the Roman Catholic Archdiocese of Atlanta v. Secretary of the U.S. Department of Health and Human Services

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 18, 2016
• Docket: 14-13239
• Status: Published

Opinion

Case: 14-12696 Date Filed: 02/18/2016 Page: 1 of 148

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-12696 ________________________

D.C. Docket No. 1:13-cv-00521-CG-C

ETERNAL WORD TELEVISION NETWORK, INC.,

Plaintiff - Appellant,

STATE OF ALABAMA,

Plaintiff,

versus

SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SECRETARY OF THE U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF LABOR, SECRETARY OF THE U.S. DEPARTMENT OF THE TREASURY, U.S. DEPARTMENT OF THE TREASURY,

Defendants - Appellees.

________________________

Appeals from the United States District Court for the Southern District of Alabama ________________________ Case: 14-12696 Date Filed: 02/18/2016 Page: 2 of 148

Nos. 14-12890; 14-13239 ________________________

D.C. Docket No. 1:12-cv-03489-WSD

THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA, an association of churches and schools, THE MOST REVEREND WILTON D. GREGORY, and his successors, Archbishop of the Roman Catholic Archdiocese of Atlanta, CATHOLIC CHARITIES OF THE ARCHDIOCESE OF ATLANTA, INC., a Georgia non-profit corporation, THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, an ecclesiastical territory, THE MOST REVEREND JOHN HARTMAYER, and his successors, Bishop of the Roman Catholic Diocese of Savannah, et al.,

Plaintiffs - Appellees,

SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY, SECRETARY, U.S. DEPARTMENT OF LABOR, SECRETARY, U.S. DEPARTMENT OF TREASURY,

Defendants - Appellants.

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Appeals from the United States District Court for the Northern District of Georgia ________________________

(February 18, 2016)

Before TJOFLAT, JILL PRYOR and ANDERSON, Circuit Judges.

JILL PRYOR, Circuit Judge:

The plaintiffs in these consolidated appeals challenge the regulations

implementing what is known as the “contraceptive mandate” of the Affordable

Care Act (“ACA”)—the requirement that employers provide health insurance

coverage for preventive care (including contraception) to women. 1 Specifically,

the plaintiffs argue that the regulations’ accommodation for nonprofit

organizations with a religious objection to providing contraceptive coverage

violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et

seq. They claim that the accommodation substantially burdens their religious

exercise in violation of RFRA by forcing them to take actions that cause their

health plan administrators to provide contraceptive coverage and to maintain a

health plan that serves as a conduit for contraceptive coverage. We reject the 1 We consider in this opinion the following district court orders: Eternal World Television Network, Inc. v. Burwell, 26 F. Supp. 3d 1228 (S.D. Ala. 2014); Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 2441742 (N.D. Ga. May 30, 2014); and Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 1256373 (N.D. Ga. Mar. 26, 2014). The government filed separate appeals from the two orders in Roman Catholic Archdiocese, which were consolidated before this Court.

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plaintiffs’ claims because we conclude that the regulations do not substantially

burden their religious exercise and, alternatively, because (1) the government has

compelling interests to justify the accommodation, and (2) the accommodation is

the least restrictive means of furthering those interests.

Eternal Word Television Network (“EWTN”), the plaintiff in the first

appeal, also raises several First Amendment challenges to the accommodation.

Because the accommodation is a neutral, generally applicable law that does not

discriminate based on religious denomination, we reject EWTN’s challenges under

the Establishment and Free Exercise Clauses. We also reject EWTN’s challenge

under the Free Speech Clause because, as discussed below, any speech restrictions

that may flow from the accommodation are justified by a compelling governmental

interest and are thus constitutional.

I. BACKGROUND

A. The Affordable Care Act and the Contraceptive Mandate

Enacted in 2010, the ACA requires group health insurance plans to provide a

minimum floor of coverage without imposing cost sharing (such as deductibles,

co-payments, or co-insurance) on plan participants and beneficiaries. 42 U.S.C.

§ 300gg-13(a). If an employer fails to provide such coverage in its group

employee health plan, it is subject to penalties in the form of a tax of $100 per day

per affected person. 26 U.S.C. § 4980D(b)(1). The Women’s Health Amendment

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to the ACA added to the minimum coverage requirements a mandate that group

health plans provide women with coverage for preventive care and screenings.

42 U.S.C. § 300gg-13(a)(4). The requirement was intended in part to “get[] rid of,

or minimiz[e], high copays and high deductibles that are often overwhelming

hurdles for women to access screening programs.” 155 Cong. Rec. S11987 (Nov.

30, 2009) (statement of Sen. Mikulski). The ACA tasked the Health Resources

and Services Administration (“HRSA”), an agency of the Department of Health

and Human Services (“HHS”), with promulgating comprehensive guidelines

determining which preventive services and screenings would be required.

42 U.S.C. § 300gg-13(a)(4). HHS commissioned the Institute of Medicine

(“IOM”) to assist with HRSA’s development of the guidelines.

The IOM released a full report in 2011 detailing its study of various

preventive services and its recommendations for coverage under the mandate. Inst.

of Medicine, Clinical Preventive Services for Women: Closing the Gaps (2011)

(“IOM Report”). The IOM Report discussed at length the positive public health

outcomes associated with reducing unintended pregnancies and giving women

more control over birth spacing. The United States has a much higher rate of

unintended pregnancies—49 percent of pregnancies in 2001—than other

developed countries. Id. at 102. Unintended pregnancies correlate with health

problems both for women who experience such pregnancies and for children born

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as a result of them. Id. at 103. And because women may not realize immediately

that they are pregnant, “their entry into prenatal care may be delayed[;] they may

not be motivated to discontinue behaviors that present risks for the developing

fetus; and they may experience depression, anxiety, or other conditions.” Id.

Unintended pregnancies also frequently end in abortion. Id. at 102.2

The IOM Report also noted the health consequences of pregnancies

occurring too closely together in time. For infants, “[s]hort interpregnancy

intervals in particular have been associated with low birth weight, prematurity, and

small for gestational age births.” Id. at 103. For women, both pregnancy spacing

and the ability to avoid pregnancy may significantly affect their health because,

among other reasons, some “women with certain chronic medical conditions (e.g.,

diabetes and obesity) may need to postpone pregnancy until appropriate weight

loss or glycemic control has been achieved.” Id. Pregnancy is also contraindicated

for some women with serious medical conditions, for example, pulmonary

hypertension or Marfan syndrome. 3 Id. at 103-04. The IOM Report also found

2 A 2013 report from the Centers for Disease Control and Prevention estimated that 18 percent of all pregnancies in the United States ended in abortion and noted that “unintended pregnancy precedes nearly all abortions.” Karen Pazol, et al., Centers for Disease Control & Prevention, Abortion Surveillance—United States, 2010 (Nov. 29, 2013), http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6208a1.htm. The IOM Report noted that in 2001, 42 percent of unintended pregnancies in the United States were terminated by abortion. IOM Report at 102. 3 Marfan syndrome is a genetic disorder that affects the body’s connective tissue. Pregnancy can be difficult for women with the condition because of the additional strain

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that “greater use of contraception within the population produces lower unintended

pregnancy and abortion rates nationally.” Id. at 105.

Pursuant to its statutory authority, HRSA released binding guidelines, based

on the IOM Report, that require coverage for “[a]ll Food and Drug Administration

approved contraceptive methods, sterilization procedures, and patient education

and counseling for all women with reproductive capacity.” U.S. Dep’t of Health &

Human Servs., Health Res. & Servs. Admin., Women’s Preventive Services

Guidelines (“HRSA guidelines”), http://www.hrsa.gov/womensguidelines (last

visited Feb. 12, 2016); see also 77 Fed. Reg. 8725, 8725-26 (Feb. 15, 2012)

(quoting the language in the HRSA guidelines regarding coverage). Implementing

regulations developed by the Department of Labor, the Department of the

Treasury, and HHS (collectively, the “Departments”) reiterate the contraceptive

mandate’s requirement that health plans cover all services listed in the HRSA

guidelines. 26 C.F.R. § 54.9815-2713(a)(1)(iv) (Treasury Regulation); 29 C.F.R

§ 2590.715-2713(a)(1)(iv) (Labor Regulation); 45 C.F.R. § 147.130(a)(1)(iv)

(HHS Regulation).4

pregnancy places on the cardiovascular system. Nat’l Heart, Lung, & Blood Inst., What is Marfan Syndrome? (Oct. 1, 2010), http://www.nhlbi.nih.gov/health/health-topics/topics/mar/. 4 The Departments have jointly developed regulations carrying out the ACA. To be concise, whenever possible we cite only to the regulations issued by HHS, codified at 45 C.F.R. pt. 147, and not to the corresponding identical regulations issued by the Departments of Labor and the Treasury.

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Mindful of religious freedom and the importance of respect for “the unique

relationship between a house of worship and its employees in ministerial

positions,” the Departments promulgated interim regulations that gave HRSA

discretion to exempt from the contraceptive mandate certain group health plans

established or maintained by religious employers. See 76 Fed. Reg. 46621, 46623

(Aug. 3, 2011). The Departments defined “religious employer” by incorporating

the Internal Revenue Service’s definition of a church or integrated auxiliary from

26 U.S.C. § 6033(a)(3)(A)(i) and (iii). 45 C.F.R. § 147.130(a)(1)(iv)(B) (2011).

The definition also required a religious employer to have a religious purpose and to

both serve and employ primarily persons who share the religious tenets of the

organization. Id. Exercising the discretion the regulations provided, HRSA

amended its guidelines to exempt religious employers from the contraceptive

mandate. The guidelines, issued on August 1, 2011, required compliance

beginning on August 1, 2012. See id. § 147.130(b)(1).

The Departments finalized the implementing regulations in February 2012.

See 77 Fed. Reg. 8725. At the same time, the Departments established a temporary

safe harbor from the contraceptive mandate for nonprofit organizations with

religious objections to providing contraceptive coverage. See Dep’t of Health &

Human Servs., Guidance on the Temporary Enforcement Safe Harbor for Certain

Employers, Health Plans & Group Health Insurance Issuers with Respect to the

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Requirement to Cover Contraceptive Services Without Cost Sharing (Feb. 10,

2012). The safe harbor remained in effect for the 2012 plan year, ending on

August 1, 2013. See id. at 2.

The Departments intended to use the safe harbor period to “expeditiously

develop and propose changes to the final regulations implementing” the

contraceptive mandate. 77 Fed. Reg. 16501, 16503 (Mar. 21, 2012). The changes

to the regulations needed to “meet two goals—accommodating non-exempt, non-

profit religious organizations’ religious objections to covering contraceptive

services and assuring that participants and beneficiaries covered under such

organizations’ plans receive contraceptive coverage without cost sharing.” Id. In

March 2012, the Departments began the rulemaking process and solicited

comments on potential regulations that could achieve these two goals. Id. at

16501.

At the conclusion of the rulemaking process in July 2013, the Departments

promulgated revised regulations that retained HRSA’s authority to exempt

religious employers. See 78 Fed. Reg. 39870 (July 2, 2013). The same day,

HRSA released revised guidelines that tracked the Departments’ changes to the

religious employer exemption. The final regulations simplified the definition of a

“religious employer,” making the term coextensive with the IRS’s statutory

definition and removing the additional qualifications regarding a religious

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employer’s mission, programs, and employees. 45 C.F.R. § 147.131(a) (2013); see

also 78 Fed. Reg. at 39873-74. Religious employers remained categorically

exempt from the contraceptive mandate out of “respect [for] the religious interests

of houses of worship and their integrated auxiliaries.” 78 Fed. Reg. at 39874. The

Departments noted that the exemption did not undermine their goal of making

contraceptive coverage available because religious employers and their integrated

auxiliaries “are more likely than other employers to employ people of the same

faith who share the same objection, and who would therefore be less likely than

other people to use contraceptive services even if such services were covered under

their plan.” Id.

The revised regulations, which took effect on Aug. 1, 2013, added an

accommodation for organizations that do not qualify as religious employers under

the exemption. See 45 C.F.R. § 147.131(b) (2013). So long as an organization is a

nonprofit entity holding itself out as a religious organization and has a religious

objection to providing contraceptive coverage (we refer to such entities as “eligible

organizations”), it may opt out of the contraceptive mandate. Id. 5

5 Under 45 C.F.R. § 147.131(b), an organization is eligible for the accommodation if: (1) The organization opposes providing coverage for some or all of any contraceptive items or services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) (i) The organization is organized and operates as a nonprofit entity and holds itself out as a religious organization; or

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Eligible organizations can take advantage of the accommodation via one of

two procedures. The first procedure requires the organization to complete

Employee Benefits Security Administration Form 700 (“Form 700”). See EBSA

Form 700–Certification (Aug. 2014),

http://www.dol.gov/ebsa/preventiveserviceseligibleorganizationcertificationform.doc. 6 To complete the two-page form, the eligible organization must provide its name

and the name, title, and contact information of the individual signing the form on

behalf of the organization. The person signing the form must certify that the

organization “has a religious objection to providing coverage for some or all of any

contraceptive services that would otherwise be required to be covered.” Id.

(ii) The organization is organized and operates as a closely held for-profit entity, as defined in paragraph (b)(4) of this section, and the organization’s highest governing body (such as its board of directors, board of trustees, or owners, if managed directly by its owners) has adopted a resolution or similar action, under the organization’s applicable rules of governance and consistent with state law, establishing that it objects to covering some or all of the contraceptive services on account of the owners’ sincerely held religious beliefs. (3) The organization must self-certify in the form and manner specified by the Secretary of Labor or provide notice to the Secretary of Health and Human Services as described in paragraph (c) of this section. The organization must make such self-certification or notice available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification or notice must be executed by a person authorized to make the certification or notice on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of ERISA. 6 Form 700 is included as the appendix to this opinion.

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The form’s recipient depends on the type of health plan the eligible

organization maintains. Employers can provide health benefits either through an

insured health plan or a self-insured health plan.7 See Cong. Budget Office, Key

Issues in Analyzing Major Health Insurance Proposals 6 (2008). If the eligible

organization has an insured plan, it gives Form 700 to the insurance company that

provides its health plan (“plan provider”); if the organization has a self-insured

plan, it gives Form 700 to its third-party administrator (“TPA”). The plaintiffs in

both cases before us provide health benefits to their employees through self-

insured group health plans, and all employ TPAs to administer their plans.

Alternatively, an eligible organization may directly notify HHS of its

religious objection to complying with the contraceptive mandate. This more

recently developed method of taking advantage of the accommodation arose from

the United States Supreme Court’s order granting a preliminary injunction in

Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). After the regulations

concerning the exemption and accommodation procedures were finalized, the

Supreme Court in Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2759-60

(2014), extended the accommodation for nonprofit religious organizations to 7 For insured health plans, the employer contracts with an insurance company that administers the group plan and pays claims. For self-insured plans, the financial risk of providing health insurance lies with the organization itself; the organization directly pays for the plan participants’ and beneficiaries’ claims. Usually, organizations with self-insured plans hire a third party to handle administrative tasks, such as developing provider networks and processing claims.

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closely held for-profit corporations whose owners have religious objections to

complying with the contraceptive mandate. Three days after the Hobby Lobby

decision was issued, the Supreme Court in Wheaton College granted a request for a

preliminary injunction pending appellate review to a plaintiff challenging the

accommodation itself under RFRA, the same challenge the plaintiffs mount here.

Wheaton Coll., 134 S. Ct. at 2807. The Supreme Court’s order enjoined HHS from

enforcing the accommodation procedure against the college, so long as the college

“inform[ed] the Secretary of Health and Human Services in writing that it is a non-

profit organization that holds itself out as religious and has religious objections to

providing coverage for contraceptive services.” Id. The Supreme Court warned,

however, that the injunction order “should not be construed as an expression of the

Court’s views on the merits.” Id.8

In response to the order in Wheaton College, the Departments issued interim

final regulations in August 2014 to allow an eligible organization to opt out by

sending a letter to HHS, instead of giving Form 700 to its plan provider or TPA.

79 Fed. Reg. 51092, 51094-95 (Aug. 27, 2014); see Ctr. for Medicare & Medicaid

Servs., Model Notice, https://www.cms.gov/CCIIO/Resources/Regulations-and-

8 The Seventh Circuit recently resolved Wheaton College’s appeal, affirming the district court’s denial of the college’s request for a preliminary injunction. Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. 2015).

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Guidance/Downloads/Model-Notice-8-22-14.pdf (last visited Feb. 12, 2016).9

There is no prescribed format for the letter, but it must include:

the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on its sincerely held religious beliefs to coverage of some or all contraceptive services, as applicable (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type . . . ; and the name and contact information for any of the plan’s third party administrators and health insurance issuers.

45 C.F.R. § 147.131(c)(1)(ii).

The regulations became final, without substantial changes, in a set of new

rules effective on September 14, 2015. 80 Fed. Reg. 41318 (July 14, 2015). Under

the current rules, if an eligible organization directly notifies HHS of its intent to

opt out of the contraceptive mandate, the government then alerts the organization’s

health plan provider or TPA that the organization has opted out and describes the

plan provider’s or TPA’s resulting obligations. See 26 C.F.R. § 54.9815-

2713A(b)(1)(ii)(B), (c)(1)(ii).

For insured plans, once an eligible organization avails itself of the

accommodation, the plan provider must (1) “[e]xpressly exclude contraceptive

9 The interim final regulations also removed a provision (known as the non-interference provision) requiring that eligible organizations “‘must not, directly or indirectly[,] seek to interfere with a third party administrator’s arrangements to provide or arrange for separate payments for contraceptive services,’ and ‘must not, directly or indirectly, seek to influence a third party administrator’s decision to make any such arrangements.’” 79 Fed. Reg. at 51095 (quoting 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii)).

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coverage from the group health insurance coverage” and (2) “[p]rovide separate

payments for any contraceptive services required to be covered” for the plan

participants and beneficiaries. 45 C.F.R. § 147.131(c)(2)(i).

For self-insured plans, the regulations provide that when an eligible

organization invokes the accommodation, its TPA is designated as the plan

administrator under the Employee Retirement Income Security Act (“ERISA”),

29 U.S.C. § 1002(16), with respect to contraceptive services. Under the

regulations, the TPA is designated as the plan administrator in one of two ways. If

the eligible organization provides a copy of Form 700 to its TPA, then the

regulations treat the form “as a designation of the [TPA] as the plan administrator”

for ERISA purposes. 29 C.F.R. § 2510.3-16(b). If the eligible organization

instead notifies HHS of its intent to opt out, then the Department of Labor notifies

the TPA that it shall be the plan administrator with respect to contraceptive

services for ERISA purposes. Id.

Upon receiving notification, the TPA has the option of terminating its

contractual relationship with the eligible organization.10 See 26 C.F.R. § 54.9815-

10 If the TPA terminates the relationship, the organization must (1) contract with a new TPA to administer its self-insured plan, (2) convert to an insured plan by contracting with a plan provider, or (3) administer the plan itself. If the eligible organization contracts with a new TPA, then it remains subject to the mandate and must provide contraceptive coverage, seek an accommodation, or pay a penalty. Alternatively, the organization could restructure its plan and contract with a plan provider that would assume the risk of providing health insurance (that is, change from a self-insured to an insured plan). In this scenario, the organization would have to

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2713A(b)(2). If it remains as the TPA, then it must provide (or arrange for another

insurer to provide) contraceptive benefits to participants and beneficiaries of the

self-insured plan. Id.; 29 C.F.R. § 2510.3-16(c). 11

Significantly, plan providers and TPAs “may not impose any cost-sharing

requirements (such as a copayment, coinsurance, or a deductible), or impose any

premium, fee, or other charge, or any portion thereof, directly or indirectly, on the

eligible organization, the group health plan, or plan participants or beneficiaries.”

26 C.F.R. § 54.9815-2713A(c)(2)(i); 45 C.F.R. § 147.131(c)(2)(ii).12 Plan

providers “must segregate premium revenue collected from the eligible

organization from the monies used to provide payments for contraceptive

comply with the mandate, seek an accommodation, or pay a penalty. Finally, the organization could continue with its self-insured plan without a TPA, meaning the organization would assume responsibility for administering claims. Although the Departments are unaware of the existence of a single self-insured plan without a TPA, they have created a safe harbor that excuses such a plan from complying with the contraceptive mandate so long as it annually notifies HHS that it has no TPA and plan participants and beneficiaries that contraceptive coverage is not provided. The Departments will provide this safe harbor while considering an additional accommodation. 78 Fed. Reg. at 39880-81. 11 Self-insured plans run by houses of worship and certain organizations controlled by or associated with a house of worship, known as “church plans,” are not subject to the provisions of ERISA unless they elect otherwise. See 26 U.S.C. §§ 410(d), 414(e). The government lacks authority to compel the TPA of a church plan not subject to ERISA to provide contraceptive coverage. See 29 U.S.C. § 1003(b)(2). Nonetheless, the TPA for a church plan may voluntarily provide contraceptive services; the government incentivizes these TPAs to provide the coverage by offering larger reimbursements. See 80 Fed. Reg. at 41323 n.22; 45 C.F.R. § 156.50(d). 12 The government reimburses plan providers and TPAs for providing contraception benefits. Plan providers receive a downward adjustment to the user fees they must pay to the federal government to sell plans on the federally-facilitated health exchanges. The process for TPAs can be more complicated. If the TPA is not itself a participating insurer, then it must contract for contraceptive coverage with a participating insurer, and the insurer then passes on the reimbursement to the TPA. See 80 Fed. Reg. at 41328.

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services.” 45 C.F.R. § 147.131(c)(2)(ii). A plan provider or TPA also must notify

plan participants and beneficiaries (contemporaneously with the delivery of other

plan materials, if possible) “that the eligible organization does not administer or

fund contraceptive benefits,” but that the plan provider or TPA instead “provides

separate payments for contraceptive services.” 26 C.F.R. § 54.9815-2713A(d);

45 C.F.R. § 147.131(d).

B. The Parties and Procedural History

This opinion addresses two cases: one brought by EWTN and one brought

by two Catholic Dioceses and a group of related persons and entities. Below, we

briefly discuss the plaintiffs and the procedural history of each case in turn.

