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Supreme Court of the United States No. ______ IN THE Supreme Court of the United States UNIVERSITY OF NOTRE DAME, Petitioner, v. SYLVIA MATHEWS BURWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Respondents, and JANE DOE 3, Intervenor. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR WRIT OF CERTIORARI NOEL J. FRANCISCO MATTHEW A. KAIRIS DAVID T. RAIMER Counsel of Record ANTHONY J. DICK JONES DAY JONES DAY 325 John H. McConnell 51 Louisiana Ave., NW Blvd. Suite 600 Washington, DC Columbus, OH 43215 20001-2113 (614) 469-3939 [email protected] December 18, 2015 Counsel for Petitioner i QUESTION PRESENTED This case presents the same question on which this Court has granted certiorari in Zubik v. Burwell, No. 14-1418; Priests for Life v. U.S. Department of Health & Human Services, No. 14-1453; Roman Catholic Archbishop of Washington v. Burwell, No. 14-1505; East Texas Baptist University v. Burwell, No. 15-35; Little Sisters of the Poor v. Burwell, No. 15-105; Southern Nazarene University v. Burwell, No. 15-119; and Geneva College v. Burwell, No. 15-191. The question presented is: Whether the Religious Freedom Restoration Act allows the Government to force objecting religious nonprofit organizations to violate their beliefs by offering health plans with “seamless” access to coverage for contraceptives, abortifacients, and sterilization. ii PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT Petitioner, who was the Plaintiff below, is the University of Notre Dame. Petitioner does not have a parent corporation. No publicly held corporation owns any portion of the Petitioner, and the Petitioner is not a subsidiary or an affiliate of any publicly owned corporation. Respondents, who were Defendants below, are Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services; the United States Department of Health and Human Services; Thomas E. Perez, in his official capacity as Secretary of the United States Department of Labor; the United States Department of Labor; Jacob J. Lew, in his official capacity as Secretary of the United States Department of the Treasury; and the United States Department of the Treasury. Intervenor, who was initially permitted to intervene by the appellate court, is proceeding anonymously as Jane Doe 3. iii TABLE OF CONTENTS Page QUESTION PRESENTED .......................................... i PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT .......................................... ii PETITION FOR WRIT OF CERTIORARI ................ 1 OPINIONS BELOW ................................................... 2 JURISDICTION ......................................................... 2 STATUTORY PROVISIONS INVOLVED ................. 3 STATEMENT OF THE CASE ................................... 3 A. The Mandate ................................................ 3 B. Notre Dame .................................................. 7 REASONS FOR GRANTING THE WRIT ................. 9 CONCLUSION ......................................................... 14 APPENDIX A: Opinion and Order of the United States District Court for the Northern District of Indiana South Bend Division ................. 1a APPENDIX B: Opinion and Order from the United States District Court Northern District of Indiana ................................................................ 48a APPENDIX C: Order from the United States Court of Appeals for the Seventh Circuit .............. 51a APPENDIX D: Opinion from the United States Court of Appeals for the Seventh Circuit (February 21, 2014) ................................................ 54a APPENDIX E: Order from the United States Court of Appeals for the Seventh Circuit Denying En Banc Rehearing ................................ 100a iv APPENDIX F: Opinion from the United States Court of Appeals for the Seventh Circuit (May 19, 2015) ................................................................ 102a APPENDIX G: Order from the United States Court of Appeals for the Seventh Circuit Denying En Banc Rehearing ................................ 155a APPENDIX H: Affidavit of John Affleck- Graves in the United States District Court for the Northern District of Indiana ......................... 157a APPENDIX I: Statutory Provisions Involved 42 U.S.C. § 2000bb-1 .......................................... 180a 42 U.S.C. § 2000bb-2 .......................................... 180a 42 U.S.C. § 2000cc-5 .......................................... 181a 42 U.S.C. § 300gg-13 .......................................... 183a 26 U.S.C. § 4980D .............................................. 183a 26 U.S.C. § 4980H .............................................. 189a 26 C.F.R. § 54.9815-2713 ................................... 