheaton’s third-party administrator would not result from any action by Wheaton; rather, in every meaningful sense, it would result from the relevant law and regulations.”52 Most fundamentally, it harkens back to Justice Ginsburg’s position in Hobby Lobby, again in dissent, that “the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial.”53 That argument — whatever one thinks of its merits — was rejected by the Supreme Court, and the logic of the Court’s rejection should extend here.
Instead, in undertaking the substantiality analysis, the Hobby Lobby Court expressly declined to second-guess whether the challengers’ moral culpability was “too attenuated” to constitute a substantial burden.54 The majority noted that the challengers’ claim “implicate[d] a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.”55 It had stern words for the dissent’s approach: “[a]rrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed.”56 The Court declined to engage in that moral analysis, concluding that “it [was] not for [the Court] to say that [the challengers’] religious beliefs [were] mistaken or insubstantial.”57
Rather than assess the reasonableness of the challengers’ religious convictions, the Hobby Lobby Court focused its substantiality analysis on what the challengers would have to do in order to simultaneously abide by those convictions and comply with the law.58 For the Hobby Lobby challengers, that would entail paying enormous fines.59 For Wheaton College, that would entail dropping student health coverage entirely.60 It may be, after all, that there is no substantial burden imposed upon Wheaton — it may be that dropping student health care coverage does not rise to the level of substantiality. But that is not the inquiry the Seventh Circuit undertook; it conducted, instead, its own analysis of whether Wheaton’s opt-out notification to HHS was sufficiently “triggering” to make Wheaton complicit in a practice it regards as murder. Hobby Lobby’s substantiality analysis militates against this second-guessing of Wheaton’s sincerely held religious beliefs. Indeed, the very essence of religion — beliefs about the moral and supernatural, often based on faith — confounds any attempt to subject it to a “reasonableness” analysis.
At the heart of this case, as in Hobby Lobby, lies a dispute over the correct theory as to what causes the ultimate provision of contraceptives. The circuits’ division reflects a profound disagreement over who gets to answer that question — courts, as a matter of law, or religious adherents, as a matter of sincerely held belief. The best reading of Hobby Lobby’s substantiality analysis would answer that question in favor of religious adherents. To be sure, such an answer is not without consequences: a decision in favor of Wheaton College will limit the availability of contraceptive coverage for those insured by objecting religious institutions.61 But the alternative carries consequences of its own, engaging courts in what amounts to a fundamentally moral analysis of which actions are sufficiently “triggering” to constitute complicity. Conducting that analysis here, the Seventh Circuit found complicity lacking and announced that “[n]o one is asking Wheaton to violate its religious beliefs.”62 In a country that has left creed and conscience to its citizenry rather than its government, such a pronouncement should have no home in the Federal Reporter.
Questions about the limits of complicity are better left to philosophers and theologians than to federal judges. By cloaking an essentially moral question in legal garb, the Seventh Circuit presented Wheaton College with the very choice RFRA was designed to shield it from.63 Perhaps, after all, Wheaton will be forced to choose between its God and its government — perhaps the provision of contraceptives is a compelling interest and the notification requirement a least restrictive means, or perhaps Congress will decide that it wishes to bypass RFRA altogether and amend the Affordable Care Act to exempt its provisions from RFRA’s strictures. But if and when that day comes,64 it should not be because a federal court has substituted its complicity analysis for that of the College. Someone is asking Wheaton College to violate its religious beliefs — just ask Wheaton.