1. Eternal Word Television Network

Plaintiff-appellant EWTN is a non-profit worldwide Catholic media network

founded in 1981 by Mother Mary Angelica, a Catholic nun. EWTN, based in

Irondale, Alabama, has approximately 350 employees. The network consists of 11

television feeds and two radio stations that reach 230 million homes in 144

countries and territories. Its programming includes daily Mass, Catholic devotions,

coverage of Catholic Church events, documentaries, children’s programs,

educational series, and other television and radio shows that support EWTN’s

mission of “serv[ing] the orthodox belief and teaching of the Church as proclaimed

by the Supreme Pontiff and his predecessors.” Compl. at 5, No. 1:13-cv-00521-

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CG-C, Doc. 1. EWTN has a self-insured group health plan to provide health

insurance benefits to its employees. Blue Cross Blue Shield of Alabama serves as

the TPA for the plan.

EWTN, together with the State of Alabama, 13 filed a complaint challenging

the contraceptive mandate and accompanying regulations under RFRA, the First

Amendment, the Due Process Clause of the Fifth Amendment, and the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The complaint

alleged that “EWTN cannot facilitate access to health care insurance . . . that

covers artificial contraception, sterilization, or abortion, or related education and

counseling, without violating its deeply held religious beliefs.” Compl. at 7, No.

1:13-cv-00521-CG-C, Doc. 1. To EWTN, this means that its religious beliefs

prevent it both from providing contraceptive coverage in its health plan and from

using the accommodation. As a result, EWTN alleged, the contraceptive mandate

“imposes government pressure and coercion on EWTN to change or violate its

religious beliefs” because if it does not provide coverage or use the

accommodation, it faces fines for non-compliance with the mandate. Id. at 27.

EWTN and Alabama moved for partial summary judgment on five of the 17

counts in the complaint, including: Count One, alleging a violation of RFRA

13 Alabama was a party throughout the district court proceedings, but the State did not join EWTN in this appeal.

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based on the regulations’ burden on religious exercise; Count Two, alleging a

violation of the Free Exercise Clause based on the same burden; Count Three,

alleging a violation of the Free Exercise Clause based on intentional discrimination

among religious organizations; Count Five, alleging a violation of the

Establishment Clause based on the selective imposition of a burden on some

religious organizations; and Count Nine, alleging a violation of the Free Speech

Clause based on compelled speech. Alabama joined in EWTN’s motion and

additionally moved for summary judgment on Count Seventeen, which sought a

declaration that the contraceptive mandate does not preempt Alabama law.

The defendants-appellees—the Departments and their Secretaries—filed a

motion to dismiss the complaint or, in the alternative, for summary judgment on all

of the plaintiffs’ claims. The district court denied EWTN’s and Alabama’s

motions for summary judgment and granted the defendants’ motion for summary

judgment as to Counts One, Two, Five, and Nine. On a motion by the plaintiffs,

the district court entered a final judgment on those four counts pursuant to Federal

Rule of Civil Procedure 54(b) and stayed litigation of the remaining claims

pending appeal.

EWTN timely appealed. On EWTN’s motion, we issued an injunction

pending appeal, preventing the defendants from enforcing the mandate or the

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accommodation against EWTN. Eternal Word Television Network, Inc. v. Sec’y,

U.S. Dep’t of Health & Human Servs., 756 F.3d 1339 (11th Cir. 2014).

2. The Diocesan Plaintiffs, CENGI, and Catholic Charities

A group of Catholic entities—the Roman Catholic Archdiocese of Atlanta,

the Archbishop of Atlanta, Christ the King Catholic School, Catholic Charities of

the Archdiocese of Atlanta (“Catholic Charities”), the Roman Catholic Diocese of

Savannah, and the Bishop of Savannah—filed a lawsuit against the Departments

and their Secretaries. Both the Archdiocese of Atlanta and the Diocese of

Savannah (collectively with the Bishop and Archbishop, “the Dioceses”) are

associations of Catholic parishes and organizations, including Catholic schools.

Catholic Charities is a nonprofit organization that provides social services,

including immigration counseling, mental health counseling, marriage counseling,

and pregnancy support services. The second amended complaint added as a

plaintiff Catholic Education of North Georgia (“CENGI”) and removed Christ the

King Catholic School. CENGI is a nonprofit organization that oversees five

Catholic schools in the Atlanta area.

The Atlanta Archdiocese operates a self-insured health plan, which covers

employees of the Archdiocese, Catholic Charities, and CENGI. The Savannah

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Diocese operates two self-insured health plans for its employees. Meritain Health

serves as the TPA for all three plans.14

The second amended complaint alleged that the contraceptive mandate and

accompanying regulations violate RFRA, the First Amendment, the non-delegation

doctrine, 15 and the APA. The plaintiffs alleged that the regulations require them

“to provide, pay for, and/or facilitate insurance coverage for abortion-inducing

drugs, sterilization, and contraception, in violation of their religious beliefs.”

Second Am. Compl. at 6, No. 1:12-cv-03489-WSD, Doc. 56. They alleged that the

regulations further burden religious exercise “by driving a wedge between

religious organizations, like the Atlanta Archdiocese, and their equally religious

charitable arms, such as Plaintiffs Catholic Charities and CENGI.” Id. Because

the charitable arms do not qualify as “religious employers,” the Dioceses alleged

14 The parties disagree over whether these health plans qualify as “church plans” for purposes of ERISA. We need not decide whether the plans at issue are church plans because their ERISA status does not impact our conclusion that the accommodation does not substantially burden religious exercise. If the plans are not church plans, then our analysis as to EWTN’s self-insured plan applies, and the accommodation presents no burden on religious exercise. See infra Part III.A.2.b. If the plans are church plans, then the government lacks authority to enforce the contraceptive mandate against the plaintiffs’ TPAs, rendering the plaintiffs’ assertion that their actions trigger such coverage even weaker. See, e.g., Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1188 (10th Cir.) (“The lack of enforcement authority makes any burden on plaintiffs with church plans even less substantial than the burden on plaintiffs with self-insured plans that are subject to ERISA.”), cert. granted sub nom., S. Nazarene Univ. v. Burwell, 136 S. Ct. 445, and cert. granted, 136 S. Ct. 446 (2015). 15 The non-delegation doctrine is the constitutional principle that prevents Congress from delegating its legislative authority to another body with “unfettered discretion to make whatever laws” the body sees fit. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-38 (1935).

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they must expel the charities’ employees from their health plans if the Dioceses

wish to take advantage of the religious exemption.16

The Departments filed a motion to dismiss the second amended complaint

or, alternatively, for summary judgment on all counts. The plaintiffs cross-moved

for summary judgment as to seven of their eight counts, which alleged that the

mandate and accompanying regulations: burden religious exercise in violation of

RFRA (Count One); violate the Free Exercise Clause, based on the same burden

(Count Two); compel speech in violation of the Free Speech Clause (Count Three);

prohibit speech in violation of the Free Speech Clause (Count Four); favor certain

religious groups and entangle the government in religion in violation of the

Establishment Clause (Count Five); interfere with internal church governance in

violation of both the Free Exercise and Establishment Clauses (Count Six); and

involve an impermissible delegation of unchecked legislative authority to the

Departments (Count Seven).

The district court granted summary judgment to Catholic Charities and

CENGI on their RFRA claims, holding that the contraceptive mandate and

accommodation substantially burden the organizations’ religious exercise and are

not the least restrictive means to accomplish a compelling governmental interest.

16 We note that there is no dispute that EWTN, CENGI, and Catholic Charities qualify for the accommodation and not for the religious employer exemption.

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The court enjoined the Departments from enforcing the mandate or the

accommodation against Catholic Charities and CENGI. In addition, the court

granted the plaintiffs’ motion for summary judgment on their claim that the non-

interference provision created a content-based speech restriction in violation of the

First Amendment.

As to the Dioceses’ RFRA claim, the court granted summary judgment to

the Departments. The Dioceses had argued first that they might at some point have

to pay more in premiums to help cover their plan providers’ cost of contraceptive

coverage, in violation of their religious beliefs, and second that the distinction

between religious employers and organizations eligible for the accommodation

would force the Dioceses to remove unaffiliated Catholic schools from their

insurance plans. Rejecting both arguments, the district court ruled that the first

argument was merely speculative (and the outcome on which the Dioceses

speculated would, in any event, be prohibited by law) and the second argument

failed to assert a legitimate religious exercise. The district court granted the

Departments’ summary judgment motion as to all of the plaintiffs’ remaining

claims based on the First Amendment, the non-delegation doctrine, and the APA.

Despite the split judgment, only the Departments appealed the district

court’s decision. Because revisions to the regulations have rendered the plaintiffs’

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compelled speech claim based on the non-interference provision moot,17 the appeal

in this case concerns only the district court’s grant of summary judgment to

Catholic Charities and CENGI on their RFRA claim.

II. STANDARD OF REVIEW

“This court reviews the district court’s disposition of cross-motions for

summary judgment de novo, applying the same legal standards used by the district

court, viewing the evidence and all factual inferences therefrom in the light most

favorable to the non-movant, and resolving all reasonable doubts about the facts in

favor of the non-moving party.” Am. Bankers Ins. Group v. United States, 408

F.3d 1328 (11th Cir. 2005). Summary judgment is proper if the movant can show

“that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where the material facts

are undisputed and all that remains are questions of law, summary judgment may

be granted. See Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir.

2011).

17 As noted above, in 2014 the Departments removed the regulations’ requirement that organizations “must not, directly or indirectly, seek to influence the third party administrator’s decision to” provide contraceptive coverage to the objecting organization’s health plan participants and beneficiaries. 26 C.F.R. § 54.9815-2713A(b)(1)(iii) (2013); see 79 Fed. Reg. at 51095; supra note 9.

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III. DISCUSSION

A. RFRA Claims

1. Legal Background

a. RFRA

RFRA provides that the federal government “shall not substantially burden a

person’s exercise of religion” unless it demonstrates that the burden “is in

furtherance of a compelling governmental interest” and “is the least restrictive

means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-

1(a)-(b). Congress passed RFRA in 1993 in response to the Supreme Court’s

decision in Employment Division, Department of Human Resources of Oregon v.

Smith, 494 U.S. 872 (1990), which held that “a law that is neutral and of general

applicability need not be justified by a compelling governmental interest even if

the law has the incidental effect of burdening a particular religious practice.”

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993)

(characterizing Smith). In Smith, the Supreme Court reasoned that “[t]o make an

individual’s obligation to obey [a neutral and generally applicable] law contingent

upon the law’s coincidence with his religious beliefs, except where the State’s

interest is ‘compelling[,]’ . . . contradicts both constitutional tradition and common

sense.” Smith, 494 U.S. at 885 (internal quotation marks and citation omitted).

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Congress stated that the purpose of RFRA was “to restore the compelling

interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin

v. Yoder, 406 U.S. 205 (1972).” 42 U.S.C. § 2000bb(b)(1). Congress declared the

strict scrutiny standard provided “a workable test for striking sensible balances

between religious liberty and competing prior governmental interests.” Id.

§ 2000bb(a)(5). Indeed, RFRA “provide[s] even broader protection for religious

liberty than was available under” Sherbert or Yoder because the government must

also show that it used the least restrictive means to achieve its compelling interest.

Hobby Lobby, 134 S. Ct. at 2761 n.3.

b. Hobby Lobby

In Hobby Lobby, the Supreme Court held that enforcing the contraceptive

mandate without an accommodation against closely held for-profit corporations

that objected on religious grounds to providing contraceptive coverage violated

RFRA. The corporations and their owners challenged the mandate as substantially

burdening their religious exercise. Id. at 2764-66. The owners of the corporations

sincerely believed that life begins at conception and that it is a sin to facilitate

access to contraceptive drugs or devices that could destroy an embryo. Id. It was

undisputed that the mandate required the plaintiffs to provide health insurance that

covered methods of contraception that could result in the destruction of an embryo.

Id. at 2775. The plaintiffs asserted that the mandate left them with only two

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options: (1) provide coverage for contraception in violation of their religious

beliefs or (2) pay significant penalties. Given these choices, the Supreme Court

held that the mandate “impose[d] a substantial burden.” Id. at 2779.

The government argued there was no substantial burden because the

connection between what the mandate required the plaintiffs to do (provide health

insurance that covered contraception) and the end that they found morally wrong

(the destruction of an embryo) was too attenuated. Id. at 2777. The premise of the

government’s attenuation argument was that “providing the coverage would not

itself result in the destruction of an embryo; that would occur only if an employee

chose to take advantage of the coverage and to use one of the four [contraceptive]

methods at issue.” Id. In other words, the government asserted that the plaintiffs’

belief—that providing insurance coverage for contraception facilitated the

destruction of embryos—was unreasonable. The Supreme Court rejected this

argument, which would have required the Court to determine 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.” Id. at 2778. The Supreme Court cautioned that “federal courts have no

business addressing” such questions of religion and moral philosophy. Id. Instead,

the Supreme Court deferred to the plaintiffs’ religious belief that the coverage “is

27 Case: 14-12696 Date Filed: 02/18/2016 Page: 28 of 148

connected to the destruction of embryo in a way that is sufficient to make it

immoral for them to provide the coverage.” Id.

The Court then considered whether the mandate survived strict scrutiny.

The majority assumed that the mandate furthered a compelling governmental

interest 18 but held that it was not the least restrictive means of doing so. Id. at

2779-80. The Court pointed to the accommodation, which at the time applied only

to nonprofit organizations with religious objections, as a less restrictive alternative. 18 The majority opinion assumed without deciding that the government has a compelling interest. In separate opinions, five members of the Court appeared to go further, suggesting that a majority of the Court would agree that there is, in fact, a compelling interest. The four dissenting justices concluded that the government carried its burden in showing that the mandate “furthers compelling interests in public health and women’s well being.” Hobby Lobby, 134 S. Ct. at 2799 (Ginsburg, J., dissenting). Justice Kennedy, who joined the majority, offered a separate concurrence in which he emphasized the importance of the majority’s assumption that there is a compelling interest without explicitly stating that he agreed with that premise: “[it is] important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” Id. at 2786 (Kennedy, J., concurring). He also reiterated the government’s position that the mandate “provid[ed] insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee.” Id. at 2785-86. Justice Ginsburg in her dissent and other courts have treated Justice Kennedy’s concurrence as recognizing that the government has a compelling interest. See id. at 2800 n.23 (Ginsburg, J., dissenting) (writing that Justice Kennedy “recognize[d], without reservation,” the existence of a compelling interest); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 624 (7th Cir. 2015) (Hamilton, J., concurring) (“Justice Kennedy’s concurring opinion made clear that he viewed the governmental interests as compelling.”); Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 257 (D.C. Cir. 2014) (explaining why Justice Kennedy’s concurrence was “more affirmative” than the majority opinion in recognizing a compelling interest), cert. granted sub nom., Roman Catholic Archbishop of Wash. v. Burwell, 136 S. Ct. 444 (2015), and cert. granted, 136 S. Ct. 446 (2015). We are inclined to agree that Justice Kennedy’s concurring opinion can be read as recognizing a compelling interest. Nonetheless, even if Justice Kennedy merely assumed (but did not decide) there is a compelling interest, such that a majority of the Supreme Court has not reached that conclusion, we conclude that there is a compelling interest here. See infra Part III.B.2.c.(i).

28 Case: 14-12696 Date Filed: 02/18/2016 Page: 29 of 148

The Court explained that after an organization opts out, the plan provider (for

insured plans) or TPA (for self-insured plans) must exclude contraceptive coverage

from the group health plan and provide separate payments for contraceptive

coverage without imposing cost sharing requirements on the organization, plan, or

plan participants or beneficiaries. Id. at 2782. Although the Court declined to

answer whether the accommodation complied with RFRA, it lauded the

accommodation as “seek[ing] to respect the religious liberty of religious nonprofit

corporations while ensuring that the employees of these entities have precisely the

same access to all FDA-approved contraceptives as employees of companies

whose owners have no religious objections to providing such coverage.” Id. at

2759. The Court further recognized that “[t]he effect of the HHS-created

accommodation on the women employed by Hobby Lobby and the other

companies involved in these cases would be precisely zero.”19 Id. at 2760.

c. Wheaton College

After Hobby Lobby, the Court considered the accommodation itself in the

context of an injunction sought under RFRA in Wheaton College. The Court

enjoined the government from enforcing the mandate but required the plaintiff to

19 Justice Kennedy praised how the accommodation reconciled the competing priorities of ensuring that “no person may be restricted or demeaned by government in exercising his or her religion” and that the same exercise does not “unduly restrict other persons . . . in protecting their own interests, interests the law deems compelling.” Hobby Lobby, 134 S. Ct. at 2786-87 (Kennedy, J., concurring).

29 Case: 14-12696 Date Filed: 02/18/2016 Page: 30 of 148

inform HHS in writing that it had religious objections to providing coverage for

contraceptive services. 134 S. Ct. at 2807. The Court explained that the

government could “rely[] on this notice . . . to facilitate the provision of full

contraceptive coverage.” Id. The practical effect of the Wheaton College decision

was twofold: the plaintiff received an accommodation, and HHS could rely on the

notification to provide contraceptive coverage to the participants and beneficiaries

of the plaintiff’s plan.

d. Other RFRA Challenges to the Accommodation

After Hobby Lobby and Wheaton College, federal courts around the country

considered RFRA challenges to the accommodation. Applying these two Supreme

Court decisions, seven of the eight circuits to review these cases held that the

accommodation does not violate RFRA. See Mich. Catholic Conf. & Catholic

Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015); Catholic Health Care Sys.

v. Burwell, 796 F.3d 207 (2d Cir. 2015); Little Sisters of the Poor Home for the

Aged v. Burwell, 794 F.3d 1151 (10th Cir.), cert. granted sub nom., S. Nazarene

Univ. v. Burwell, 136 S. Ct. 445, and cert. granted, 136 S. Ct. 446 (2015); E. Tex.

Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir.), cert. granted, 136 S. Ct. 444

(2015); Univ. of Notre Dame v. Burwell (“Notre Dame II”), 786 F.3d 606 (7th Cir.

30 Case: 14-12696 Date Filed: 02/18/2016 Page: 31 of 148

2015);20 Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422

(3d Cir.), cert. granted sub nom., Zubik v. Burwell, 136 S. Ct. 444, and cert.

granted, 136 S. Ct. 445 (2015); Priests for Life v. U.S. Dep’t of Health & Human

Servs. (“Priests for Life I”), 772 F.3d 229 (D.C. Cir. 2014), reh’g en banc denied,

(“Priests for Life II”), 808 F.3d 1 (D.C. Cir. 2015), cert. granted sub nom., Roman

Catholic Archbishop of Wash. v. Burwell, 136 S. Ct. 444 (2015), and cert. granted,

136 S. Ct. 446 (2015). These circuits concluded that the accommodation does not

substantially burden religious exercise.21 The Eighth Circuit disagreed, holding

that the accommodation substantially burdens religious exercise and cannot survive

strict scrutiny. Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs.,

801 F.3d 927 (8th Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3350 (U.S. Dec.

15, 2015) (No. 15-775). Recently, the Supreme Court granted certiorari in several

of these cases.

The seven circuits that upheld the accommodation recognized that the RFRA

claim in Hobby Lobby was fundamentally different from challenges to the 20 Before Hobby Lobby was decided, the Seventh Circuit affirmed the denial of a preliminary injunction to enjoin the enforcement of the mandate and accommodation in University of Notre Dame v. Sebelius (“Notre Dame I”), 743 F.3d 547 (7th Cir. 2014). Subsequently, the Supreme Court granted certiorari, vacated the Seventh Circuit’s judgment in Notre Dame I, and remanded for consideration in light of Hobby Lobby. Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015). After considering Hobby Lobby, the Seventh Circuit issued Notre Dame II again affirming the denial of a preliminary injunction. 21 Two circuits have held, in the alternative, that even assuming the accommodation imposes a substantial burden, it survives strict scrutiny under RFRA. See Notre Dame II, 786 F.3d at 616-17; Priests for Life I, 772 F.3d at 256-57.

31 Case: 14-12696 Date Filed: 02/18/2016 Page: 32 of 148

accommodation itself. In Hobby Lobby, the plaintiffs challenged the mandate—

that is, the requirement that they provide contraceptive coverage—when their only

options were to provide the coverage or pay significant penalties. But in the

accommodation cases, the plaintiffs have challenged the regulatory scheme that

allows them to opt out of the mandate without penalty. Put another way, the

plaintiffs in the accommodation cases “do not challenge the general obligation

under the ACA to provide contraceptive coverage. They instead challenge the

process they must follow to get out of complying with that obligation.” Little

Sisters of the Poor, 794 F.3d at 1160. Because they assert that “the exemption

process itself imposes a substantial burden on their religious faiths,” their

challenges are somewhat “paradoxical and virtually unprecedented.” Priests for

Life I, 772 F.3d at 246 (internal quotation marks omitted).

The circuits upholding the accommodation recognized that the question of

whether there is a substantial burden involves an objective inquiry. After

interpreting the ACA and its regulations, they held that the act of opting out does

not trigger contraceptive coverage. See, e.g., Notre Dame II, 786 F.3d at 614

(explaining that “[i]t is federal law, rather than the religious organization’s signing

and mailing the form, that requires . . . third-party administrators of self-insured

health plans[] to cover contraceptive services”). Although the eligible

organizations asserted that the act of opting out makes them complicit in providing

32 Case: 14-12696 Date Filed: 02/18/2016 Page: 33 of 148

coverage, these courts explained that this objection could not constitute a

substantial burden because individuals “have no RFRA right to be free from the

unease, or even anguish, of knowing that third parties are legally privileged or

obligated to act in ways their religion abhors.” Priests for Life I, 772 F.3d at 246.

In Sharpe Holdings, the Eighth Circuit reached the opposite conclusion,

holding that the accommodation substantially burdened religious exercise, and

enjoined the government from enforcing the accommodation. Relying on Hobby

Lobby, the Eighth Circuit held that it was bound to accept the plaintiffs’ “assertion

that self-certification under the accommodation process—using either Form 700 or

HHS Notice—would violate their sincerely held religious beliefs.” 22 Sharpe

Holdings, 801 F.3d at 941. Because the plaintiffs faced a substantial penalty if

they failed to seek an accommodation or provide contraceptive coverage, the

Eighth Circuit concluded there was a substantial burden. Id. at 942.

The Eighth Circuit then applied strict scrutiny. The court assumed that the

government had a compelling interest but held that the government had failed to

carry its burden to show that it lacked other means to achieve its interest without

imposing a substantial burden on religion. Id. at 943. The Eighth Circuit

22 Although the Eighth Circuit deferred to the plaintiffs’ understanding of how the accommodation functioned, it agreed that the act of opting out triggered coverage. See Sharpe Holdings, 801 F.3d at 942 (TPAs have no “wholly independent obligation” to provide contraceptive coverage).