195a 26 C.F.R. § 54.9815-2713A ................................ 196a 26 C.F.R. § 54.9815-2713AT .............................. 202a 29 C.F.R. § 2590.3-16 ......................................... 207a 29 C.F.R. § 2590.715-2713 ................................. 209a 29 C.F.R. § 2590.715-2713A .............................. 215a 45 C.F.R. § 147.130 ............................................ 223a 45 C.F.R. § 147.131 ............................................ 229a v TABLE OF AUTHORITIES Page(s) CASES Am. Home Prods. Corp. v. Ferrari, 131 S. Ct. 1567 (2011) .......................................... 10 Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729 (2011) .......................................... 13 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) ...................................passim Burwell v. Korte, 134 S. Ct. 2903 (2014) .......................................... 10 City of Boerne v. Flores, 521 U.S. 507 (1997) .............................................. 13 Gilardi v. Dep’t of Health & Human Servs., 134 S. Ct. 2902 (2014) .......................................... 10 Holt v. Hobbs, 135 S. Ct. 853 (2015) ............................................ 13 Houston Baptist Univ. v. Burwell, No. 15-35 (U.S. Sept. 8, 2015), 2015 WL 5265293 ............................................. 6, 11 IMS Health, Inc. v. Schneider, 131 S. Ct. 3091 (2011) .......................................... 10 Lawrence v. Chater, 516 U.S. 163 (1996) .............................................. 10 Roman Catholic Archbishop of Wash. v. Sebelius, 19 F. Supp. 3d 48 (D.D.C. 2013) ............................ 6 State Farm Mut. Auto. Ins. Co. v. Willes, 551 U.S. 1111 (2007) ............................................ 10 vi TABLE OF AUTHORITIES (continued) Page(s) Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015) .................................... 1, 2, 8 STATUTES 26 U.S.C. § 4980D ........................................................ 3 26 U.S.C. § 4980H ....................................................... 3 26 U.S.C. § 6033 .......................................................... 4 28 U.S.C. § 1254 .......................................................... 3 29 U.S.C. § 1002 .......................................................... 6 42 U.S.C. § 300gg-1 ..................................................... 3 42 U.S.C. § 2000bb-1 ................................................. 11 42 U.S.C. § 2000bb-2 ................................................... 3 42 U.S.C. § 2000cc-5 .................................................... 3 42 U.S.C. § 300gg-13 ................................................... 2 42 U.S.C. § 18011 ........................................................ 4 OTHER AUTHORITIES 26 C.F.R. § 54.9815-1251T .......................................... 4 26 C.F.R. § 54.9815-2713............................................. 3 26 C.F.R. § 54.9815-2713A .................................. 3, 5, 7 26 C.F.R. § 54.9815-2713AT ........................................ 3 29 C.F.R. § 2510.3-16 .............................................. 3, 6 29 C.F.R. § 2590.715-2713 ........................................... 3 29 C.F.R. § 2590.715-2713A .................................... 3, 6 45 C.F.R. § 147.130 ...................................................... 3 45 C.F.R. § 147.131 .................................................. 3, 4 45 C.F.R. § 156.50 ........................................................ 7 vii TABLE OF AUTHORITIES (continued) Page(s) 75 Fed. Reg. 41,726 (July 19, 2010) ............................ 3 78 Fed. Reg. 39,870 (July 2, 2013) ...................... 5, 6, 7 79 Fed. Reg. 51092 (Aug. 27, 2014) ............................ 6 80 Fed. Reg. 72,192 (Nov. 18, 2015) ............................ 4 HRSA, Women’s Preventive Services Guidelines, www.hrsa.gov/womensguidelines (last visited December 16, 2015)............................ 3 Shapiro, et al., Supreme Court Practice (10th ed. 2013) ................................................ 10, 11 PETITION FOR WRIT OF CERTIORARI This case involves a challenge to regulations that force the University of Notre Dame to violate its religious beliefs by offering health insurance to its students and employees through a company that will provide or procure coverage for abortifacients, contraceptives, and sterilization. In February 2014, a panel of the Seventh Circuit held (over a dissent by Judge Flaum) that the regulations do not “substantially burden” Notre Dame’s religious exercise under the Religious Freedom Restoration Act (“RFRA”). This Court then granted certiorari, vacated the panel’s decision, and remanded (“GVR’d”) with instructions to apply its decision in Burwell v. Hobby Lobby Stores, Inc.,
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