The University of Notre Dame, a Catholic higher education institution, challenged ACA’s provision that, as the University describes, requires coverage of certain “abortion-inducing drugs, contraceptives and sterilization procedures, which are contrary to Catholic teaching” in May of 2012.  The University’s original lawsuit was dismissed by a judge in the Northern District of Indiana in December of 2012 for lack of standing.  In its opinion, the district court found that, at that time, the HHS’s regulatory requirement was not sufficiently final to be ripe for review because the government indicated that the regulations would be modified and provide a safe harbor for Notre Dame to protect it from the then-existing regulation.

Given the issuance of the revised guidance in 2013, which provided for the so-called “accommodation” for religious not-for-profit organizations that are not churches and that self-certify their objections to providing the coverage (by shifting the obligation to provide such coverage to the applicable insurer or TPA), Notre Dame renewed its lawsuit in the Northern District of Indiana on the grounds that the accommodation impeded its rights under the Religious Freedom Restoration Act and the 1st Amendment.  In a December 20, 2013 ruling, the district court rejected Notre Dame’s claims, mandating compliance with the accommodation in its self-insured employee plan and its health insurance policies offered to students.

Given the imminent commencement of the next plan year (January 1, 2014), Notre Dame filed an emergency motion of an injunction pending appeal on December 3rd.  Defendants responded on December 27th and, by December 30th, a panel of Seventh Circuit judges (including Judges Posner, Flaum, and Hamilton) issued a decision denying Notre Dame’s emergency motion for a stay pending its appeal of District Judge Simon’s opinion.  The Seventh Circuit denied the University’s motion for a preliminary injunction; however, it set an expedited briefing (which is set to be completed by February 3, 2013) and argument schedule, so that a full consideration of Notre Dame’s appeal is likely due before the end of February.

Last week, the Seventh Circuit granted the motion of three women attending the University (identified by pseduonyms Jane Doe 1, Jane Doe 2 and Jane Doe 3) who are enrolled in the University’s health-insurance plan to intervene in this case. The women (who, by a motion dated January 17, 2014, may be joined by a fourth similarly-situated woman, Jane Doe 4 to the extent her motion to intervene is granted) seek to play a role in the litigation as they assert that their access to contraception turns on the outcome of this case.

In light of the Seventh Circuit’s denial of the stay, the University has, in fact, complied with the provisions of the accommodation for its 2014 plan year.  Stay tuned for additional developments…