33 Case: 14-12696 Date Filed: 02/18/2016 Page: 34 of 148

concluded that less restrictive alternatives included the government: (1) requiring

less information from eligible organizations seeking an accommodation; (2)

assuming the cost of providing contraceptives through subsidies, reimbursements,

tax credits, or tax deductions to employees; (3) paying for distribution of

contraceptives at community health centers, public clinics, and hospitals; or (4)

making contraceptive coverage available through the healthcare exchanges. Id. at

944-45. Given these alternatives, the Eighth Circuit concluded that the

accommodation failed to survive strict scrutiny.

2. RFRA Analysis

With this legal landscape in mind, we now consider the plaintiffs’ RFRA

challenge. We hold that their challenge fails because (1) the accommodation does

not substantially burden their religious exercise, and (2) in the alternative, even if

there is a substantial burden, the accommodation survives strict scrutiny.

a. The Plaintiffs Allege a Sincere Religious Belief.

A threshold question we must ask is whether the plaintiffs’ religious beliefs

on which their RFRA claims are based are sincere. See Hobby Lobby, 134 S. Ct. at

2774 n.28 (“To qualify for RFRA’s protection, an asserted belief must be

‘sincere’. . . .”). It is well established that we defer to a plaintiff’s statement of its

own belief, so long as the plaintiff actually holds that belief. See id. at 2779 (“[I]t

is not for [courts] to say that [the plaintiffs’] religious beliefs are mistaken or

34 Case: 14-12696 Date Filed: 02/18/2016 Page: 35 of 148

insubstantial.”); Davila v. Gladden, 777 F.3d 1198, 1204 (11th Cir.) (“[W]e look

only to see whether the claimant . . . actually holds the beliefs he claims to hold.”

(internal quotation marks omitted)), cert. denied sub nom., Davila v. Hayes, 136 S.

Ct. 78 (2015).

Each plaintiff states that its religious beliefs prevent it from paying for,

providing, or facilitating the distribution of contraceptives. Each plaintiff also

asserts that it cannot be complicit in the provision of contraception. The

government does not contest the sincerity of these religious beliefs, nor is there any

indication whatsoever in the record that the stated beliefs are insincere. We thus

conclude that the plaintiffs’ religious beliefs at issue are sincere.

b. The Accommodation Does Not Substantially Burden the Plaintiffs’ Religious Exercise.

We now consider whether, accepting the plaintiffs’ sincere religious beliefs,

the accommodation substantially burdens their religious exercise. The plaintiffs

assert that the act of notifying HHS or their TPAs of their religious objection will

either trigger contraceptive coverage or make them complicit in a system that

provides such coverage. Due to the significance they attach to opting out, the

plaintiffs contend that the accommodation itself imposes a substantial burden

because it puts them to the choice of violating their sincerely held religious beliefs

or paying a substantial penalty. We accept the plaintiffs’ sincere belief that

triggering coverage or being complicit in coverage violates their religious beliefs 35 Case: 14-12696 Date Filed: 02/18/2016 Page: 36 of 148

and that the accommodation puts them to a choice between honoring their religious

beliefs and facing significant penalties. We nonetheless conclude that the

accommodation imposes no substantial burden.

(i) The Substantial Burden Analysis Involves an Objective Inquiry.

“[A] ‘substantial burden’ must place more than an inconvenience on

religious exercise.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,

1227 (11th Cir. 2004). 23 A law is substantially burdensome when it places

“significant pressure” on an adherent to act contrary to her religious beliefs,

meaning that it “directly coerces the religious adherent to conform . . . her

behavior.” Id. Thus, the government imposes a substantial burden when it places

“pressure that tends to force adherents to forego religious precepts.” Id.

This inquiry involves both subjective and objective dimensions. Hobby

Lobby made clear that there is a subjective aspect to this inquiry: courts must

accept a religious adherent’s assertion that his religious beliefs require him to take

or abstain from taking a specified action. See 134 S. Ct. at 2779. But the

23 Midrash concerned the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which Congress enacted after the Supreme Court struck down RFRA as applied to the states in City of Boerne v. Flores, 521 U.S. 507 (1997). RLUIPA imposes the same requirement as RFRA—that the government refrain from substantially burdening religious exercise unless the burden is the least restrictive means of achieving a compelling government interest—on programs and activities that receive federal funding. 42 U.S.C. § 2000cc-1. We apply the same substantial burden analysis under both RLUIPA and RFRA. See generally Davila, 777 F.3d at 1204; Midrash, 366 F.3d at 1237.

36 Case: 14-12696 Date Filed: 02/18/2016 Page: 37 of 148

substantial burden analysis does not end there. We agree with our seven sister

circuits that the question of substantial burden also presents “a question of law for

courts to decide.” Priests for Life I, 772 F.3d at 247.

The objective inquiry requires courts to consider whether the government

actually “puts” the religious adherent to the “choice” of incurring a “serious”

penalty or “engag[ing] in conduct that seriously violates [his] religious beliefs.”

Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (second alteration in original and

internal quotation marks omitted). Put another way, courts must determine what

the challenged law actually requires of the plaintiff. For example, in Holt, a

Muslim inmate asserted that prison grooming policy substantially burdened his

religious exercise because it prohibited him from growing a beard, which his

religion required. The Supreme Court explained that because the “grooming

policy requires petitioner to shave his beard,” the policy “put[]” him to the choice

of violating his religious beliefs or facing serious disciplinary action. Id. In Holt,

as in many RFRA cases, this inquiry was straightforward because there was no

dispute about what the government’s policy objectively required of the religious

adherent. But when there is a dispute about what a law or governmental policy

objectively requires, it is for the courts to construe the law or policy.

The plaintiffs here contend that under Hobby Lobby no such objective

inquiry is required. In their view, a religious adherent’s mere assertion that she is

37 Case: 14-12696 Date Filed: 02/18/2016 Page: 38 of 148

being compelled to violate her sincerely held religious belief means that the

government has put her to such a choice, regardless of what the law objectively

requires.24 We disagree. In Hobby Lobby, the plaintiffs challenged the

contraceptive mandate. It was undisputed that the mandate gave the plaintiffs just

two options: provide contraceptive coverage or pay a substantial penalty.

Although the Supreme Court engaged in no objective analysis about what the

mandate required, such analysis was unnecessary because the parties agreed that

the government, through the mandate, put the plaintiffs to the choice of providing

contraceptive coverage or paying a hefty fine. See Hobby Lobby, 134 S. Ct. at

2777-79; see also Priests for Life II, 808 F.3d at 2 (Pillard, J.) (concurring in denial

of reh’g en banc) (“The parties in Hobby Lobby did not dispute what the law

required, nor its practical effects . . . .”).

Here, the parties agree that the plaintiffs have at least three options: provide

contraceptive coverage, pay a penalty, or use the accommodation to opt out of

providing contraceptive coverage. 25 But they disagree about whether opting out

24 The Eighth Circuit similarly interpreted Hobby Lobby as requiring courts to “accept [the plaintiffs’] assertion that self-certification under the accommodation process . . . would violate their sincerely held religious beliefs.” Sharpe Holdings, 801 F.3d at 941. 25 We agree with the dissent that the plaintiffs have a fourth option, as well: to terminate their TPAs and take over the costs and responsibilities of running their self-insured plans. See Dissent at 109-10. But, the Departments contend there is no evidence of the existence of any self-insured plan without a TPA. See 78 Fed. Reg. at 39880 (“[T]he Departments continue to believe that there are no self-insured group health plans in this circumstance.”). If an eligible organization elected to become the first self-insured plan without a TPA, it would enjoy at least a

38 Case: 14-12696 Date Filed: 02/18/2016 Page: 39 of 148

puts the plaintiffs to the choice of violating their religious beliefs or paying a

substantial fine. The plaintiffs contend that because an eligible organization’s TPA

only becomes obligated to provide coverage when the organization opts out, by

opting out they will be triggering coverage. The government argues to the contrary

that plan participants and beneficiaries are entitled to contraceptive coverage under

the ACA regardless of any opt out. We conclude that it is for the courts to

determine objectively what the regulations require and whether the government

has, in fact, put plaintiffs to the choice of violating their religious beliefs by

seeking the accommodation or incurring a substantial penalty.

We reject a framework that takes away from courts the responsibility to

decide what action the government requires and leaves that answer entirely to the

religious adherent. Such a framework improperly substitutes religious belief for

legal analysis regarding the operation of federal law. Indeed, the plaintiffs have

identified nothing in RFRA or case law that allows a religious adherent to dictate

to the courts what the law requires. The plain language of RFRA simply does not

support reducing the role of federal courts to “rubber stamps” that automatically

temporary safe harbor so long as the plan notifies (1) HHS that it has no TPA and (2) plan participants and beneficiaries that the plan provides no benefits for contraceptive services. Id. We assume for purposes of this appeal that if the government forced an eligible organization to have a self-insured plan without a TPA, it would be imposing a substantial burden. Nonetheless, we conclude there is no substantial burden because eligible organizations can instead select the accommodation.

39 Case: 14-12696 Date Filed: 02/18/2016 Page: 40 of 148

recognize a substantial burden whenever a religious adherent asserts there is one.

Catholic Health Care Sys., 796 F.3d at 218. If Congress had intended strict

scrutiny to be triggered in all circumstances by a religious adherent’s claim that

there is a burden, it would have said so. Instead, it required that the federal

government “substantially burden” the adherent’s religious exercise.

Our dissenting colleague concedes that the question of substantial burden

involves an objective inquiry but asserts that the inquiry should be limited to

whether the government has imposed a substantial penalty. See Dissent at 113-15.

This analysis would require courts to defer to a religious adherent’s sincere belief

that the government is forcing her to choose between her religious belief and

paying a substantial fine, even when the religious adherent is objectively wrong

about how the law operates and what action the government requires her to take.

The dissent’s view is flawed because any burden (even an objectively insubstantial

one) becomes a substantial burden if the penalty is heavy enough.

We acknowledge that in Hobby Lobby the Supreme Court cautioned courts

against dictating to religious adherents “the circumstances under which it is

immoral 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.”

134 S. Ct. at 2778. In some cases, a court’s objective analysis interpreting a statute

or regulation may contradict a religious adherent’s sincerely held belief about what

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that law requires. But such questions about what a law means are not the type of

“difficult and important question of religion and moral philosophy” for which

courts must defer to religious adherents. Id.; see Notre Dame II, 786 F.3d at 623

(Hamilton, J., concurring) (explaining that the interpretation of the regulations that

give rise to the accommodation “is an issue not of moral philosophy but of federal

law”).

Deciding how the law functions is not the only objective part of the

substantial burden inquiry. The Supreme Court’s free exercise cases (prior to

Smith) distinguished between substantial burdens on religious exercise, which are

protected, and de minimis burdens, which are not. For example, a religious

adherent may not “require the Government to conduct its own internal affairs in

ways that comport” with the person’s religious beliefs, even if the government

action interferes with that person’s religious exercise. Bowen v. Roy, 476 U.S. 693,

699-700 (1986); see Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,

451 (1988) (recognizing that government’s decision to log and build roads would

“have severe adverse effects” on practice of Native American religion but

concluding this burden was not “heavy enough” to trigger strict scrutiny under the

Free Exercise Clause).

In Bowen, Native American parents challenged federal statutes requiring

them to provide their daughter’s social security number to state welfare agencies as

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a condition of seeking benefits on the ground that it impinged upon their free

exercise of religion. They sought an accommodation to keep the government from

using her social security number in administering benefits, which they believed

would rob their daughter of her spirit. 476 U.S. at 695-96.

Even recognizing that the parents had a sincere belief that by using her

social security number the government would be stealing their daughter’s spirit,

the Supreme Court rejected their claim, holding that the government’s “use of a

Social Security number . . . does not itself in any degree impair [the parents’]

freedom to believe, express, and exerc[ise their] religion.’” Id. at 700 (internal

quotation marks omitted). The Court rejected the parents’ attempt to use the Free

Exercise Clause to “demand that the Government join in their chosen religious

practices.” Id. at 699-700. The Court explained that “[t]he Free Exercise Clause

affords an individual protection from certain forms of governmental compulsion,”

yet does not extend so far to “afford an individual a right to dictate the conduct of

the Government’s internal procedures.” Id. at 700. The Court acknowledged that

the parents’ “religious views may not accept” the line that the Court drew

“between individual and governmental conduct,” but it drew a line nonetheless.

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Id. at 701 n.6. Likewise, under RFRA courts must determine whether the burden

on a religious adherent is, in fact, substantial.26

As we alluded to above, the plain language of RFRA supports our

conclusion that there is a distinction between a burden and a substantial burden.

RFRA requires strict scrutiny only when the government “substantially burden[s] a

person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). Congress chose to

modify “burden” with “substantial[],” 27 and we must of course interpret RFRA to

give full effect to its every word. See TRW Inc. v. Andrews, 534 U.S. 19, 31

(2001) (recognizing that statutes should be construed whenever possible so that

“no clause, sentence, or word shall be superfluous, void, or insignificant” (internal

quotation marks omitted)).

26 We reiterate that in Hobby Lobby the Supreme Court did not grapple with this aspect of the substantial burden analysis. But it was plain that the action required of the plaintiffs in that case—paying to provide health insurance that included contraceptive coverage—imposed a substantial burden. Accordingly, the Court had no occasion to address the more difficult question presented here, where the plaintiffs’ claims of substantial burden rest on their assertion that seeking an accommodation results in another entity (the TPA) providing contraceptive coverage and thus makes them complicit in a system that achieves an end to which they have a religious objection. In other words, Hobby Lobby did not pose the issue whether courts must defer to a religious adherent’s assertion that seeking an accommodation (opting out) itself imposes a substantial burden. 27 Congress used “substantial burden” instead of “burden” in order “to clarify [that] the compelling interest required by the Religious Freedom [Restoration] Act applies only where there is a substantial burden placed on the individual free exercise of religion.” 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch) (emphasis added). Limiting RFRA’s application to substantial burdens was intended to ensure that the government was not required “to justify every action that has some effect on religious exercise.” Id.

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We recognize that the distinction between burden and substantial burden is

not implicated in every RFRA case. Nonetheless, there are cases brought under

RFRA in which the purported burden is too slight to trigger strict scrutiny. For

example, in Kaemmerling v. Lappin, an inmate challenged under RFRA the Bureau

of Prison’s collection and analysis of his DNA. 553 F.3d 669, 673-74 (D.C. Cir.

2008). He claimed that the government’s sampling, collection, and analysis of his

DNA violated his sincerely held religious beliefs about the proper use of DNA.

The D.C. Circuit concluded there was no substantial burden. Importantly, the

inmate had no religious objection to the collection of his bodily material; he

challenged only how the government would subsequently use that specimen to

extract his DNA information. Id. at 678-79. There was no question that the

Bureau of Prisons required the inmate to submit a bodily specimen that would be

used for an end to which he had a strong religious objection (that is, the collection

and analysis of his DNA). But the D.C. Circuit held there was no substantial

burden because the inmate “suggest[ed] no way in which these government acts

pressure[d] him to modify his own behavior in any way that would violate his

beliefs.” Id. at 679. Kaemmerling reinforces that a religious adherent cannot use

RFRA to stop the government or third parties from taking subsequent actions to

which he objects when the acts required of him impose a de minimis burden.28

28 Our dissenting colleague worries that our framework creates a “Bizarro World” in

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(ii) No Substantial Burden Exists.

To determine whether the accommodation objectively puts plaintiffs to the

choice of violating their religious beliefs or paying a significant fine, we must

understand how the accommodation functions and what it requires of these

plaintiffs. The only act that the regulations require the plaintiffs to take is to seek

the accommodation—that is, filling out and sending Form 700 to their TPAs or

writing a letter to HHS letting it know of their objections. The plaintiffs do not

contend that notifying HHS or their TPAs itself constitutes a substantial burden

because of the time or effort involved. Rather, their objection is based on the

significance they attribute to this act. They contend that the act of opting out

triggers contraceptive coverage for plan participants and beneficiaries or makes

them complicit in a system that provides contraceptive coverage. We accept that

the plaintiffs truly believe that triggering contraceptive coverage or being complicit

in a system providing contraceptive coverage violates their religious beliefs. But

which courts determine whether the burden imposed by a law or regulation violates the adherent’s beliefs. Dissent at 117-18. The dissent overstates our position. We are not saying that courts may determine that when a prison requires a Muslim inmate to shave his beard or the government forces a Seventh-Day Adventist to work on the Sabbath, the religious adherent’s claim that the government is coercing him to forego his religious precepts is wrong. But when a dispute exists about whether the challenged governmental policy actually requires an inmate to shave his beard or a person to work on Saturday, it is for the courts to determine what the law requires. See, e.g., Sherbert, 374 U.S. at 403-04 (Supreme Court performed its own analysis to determine whether challenged policy compelled Seventh-Day Adventist to work on Saturdays). Likewise, when a religious adherent challenges an accommodation scheme as imposing a substantial burden on the religious adherent based on subsequent actions taken by the government or third parties, it is for the courts to determine whether the burden is substantial.

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our objective inquiry leads us to conclude that the government has not put

plaintiffs to the choice of violating their religious beliefs or facing a significant

penalty. We hold there is no substantial burden.

Here’s why: the ACA and HRSA guidelines are what entitle plan

participants and beneficiaries to contraceptive coverage. The ACA provides that

the plaintiffs’ self-insured plans “shall, at a minimum provide coverage for and

shall not impose any cost sharing requirements for . . . with respect to women, such

additional preventative care and screenings . . . as provided for in” the HRSA

guidelines. 42 U.S.C. § 300gg-13(a)(4). The HRSA Guidelines, in turn, “require

coverage, without cost sharing, for ‘[a]ll . . . [FDA] approved contraceptive

methods, sterilization procedures, and patient education and counseling for all

women with reproductive capacity.’” 77 Fed. Reg. at 8725 (alterations in original)

(quoting HRSA guidelines).

The plaintiffs and the dissent take a different view of the statutory and

regulatory scheme, contending that an eligible organization’s act of opting out

triggers the TPA’s designation as plan administrator and, without it, plan

participants or beneficiaries would not receive contraceptive coverage.29 Indeed,

29 Because the plaintiffs here have only self-insured plans, we consider only the accommodation procedures that apply to self-insured health plans. For an eligible organization with a plan insured by a third party, the accommodation imposes no new coverage obligation. The eligible organization’s act of opting out simply makes

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the dissent asserts that opting out requires an eligible organization’s “affirmative

participation” because the act of opting out is the “linchpin on which the

contraceptive mandate rests.” Dissent at 125. We disagree.

The ACA and the HRSA guidelines—not the opt out—are, to borrow the

dissent’s term, the “linchpins” of the contraceptive mandate because they entitle

women who are plan participants and beneficiaries covered by group health

insurance plans to contraceptive coverage without cost sharing. In other words,

women are entitled to contraceptive coverage regardless of their employers’ action

(or lack of action) with respect to seeking an accommodation. Because a woman’s

entitlement to contraceptive benefits does not turn on whether her eligible

organization employer chooses to comply with the law (by providing contraceptive

coverage or seeking an accommodation) or pay a substantial penalty (in the form

of a tax) for noncompliance, we cannot say that the act of opting out imposes a

substantial burden. 30

the coverage the plan provider’s “sole responsibility rather than one shared with the group health plan itself.” Little Sisters of the Poor, 794 F.3d at 1181. 30 The dissent complains that our reading renders the act of opting out “meaningless.” Dissent at 128 (internal quotation marks omitted). The dissent misses our point. Although plan participants and beneficiaries are entitled to contraceptive coverage under federal law regardless of any opt out, notification of the opt out allows the government to identify the plan participants and beneficiaries who will not receive contraceptive coverage from a self-insured eligible organization because of that organization’s religious objection to the mandate. In other words, the act of opting out aids the government in identifying these women and making sure that they receive the contraceptive coverage to which they are legally entitled. Thus, the act of opting out

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We do not mean to imply that the act of opting out plays no causal role in

the ultimate provision of contraceptive coverage. We acknowledge that an eligible

organization’s act of notifying HHS or its TPA of its objection results in the TPA’s

designation as the plan administrator and gives rise to the TPA’s obligation to

provide contraceptive coverage.31 See 29 C.F.R. § 2510.3-16(b). But we view an

eligible organization’s act of opting out as, at most, an incidental cause of plan

participants and beneficiaries receiving contraceptive coverage because these

women are entitled to contraceptive coverage under the ACA and HRSA

guidelines regardless of whether the eligible organization opts out. Accordingly,

even if the act of opting out in some way leads to women receiving the

contraceptive coverage to which they were entitled under federal law, the plaintiffs

have failed to establish that the act of opting out substantially burdens their

religious exercise. Importantly, the government does not force an eligible

organization to provide contraceptive coverage, pay costs related to contraceptive

coverage, notify plan participants and beneficiaries of the existence of such

coverage, or even include the availability of such coverage from a separate source

in information the plan provides to plan participants and beneficiaries. Instead, all

has significance in the regulatory scheme, but not because it creates a woman’s entitlement to contraceptive coverage. 31 Indeed, the government has admitted that an eligible organization’s opt out results in a TPA’s designation as plan administrator and the TPA providing plan participants and beneficiaries contraceptive benefits.

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of these responsibilities fall upon the TPA. Rather, the only action required of the

eligible organization is opting out: literally, the organization’s notification of its

objection. Such an opt out requirement is “typical of religious objection

accommodations that shift responsibility to non-objecting entities only after an

objector declines to perform a task on religious grounds.” Little Sisters of the

Poor, 794 F.3d at 1183.

The plaintiffs’ challenge is in substance indistinguishable from an objection

to the government’s requiring another entity to provide coverage in their stead.

See Catholic Health Care Sys., 796 F.3d at 224 (characterizing an identical

challenge as seeking a “blanket religious veto over the government’s interactions

with others”). Put differently, the plaintiffs’ opposition to opting out is an

objection to their inability to keep the TPA with which they have contracted to

provide services in connection with healthcare coverage from complying with the

relevant regulations. The plaintiffs point to a but-for causal relationship between

their opting out and the conduct that they find religiously objectionable. But, as

the Supreme Court has explained, a religious adherent cannot claim a substantial

burden based on the subsequent conduct of another party. 32 See Bowen, 476 U.S.

