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ACA and Healthcare Reform

Top Court Cites Hobby Lobby In Vacating, Remanding ACA Accommodation Ruling

WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on March 9 vacated a Seventh Circuit U.S. Court of Appeals opinion that denied the University of Notre Dame an injunction in its challenge to the Patient Protection and Affordable Care Act (ACA) accommodation process and remanded the case for consideration in light of Burwell v. Hobby Lobby Stores, Inc.  (University of Notre Dame v. Sylvia Burwell, et al., No. 14-392, U.S. Sup. [ subscribers may access Supreme Court briefs for this case].).

(Orders list available.  Document #93-150325-003R.

The University of Notre Dame, a Catholic university, sued the federal government in the U.S. District Court for the Northern District of Indiana, saying a mandate contained in the ACA requiring employers to provide employees with health insurance that covers contraceptive care violates its religious beliefs.  A previous challenge by the university to the mandate was dismissed. 

In the new complaint, filed after the government issued final regulations concerning the mandate, the university says that “instead of recognizing the inalienable rights of religious organizations, the Government has instead acknowledged and exempted only a small class of religious entities, and required the rest — like Notre Dame — to ‘certify’ its beliefs in a way never before required, and nonetheless to participate and become entangled in a program antithetical to its faith.”  Under the accommodation, institutions such as Notre Dame can sign a certificate indicating that they oppose providing coverage for some or all contraceptive services based on religious objections. 

Hobby Lobby

In December 2013, the District Court denied Notre Dame’s request for a preliminary injunction.  Notre Dame appealed to the Seventh Circuit, which affirmed in a divided opinion.  The court denied Notre Dame’s petition for rehearing. 

In its Oct. 3 petition for writ of certiorari, Notre Dame asked the court to grant certiorari, vacate the Seventh Circuit’s ruling and remand the case.  Notre Dame argued that the Seventh Circuit’s “substantial burden” analysis “is irreconcilable” with Hobby Lobby (134 S. Ct. 2751 [2014] [enhanced opinion available to subscribers]). 

Notre Dame argued that the accommodation for nonprofit religious organizations puts it in the same position as the plaintiffs in Hobby Lobby.  Notre Dame cannot honor its religious beliefs while contracting insurance coverage including contraceptive coverage or opt out so that another can provide the coverage, the university argued. 


In an opposition brief, intervenors Jane Doe 1, Jane Doe 2 and Jane Doe 3 argued that remanding would simply impose unnecessary work on the Seventh Circuit.  While Hobby Lobby had not yet been issued, the the the Seventh Circuit considered Korte v. Sebelius (735 F.3d 654 [7th Cir. 2013] [enhanced opinion]), a case with identical principles and “virtually indistinguishable” holdings, the intervenors argued. 

Matthew A. Kairis of Jones Day in Columbus, Ohio, represents Notre Dame.  U.S. Solicitor General Donald B. Verrilli Jr. of the U.S. Department of Justice in Washington represents the government.  Ayesha N. Khan and Charles C. Gokey of Americans United for Separation of Church and State in Washington represent the intervenors. 

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