Argued, June 10, 2015
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 8910 -- Robert M. Dow, Jr., Judge.
For Wheaton College, Plaintiff - Appellant: Luke William Goodrich, Attorney, Adele Auxier Keim, Attorney, Mark Rienzi, Attorney, Diana Verm, Attorney, Becket Fund For Religious Liberty, Washington, DC; Christian Mark Poland, Attorney, Bryan Cave Llp, Chicago, IL.
For SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services, United States Department of Health & Human Services, THOMAS E. PEREZ, Secretary of the United States Department of Labor, United States Department of Labor, JACOB J. LEW, Secretary of United States Department of Treasury, United States Department of The Treasury, Defendants - Appellees: Adam C. Jed, Attorney, Alisa B. Klein, Attorney, Patrick Nemeroff, Attorney, Mark B. Stern, Attorney, Megan Barbero, Attorney, Joshua Marc Salzman, Attorney, Department of Justice, Civil Division, Appellate Staff, Washington, DC; Julie Saltman, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC.
For National Health Law Program, Amicus Curiae: Martha Jane Perkins, Attorney, National Health Law Program, Carrboro, NC.
For National Women's Law Center, Amicus Curiae: Charles E. Davidow, Attorney, Paul, Weiss, Rifkind, Wharton & Garrison Llp, Washington, DC.
For Americans United For Separation of Church And State, Amicus Curiae: Ayesha N. Khan, Attorney, Americans United For Separation of Church And State, Washington, DC.
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
Posner, Circuit Judge.
Wheaton College is a liberal arts college in
Illinois that although not owned by or affiliated with any church (in other
words, it is nondenominational) is deeply committed to evangelical
Protestantism. Although Wheaton hires faculty and staff from a variety of
Christian traditions, and admits students of varied faiths, it requires all
members of the college community, which is to say all (visited June 17, 2015, as
were the other websites cited in this opinion).) The Covenant does not mention
contraception, but the passage we quoted implies, and Wheaton believes, that
what is called " emergency contraception," which means contraception after
intercourse, is forbidden on religious grounds if it can destroy a fertilized
ovum. Wheaton also opposes intrauterine devices (IUDs) that whether inserted
before or after intercourse may prevent the implantation of a fertilized ovum.
The college implements its belief about emergency contraception and IUDs by
excluding coverage of them from its health plans.
Contraception that prevents fertilization rather than destroying a fertilized ovum is referred to by the college as " traditional contraception," and the college has made clear that it does not oppose such contraception. Of the 20 types of female contraceptive approved by the Food and Drug Administration the college disapproves only emergency-contraceptive drugs and certain IUDs.
The college brought this suit against the federal government complaining that the Affordable Care Act is infringing its religious rights--in violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, as well as the First Amendment--by making it complicit in the provision of emergency-contraceptive coverage to its employees and students. The suit is pending in the district court; before us is the college's appeal from the denial of a preliminary injunction.
The Introduction to the college's opening brief begins with the following inaccurate statement: " This case arises from the government's effort to use Wheaton College's health plans to distribute emergency contraceptive drugs." And the first sentence of the reply brief states in like vein that " Wheaton has benefit plans, and the government wants to use them." At oral argument the college's lawyer insisted
that the government was " using our plan" and " putting [additional terms] into our contract." If Wheaton College is wrong, and the government is not trying to " use" the college's health plans to provide insurance coverage for emergency contraceptives (of which the best known are " morning after" pills), or to add terms to those plans, the college has no case. This point is underscored by the fact that the only articulated relief it seeks in this court is a " remand with an injunction [we assume the college means a preliminary injunction] prohibiting the government's efforts to use Wheaton's plans." True, it says it also wants " an injunction against the government during the pendency of this appeal requiring it to treat Wheaton as an exempt 'religious employer'" (it means an injunction requiring such treatment, not an injunction against the government's requiring such treatment); but at the oral argument the college's lawyer indicated that the college's only objection is to the government's " using" Wheaton's health plans to get around the college's ...