32 The plaintiffs argue that under the accommodation they are facilitating access to contraceptives because their ongoing contractual relationship with their TPA leads the TPA to continue to provide contraceptive coverage to plan participants and beneficiaries. It is true that a TPA remains as plan administrator for purposes of contraceptive coverage only so long as the organization serves as the plan’s TPA. Nonetheless, the plaintiffs cannot show a substantial

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at 699-700 (“Just as the government may not insist that appellees engage in any set

form of religious observance, so appellees may not demand that the Government

join in their chosen religious practices by refraining from using a number to

identify their daughter.”). 33

We recognize that the plaintiffs sincerely abhor and object to the subsequent

acts taken by the government and their TPA, which ultimately result in the TPA

providing contraceptive coverage to their plan participants and beneficiaries. We

acknowledge that they “may not accept [the] distinction” that we draw here

between their conduct and the downstream, separate conduct of HHS and the TPAs

to provide coverage. Id. at 701 n.6. But we simply cannot say that RFRA affords

the plaintiffs the right to prevent women from obtaining contraceptive coverage to

which federal law entitles them based on the de minimis burden that the plaintiffs

face in notifying the government that they have a religious objection.

As the Seventh Circuit first articulated, an analogy to a conscientious

objector to the military draft illustrates why the accommodation does not impose a

burden because, as explained above, their challenge is an objection to the TPA’s subsequent conduct. 33 The dissent dismisses Bowen as distinguishable because the plaintiffs here object only to their own participation in the accommodation, not to any acts taken by the government. See Dissent at 126-27 n.32. We are not persuaded. The dissent’s position ignores that the plaintiffs object to opting out because it requires them to play a causal role (albeit, a small one) in a system in which the government requires contraceptive coverage. Put another way, their religious objection is, at its core, an objection to the government requiring the TPAs to provide coverage upon their opting out.

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substantial burden. See Notre Dame I, 743 F.3d at 556. A religious conscientious

objector to the military draft may opt of military service based on his belief that

war is immoral. The objector sincerely believes that his act of opting out triggers

the drafting of another person in his place, and thus renders him complicit in the

very thing to which he objects. But we would reject the assertion that the

government’s subsequent act of drafting another person in his place—even though

the drafting was in some sense caused by the objector’s act of opting out—

transforms the act of lodging a conscientious objection into a substantial burden.

See id. Likewise, we reject the plaintiffs’ assertion that opting out imposes a

substantial burden because the government requires a third party to provide

contraceptive coverage after an eligible organization opts out.

Accordingly, we conclude that through the accommodation the government

has imposed no substantial burden on the plaintiffs. We thus hold that the

accommodation does not violate RFRA.

c. The Accommodation Survives Strict Scrutiny.

Even assuming that the accommodation imposes a substantial burden on

plaintiffs’ religious exercise, RFRA allows the government to impose such a

burden when it demonstrates that the burden “is in furtherance of a compelling

governmental interest” and “is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). Because the

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government has carried its burden of showing that the accommodation is the least

restrictive means of furthering its compelling interests, we hold in the alternative

that the accommodation survives strict scrutiny under RFRA.

(i) Compelling Interests Justify the Accommodation.

In applying RFRA’s strict scrutiny test, we must first determine whether the

accommodation is “in furtherance of a compelling governmental interest.” Id.

Because the mandate and accommodation require the provision of cost-free

contraceptive coverage with little to no administrative burden on women, these

regulations further compelling government interests in avoiding the adverse public

health consequences of unintended pregnancies and in assuring women the equal

benefit of preventative care by requiring coverage for their distinctive health

needs.34 See Priests for Life I, 772 F.3d at 258-59.

34 As we explained above, the majority in Hobby Lobby assumed without deciding that there was a compelling governmental interest. There is, however, an argument that five justices concluded there was a compelling interest. See supra note 18. But even if Justice Kennedy’s concurring opinion in Hobby Lobby did not recognize a compelling governmental interest, we would hold that the compelling interest test is satisfied here. We acknowledge that the majority opinion in Hobby Lobby criticized the government’s purported interests in “promoting public health and gender equality” as “broadly framed.” 134 S. Ct. at 2779 (internal quotation marks omitted). But we agree with the D.C. Circuit that the government has now provided a more focused analysis “by explaining how those larger interests inform and are specifically implicated in its decision to support women’s unhindered access to contraceptive coverage.” Priests for Life I, 772 F.3d at 259.

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(a) The Government’s Interests in Reducing the Rate of Unintended Pregnancies Are Compelling.

We begin our analysis with the facts: unintended or poorly spaced

pregnancies have a host of negative impacts on women and children. See supra

Part I.A. Women who experience unintended pregnancies are often unaware of

their condition in the early stages of their pregnancy, which leads them to delay

prenatal care and cessation of behaviors such as smoking or alcohol consumption.

78 Fed. Reg. at 39872. Babies born as a result of unintended pregnancies are at a

greater risk of premature birth and low birth weight. Id. Short interpregnancy

intervals also result in a greater risk of prematurity and low birth weight. Id.

Contraceptive use can alleviate these public health problems. 35 “[G]reater use of

contraception within the population produces lower unintended pregnancy and

abortion rates nationally.” IOM Report at 105.

During debate over the ACA, Congress was informed that “[i]n America

today, too many women are delaying or skipping preventive care because of the

costs of copays and limited access.” 155 Cong. Rec. S12027 (Dec. 1, 2009)

(statement of Sen. Gillibrand). The IOM Report also found that “cost-sharing

35 Many contraceptives also carry significant positive health side effects. “[T]he non- contraceptive benefits of hormonal contraception include treatment of menstrual disorders, acne or hirsutism, and pelvic pain. Long-term use of oral contraceptives has been shown to reduce a woman’s risk of endometrial cancer, as well as protect against pelvic inflammatory disease and some benign breast diseases.” IOM Report at 107 (internal citations omitted).

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requirements, such as deductibles and copayments, can pose barriers to care and

result in reduced use of preventive and primary care services, particularly for low-

income populations.” IOM Report at 109. The Women’s Health Amendment,

which added to the ACA the requirement that group and individual health plans

provide women with coverage for preventative care and screenings, aimed to

increase women’s use of preventive care by removing administrative and financial

barriers. See 155 Cong. Rec. S12027 (statement of Sen. Shaheen) (“Too often,

women forgo their health care needs because they are not affordable. We know

cost plays a greater role in preventing women from accessing health care than it

does men. In 2007, more than half of all women reported problems accessing

needed health care because of costs.”); see also Priests for Life I, 772 F.3d at 260

(explaining that Congress and the Executive branch determined with the ACA and

its regulations that “serving the government’s compelling public health interests

depends on overcoming the human behavioral tendencies of denial and delay

documented in the legislative and regulatory record”).

Moreover, the Women’s Health Amendment, which added the contraceptive

mandate to the ACA’s minimum coverage requirements, specifically addressed the

need to provide preventive care to women to rectify past gender discrimination in

health insurance. As the Departments noted, “the statute acknowledges that both

existing health coverage and existing preventive services recommendations often

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did not adequately serve the unique health needs of women. This disparity placed

women in the workforce at a disadvantage compared to their male coworkers.” 36

78 Fed. Reg. at 39873; see also 155 Cong. Rec. S12027 (statement of Sen.

Gillibrand) (“The prevention section of the bill before us must be amended so

coverage of preventive services takes into account the unique health care needs of

women throughout their lifespan.”). Indeed, before the ACA, “women of

childbearing age spent 68 percent more on out-of-pocket health care costs than

men.” 78 Fed. Reg. at 39887. The Departments explained that this

“disproportionate” financial burden “prevented women from achieving health

outcomes on an equal basis with men.” Id. The Departments intended the

contraceptive coverage requirement to “help[] to equalize the provision of

preventative health care services to women and, as a result, help[] women

contribute to society to the same degree as men.” Id. As the Departments

explained, “[r]esearch shows that access to contraception improves the social and

economic status of women.” Id. at 39873; see generally Claudia Goldin &

Lawrence F. Katz, The Power of the Pill: Oral Contraceptives & Women’s Career

& Marriage Decisions, 110 J. of Pol. Econ. 731 (2002).

36 See also 155 Cong. Rec. S11987 (statement of Sen. Mikulski) (“Women are often faced with the punitive practices of insurance companies. No. 1 is gender discrimination. Women often pay more and get less. For many insurance companies, simply being a woman is a preexisting condition. . . . We pay more because of our gender, anywhere from 2 percent to over 100 percent.”).

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Based on this evidence, we conclude that the government’s interests in the

public health of women and children, as well as in assuring women equal

preventative care, are compelling.

(b) The Mandate and Accommodation Further These Compelling Interests.

The mandate and accommodation achieve the government’s goals by

making contraceptives affordable and otherwise accessible to women. As

explained above, federal law generally guarantees women contraceptive coverage

without cost sharing. See 42 U.S.C. § 300gg-13(a)(4); 77 Fed. Reg. at 8725

(discussing HRSA guidelines). Importantly, under the mandate and

accommodation, women covered by group health insurance plans generally are

required to take no additional action to obtain this contraceptive coverage. This is

because the coverage is delivered “through the existing employer-based system of

health coverage.” 78 Fed. Reg. at 39888. Thus, under the mandate, women need

not complete extra paperwork or sign up for an additional program because the

contraceptive coverage is delivered with the health insurance they already have

through their employers.

This is true even when an employer opts out of providing contraceptive

coverage by seeking an accommodation. Although objecting employers are not

obligated to provide or pay for contraceptives, the women covered by their plans

seamlessly receive contraceptive coverage from the plans’ TPAs. This system was 56 Case: 14-12696 Date Filed: 02/18/2016 Page: 57 of 148

carefully designed to make contraceptive coverage accessible by not requiring

women to research plans that offer contraceptive coverage, purchase separate

contraceptive coverage, or even sign up with a different entity or program. See id.

As the Supreme Court acknowledged in Hobby Lobby, the Departments designed

the accommodation so that it has “precisely zero” impact on female plan

participants and beneficiaries. 134 S. Ct. at 2760; see also id. at 2759 (explaining

the accommodation “ensur[es] that the employees of [eligible organizations] have

precisely the same access to all FDA-approved contraceptives as employees of

companies whose owners have no religious objections to providing such

coverage”).37

Providing women with such seamless coverage should result in a lower

unintended pregnancy rate. Medical evidence reflects a causal relationship

between the accessibility of contraceptives and the unintended pregnancy rate:

“progress in reducing the rate of unintended pregnancy would be possible by

making contraceptives more available, accessible, and acceptable.” IOM Report at

104 (internal quotation marks omitted); see also id. at 109 (“[C]ost-sharing

requirements, such as deductibles and copayments, can pose barriers to care and

result in reduced use of preventative and primary care services, particularly for

37 We acknowledge that the Supreme Court in Hobby Lobby expressly declined to decide whether the accommodation violated RFRA. Nonetheless, our analysis is consistent with the Court’s dicta.

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low-income populations.”); Dianne Greene Foster, et al., Number of Oral

Contraceptive Pill Packages Dispensed & Subsequent Unintended Pregnancies,

Obstetrics & Gynecology, March 2011, at 566 (concluding that when receipt of

oral contraceptives was made more convenient by dispensing them annually rather

than quarterly the unintended pregnancy rate dropped by 30% and the abortion rate

dropped by 46%).38 Because the government has demonstrated that the mandate

and accommodation increase access to contraception, we conclude that the

mandate and accommodation are effective ways to reduce the unintended

pregnancy rate. Accordingly, they serve the government’s compelling interests of

38 The government’s evidence further shows that when contraception is easily accessible, women not only use it more often, they select more effective methods of contraception. In research studies, “when out-of-pocket costs for contraceptives were eliminated or reduced, women were more likely to rely on more effective long-acting contraceptive methods.” IOM Report at 109. These methods include intrauterine devices and contraceptive implants, which are long-lasting and have the additional advantage of not being dependent on user compliance. See Birth Control Methods Fact Sheet, Dep’t of Health & Hum. Servs., Office on Women’s Health, http://www.womenshealth.gov/publications/our-publications/fact-sheet/birth-control- methods.html (July 16, 2012) (showing that implants and intrauterine devices have a failure rate of less than 1 percent, compared to 5 percent for oral contraceptives and 11 to 16 percent for male condoms). These longer-acting contraceptive methods have been underutilized in the United States compared to other developed countries where unintended pregnancy rates are lower, Jeffrey F. Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, Obstetrics & Gynecology, Dec. 2012, at 1291, in large part because they pose higher up-front costs that discourage use. See IOM Report at 108. Evidence shows that women’s use of long- acting contraceptive methods easily can be increased by making the methods cheaper and more readily available. In a study that provided intrauterine devices and implanted contraceptives at no cost to study participants, researchers found a significant decrease in unintended pregnancy and abortion rates in the study population. The study concluded that “[u]nintended pregnancies may be reduced by providing no-cost contraception and promoting the most effective contraceptive methods.” See Peipert, supra, at 1291.

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improving the health of women and children and assuring that women receive

health benefits that meet their needs as well as the health care provided to men

does.

Of course, a compelling interest alone is insufficient to satisfy RFRA; we

must also assess “the marginal interest in enforcing” the challenged law against the

religious adherents in question. Hobby Lobby, 134 S. Ct. at 2779. “RFRA requires

the Government to demonstrate that the compelling interest test is satisfied through

application of the challenged law ‘to the person’—the particular claimant whose

sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (quoting 42

U.S.C. § 2000bb-1(b)); see also Yoder, 406 U.S. at 221 (“Where fundamental

claims of religious freedom are at stake, however, we cannot accept such a

sweeping claim [of compelling interest]; despite its admitted validity in the

generality of cases, we must searchingly examine the interests that the State seeks

to promote . . . and the impediment to those objectives that would flow from

recognizing the claimed . . . exemption.”).

Yoder provides a good example of the application of this principle. There,

the Amish plaintiffs challenged Wisconsin’s law requiring high school attendance

until the age of 16. Yoder, 406 U.S. at 207-08. The government asserted that the

law was justified by a general interest in the virtues of universal education. Id. at

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213-14. The Supreme Court was unsatisfied with this interest as it applied to the

plaintiffs. “[T]he evidence adduced by the Amish . . . [was] persuasively to the

effect that an additional one or two years of formal high school for Amish children

in place of their long-established program of informal vocational education would

do little to serve [the government’s stated] interests.” Id. at 222 (emphasis added).

Similarly, the government’s argument in O Centro exemplifies an overly

generalized interest. The plaintiffs, a religious sect with origins in the Amazon

rainforest, challenged the Controlled Substances Act’s regulation of hoasca, a

hallucinogenic tea they used in religious ceremonies. The federal government

argued that it had “a compelling interest in the uniform application of the

Controlled Substances Act, such that no exception to the ban on use of the

hallucinogen can be made to accommodate the sect’s sincere religious practice.” O

Centro, 546 U.S. at 423. The Supreme Court dismissed this slippery slope

argument, which it said “could be invoked in response to any RFRA claim for an

exception to a generally applicable law,” because it failed to consider the limited

effect of an exception for the particular plaintiffs, and its stated need for universal

application was undermined by the existence of other exceptions. Id. at 435-36.

In contrast to Yoder and O Centro, here the government’s stated interests all

concern the law’s application to these particular plaintiffs. The government argues

that applying the accommodation procedure to the plaintiffs in these cases furthers

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its interests because the accommodation ensures that the plaintiffs’ female plan

participants and beneficiaries—who may or may not share the same religious

beliefs as their employer—have access to contraception without cost sharing or

additional administrative burdens as the ACA requires. Unlike the exception made

in Yoder for Amish children, whom the Supreme Court found had an adequate

substitute for additional formal education to refute the government’s compelling

interest, here the IOM Report’s findings of poor health outcomes related to

unintended or poorly timed pregnancies apply to the plaintiffs’ female plan

participants or beneficiaries and their children just as they do to the general

population.

Moreover, the accommodation’s requirement that the plaintiffs inform their

TPAs or HHS of their religious objection is essential to achieving the

government’s compelling interests. It ensures that a TPA is aware when it has an

obligation to provide contraceptive coverage so that the women covered by these

plans can receive coverage if they want it, without gaps in such coverage. The

notification also guarantees that the Departments will be able to identify objecting

organizations, like the plaintiffs, to make sure that the accommodation procedures

work (that is, to independently ensure that the women covered by the plaintiffs’

plans are receiving the coverage to which they are entitled). Thus, the

government’s interests are sufficiently particular to satisfy the O Centro standard.

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(c) The Exceptions to the Mandate and Accommodation Do Not Undermine the Government’s Compelling Interest.

The plaintiffs argue that the government’s interests in providing broad

contraceptive coverage cannot be compelling because the ACA provides

exemptions from the mandate for other types of employers—namely, those (1)

with grandfathered health plans, (2) with fewer than 50 employees, and (3) that

qualify as “religious employers.” We disagree.

First, the existence of grandfathered plans does not undermine the

government’s compelling interest in providing contraceptive coverage because

grandfathered plans are only a short-lived, transitional measure intended to ease

the burden of compliance with the ACA’s sweeping reforms. 78 Fed. Reg. at

39887 n.49 (“[T]he Affordable Care Act’s grandfathering provision is only

transitional in effect, and it is expected that a majority of plans will lose their

grandfathered status by the end of 2013.”). To be grandfathered, a plan must

continue to provide virtually the same benefits for the same percentage cost

sharing as the plan had in effect on March 23, 2010. 45 C.F.R. § 147.140(g)(1)(ii).

It becomes difficult to comply with these requirements over time. See, e.g.,

Second Am. Compl. at 23-24, No. 1:12-cv-03489, Doc. 56 (describing the Atlanta

Archdiocese’s inability to afford to maintain its grandfathered plan past January 1,

2014).

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Research by the Kaiser Family Foundation demonstrates that the percentage

of workers covered by grandfathered plans has rapidly declined: 26 percent in

2014, down from 36 percent in 2013, 48 percent in 2012, and 56 percent in 2011.

Kaiser Family Found. & Health Research & Ed. Trust, Employer Health Benefits

2015 Annual Survey at 218 (Sept. 22, 2015). 39 In addition, some employees

covered by grandfathered plans may in fact be receiving contraceptive benefits

without cost sharing because, though not required to do so, their plans may include

such a benefit.

As an additional consideration, we do not wish to penalize the government

for phasing in the ACA’s requirements to help businesses adjust to a new health

care regulatory landscape. Cf. Heckler v. Mathews, 465 U.S. 728, 746 (1984)

(“We have recognized, in a number of contexts, the legitimacy of protecting

reasonable reliance on prior law even when that requires allowing an

unconstitutional statute to remain in effect for a limited period of time. . . . The

protection of reasonable reliance interests is . . . a legitimate governmental

objective.”). Accordingly, even if the mandate and accommodation are phased in

39 We acknowledge that the Kaiser Family Foundation’s 2015 data shows that 25% of covered workers are enrolled in a grandfathered plan, which is not much less than the 26% in 2014. But the Foundation reported that many employers were confused and unsure about whether their plans remained grandfathered, suggesting that employers may have inaccurately reported that they had grandfathered plans. Kaiser Family Found., supra, at 214.

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over time, the gradual implementation is insufficient to undermine the

government’s compelling interest.

Second, the ACA’s treatment of employers with 50 or fewer employees as

exempt from the “employer mandate” and therefore not required to provide

employees with health insurance at all, see 26 U.S.C. § 4980H(a)(c)(2)(A), does

not undercut the government’s compelling interests. If, on the one hand, smaller

employers do not provide insurance coverage, then their employees must purchase

health plans on the health insurance exchanges or face tax penalties. See id.

§ 5000A(a), (b)(1). And plans purchased on the exchanges will include

contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). If, on the other hand,

smaller employers choose to provide health insurance, then their plans are subject

to the contraceptive mandate. See id. The employees of small businesses therefore

will receive contraceptive coverage regardless of whether their employers are

exempt from providing health insurance. This exemption reflects a practical

recognition that small businesses have different financial realities from larger

businesses. It in no way undermines the government’s interest in providing

contraceptive coverage without cost sharing because small businesses’ employees

end up with health plans subject to the contraceptive mandate whether the

employers provide health insurance or not.

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Third, the exemption from the contraceptive mandate for religious

employers does not weaken the government’s stated interests. Under the HRSA

guidelines, the contraceptive mandate does not apply to a group health plan run by

a religious employer, defined by the regulations as “an organization that is

organized and operates as a nonprofit entity and is referred to in section

6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.”

45 C.F.R. § 147.131(a). In finalizing the regulations, the Departments declined to

extend the exemption to other organizations that have religious objections to the

mandate because:

Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.

78 Fed. Reg. at 39874.

The exemption for religious employers attempts to balance the need for

contraceptive coverage with our nation’s longstanding history of deferring to a

house of worship’s decisions about its internal affairs. See 76 Fed. Reg. at 46623

(“[T]he Departments seek to provide for a religious accommodation that respects

the unique relationship between a house of worship and its employees in

ministerial positions.”); see also Hosanna-Tabor Evangelical Lutheran Church &

Sch. v. EEOC, 132 S. Ct. 694, 704-06 (2012) (describing history of non- 65 Case: 14-12696 Date Filed: 02/18/2016 Page: 66 of 148

interference with internal affairs of houses of worship). The government

undoubtedly has a compelling interest in respecting the values of religious

employers and their employees, and pursuing that interest does not undermine the

government’s equally compelling interest in improving women’s and the public’s

health by making contraceptives easier to obtain. Especially with regard to

sweeping legislation like the ACA, the government is often faced with competing

compelling interests. Courts may allow the government to balance those interests

without undermining any individual compelling interest. See Hobby Lobby,

134 S. Ct. at 2780 (“Even a compelling interest may be outweighed in some

circumstances by another even weightier consideration.”).

We also reject the plaintiffs’ argument that the Departments’ distinction

between houses of worship (which are exempted from the mandate) and other

organizations with religious affiliation (which must seek an accommodation) is

illogical. Although it may not universally hold true,40 it is a common-sense notion

that a church’s employees likely share more beliefs with the church than do the

employees of, for example, a school linked to that church, and therefore the

employees of a church that objects to contraception are less likely to use

contraceptive coverage even if it is available. See 78 Fed. Reg. at 39874. Thus,

40 EWTN in particular argues that the Departments’ distinction between houses of worship and other religious organizations is illogical and does not hold for EWTN because, like employees of “religious employers,” its employees share its religious convictions.

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the Departments distinguished between houses of worship and other religious

groups using the readily available and well-established IRS tax status test. This

test is predictable for affected organizations and easy for the Departments to

implement. See United States v. Lee, 455 U.S. 252, 260-61 (1982) (noting it was

reasonable for Congress to exempt self-employed Amish from Social Security

taxes because the exemption for “the self-employed provided for a narrow category

which was readily identifiable . . . [and] distinguishable from the generality of

wage earners employed by others”). We do not think that the Departments’

decision to exempt houses of worship based on a bright-line test while

accommodating other religious organizations undercuts the government’s

compelling interests in enforcing the contraceptive mandate.

In sum, the mandate and accommodation further the government’s

compelling interests by ensuring that women have contraceptive coverage without

cost sharing or additional administrative hurdles. Additionally, by requiring

organizations that opt out of the mandate to identify themselves, the government

ensures that these organizations’ health plan participants and beneficiaries can

receive the coverage seamlessly through other channels. Although the government

has attempted to accommodate religious freedom as well as the needs of

businesses, it has not done so in a way that undermines its goal of ensuring access

to contraception.

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(ii) The Mandate and Accommodation Are the Least Restrictive Means of Furthering the Government’s Compelling Interests.

As a final step, we must determine whether the mandate and accommodation

are “the least restrictive means of furthering” the government’s compelling

interests. 42 U.S.C. § 2000bb-1(b). This test is “exceptionally demanding.”

Hobby Lobby, 134 S. Ct. at 2780. The government must show “that it lacks other

means of achieving its desired goal without imposing a substantial burden on the

exercise of religion by the [plaintiffs].” Id. When a less restrictive alternative

serves the government’s compelling interest “equally well,” the government must

use that alternative. Id. at 2782; see id. at 2786 (Kennedy, J. concurring)

(considering whether alternative “equally furthers the Government’s interest”).

In determining whether potential alternatives to the mandate and

accommodation equally further the government’s interests, we must consider both

the cost to the government and the burden the alternatives impose on the affected

women. See id. at 2760 (majority opinion) (“[W]e certainly do not hold or suggest

that RFRA demands accommodation of a for-profit corporation’s religious beliefs

no matter the impact that accommodation may have on thousands of women

employed by Hobby Lobby. The effect of the HHS-created accommodation on the

women employed by Hobby Lobby and the other companies involved in these

cases would be precisely zero.” (emphasis added) (alteration, footnote, citation,

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and internal quotation marks omitted)); id. at 2760 (clarifying that the Court did

not hold that “corporations have free rein to take steps that impose disadvantages

on others or that require the general public to pick up the tab” (alteration and

internal quotation marks omitted)). Because there are no less restrictive means

available that serve the government’s interests equally well, we hold that the

mandate and accommodation survive strict scrutiny under RFRA.

Although the plaintiffs and the dissent suggest several potential less

restrictive alternatives to the mandate and accommodation, their proposals fail to

achieve the government’s interests as effectively. Indeed, their proposals impose

burdens on women that would make contraceptives less accessible than they

currently are. Because these proposals cannot be expected to reduce the rate of

unintended pregnancies and thereby improve the health of women and children as

effectively as the mandate and accommodation, they do not qualify as less

restrictive alternatives under RFRA.

Previously, the Supreme Court and a member of this Court suggested that a

less restrictive alternative would be to allow eligible organizations to notify HHS

of their opt out, instead of having to provide Form 700 to their plan providers or

TPAs. See Wheaton Coll., 134 S. Ct. at 2807; Eternal Word Television Network,

756 F.3d at 1349 (William Pryor, J., concurring) (“The United States, for example,

could require the Network to provide a written notification of its religious

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objection to the Department of Health and Human Services, instead of requiring

the Network to submit Form 700—an instrument under which the health insurance

plan is operated—to the third-party administrator.”). The Departments have

responded to and addressed this concern by revising the accommodation

procedures to allow eligible organizations notify HHS directly of their desire to opt

out of the contraceptive mandate. 79 Fed. Reg. at 51094-95. With that potential

alternative incorporated into the regulatory scheme, we turn to the alternatives

proposed by the plaintiffs and the dissent.

(a) The Plaintiffs’ Proposals

The plaintiffs propose two less restrictive alternatives. First, they suggest

that the government could pay directly for all contraceptive coverage, in effect a

single-payer system for contraceptives only, 41 either by creating a new government

program or expanding an existing one.42 Either way Congress would need to pass

legislation that would fundamentally change how the majority of American women

41 In a single-payer system, the government—as opposed to employers, health insurers, or patients—pays for healthcare services. See Notre Dame II, 786 F.3d at 615; Single-Payer, Merriam Webster Dictionary, http://www.merriam-webster.com/dictionary/single-payer (last visited Feb. 12, 2016). Although the plaintiffs never call their proposal a “single-payer” system for contraceptives, the label applies because they propose a system in which the government would be the sole payer for contraceptives and related services. It is important to note that all other health care would continue to be provided through our existing system. 42 The plaintiffs suggest, for example, that Congress could expand Title X, which currently benefits only low-income families; patients whose income exceeds 250 percent of the poverty level must pay for any services they receive through Title X programs. See 42 U.S.C. § 300a-4(c); 42 C.F.R. § 59.5(a)(8).

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receive their healthcare coverage for contraception. 43 See Jessica C. Smith & Carla

Medalia, U.S. Census Bureau, Health Insurance Coverage in the U.S.: 2014 at 3

(2015) (55% of Americans had insurance coverage provided by an employer in

2014). Among other things, adopting a single-payer system for contraception

would require Congress to squeeze insurance companies out of an entire segment

of the health insurance business. 44 Second, the plaintiffs assert that the

government could provide tax credits to reimburse women for purchasing

contraceptive coverage. 45 Under either the single-payer or tax credit proposals, all

coverage for contraception and related services would operate outside the existing,

largely employer-based, insurance system.

43 In Hobby Lobby, the government argued that RFRA does not permit the court to consider proposals that would require the government to create entirely new programs as less restrictive alternatives. The Court rejected this argument, explaining “we see nothing in RFRA that supports this argument.” Hobby Lobby, 134 S. Ct. at 2781. Accordingly, we consider this proposal even though it would require substantial congressional action to expand significantly an existing program or create a new one. 44 We may, of course, consider the burdens that a proposed alternative places on nonbeneficiaries, such as insurance companies. See Cutter v. Wilkinson, 544 U.S. 709, 720-722 (2005) (“[A]pplying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries. . . . Our decisions indicate that an accommodation must be measured so that it does not override other significant interests.”). 45 The plaintiffs suggest the government could require women to purchase separate contraceptive coverage on the healthcare exchanges and then offer tax credits to offset the cost of purchasing the coverage. This proposal would require Congress to amend the ACA because the exchanges are statutorily restricted to selling only full health insurance policies. See 42 U.S.C. §§ 18021(a)(1)(B), 18022(a), (b).

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Most importantly, these proposals are not less restrictive alternatives

because they would not serve the government’s interests “equally well.” 46 Hobby

Lobby, 134 S. Ct. at 2782. As the Departments explain, these proposals would

cause all women who have existing contraceptive coverage through group health

insurance plans to lose such coverage, forcing them instead to “take steps to learn

about, and to sign up for, a new health benefit.” 78 Fed. Reg. at 39888. Indeed,

under these proposals, women would have one employer-provided health insurance

plan covering healthcare other than contraception. Then, they would have to take

additional, separate steps to secure contraceptives or contraceptive coverage.

Under a single-payer system for contraceptives, they would have to research the

federal entitlement for contraceptives and register for the program. Under a tax-

credit system, they would have to research plans offering separate contraceptive

coverage, select a plan, purchase coverage, and later file for a tax credit as part of

their individual tax returns. 47 The mandate and accommodation present an easier,

46 We acknowledge dicta in Hobby Lobby suggesting as a less restrictive alternative that the government pay directly for contraception; however, the Supreme Court did not hold that such a program was a less restrictive alternative. 134 S. Ct. at 2871-82 (“[W]e need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test.”). 47 The tax-credit proposal is particularly problematic because it forces women to pay up front for contraceptives in exchange for tax credits later. But many women simply would not be able to afford to wait a year for a refund from the government in the form of a tax credit and, as the government’s evidence shows, would instead have to forgo using contraceptives. See IOM Report at 109 (recognizing that “cost-sharing requirements, such as deductibles and copayments, can pose barriers to care and result in reduced use of preventive . . . services”); see also supra

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simpler, and more certain path for women by ensuring that, by obtaining health

insurance, they also secure contraceptive coverage, even when their employers opt

out.

Because plaintiffs’ proposals impose greater barriers to contraceptive access

than exist under the mandate and accommodation, their proposals likely will lead

to lower rates of contraceptive usage (along with use of less effective forms of

contraception), meaning these proposals will be less effective at preventing

unintended pregnancies and concomitant health consequences. 48 See IOM Report

at 104-09; Foster, supra, at 566 (reflecting that when obtaining contraceptives

became less convenient, the rate of unintended pregnancy increased); see also

78 Fed. Reg. at 39888 (recognizing that these proposals would be “less effective

than the employer-based system of health coverage in advancing the government’s

compelling interests”).

Plaintiffs’ proposals would make contraception less accessible not only to

women who currently receive contraceptive coverage through a group insurance

note 38. In contrast, the mandate and accommodation require women to pay nothing upfront for contraceptives. Accordingly, contraceptives are significantly more available to women under the mandate and accommodation than they would be under the tax-credit proposal. 48 The two other circuit courts to address this issue have rejected similar alternatives for the same reason. See Notre Dame II, 786 F.3d at 616-17 (rejecting similar proposed alternatives because they “would impede the receipt of [contraceptive] benefits”); Priests for Life I, 772 F.3d at 265 (holding that proposed alternatives “would not serve the government’s compelling interest with anywhere near the efficacy of the challenged accommodation and would instead deter women from accessing contraception”).

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plan, but also to women who currently purchase health insurance through the

exchanges, including women who work for an employer with fewer than 50 full-

time employees. Under the current framework, these women must research and

compare potential health insurance plans sold on the exchanges and then purchase

and sign up for a plan. As a result of their efforts, they receive health insurance

that includes contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). Under the

plaintiffs’ proposals, these women would still have to procure health insurance

from the exchanges. But then they would have to take the additional steps

described above to obtain coverage for contraceptives. In other words, women

who currently purchase insurance through the exchanges would also face greater

burdens accessing contraceptives under a single-payer system. 49

49 It is unclear whether our dissenting colleague advocates as a less restrictive alternative replacing our insurance-based system with a single-payer system for contraceptive coverage. On the one hand, the dissent never states that a single-payer system would be a less restrictive alternative, instead proposing that the ACA and ERISA need only a “slight[] tweak,” not the jettisoning of our insurance-based system for contraceptives that a single-payer system would entail. Dissent at 137. On the one other hand, the dissent argues that the government should “provid[e] for contraceptive coverage directly without the accommodation’s administrative rigmarole” so that the government could “offer cost-free access to each and every woman in the United States.” Id. at 134. This sounds to us like a single-payer system. Indeed, the dissent suggests that a single-payer system would be as effective or more effective than the mandate and accommodation at making contraceptives accessible to women. Because under either system women pay nothing for contraceptives, to compare women’s access to contraceptives under the two systems, we must focus on the administrative burdens that women face under either system. We conclude that, on the whole, women face fewer barriers to obtaining contraceptives under the mandate and accommodation than they would under a single-payer system. Most significantly, most women covered by group health insurance plans and all who purchase insurance on the exchanges seamlessly receive coverage under the mandate and accommodation.

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After careful consideration, we conclude that the government has shown that

contraceptives would be less accessible—and used less frequently or effectively—

under the plaintiffs’ proposals then they are under the mandate and

Nonetheless, the dissent asserts that a single-payer system is a more effective way to improve access to contraceptives because three categories of women whose employers are exempt from the contraceptive mandate—(1) women employed by small businesses, (2) women covered by grandfathered plans, and (3) women employed by churches or church-affiliated organizations— would have greater access to contraceptives under such a system. See id. at 50. After considering these three categories, we remain convinced that a single-payer system would be less effective than the mandate and accommodation. First, the dissent suggests that women whose employers have 50 or fewer full-time employees would receive better access to contraceptives under a single-payer system. But, as we explained above, these women receive contraceptive coverage under the mandate and accommodation regardless of whether their employers elect to provide health insurance coverage or they purchase a plan on the exchanges. See supra Part III.A.2.c.(i).(c). Given that these women currently have seamless access to contraceptives, we fail to see how this group supports the dissent’s argument. Second, the dissent asserts that women whose health plans have a grandfathered exemption would have better access to contraceptives under a single-payer system. But the dissent overlooks that the grandfathered exemption is a temporary measure, meaning the number of women covered by plans subject to the exemption has rapidly declined and should continue to decline over time because it becomes more expensive for plans to maintain their grandfathered status. See 45 C.F.R. § 147.140(g)(1) (requiring grandfathered plans to provide virtually the same benefits for the same percentage cost sharing that the plan had in effect on March 2010). We cannot say that a single-payer system serves the government’s interest as effectively or more effectively simply because in the short term a subset of women may have easier access to contraceptives under a single-payer system. Third, the dissent argues that women employed by churches and church-affiliated organizations would have easier access to contraceptives under a single-payer system. Even if that is true for this relatively small group of women, the Departments have explained that these employees are likely to share their employer’s religious objection to contraception, meaning they are “less likely than other people to use contraceptive services even if such services were covered under the plan.” 78 Fed. Reg. at 39874. All together, we cannot say that a single-payer system serves the government’s interest as effectively as the mandate and accommodation when we consider that a single-payer system would impose greater barriers to accessing contraceptives for most women who purchase health insurance from an employer and all women who purchase plans on the exchanges. What’s more, the balance tips even further in favor of the mandate and accommodation when we consider the impact of imposing on non-beneficiaries a single-payer system for an entire segment of preventative care. See Cutter, 544 U.S. at 720.

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accommodation. Given the government’s compelling interest in minimizing the

barriers women face in accessing contraceptives so that they will use

contraceptives to lower the rate of unintended pregnancies, we conclude that the

plaintiffs’ proposals would not serve the government’s interest equally as well as

the mandate and accommodation. Thus, they fail to qualify as less restrictive

alternatives.

The dissent criticizes our position as giving the Departments a “free pass” on

the least restrictive means requirement. Dissent at 139. Our dissenting colleague

takes our analysis to mean that the government can defeat a potential alternative

merely by showing that the alternative would take away a benefit—any benefit—

that the government’s existing framework provides to “third parties” (here, the

women who are the intended beneficiaries of the mandate and accommodation).

Id. at 138. The dissent overstates our position. We are not saying that the

government can always overcome strict scrutiny by showing that proposed

alternatives would take away a benefit that the current framework provides.

Rather, on the facts and record of this case—including the evidence that when

women face greater burdens (whether financial or administrative) in accessing

contraceptives or contraceptive coverage, they are less likely to use

contraceptives—we must conclude that plaintiffs’ alternatives, which make

contraceptives less accessible, would be significantly less effective than the

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mandate and accommodation at reducing the rate of unintended pregnancies and

thus would thwart the government’s interests.50

(b) The Dissent’s Proposal

The dissent suggests that Congress could “slightly tweak” the ACA and

ERISA to “eliminate the need for eligible organizations to affirmatively designate

the third-party administrators of their health plans.” Dissent at 137. We

understand the dissent’s proposal to be that Congress should pass legislation and

the Departments should enact regulations that would designate the TPA for a self-

insured eligible organization as plan administrator for purposes of contraceptive

coverage without requiring the eligible organization to communicate its religious

objection to anyone.

The dissent’s proposal fails to serve the government’s interest equally as

well as the accommodation because the alternative would make contraceptives less

accessible to women covered by eligible organizations’ plans than would the

accommodation. The dissent fails to explain—and we cannot imagine—how a

TPA would know when an employer has a religious objection to providing

contraceptive coverage under the proposal and thus that the TPA is required to

50 The Eighth Circuit’s proposal that “the government could pay for the distribution of contraceptives at community health centers, public clinics, and hospitals with income-based support” likewise would impose additional administrative burdens on women and thus in a similar way fails to satisfy the government’s interests. Sharpe Holdings, 801 F.3d at 945.

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provide the coverage in the employer’s stead if the employer is not required to

notify anyone. Like the TPAs, the government must also be able to identify

women whose employers object on religious grounds to providing contraceptive

coverage. Otherwise, the government will be unable to ensure that the participants

and beneficiaries of the abstaining organization’s health insurance plan receive the

coverage the law mandates. Without an effective way to identify any gaps, the

government would be hamstrung in its ability to accommodate employers’

sincerely held religious beliefs while also pursuing the interests that Congress

intended to achieve in passing the Women’s Health Amendment. 51

51 The Eighth Circuit suggested as a less restrictive alternative that the Departments revise the regulations governing the accommodation to remove the requirement that when notifying HHS of its religious objection, an eligible organization must identify its TPA and provide the TPA’s contact information. Sharpe Holdings, 801 F.3d at 944. The Eighth Circuit concluded that this alternative would be “less onerous” than the current regulations yet “permit[] the government to further its interests.” Id. The Eighth Circuit relied on the fact that when the Supreme Court in Wheaton College created an accommodation, the Court required the college only to notify HHS that it had an objection to providing coverage for contraceptive services, and not to identify its TPA. Id. We disagree with the Eighth Circuit that this alternative would serve HHS’s interests equally well. As the Departments explained, the information required under the regulations is “necessary for the Departments to determine which entities are covered by the accommodation, to administer the accommodation, and to implement the policies in the . . . final regulations.” 79 Fed. Reg. at 51095. The Eighth Circuit has not explained why this is not so. Although the Supreme Court in Wheaton College did not require the college to identify its TPA to HHS to receive an accommodation, the information was unnecessary because HHS already knew the identity of the college’s TPA. See Wheaton College, 134 S. Ct. at 2815 (Sotomayor, J., dissenting) (“HHS is aware of Wheaton’s third-party administrator in this case.”). Thus, Wheaton College does not suggest that HHS could administer the mandate and accommodation in other cases without requiring an eligible organization to identify its TPA.

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The dissent’s proposal would create gaps or delays in contraceptive

coverage for plan participants and beneficiaries of eligible organizations that refuse

to provide contraceptive coverage or tell anyone of their objection. Until the

insured, the TPA, or HHS learned of the silent omission of contraceptive coverage,

these women would be denied the contraceptive coverage to which they are

irrefutably entitled. During this period, such eligible organizations would, in

effect, be imposing their religious beliefs on women who wish to take advantage of

their rights under federal law. These gaps in contraceptive coverage would

frustrate the government’s interests. Because the dissent’s proposal substantially

burdens religious exercise and fails to meet the government’s compelling interests,

it cannot constitute a less restrictive alternative.52

52 We pause to note that if we assume that the dissent’s substantial burden analysis is correct—meaning the only objective inquiry for determining whether there is a substantial burden is the magnitude of the penalty, see Dissent at 116—then the dissent’s proposal would substantially burden the plaintiffs’ religious exercise. Presumably the dissent’s position is that the proposal presents a satisfactory alternative because it requires no “affirmative participation” by the objecting organization. Id. at 139. In fact, though, a TPA’s obligation to provide contraceptive coverage to a specific plan participant or beneficiary would remain tied to and—in some limited way—“triggered” by actions taken by the organization. An eligible organization is required to take two actions before its TPA becomes obligated to provide contraceptive coverage to a specific plan participant or beneficiary: the eligible organization must (1) contract with a specific TPA to provide administrative services for its plan and (2) notify the TPA of the individuals covered by its plan. Unless an eligible organization hired a specific TPA and provided a list of its insureds, those insureds would never receive contraceptive coverage from the TPA, even under the dissent’s proposal. See Notre Dame II, 786 F.3d at 617 (explaining that under a similar proposal when a university hired an unemployed person who “by virtue of becoming employed by [the organization], obtained contraception coverage for the first time,” the university’s acts would “‘trigger[]’ the new employee’s access to contraception”).

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We hold that, even if the accommodation substantially burdens the

plaintiffs’ religious exercise, it does not violate RFRA because it is the least

restrictive means of furthering the government’s compelling interests in the

contraceptive mandate.

B. EWTN’S Free Exercise Claims

Plaintiff-appellant EWTN additionally claims that the contraceptive mandate

violates the Free Exercise Clause of the First Amendment. The Supreme Court’s

Smith decision continues to apply to Free Exercise claims outside of the RFRA

context; thus, neutral and generally applicable laws need not be justified by any

compelling interest even if those laws incidentally burden religious exercise.

Smith, 494 U.S. at 885. A law is neutral unless “the object of a law is to infringe

upon or restrict practices because of their religious motivation.” Lukumi Babalu

The plaintiffs’ religious objections to taking acts that “trigger[]” contraceptive coverage, “facilitat[e]” access to contraceptives, or render them “complicit” in a scheme that provides access to contraceptives apply with equal force to the dissent’s proposal. See EWTN Reply Br. at 5, 10-11; Catholic Charities and CENGI Appellee Br. at 10, 13, 20. Indeed, Catholic Charities and CENGI alleged in their complaint that their “religious beliefs prohibit them from contracting with [a] . . . third-party administrator that will, as a direct result, procure or provide the objectionable coverage to [their] employees.” Second Am. Compl. at 49, No. 1:12-cv-03489- WSD, Doc. 56. We acknowledge that the dissent’s proposal does not require an eligible organization to tell HHS or its TPA that it has a religious objection to providing contraceptive coverage. But the plaintiffs do not claim that the government imposes a substantial burden by forcing them to state that they have a religious objection. Rather, they claim a substantial burden because, they assert, their objection would cause their TPAs to provide contraceptive coverage.

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Aye, 508 U.S. at 533. And a law is generally applicable if it does not “in a

selective manner impose burdens only on conduct motivated by religious belief.”

Id. at 543. “A law failing to satisfy these requirements must be justified by a

compelling governmental interest and must be narrowly tailored to advance that

interest.” Id. at 531-32. But if a law indeed is neutral and generally applicable,

“then rational basis scrutiny should be applied, requiring that the plaintiff show

that there is not a legitimate government interest or that the law is not rationally

related to protect that interest.” GeorgiaCarry.Org, Inc v. Georgia, 687 F.3d 1244,

1255 n.21 (11th Cir. 2012).

Congress included the contraceptive mandate in the ACA to improve

women’s health and public health generally. There is no evidence whatsoever that

the mandate was enacted in an attempt to restrict religious exercise. To the

contrary, in implementing the contraceptive mandate the Departments have

attempted to accommodate religious interests by granting exceptions for religious

employers and those organizations with religious objections to providing

contraceptive coverage. EWTN nonetheless argues that the mandate is non-neutral

because the exemption and accommodation “discriminate[] among religious

objectors, creating a three-tiered system.” EWTN Appellant Br. at 54. But the

regulations do not discriminate between religious denominations or infringe upon

or restrict conduct because of its religious motivation. Rather, the procedures

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distinguish among organizations on the basis of their tax status. Thus EWTN has

failed to show that the mandate is non-neutral.

EWTN also argues that the mandate is not generally applicable because the

ACA carves out small employers and grandfathered plans. For the same reasons

we rejected this argument as it pertains to the plaintiffs’ RFRA claim, we reject it

here. Just as these exceptions do not undermine the government’s compelling

interests justifying the contraceptive mandate, they do not prevent the mandate

from being generally applicable as defined by Lukumi Babalu Aye. The exceptions

for small businesses and grandfathered plans apply equally to religious employers

and non-religious employers. The exceptions in no way “impose burdens only on

conduct motivated by religious belief.” Lukumi Babalu Aye, 508 U.S. at 543.

Because the contraceptive mandate is neutral and generally applicable, to

invalidate it the plaintiff must show that is it not rationally related to a legitimate

government interest. See GeorgiaCarry.Org, 687 F.3d at 1255 n.21. EWTN

cannot make such a showing. We have already concluded that the government has

a compelling (and therefore legitimate) interest in ensuring women have access to

contraceptives without cost sharing. See supra Part III.A.2.c.(i). The mandate is

clearly rationally related to that interest and thus passes muster under the Free

Exercise Clause.

C. EWTN’S Establishment Clause Claim

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EWTN next argues that the contraceptive mandate violates the

Establishment Clause by discriminating among religious organizations.

Specifically, EWTN objects to the way the exemption and accommodation

distinguish between houses of worship and other types of religious organizations.

As an initial matter, the Supreme Court “has long recognized that the government

may (and sometimes must) accommodate religious practices and that it may do so

without violating the Establishment Clause.” Hobbie v. Unemployment Appeals

Comm’n of Fla., 480 U.S. 136, 144-145 (1987); see also Wallace v. Jaffree, 472

U.S. 38, 83 (1985) (O’Connor, J., concurring) (“It is disingenuous to look for a

purely secular purpose when the manifest objective of a statute is to facilitate the

free exercise of religion by lifting a government-imposed burden. Instead, the

Court should simply acknowledge that the religious purpose of such a statute is

legitimated by the Free Exercise Clause.”).

Like its claim based on the Free Exercise Clause, EWTN’s Establishment

Clause claim fails because the accommodation does not distinguish among

religious groups on the basis of denomination, but rather on non-denominational

attributes of an objecting organization. The accommodation relies on tax status,

which is a permissible way to distinguish between organizations for the purpose of

drafting a religious exemption. “[R]eligious employers, defined as in the cited

regulation, have long enjoyed advantages (notably tax advantages) over other

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entities, without these advantages being thought to violate the establishment

clause.” Geneva Coll., 778 F.3d at 443 (alteration in original and internal

quotation marks omitted); see also Walz v. Tax Comm’n of N.Y., 397 U.S. 664,

666, 672-73 (1970) (upholding a tax exemption on social welfare services that

churches performed and emphasizing that “[t]he limits of permissible state

accommodation to religion are by no means co-extensive with the noninterference

mandated by the Free Exercise Clause.”). We therefore reject EWTN’s

Establishment Clause challenge.

D. EWTN’S Free Speech Claim

Lastly, EWTN contends that the contraceptive mandate violates the Free

Speech Clause by compelling the organization to speak in order to avail itself of

the accommodation.53 “[T]he right of freedom of thought protected by the First

Amendment against state action includes both the right to speak freely and the

right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714

(1977). In Wooley, the plaintiff objected to the slogan on New Hampshire’s

license plate: “Live Free or Die.” Id. at 707-08. He argued that by criminalizing

his efforts to cover up the slogan, the government forced him to express a message

contrary to his beliefs. The Supreme Court agreed that the license plate was forced

53 EWTN’s Free Speech claim that the regulations compel silence is moot because the Department removed the non-interference provisions from the regulations in 2014. 79 Fed. Reg. at 51095.

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speech. The Court then applied United States v. O’Brien, 391 U.S. 367 (1968), to

hold that the government’s stated interest in identifying passenger cars was not

sufficiently compelling because passenger cars could be identified in other ways.

Id. at 715-17.

Assuming, arguendo, that the act of filling out Form 700 or notifying HHS

implicates the Free Speech Clause, this Court must ask whether the government’s

“countervailing interest is sufficiently compelling to justify” the forced speech. Id.

at 716. Our disposition of the plaintiffs’ RFRA claims decides the issue. Because

the government has a compelling interest in ensuring that women have access to

contraceptive care without additional financial or administrative burden, it may

force the plaintiffs to speak simply to opt out of the mandate.

IV. CONCLUSION

We hold that the accommodation for the contraceptive mandate does not

violate RFRA because it does not substantially burden the plaintiffs’ religious

exercise and because the government’s regulatory scheme is the least restrictive

means of furthering its compelling interests. The regulations also do not violate

the Free Exercise, Establishment, and Free Speech Clauses of the First

Amendment. With regard to EWTN, we affirm the district court’s grant of

summary judgment to the government. With regard to CENGI and Catholic

Charities, we vacate the district court’s grant of summary judgment on the

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plaintiffs’ RFRA claim and remand to the district court with instructions to grant

the government’s summary judgment motion.

***

The question of whether the mandate and accommodation violate RFRA is

currently before the Supreme Court in Zubik v. Burwell, Nos. 14- 1376 and 14-

1377, and other consolidated cases. The Supreme Court will hold oral argument in

these cases on March 23, 2016. Because the Supreme Court will soon render a

decision addressing this issue, we believe it is appropriate to stay enforcement of

the mandate and accommodation against the plaintiffs until the Supreme Court

issues a decision. Accordingly, the Secretary of Health and Human Services is

enjoined from enforcing against EWTN, Catholic Charities, and CENGI the

substantive requirements set forth in 42 U.S.C. § 300gg-13(a)(4) and from

assessing fines or taking other enforcement action against EWTN, Catholic

Charities, or CENGI for non-compliance. The parties are directed to file a notice

with this Court once the Supreme Court has issued its decision in Zubik.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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APPENDIX: FORM 700

EBSA FORM 700- CERTIFICATION (revised August 2014) This form may be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713 A, 29 CFR 2590.715-2713A, and 45 CFR 147.131. Alternatively, an eligible organization may also provide notice to the Secretary of Health and Human Services. Please fill out this form completely. This form should be made available for examination upon request and maintained on file for at least 6 years following the end of the last applicable plan year. |

Name of the objecting organization

Name and title of the individual who is authorized to make, and makes, I this certification on behalf of the organization

Mailing and email addresses and phone number for the individual listed above

I certify the organization is an eligible organization (as described in 26 CFR 54.9815-2713A(a), 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)) that has a religious objection to providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.

Note: An organization that offers coverage through the same group health plan as a religious employer (as defined in 45 CFR 147.131(a)) and/or an eligible organization (as defined in 26 CFR 54.9815-2713A(a); 29 CFR 2590.715-2713 A(a); 45 CFR 147.131(b)), and that is part of the same controlled group of corporations as, or under common control with, such employer and/or organization (within the meaning of section 52(a) or (b) of the Internal Revenue Code), is considered to meet the requirements of 26 CFR 54.9815-2713 A(a)(3), 29 CFR 2590.715-2713 A(a)(3), and 45 CFR 147.131(b)(3).

I declare that I have made this certification, and that, to the best of my knowledge and belief, it is true and correct. I also declare that this certification is complete.

Signature of the individual listed above

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Date

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The organization or its plan using this form must provide a copy of this certification to the plan's health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.

Notice to Third Party Administrators of Self-Insured Health Plans

In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(l)(iv) or 29 CFR 2590.715- 2713(a)(l)(iv) constitutes notice to the third party administrator that the eligible organization:

(1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and

(2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713 A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A.

As an alternative to using this form, an eligible organization may provide notice to the Secretary of Health and Human Services that the eligible organization has a religious objection to providing coverage for all or a subset of contraceptive services, pursuant to 26 CFR 54.9815- 2713A(b)(l)(ii)(B) and (c)(l)(ii), 29 CFR 2590.715-2713A(b)(l)(ii)(B) and (c)(l)(ii), and 45 CFR 147.13l(c)(l)(ii). A model notice is available at: http://www.cms.gov/cciio/resources/Regulations- and-Guidance/index.html#Prevention.

This form or a notice to the Secretary is an instrument under which the plan is operated.

PRA Disclosure Statement

According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 1210-0150. An organization that seeks to be recognized as an eligible organization that qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing may complete this self-certification form, or provide notice to the Secretary of Health and Human Services, in order to obtain or retain the benefit of the exemption from covering certain contraceptive services. The self- certification form or notice to the Secretary of Health and Human Services must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974, which generally requires records to be retained for six years. The time required to complete this information collection is estimated to average 50 minutes per response, including the time to review instructions, gather the necessary data, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of Labor, Employee Benefits Security Administration, Office of Policy and Research, 200 Constitution Avenue, N.W., Room N-5718, Washington, DC 20210 or email ebsa.opr@dol.gov and reference the OMB Control Number 1210-0150.

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ANDERSON, Circuit Judge, concurring:

I join Judge Jill Pryor’s opinion for the court in its entirety. I write

separately only to emphasize one point already made in the opinion. Plaintiffs

seem to suggest, as a less restrictive means, that a religious employer be allowed to

opt out without notifying anyone – without requiring even the de minimis notice to

Health and Human Services (“HHS”) pursuant to the most recent alternative notice

provided for in the Regulations. However, the necessary consequence of such an

automatic opt-out would be the imposition of plaintiffs’ religious beliefs on their

female employees. In other words, if HHS were not able to identify which

employers have opted out, the employees of such employers would not receive

contraceptive coverage, at least until they happened to sua sponte discover that

their employer had opted out, and until such employees happened to sua sponte

discover their statutory entitlement. Only then would such employees be in

position to notify HHS, and begin their coverage. Such an automatically exempted

employer – notifying no one of its decision to opt out -- would at least temporarily

impose its own religious beliefs on its employees and deprive them of the coverage

to which they are entitled under the statute and regulations. RFRA does not

require that construction of the law. Rather, the Supreme Court in Hobby Lobby

recognized that “RFRA took the position that ‘the compelling interest test as set

forth in prior Federal rulings is a workable test for striking sensible balances

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between religious liberty and competing prior governmental interests.’” Burwell v.

Hobby Lobby Stores, Inc., 537 U.S. __, __, 134 S. Ct. 2751, 2785 (2014)(quoting

from the express RFRA provision cited and quoted below). See also Cutter v.

Wilkinson, 544 U.S. 709, 720, 125 S. Ct. 2113, 2121 (2005)(“Properly applying

RLUIPA, courts must take adequate account of the burdens a requested

accommodation may impose on nonbeneficiaries”); id. at 722, 125 S. Ct. at 2122-

23 (“Our decisions indicate that an accommodation must be measured so that it

does not override other significant interests . . .. We have no cause to believe that

RLUIPA would not be applied in an appropriately balanced way.”). Indeed, RFRA

contains an express provision which incorporates the prior Federal case law

contemplating a “sensible balance” between religious liberty and competing

governmental interests. See 42 U.S.C. §2000bb(a)(5) (“the compelling interest test

as set forth in prior Federal court rulings is a workable test for striking sensible

balances between religious liberty and competing prior governmental interests.”)

Plaintiffs’ position – and its necessary consequence of the imposition of plaintiffs’

religious views on others – clearly does not strike a “sensible balance” between

religious liberty and the government’s compelling interests in this case. See

Hobby Lobby, 537 U.S. at __, 134 S. Ct. at 2786-87 (Kennedy, J., concurring)

(“[N]o person may be restricted or demeaned by government in exercising his or

her religion. Yet neither may that same exercise unduly restrict other persons, such

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as employees, in protecting their own interests, interests the law deems

compelling.”).

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TJOFLAT, Circuit Judge, dissenting:

I diverge from the majority on the question of whether the Religious

Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., shields Eternal

Word Television Network and the Archdiocese of Atlanta, the Diocese of

Savannah, and their related schools and charities (the “Dioceses”) from the

Government’s efforts to force them to participate in a complicated regulatory

scheme. Doing so, these parties sincerely believe, would make them complicit in

violating the sanctity of human life. As I understand RFRA’s plain meaning and

the controlling precedent, on full display in the Supreme Court’s decision in

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d

675 (2014), the answer should be straightforward. Under RFRA’s demanding

scrutiny, the Government cannot put religious believers to the choice of

abandoning the commands of their faith or paying massive penalties unless it can

show that it has no other way of achieving a compelling interest. Just as in Hobby

Lobby, the Government has failed to make this showing. We are therefore bound

to grant Eternal Word Television Network and the Dioceses the relief they seek.

“Great cases, like hard cases, make bad law.” N. Sec. Co. v. United States,

193 U.S. 197, 364, 24 S. Ct. 436, 468, 48 L. Ed. 679 (1904) (Holmes, J.,

dissenting). In such circumstances, practical concerns “exercise a kind of

hydraulic pressure” under which “even well settled principles of law will bend” as

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a result of “some accident of immediate overwhelming interest.” Id. at 364, 401,

24 S. Ct. at 468. In the background of this litigation rage many competing

interests: What sort of legal regime would best preserve the American ideal of

religious liberty? How can we most effectively expand healthcare access? When

and where should the interests of society trump those of the individual? Who will

be left holding the check for any newly minted social-welfare programs?

It is Congress’s responsibility—not the prerogative of courts—to balance

these interests. And Congress made clear in RFRA how that balance is to be

struck: the freedom of religious exercise is to be jealously guarded by subjecting,

across the board, Congress’s own actions to the most rigorous scrutiny. Under that

scrutiny, the Government’s attempt here to burden Eternal Word Television

Network and the Dioceses’ religious exercise must give way. Concluding

otherwise, the majority makes bad law. For that reason, I dissent.

I.

The devil, as they say, is in the details. Nowhere does this adage ring truer

than in the administrative morass of the so-called “accommodation,” the regulatory

mechanism by which religiously objecting employers can affirmatively opt out of

the Affordable Care Act’s so-called “contraceptive mandate.” The resolution of

this case turns on the exact functioning of an evolving set of overlapping and

intricate regulations promulgated by three Executive-branch agencies. These

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regulations overlay a particularly unsettled and murky region of the generally

unsettled and murky landscape of federal healthcare regulation. Therefore, it is

critical to get the details right. And they are devilish indeed.

A.

Under the Patient Protection and Affordable Care Act of 2010 (“the ACA”),

covered employers, as part of their “[s]hared responsibility” for their employees’

healthcare needs, are required to provide qualifying employees with health plans

that meet certain standards of “minimum essential coverage.” 26 U.S.C.

§§ 4980H(a), 5000A(f)(2). Covered employers who fail to do so have to pay a

“tax” 1 of $100 per day for each affected employee. Id. § 4980D(a)–(b). For

continued “noncompliance” after receiving a “notice of examination,” employers

are subject to a minimum penalty in the amount of $2,500 or $15,000 per affected

employee, depending on whether the violations “are more than de minimis.” Id.

§ 4980D(b)(3).

Included in the ACA’s definition of “minimum essential coverage” are a

number of preventive healthcare services. Relevant here is the requirement to

provide “with respect to women, such additional preventive care and screenings …

as provided for in comprehensive guidelines supported by the Health Resources

1 It is ironic that the ACA refers to an annual penalty for noncompliance of $36,500 per employee as a “tax.” Cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. __, __, 132 S. Ct. 2566, 2593–2600, 183 L. Ed. 2d 450 (2012).

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and Services Administration.” 42 U.S.C. § 300gg-13(4). To develop these

guidelines, the Health Resources and Services Administration, a subpart of the

Department of Health and Human Services, sought recommendations from the

Institute of Medicine, a division of the National Academies of Sciences. The

Institute of Medicine’s recommendations 2 were ultimately adopted in identical

regulations promulgated by the Department of Treasury, the Department of Labor,

and the Department of Health and Human Services. See 26 C.F.R. § 54.9815-

2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R.

§ 147.130(a)(1)(iv).3 As a result, nonexempt employers are responsible for

providing their plan beneficiaries with coverage for “[a]ll Food and Drug

Administration approved contraceptive methods, sterilization procedures, and

patient education and counseling for all women with reproductive capacity.”

Women’s Preventive Services Guidelines, U.S. Dep’t of Health and Human Servs.,

2 The Institute of Medicine’s recommendations were laid out in its report Clinical Preventive Services for Women: Closing the Gaps, which was released on July 19, 2011. Like much of the ACA, that report and the process used to generate it sparked significant controversy, prompting public backlash and a dissent from one of the committee members. Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps Appendix D at 231–35 (2011) (Anthony Lo Sasso, dissenting); see also Grace Sch. v. Burwell, 801 F.3d 788, 815–22 (7th Cir. 2015) (Manion, J., dissenting); 77 Fed. Reg. 8725, 8725–26 (Feb. 15, 2012); Helen M. Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 Vill. L. Rev. 379, 391–431 (2013). Because I assume that the Government has a compelling interest in providing the preventive services at issue in this case, I pass no judgment on the Institute of Medicine’s report or its contents. 3 As in the majority’s opinion, for convenience when discussing the Departments’ regulations I will cite only those of the Department of Health and Human Services unless otherwise indicated.

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Health Res. and Servs. Admin., http://hrsa.gov/womensguidelines/ (last visited

Feb. 10, 2016).

These regulations, collectively known as the “contraceptive mandate,” did

not apply as enacted to several categories of employers. As is true generally of the

ACA, the contraceptive mandate does not cover employers with less than fifty full-

time employees. See 26 U.S.C. § 4890H(a), (c)(2). These employers are thus

under no obligation to provide any health plan at all. Similarly, employers who

maintain “grandfathered health plans”—health plans that have not undergone

specified changes in the way they operated before March 23, 2010, see 75 Fed.

Reg. 34538, 34540–41—are specifically exempted from the contraceptive

mandate. 42 U.S.C. § 18011(a), (e). Other changes instituted by the ACA do

apply to grandfathered health plans, including extensions of dependent coverage

for adult children under the age of twenty-six and prohibitions on excessive

waiting periods, lifetime benefits limits, and rescissions of coverage. Id.

§ 18011(a)(4)(A)(i)–(iv). The ACA does not include a sunset provision for

grandfathered health plans, which can continue their exempt status indefinitely. 4

4 The Government does predict that grandfathered health plans will be phased out over time as part of a planned “transition period” designed “to avoid undue disruption.” It is ultimately an empirical question how many grandfathered plans are currently in effect and how many will persist in the future. The record developed in this case, as in so many other respects, betrays no answer.

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Conscious of the bind in which the contraceptive mandate would place

certain employers with religious objections, the Departments promulgated a series

of further regulations to exempt these employers as well. 5 What emerged from

several years of rulemaking were two distinct regimes for employers with religious

objections: one for “religious employers” and another for “eligible organizations.”

45 C.F.R. § 147.131(a), (b). “Religious employers” are defined, by reference to

the Internal Revenue Code, as “churches, their integrated auxiliaries, and

conventions or associations of churches” and any “nonprofit entit[ies]” engaged in

“the exclusively religious activities of any religious order.” Id. § 147.131(a); 26

U.S.C. § 6033(a)(3)(A)(i), (iii).6 Employers who object to the contraceptive

mandate but are not considered “religious employers” can still qualify as “eligible

organizations” if they meet the following requirements:

(1) The organization opposes providing coverage for some or all of any contraceptive items or services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.

5 The development of the current iteration of the contraceptive mandate—which has changed multiple times since these suits was first brought, though not in ways that materially alter the RFRA inquiry—has been largely defined by how to treat religiously objecting employers, inspiring hundreds of thousands of comments from interested stakeholders. See 75 Fed. Reg. 41726, 41726–56 (July 19, 2010); 77 Fed. Reg. 8725, 8725–29 (Feb. 15, 2012); 77 Fed. Reg. 16501, 16501–08 (Mar. 21, 2012); 78 Fed. Reg. 8456, 8456–72 (Feb. 6, 2013); 78 Fed. Reg. 39870, 39870–92 (July 2, 2013); 79 Fed. Reg. 51092, 51092–98 (Aug. 27, 2014); 79 Fed. Reg. 51118, 51118–25 (Aug. 27, 2014); 80 Fed. Reg. 41318, 41318–41 (July 14, 2015). 6 As the term “church” is hardly self-defining, the IRS uses a fourteen-factor test to determine which organizations make the cut. See Internal Revenue Serv., Pub. 1828: Tax Guide for Churches & Religious Organizations 33 (2015), available at https://www.irs.gov/pub/irs- pdf/p1828.pdf.

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(2) (i) The organization is organized and operates as a nonprofit entity and holds itself out as a religious organization; or (ii) The organization is organized and operates as a closely held for-profit entity … that … objects to covering some or all of the contraceptive services on account of the owners’ sincerely held religious beliefs.

(3) The organization must self-certify in the form and manner specified by the Secretary of Labor or provide notice to the Secretary of Health and Human Services as described [elsewhere in the regulations]… 45 C.F.R. § 147.131.7

7 The current version of § 147.131 took effect on September 14, 2015. In response to the Supreme Court’s decisions in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014) and Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct. 2806, 189 L. Ed. 2d 856 (2014), § 147.131 now extends to cover qualifying “closely held for-profit entit[ies]” in addition to religious nonprofits, and expands the available methods of opting out of the contraceptive mandate. Compare 45 C.F.R. § 147.131, with 45 C.F.R. § 147.131 (effective Aug. 27, 2014 to Sept. 13, 2015), and 45 C.F.R. § 147.131 (effective Aug. 1, 2013 to Aug. 26, 2014). The relevant portion of § 147.131 now provides in full: (b) Eligible organizations. An eligible organization is an organization that meets the criteria of paragraphs (b)(1) through (3) of this section. (1) The organization opposes providing coverage for some or all of any contraceptive items or services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) (i) The organization is organized and operates as a nonprofit entity and holds itself out as a religious organization; or (ii) The organization is organized and operates as a closely held for-profit entity, as defined in paragraph (b)(4) of this section, and the organization's highest governing body (such as its board of directors, board of trustees, or owners, if managed directly by its owners) has adopted a resolution or similar action, under the organization's applicable rules of governance and consistent with state law, establishing that it objects to covering some or all of the contraceptive services on account of the owners' sincerely held religious beliefs. (3) The organization must self-certify in the form and manner specified by the Secretary of Labor or provide notice to the Secretary of Health and Human Services as described in paragraph (c) of this section. The organization must make such self-certification or notice available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification or notice must be executed by a person

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Religious employers’ and eligible organizations’ bids to remove themselves

from the contraceptive mandate fare differently. Religious employers are simply

exempt; they are not required to participate, directly or indirectly, in providing

access to contraceptive coverage to their female employees and beneficiaries,

whether or not these women share their employers’ beliefs. 45 C.F.R.

§ 147.131(a). Eligible organizations, in contrast, are required to affirmatively opt

out of providing contraceptive coverage, if they wish to do so, by complying with a

further series of regulations known as “the accommodation.” Id. § 147.131(c).

How the accommodation functions turns on the eligible organization’s type

of health plan. Broadly speaking, employer-sponsored health plans come in two

types: insured plans and self-insured plans. Under an insured plan, the employer

enters into a contract with an insurer. The insurer, in exchange for up-front

premiums, becomes responsible for administering the plan and paying out claims.

Under a self-insured plan, the employer remains responsible for paying its

employees’ claims itself; in essence, the employer serves as its own insurer. For

employers with self-insured plans, it is a common practice to contract with a third-

party administrator—which may also be in the business of providing insured

plans—to administer the self-insured plan, though the employer continues to bear

authorized to make the certification or notice on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of ERISA.

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the cost of paying claims. 8 Eligible organizations that maintain their own self-

insured plans without a third-party administrator are, like religious employers,

exempt from the contraceptive mandate altogether.

Eligible organizations may, in line with the regulations currently in force,

avail themselves of the accommodation in one of two ways. 9 The first option is to

send a “self-certification” form, Employee Benefits Security Administration Form

700 (“Form 700”), to the eligible organization’s insurer, if the organization has an

insured plan, or to the organization’s third-party administrator, if the organization

has a self-insured plan. 45 C.F.R. § 147.131(b)(3), (c)(1). Form 700 requires

eligible organizations to identify themselves as qualifying for the accommodation;

list the name, title, and contact information of the person authorized to make that

certification; and sign and date the form. 10 The second option is to send to the

Secretary of Health and Human Services less-formal notice of the eligible

organization’s intent to opt out. That notice must include “the name of the eligible

organization and the basis on which it qualifies for an accommodation,” notice of

8 For example, Eternal Word Television Network has a self-insured health plan for which Blue Cross Blue Shield of Alabama serves as third-party administrator. The Dioceses collectively maintain three self-insured health plans, for all of which Meritain Health serves as third-party administrator. Though Blue Cross Blue Shield of Alabama and Meritain Health may separately offer insured plans, they are not responsible for paying the claims of Eternal Word Television Network’s and the Dioceses’ beneficiaries. 9 In the pre–Wheaton College iteration of the contraceptive mandate, there was only one way to opt out under the accommodation: submitting Employee Benefits Security Administration Form 700 to the relevant insurer or third-party administrator. See infra n.11. 10 A copy of Form 700 is appended to the majority’s opinion.

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its objection to the contraceptive mandate “based on [the eligible organization’s]

sincerely held religious beliefs,” the name and type of the eligible organization’s

health plan, and the identity and contact information of the eligible organization’s

insurer or third-party administrator. Id. § 147.131(c)(1)(ii).

Under the first option provided for in the accommodation, whereby Form

700 is sent directly to an eligible organization’s insurer or third-party

administrator, the recipient insurer or third-party administrator becomes

responsible for establishing separate contraceptive coverage for the eligible

organization’s female employees and plan beneficiaries. The insurer or third-party

administrator must, upon receipt of the eligible organization’s Form 700,

“[e]xpressly exclude contraceptive coverage” from the eligible organization’s plan

and “[p]rovide separate payments for any contraceptive services required to be

covered” pursuant to the contraceptive mandate. Id. § 147.131(c)(2)(i)(A)–(B).

Among other requirements, the insurer or third-party administrator must also

“segregate premium revenue … from the monies used to provide payments for

contraceptive services” and is forbidden from “impos[ing] any cost-sharing

requirements (such as a copayment, coinsurance, or a deductible), or impos[ing]

any premium, fee, or other charge, or any portion thereof, directly or indirectly, on

the eligible organization, the group health plan, or plan participants or

beneficiaries.” Id. § 147.131(c)(2)(ii). And the insurer or third-party administrator

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must provide to plan members and beneficiaries written notice outlining how the

accommodation works and “specify[ing] that the eligible organization does not

administer or fund contraceptive benefits.” See id. § 147.131(d) (proposing

suggested language for this notice).

Under the second option provided for in the accommodation, whereby less-

formal notice is sent instead to the Secretary of Health and Human Services, the

Secretary is then tasked with alerting the eligible organization’s insurer or third-

party administrator. The Department of Health and Human Services will “send a

separate notification” to the insurer relaying that the eligible organization’s notice

was received and “describing the [insurer’s or third-party administrator’s]

obligations.” 45 C.F.R. § 147.131(c)(1)(ii). The insurer’s or third-party

administrator’s obligations to provide separate coverage pursuant to the

contraceptive mandate are identical whether it is alerted to the eligible

organization’s objections directly by Form 700 or indirectly by the Government. 11

11 The reason that eligible organizations are given two similar-seeming options for opting out of the contraceptive mandate stems from the Supreme Court’s decision in Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct. 2806, 189 L. Ed. 2d 856 (2014). In Wheaton College, the Supreme Court enjoined enforcement of the contraceptive mandate against an eligible organization that sent written notice to the Government but objected, based on the organization’s religious beliefs, to sending Form 700 to its insurer and third-party administrator. Id. at __, 134 S. Ct. 2807. The Court did not address the situation presented here where an eligible organization objects, on religious grounds, both to completing Form 700 and to providing less- formal notice to the Secretary of Health and Human Services.

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The regulations require eligible organizations to affirmatively opt out of the

contraceptive mandate because doing so enables the Government to require the

eligible organizations’ insurers and third-party administrators to provide

contraceptive coverage. For eligible organizations with insured plans,12 opting out

under the accommodation notifies the insurers of their obligations to provide

contraceptive coverage. 45 C.F.R. § 147.131(c)(2)(i). For eligible organizations

with self-insured plans that contract with a third-party administrator,13 opting out

of the contraceptive mandate under the accommodation makes the third-party

administrator “the plan administrator” for purposes of the Employee Retirement

Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., under regulations

promulgated by the Department of Labor. 29 C.F.R. § 2510.3-16(b). If the

eligible organization submits Form 700, that submission “shall be treated as a

designation of the third party administrator as the plan administrator.” Id. If the

eligible organization instead provides less-formal notice to the Secretary of Health

and Human Services, “the Department of Labor, working with the Department of

Health and Human Services, shall … provide notification … that such third party

administrator shall be the plan administrator” under ERISA. Id. Once a third-

party administrator becomes a “plan administrator” under ERISA, the relevant 12 Because this case does not involve eligible organizations with insured plans, I pass no judgment on the accommodation in that context. 13 As mentioned above, eligible organizations that administer their own self-insured plans are not subject to the contraceptive mandate under the regulations.

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administrative agencies gain the regulatory authority to require the third-party

administrator to provide contraceptive coverage.14 Id. § 2510.3-16(c).

The Government’s regulatory authority to require third-party administrators

of self-insured plans to provide contraceptive coverage is limited. A third-party

administrator may always decline to “agree[] to enter into or remain in a

contractual relationship with the eligible organization.”15 26 C.F.R. § 54.9815-

2713A(b)(2). Only if it accepts the terms of the regulations does a third-party

administrator incur the obligation “to provide or arrange payments for

contraceptive services.” Id. § 54.9815-2713A(d). If a third-party administrator

agrees to provide the contraceptive coverage, the costs it incurs to do so will be

reimbursed from “Federally-facilitated Exchange” user fees, which are fees

14 Under ERISA, a third-party administrator that is neither the “plan sponsor” nor specifically designated as such can be considered the “plan administrator” only “as the Secretary [of Labor] may by regulation prescribe.” 29 U.S.C. § 1002(16)(A)(iii). The Government contends that, as currently written, the ACA’s implementing regulations also allow it to independently enforce the contraceptive mandate against third-party administrators of self- insured plans without any further action from the eligible organization. The truth of this contention is far from certain. See ante at 44–45 & nn.30–31; Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 935 n.8 (8th Cir. 2015) (collecting cases contrary to the Government’s position). In any event, I decline to pass judgment on this question because its resolution is unnecessary to decide this case. 15 If a third-party administrator declines to provide contraceptive coverage, eligible organizations with self-insured plans must select another willing third-party administrator, administer its own health plan, or become subject to the monetary penalties discussed above.

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imposed on insurers offering health plans on exchanges established by the

Government under the ACA. 16 See 80 Fed. Reg. at 41328.

B.

Inextricably intertwined with these evolving regulations is a series of cases

challenging the various iterations of the contraceptive mandate under the Religious

Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. RFRA provides

that the federal government 17 “may substantially burden a person’s exercise of

religion” only if it does so “in furtherance of a compelling governmental interest”

and the burden it imposes is “the least restrictive means of furthering that

compelling governmental interest.” Id. § 2000bb-1(b).

In 1993, Congress enacted RFRA in response to the Supreme Court’s path-

breaking approach to the First Amendment’s Free Exercise Clause taken in

Employment Division, Department of Human Resources of Oregon v. Smith, 494

16 Specifically, the regulations contemplate “adjustments” to the third-party administrator’s own user fees, if the third-party administrator also offers health plans on a Federally-facilitated Exchange, or the user fees of another participating insurer that the third- party administrator contracts with to receive reimbursement. See 80 Fed. Reg. at 41328. Third- party administrators are to be reimbursed for the “total dollar amount of the payments for contraceptive services” and an “allowance for administrative costs and margin” of “no less than 10 percent” for the amount spent on contraceptive services. 45 C.F.R. § 156.50(d)(3)(i), (ii). The Government does not address how reimbursement will be made, if at all, should these user fees prove insufficient. Cf. King v. Burwell, 576 U.S. __, __, 135 S. Ct. 2480, 2487, 192 L. Ed. 2d 483 (2015) (noting that the ACA contemplates that each state will create its own exchange). 17 RFRA originally applied to the actions of state governments as well, but the Supreme Court held that extending RFRA’s mandate to the states exceeded Congress’s powers under § 5 of the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997).

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U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (holding that neutral laws of

general applicability do not burden free exercise whether or not they are supported

by a compelling interest). Congress declared that the standard of strict scrutiny

RFRA imposes creates “a workable test for striking sensible balances between

religious liberty and competing prior governmental interests.” 42 U.S.C.

§ 2000bb(a)(5). RFRA’s stated purposes included “restor[ing] the compelling

interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin

v. Yoder, 406 U.S. 205 (1972)” and “provid[ing] a claim or defense to persons

whose religious exercise is substantially burdened by government.” Id.

§ 2000bb(b)(1), (2). To the extent that it imposes a least-restrictive-means

requirement not present in Sherbert or Yoder, however, RFRA “provide[s] even

broader protection for religious liberty than was available under those decisions.”

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __ n.3, 134 S. Ct. 2751, 2761

n.3, 189 L. Ed. 2d 675 (2014).

Following the enactment of the ACA and the promulgation of the

contraceptive mandate, a diverse set of employers brought suit to avoid providing

what they viewed as objectionable contraceptive coverage. 18 The Supreme Court

18 Though the bulk of this litigation has been brought under RFRA, at least one non- religious employer has challenged the contraceptive mandate under the Fifth Amendment. See March for Life v. Burwell, No. 14-cv-1149(RJL), 2015 WL 5139099 (D.D.C. Aug. 31, 2015) (concluding that the contraceptive mandate violates equal-protection principles because it lacks a rational basis for discriminating between religious and non-religious objectors). Because this

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first encountered the contraceptive mandate in Burwell v. Hobby Lobby Stores,

Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014).19 The Court held in

Hobby Lobby that enforcing the contraceptive mandate against a closely held for-

profit company that had religious objections to providing contraceptive coverage

would violate RFRA. Id. at __, 134 S. Ct. at 2785. The Court began by

determining that, as a matter of statutory interpretation, RFRA covers certain for-

profit companies because the term “person” was not limited only to natural

persons. Id. at __, 134 S. Ct. at 2767–75. Moving to RFRA’s threshold inquiry,

the Court “ha[d] little trouble concluding” that the contraceptive mandate imposes

a substantial burden on religious exercise. Id. at __, 134 S. Ct. at 2775. The

Hobby Lobby plaintiffs had an uncontested “sincere religious belief that life begins

at conception” and understood that their belief would be violated if they were

required to “provid[e] health insurance that covers methods of birth control” that

“may result in the destruction of an embryo.” Id. By forcing them to choose

between violating their deeply held convictions and “pay[ing] an enormous sum of

money,” the contraceptive mandate “clearly imposes a substantial burden on those

beliefs.” Id. at __, 134 S. Ct. at 2779.

case involves only employers with religious objections and is resolved by RFRA’s clear dictates, I decline to address the constitutional propriety of applying the contraceptive mandate to non- religious objectors. 19 Justice Alito wrote the majority opinion in Hobby Lobby, joined by Chief Justice Roberts and Justices Scalia and Thomas. Justice Kennedy concurred. Justice Ginsburg dissented, joined in full by Justice Sotomayor and in relevant part by Justices Breyer and Kagan.

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The Court specifically and emphatically rejected any argument that the

participation of religious objectors, by paying for contraceptive coverage, is

“simply too attenuated” from the objectionable outcome, the destruction of

embryos, to constitute a burden on religious exercise. Id. at __, 134 S. Ct. at 2777.

Such an argument, which “implicates a difficult and important question of religion

and moral philosophy,” would “in effect tell the plaintiffs that their beliefs are

flawed”—and defining the scope of religious belief is a dangerous line-drawing

inquiry “federal courts have no business addressing.” See id. at __, 134 S. Ct. at

2778 (“Instead, our ‘narrow function … in this context is to determine’ whether the

line drawn reflects ‘an honest conviction’” (quoting Thomas v. Review Bd. of Ind.

Emp’t Sec. Div., 450 U.S. 707, 716, 101 S. Ct. 1425, 1431, 67 L. Ed. 2d 624

(1981))). Moreover, the Court noted, if the contraceptive mandate’s burden were

not substantial, it would “be hard to understand” and “not easy to square” with the

exemptions carved out for qualifying “religious employers” facing “exactly the

same” burden. Id. at __ n.33, 134 S. Ct. at 2777 n.33.

The Court next declined to address whether the contraceptive mandate

furthered a compelling interest because, even if it did, the contraceptive mandate

was not the least restrictive means of doing so. Id. at __, 134 S. Ct. at 2779–80.

The Court identified several less-restrictive alternatives that the Government could

have used to achieve the assumed compelling interest, holding that the

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contraceptive mandate foundered under RFRA’s “exceptionally demanding”

standard. Id. at __, 134 S. Ct. at 2780. The “most straightforward” alternative

“would be for the Government to assume the cost” of contraceptive coverage. Id.

at __, 134 S. Ct. at 2780. In response to the Government’s contrary position, the

Court observed that “it is hard to understand [the] argument that [the Government]

cannot be required under RFRA to pay anything” for “a Government interest of the

highest order.” Id. at __, 134 S. Ct. at 2781. 20 The Court also strongly suggested

that the Government’s direct provision of contraceptive coverage would still be a

less-restrictive alternative if the Government were required to create “an entirely

new program” rather than “modif[y] an existing program (which RFRA surely

allows).” Id.

In its analysis the Court decided it “need not rely on the option of a new,

government-funded program” to identify a less-restrictive alternative because the

regulations already provided one: the then-existing version of the accommodation

for employers with religious objections. Id. at __, 134 S. Ct. at 2781–82. The for- 20 Requiring the Government to, at times, spend additional monies to avoid imposing substantial burdens on the free exercise of religious objectors would accord with RFRA’s sister statute, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc, 2000cc-1. See id. § 2000cc-3(c) (“[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”). Congress enacted RLUIPA pursuant to the Spending and Commerce Clauses after the Supreme Court in City of Boerne held that RFRA could not be applied to the actions of state governments under § 5 of the Fourteenth Amendment. See supra note 17. The standard of RLUIPA mirrors that of RFRA and applies in two contexts: land-use regulation and the religious exercise of institutionalized persons.

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profit Hobby Lobby plaintiffs did not object to the accommodation itself, so

granting them the option for a third party to provide their female employees’

contraceptive coverage “serves [the Government’s] stated interests equally well.”

Id. at __, 134 S. Ct. at 2781–82. Though derided as “‘noncommittal’” by the

dissent for doing so, the Court expressly declined to rule on “whether an approach

of this type complies with RFRA for purposes of all religious claims.” Id. at __ &

n.40, 134 S. Ct. at 2782 & n.40.

Three days after it decided Hobby Lobby, the Supreme Court again ruled on

the contraceptive mandate in Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct.

2806, 189 L. Ed. 2d 856 (2014).21 In Wheaton College, the Court issued an order

enjoining the Secretary of Health and Human Services, “pending final disposition

of appellate review,” from enforcing the contraceptive mandate against an

employer that submits “in writing that it is a non-profit organization that holds

itself out as religious and has religious objections to providing coverage for

contraceptive services.” Id. at __, 134 S. Ct. at 2807. The parties disputed whether

the obligation to provide contraceptive coverage was “dependent” on submitting

Form 700 to an insurer or third-party administrator. Id. The Court concluded in its

two-page order that, because notice had already been given to the Government, the

21 Chief Justice Roberts and Justices Alito, Thomas, Kennedy, and Breyer joined the Court’s decision in Wheaton College. Justice Scalia concurred without issuing a separate opinion. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.

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Government “relying on this notice” could “facilitate the provision of full

contraceptive coverage under the [ACA].” Id. The Court ended its order by noting

that it “should not be construed as an expression of the Court’s views on the

merits.” Id.

After Hobby Lobby and Wheaton College, the federal courts were inundated

with cases posing the question presented here: whether RFRA provides relief to

employers with religious objections to the accommodation itself. Our sister

circuits are deeply divided. Like the majority, most circuits have concluded that,

though RFRA requires deference to adherents’ sincerely held religious beliefs, “an

objective inquiry” to determine whether a law presents a substantial burden reveals

that the accommodation does not impose a substantial burden on religious

exercise. 22 Ante at 33–41; see also Catholic Health Care Sys. v. Burwell, 796 F.3d

207, 216–18 (2d Cir. 2015); Geneva Coll. v. Sec’y U.S. Dep’t of Health and

Human Servs., 778 F.3d 422, 435–40 (3d Cir. 2015), cert. granted sub nom. Zubik

v. Burwell, 83 U.S.L.W. 3894 (U.S. Nov. 6, 2015) (No. 14-1418) and cert.

granted, 84 U.S.L.W. 3096 (U.S. Nov. 6, 2015) (No. 15-191); E. Tex. Baptist

Univ. v. Burwell, 793 F.3d 449, 456–58 (5th Cir. 2015), cert. granted, 84 U.S.L.W.

3050 (U.S. Nov. 6, 2015) (No. 15-35); Mich. Catholic Conference & Catholic

22 Lumping together these decisions in this manner necessarily misses some of their nuance. Again, this case is limited to eligible organizations with self-insured health plans overseen by third-party administrators that object, on religious grounds, to the accommodation.

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Family Servs. v. Burwell, Nos. 13-2723, 13-6640, 2015 WL 4979692, at *7–8 (6th

Cir. Aug. 21, 2015); Grace Sch. v. Burwell, 801 F.3d 788, 803–05 (7th Cir. 2015);

Univ. of Notre Dame v. Burwell, 786 F.3d 606, 614–19 (7th Cir. 2015); Little

Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1176–77 (10th

Cir. 2015), cert. granted sub nom. S. Nazarene Univ. v. Burwell, 84 U.S.L.W. 3061

(U.S. Nov. 6, 2015) (No. 15-119) and cert. granted, 84 U.S.L.W. 3056 (U.S. Nov.

6, 2015) (No. 15-105); Priests for Life v. U.S. Dep’t of Health and Human Servs.,

772 F.3d 229, 246–49 (D.C. Cir. 2014), cert. granted sub nom. Roman Catholic

Archbishop v. Burwell, 83 U.S.L.W. 3936 (U.S. Nov. 6, 2015) (No. 14-1505) and

cert. granted, 83 U.S.L.W. 3918 (U.S. Nov. 6, 2015) (No. 14-1453). The Eighth

Circuit and a number of dissenting judges have concluded otherwise, determining

that the accommodation substantially burdens religious exercise. See Sharpe

Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 941–43

(8th Cir. 2015), cert. granted, 84 U.S.LW. 3350 (U.S. Dec. 15, 2015 ) (No. 15-

775); E. Tex. Baptist Univ. v. Burwell, Nos. 14-20112, 14-10241, 14-40212, 2015

WL 5773560, at *2–3 (5th Cir. Sept. 30, 2015) (Jones, J., dissenting from denial of

rehearing en banc); Grace Sch., 801 F.3d at 810–15 (Manion, J., dissenting); Univ.

of Notre Dame, 786 F.3d at 627–29 (Flaum, J., dissenting); Little Sisters of the

Poor, 794 F.3d at 1208–10 (Baldock, J., dissenting in part); Little Sisters of the

Poor Home for the Aged v. Burwell, 799 F.3d 1315, 1316–18 (10th Cir. 2015)

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(Hartz, J., dissenting from denial of rehearing en banc); Eternal Word Television

Network, Inc. v. Sec’y, U.S. Dep’t of Health and Human Servs., 756 F.3d 1339,

1344–48 (11th Cir. 2014) (William Pryor, J., specially concurring in order granting

injunction pending appeal); Priests for Life v. U.S. Dep’t of Health and Human

Servs., Nos. 13-5368, 13-5371, 14-5021, 2015 WL 5692512, at *6–8 (D.C. Cir.

May 20, 2015) (Brown, J., dissenting from denial of rehearing en banc); Priests for

Life, 2015 WL 5692512, at *14–17 (Kavanaugh, J., dissenting from denial of

rehearing en banc).

C.

To summarize, when Congress enacted the ACA it ceded broad authority to

three Executive-branch administrative agencies to promulgate rules governing the

availability of women’s preventive health services in employer-sponsored health

plans. The agencies ultimately determined that the Government had a compelling

interest in providing women with cost-free access to a wide range of contraceptive

services. In accordance with that determination, the agencies, through threat of

large monetary penalties, mandated that certain employers must provide

contraceptive coverage to their female employees. Though Congress had already

exempted some types of employers—those with fewer than fifty employees and

those with grandfathered health plans—the agencies decided that another group of

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employers should be exempt too: churches and church-affiliated organizations, as

defined by already-existing definitions in the Internal Revenue Code.

The agencies exempted churches and church-affiliated organizations from

the contraceptive mandate because the agencies understood that the contraceptive

mandate would impose a substantial burden on many of these organizations’

religious exercise. As a result, churches and church-affiliated organizations may

choose what contraceptive coverage, if any, will be available in their female

employees’ health plans. No such exemption, however, was thought necessary for

other organizations with similar religious objections, whether for-profit or

nonprofit. After much public outcry and litigation, the agencies changed course.

At first, the agencies began offering an exemption-like option to certain nonprofits

with religious objections. In response to the Supreme Court’s decision in Hobby

Lobby, the agencies extended the same to for-profit religious objectors as well.

But the exemption-like option—the accommodation—did not truly exempt

qualifying employers. Rather, it required qualifying employers to affirmatively opt

out of providing contraceptive coverage, shifting the obligation to provide the

required contraceptive coverage to the employers’ insurer or third-party

administrator. Originally, qualifying employers had to opt out by sending Form

700 to the insurer or third-party administrator responsible for the employers’ health

plans, alerting the insurer or third-party administrator to its new obligations. After

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the Supreme Court’s order in Wheaton College, the agencies also made available

an option of providing less-formal notice to the Secretary of Health and Human

Services. Under this option, the notice is rerouted to the insurer or third-party

administrator, in lieu of the employer submitting Form 700 directly.

For employers that run self-insured health plans in conjunction with a third-

party administrator and are eligible for the accommodation, opting out of the

contraceptive mandate has the effect of designating the employers’ third-party

administrators as “plan administrators” under ERISA. Once so designated, the

agencies can require a third-party administrator to provide contraceptive coverage.

Absent any affirmative action from the employer, third-party administrators remain

outside of ERISA’s reach. Likewise outside of ERISA’s reach, and thus

effectively exempt from the contraceptive mandate, are employers that run self-

insured health plans without a third-party administrator.

As a result, there are four discrete options facing employers like Eternal

Word Television Network and the Dioceses, which operate self-insured plans and

do not meet the Internal Revenue Code’s definition for churches or church-

affiliated organizations but nonetheless have religious objections to providing

contraceptive coverage. First, these employers can provide the objectionable

coverage in violation of their beliefs. Second, these employers can comply with

the accommodation and affirmatively opt out of the contraceptive mandate,

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shifting the obligation to provide the required coverage to their insurer or third-

party administrator, also in violation of their beliefs. Third, these employers can

drop their third-party administrators and assume the costs and responsibilities of

running their own health plans. Fourth, these employers can do nothing and

thereby become liable for annual fines of thousands of dollars per employee.

This case requires two determinations. First, does the regulatory scheme

discussed above impose a substantial burden on the religious exercise of Eternal

Word Television Network and the Dioceses, which believe that opting out under

the accommodation would violate the sanctity of human life? If so, does the

regulatory scheme nonetheless survive RFRA’s demanding standard of strict

scrutiny? Because I conclude that the answers to these questions are yes and no,

while the majority says no and yes, I dissent.

II.

The threshold inquiry under RFRA requires a showing that the Government

has “substantially burden[ed]” the plaintiff’s “exercise of religion.” 42 U.S.C.

§ 2000bb-1. First, a RFRA plaintiff must identify religious exercise that the

Government is burdening. The allegedly burdened exercise “must be sincerely

based on a religious belief and not some other motivation.” Holt v. Hobbs, 574

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U.S. __, __, 135 S. Ct. 853, 862, 190 L. Ed. 2d 747 (2015). 23 When determining

the content of a religious belief, including how and to what extent its attendant

exercise may be burdened, we defer to the plaintiff’s understanding of what his

faith requires of him because “[c]ourts are not arbiters of scriptural interpretation.”

Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716, 101 S. Ct. 1425,

1431, 67 L. Ed. 2d 624 (1981). So long as a religious adherent has drawn a line

based on “an honest conviction,” “it is not for us to say that the line he drew was

an unreasonable one.” Id. at 715–16, 101 S. Ct. at 1430–31.

Next, we must determine whether, as an objective matter, the identified

burden on religious exercise is substantial. The existence of a substantial burden,

which “can result from pressure that tends to force adherents to forego religious

precepts or from pressure that mandates religious conduct,” turns on whether the

Government’s actions coerce a religious adherent to affirmatively violate his

beliefs. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th

Cir. 2004). To be substantial, a burden must be “akin to significant pressure which

directly coerces the religious adherent to conform his or her behavior accordingly”

and must be more than “an inconvenience on religious exercise.” Id. For example,

a zoning ordinance that forces members of an Orthodox Jewish congregation to

23 Though Hobbs involved a claim brought under RLUIPA rather than RFRA, both statutes impose the same standard for substantial burdens of religious exercise. See, e.g., Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004).

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“walk[] a few extra blocks” to attend services on the Sabbath is not a substantial

burden when there is no “religious significance” as to a particular synagogue site,

though “walking may be burdensome.” Id. at 1221, 1227–28. In contrast, if the

Government puts a religious adherent to the “choice” of incurring a “serious”

penalty or “‘engag[ing] in conduct that seriously violates [his] religious beliefs,’”

then the Government “substantially burdens his religious exercise.” See Hobbs,

574 U.S. at __, 135 S. Ct. at 862 (quoting Burwell v. Hobby Lobby Stores, Inc., 573

U.S. __, __, 134 S. Ct. 2751, 2775, 189 L. Ed. 2d 675 (2014) (second alteration in

the original)). And a burden is no less substantial if the burdened party “is able to

engage in other forms of religious exercise,” if the exercise in question is not

“compelled” by the burdened party’s religion, or if the burdened party’s belief is

“idiosyncratic.” Id. at __, 135 S. Ct. 862.

Here, it is overwhelmingly clear that the contraceptive mandate imposes on

Eternal Word Television Network and the Dioceses a burden that the

accommodation does not alleviate. Eternal Word Television Network and the

Dioceses assert a religious belief—which the Government does not contest is

sincerely held—that both complying with the contraceptive mandate and opting

out under the accommodation, which requires the third-party administrators of

their health plans to provide contraceptive coverage, would make them complicit

in violating the sanctity of human life. The Government burdens that belief by

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requiring Eternal Word Television Network and the Dioceses to affirmatively

participate in its regulatory scheme.

And it is equally clear that the burden imposed is substantial. The

Government puts Eternal Word Television Network and the Dioceses to the

“choice” of either (1) complying with the contraceptive mandate, to which they

object on religious grounds; (2) opting out under the accommodation, to which

they also object on religious grounds; (3) dropping the third-party administrators of

their health plans and becoming de facto insurance companies, incurring

substantial costs and diverting the focus of their religiously motivated operations;

or (4) incurring millions of dollars in penalties annually. 24 Besides providing yet

another way for the eligible organizations to violate their religious beliefs, the

accommodation does nothing to change the Supreme Court’s holding in Hobby

Lobby that the contraceptive mandate “clearly imposes a substantial burden on

those beliefs.” 573 U.S. at __, 134 S. Ct. at 2779. Eternal Word Television

Network and the Dioceses must either violate their beliefs or incur massive

24 Should it fail to comply with the contraceptive mandate, Eternal Word Television Network would face annual penalties of up to $12,775,000 for its 350 full-time employees. See Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health and Human Servs., 756 F.3d 1339, 1341–42 (11th Cir. 2014) (William Pryor, J., specially concurring in order granting injunction pending appeal). The Dioceses’ three health plans are collectively responsible for almost 2,000 employees and would be subject to roughly $73,000,000 per year. See Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 1256373, at *2 (N.D. Ga. Mar. 26, 2014); 26 U.S.C. § 4890D(b)(1).

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monetary costs. On its face, such a “choice” is not a choice at all. Rather, it is a

substantial burden on religious exercise.

As I understand it, this straightforward application of RFRA’s substantial-

burden test should end the matter. The majority thinks otherwise, reaching the

wrong conclusion for two reasons. First, the majority fails to give proper

deference to Eternal Word Television Network and the Dioceses’ sincerely held

religious beliefs. Second, the majority mischaracterizes how the contraceptive

mandate works by understating the critical role that the accommodation forces

employers to play in providing contraceptive coverage.

Before explaining why the majority fails to give RFRA its proper meaning,

it is helpful to clarify how our understandings of RFRA’s inquiry differ. Exactly

where we differ is highlighted below:

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THE MAJORITY’S VIEW OF RFRA THE CORRECT VIEW OF RFRA Step 1: Does the plaintiff hold a sincere Step 1: Does the plaintiff hold a sincere religious belief? religious belief? —Objective determination —Objective determination

What are the contents of that belief? What are the contents of that belief? —Deference to the plaintiff —Deference to the plaintiff Step 2: Do the Government’s actions Step 2(a): Do the Government’s actions substantially burden the plaintiff’s burden the plaintiff’s religious exercise? religious exercise? —Deference to the plaintiff Step 2(b): If so, is that burden —Objective determination substantial?

—Objective determination Step 3: Is the Government acting to Step 3: Is the Government acting to further a compelling interest? further a compelling interest?

—Objective determination —Objective determination Step 4: Is the Government’s chosen Step 4: Is the Government’s chosen means the least-restrictive alternative of means the least-restrictive alternative of achieving that compelling interest? achieving that compelling interest?

—Objective determination —Objective determination

First, the majority fails to give the proper deference due Eternal Word

Television Network and the Dioceses’ sincerely held belief that it would violate

the sanctity of human life to comply with the Government’s regulatory scheme,

either directly through the contraceptive mandate or indirectly through the

accommodation. Though the majority purports to defer to these beliefs, its

deference is largely illusory. The majority begins by correctly observing that

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RFRA’s substantial-burden inquiry “involves both subjective and objective

dimensions.” Ante at 34. The majority continues on, also correctly, to observe that

“courts must accept a religious adherent’s assertion that his religious beliefs

require him to take or abstain from taking a specified action.” Id. The majority

falters, however, when it concludes that “it is for the courts to determine

objectively . . . whether the government has, in fact, put plaintiffs to the choice of

violating their religious beliefs . . . or incurring a substantial penalty.” Id. at 36–

37.

Contrary to the majority’s position, RFRA does require deference to

religious adherents’ determinations that their sincerely held beliefs are being

burdened. “The narrow function of a reviewing court in this context” prevents

unnecessary and improper judicial intrusion into highly sensitive matters of moral

philosophy or theology, Thomas, 450 U.S. at 716, 101 S. Ct. at 1431, and this

understanding of the substantial-burden standard is confirmed by the Supreme

Court’s most recent religious-accommodation decisions. See Hobbs, 574 U.S. at

__, 135 S. Ct. at 861–63 (granting an exemption to a prison’s grooming policy for

a Muslim inmate’s proposed “‘compromise’” that he be allowed to grow a half-

inch-long beard); Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 2775–79 (rejecting

the argument that “the connection between” providing contraceptive coverage and

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the “destruction of an embryo[] is simply too attenuated” because this “would in

effect tell the plaintiffs their beliefs are flawed.”).

The “objective inquiry” under RFRA focuses only on whether that burden is

substantial. For example, courts must defer to a religious adherent’s belief, if it is

sincerely held, that dancing is morally wrong.25 And courts must defer to the

religious adherent’s understanding that this belief would be burdened if she were

required to look upon, even if only for a moment, a single masquerade ball or sock

hop. What courts must determine as an objective matter is whether the burden

imposed by any pro-dancing Government action is a substantial one. Imposing

millions of dollars in fines for failing to perform a Government-mandated jitterbug

would, obviously, be a substantial burden on religious exercise. In contrast, there

would be no substantial burden if the Government merely financed public

dancefloors or had a hortatory policy of extolling the virtues of dance.26

If the substantial-burden test were as the majority believes it to be, federal

judges would have to decide whether the burden itself substantially violated the

adherent’s beliefs. That is, the majority would necessarily shift the gaze of its

“objective inquiry” to the merits of religious belief. In this Bizarro World, it

25 Many faith traditions proscribe some or all forms dancing, including various denominations of Christianity, Islam, and Judaism. 26 Indeed, it appears that Congress has contemplated adopting such a measure. See H.R. Res. 667, 113th Cong. (2014) (as introduced in the House, July 11, 2014) (“Expressing support for dancing as a form of valuable exercise and artistic expression, and for the designation of July 26, 2014, as National Dance Day.”).

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would be secular courts making ex cathedra pronouncements on whether Muslims

are truly put out by requirements to shave their beards, Hobbs, 574 U.S. __, 135 S.

Ct. 853; Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170

F.3d 359 (3d Cir. 1999), whether Seventh-day Adventists are sufficiently deterred

from accepting employment by requirements to work on Saturdays, Sherbert v.

Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), whether Santeria

priests could just make do without ritual sacrifice or Ache-infused beads and

shells, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993); Davila v. Gladden, 777 F.3d 1198

(11th Cir. 2015), and whether the sacramental use of peyote is really that big of a

deal to members of the Native American Church, Emp’t Div., Dep’t of Human Res.

of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). But, of

course, the Constitution does not vest in the judiciary the authority to declare

winners and losers in matters of faith. And for good reason.

At bottom, the majority’s reasoning takes aim at the heart of RFRA itself.

Implicit in the majority’s rationale is the notion that wily plaintiffs could game the

system if religious adherents’ beliefs were given the full extent of the deference

demanded by RFRA. In tailoring their stated beliefs, these plaintiffs could engage

in strategic litigation unhampered, impairing the government’s ability to function

efficiently. By expanding the limited scope of the objective portion of the

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substantial-burden inquiry, the majority expressly seeks to avoid “reducing the . . .

federal courts to ‘rubber stamps.’” Ante at 37. Here, despite conceding as the

majority must that “the act of opting out plays [some] causal role in the ultimate

provision of contraceptive coverage,” the majority runs roughshod over the

sincerely held religious objections of Eternal Word Television Network and the

Dioceses because, in line with the majority’s sense of things, the “de minimis

burden that the plaintiffs face” resulting from their role as “an incidental cause of

contraceptive coverage being provided” does not constitute a substantial burden.

Id. at 44-45, 47. The majority through a nifty bit of legalistic legerdemain

manages to transform the subjective content of religious adherents’ sincerely held

beliefs into an objective question of federal law, undercutting the very deference to

religious exercise it purports to extend.

The majority’s not-so-veiled implication that, if given its full effect, RFRA

will be refashioned from a shield protecting the faithful into a sword wielded by

cynical opportunists is troubling and at odds with RFRA’s fundamental respect for

the deeply held convictions that guide the daily lives of hundreds of millions of

Americans. As an initial matter, whether or not a belief is sincerely held remains

an important part of RFRA’s substantial-burden inquiry. Courts are not, for

example, compelled to entertain challenges from such obvious farces as a

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hypothetical “Church of Marijuana and Pepperoni Pizza”27 or the satirical “Our

Lady of Perpetual Exemption.” 28 Separating the faithful sheep from the cynically

opportunistic goats is well within our judicial capabilities.

Moreover, to the extent that granting exemptions for religious adherents

would impair the government’s ability to run programs and administer law

efficiently, this is a feature of RFRA, not a bug. Congress made the clear policy

choice that protecting the individual right of free religious exercise outweighed the

costs imposed at the expense of administrative efficiency. And this choice—to

preserve individual freedom by fettering the Government’s ability to act as

expeditiously as possible—is at the core of our foundational notion of limited

government. Permitting demonstrations in public parks, requiring police officers

to secure a warrant before searching homes or seizing persons, and committing the

Government to provide just compensation if it wishes to take private property all

surely hamper the Government’s ability to pursue countless other important ends.

These tradeoffs are the cost of liberty. And how best to balance these enhanced

27 Of course, people can and do sincerely believe that marijuana consumption serves a sacramental purpose. See, e.g., Olsen v. Drug Enf’t Admin., 878 F.2d 1458 (D.C. Cir. 1989). 28 See God bless John Oliver: late-night comedian forms his own church, The Guardian (Aug. 17, 2015), http://www.theguardian.com/tv-and-radio/2015/aug/17/john-oliver-last-week- tonight-mega-church.

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protections against their added costs is exactly the sort of thorny policy decision

best left to democratically responsive legislators, not unelected judges. 29

The majority is hardly alone in its implicit rejection of RFRA’s core

purpose. Striking the proper balance between the collective needs of society and

the individual freedom of religious exercise has been fraught with rancor and

sectarian strife since time immemorial. Unsurprisingly then, the oft-embattled

RFRA has proven a favorite whipping boy from all sides of the legal academy

during its twenty-three-year existence. See, e.g., Douglas NeJaime & Reva B.

Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and

Politics, 124 Yale L.J. 2516 (2015); Mary Anne Case, Why “Live-And-Let-Live” is

not a Viable Solution to the Difficult Problems of Religious Accommodation in the

Age of Sexual Civil Rights, 88 S. Cal. L. Rev. 463 (2015); Douglas Laycock,

Religious Liberty and the Culture Wars, 2014 U. Ill. L. Rev. 839; William P.

Marshall, Bad Statutes Make Bad Law: Burwell v Hobby Lobby, 2014 Sup. Ct.

Rev. 71; Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom

and the U.S. Code, 56 Mont. L. Rev. 249 (1995).

29 “[T]hat one legislature cannot abridge the powers of a succeeding legislature” and, thus, “one legislature is competent to repeal any act which a former legislature was competent to pass” is a foundational principle that “can never be controverted.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135, 3 L. Ed. 162 (1810). RFRA’s protections are statutory, not mandated by the Constitution. Should it wish to do so, Congress remains free to alter the scrutiny to be applied to any particular law challenged under RFRA or to repeal RFRA altogether.

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Judicial declarations that the sky will fall if exemptions were granted to

religious objectors in a pluralistic society as diverse and vibrant as the United

States are old hat as well. Consider the following statement of Chief Justice

Morrison Waite, written almost one hundred and fifty years ago:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. … Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

Reynolds v. United States, 98 U.S. 145, 166–67, 25 L. Ed. 244 (1878). After more

than a century of wrestling with the First Amendment’s Free Exercise Clause, the

Supreme Court brought constitutional religious-accommodation doctrine full circle

in Smith, upholding without accommodation neutral laws of general applicability.

Writing for the majority, Justice Scalia echoed Chief Justice Waite’s sentiment:

If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interests” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.

Smith, 494 U.S. at 888, 110 S. Ct. at 1605 (emphasis added). It is hard to fathom a

plainer statement of the risks of reinstituting a policy of religious accommodation.

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Yet it was against this very backdrop that Congress enacted RFRA in 1993.

And Congress specifically declared that by adopting the demands of strict scrutiny

it intended to depart from the less-protective constitutional standard announced in

Smith. See 42 U.S.C. § 2000bb(4). To the extent that the standard RFRA imposes

raises policy concerns, criticisms on this front are best addressed to Congress, and

may find appropriate shelter in the pages of law reviews. But as federal judges we

are duty-bound to follow and apply the laws Congress actually enacted, not as we

might wish them to be. “The wisdom of Congress’s judgment on this matter is not

our concern. Our responsibility is to enforce RFRA as written, and under the

standard that RFRA prescribes,” Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 2785,

the accommodation, no less than the contraceptive mandate itself, imposes a

Second, the majority fails to appreciate the crucial role in providing

religiously objectionable contraceptive coverage that the accommodation foists on

eligible organizations. The majority believes that the accommodation places no

burden on the beliefs of Eternal Word Television Network and the Dioceses

because the “significance they attribute to this act [of opting out]” is misguided,

and thus the outcome of this case is not controlled by the otherwise-identical

analysis in Hobby Lobby. See ante at 42. According to the majority, “[t]he ACA

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and HRSA guidelines” are what “entitle women who are plan participants and

beneficiaries covered by group health insurance plans to contraceptive coverage

without cost sharing”—“not the opt out.” See id. at 43–44 . This is so even though

the majority “acknowledge[s] that an eligible organization’s act of [opting out]

results in the TPA’s designation as the plan administrator” under ERISA and “may

be an incidental cause of contraceptive coverage being provided.” Id. at 44–45.

Boiled down to its bare essentials, the majority’s position is that if the parties really

understood what is going on, they would have no basis to object to their role in the

contraceptive mandate’s regulatory scheme.

It is the majority, however, that misunderstands the contraceptive mandate.

Under its regulatory scheme, as bounded by the statutory requirements of the ACA

and ERISA, 30 the Government becomes empowered to require contraceptive

coverage for an eligible organization’s self-insured health plan only if that

organization affirmatively opts out under the accommodation. A third-party

administrator of a self-insured health plan “bears the legal obligation to provide

30 Some doubts have been raised as to the Government’s exact ability to require third- party administrators to comply with the contraceptive mandate within the scope of its regulatory authority. See Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 941–42 (8th Cir. 2015). To the extent such doubts linger, they are of no moment here. “We need look no further than to the government’s own litigation behavior to gauge the importance of self-certification in the regulatory scheme. If [third-party administrators] had a wholly independent obligation to provide contraceptive coverage to religious objectors’ employees and plan beneficiaries, there would be no need to insist on … compliance with the accommodation process.” Id. at 942.

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contraceptive coverage only upon receipt of a valid self-certification.”31 Wheaton

College v. Burwell, 573 U.S. __, __ n.6, 134 S. Ct. 2806, 2814 n.6, 189 L. Ed. 2d

856 (2014) (Sotomayor, J., dissenting) (emphasis added). The majority is

incorrect, then, to say that the contraceptive mandate “does not turn on whether

[an] eligible organization employer chooses to comply with the law.” See ante at

44. Federal law kicks in only after an eligible organization acts; should an eligible

organization decline to do anything, the Government lacks an independent means

to ensure the provision of contraceptive coverage. Because the regulations

condition the provision of contraceptive coverage on eligible organizations’

affirmative participation, their participation is the linchpin on which the

contraceptive mandate rests.

To draw an analogy with which any first-year law student should be well

acquainted, an eligible organization’s opting out under the accommodation is both

an actual and proximate cause of the provision of contraceptive coverage. There

can be no doubt that opting out under the accommodation is a “cause in fact” of

providing contraceptive coverage. But for opting out, the Government would lack

the requisite regulatory authority over the third-party administrators of the

organizations’ health plans. Cf. Stacy v. Knickerbocker Ice Co., 54 N.W. 1091

31 Under the regulations currently in force, a valid self-certification is either Form 700 or the alternative notice sent to the Secretary of Health and Human Services. 45 C.F.R. § 147.131(b)(3), (c).

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(Wis. 1893) (noting that without defendant’s cutting and removing of surface ice,

uncontrolled horses would not have fallen through a frozen lake). The majority

contests whether the act of opting out also meets some standard of “legal” or

“proximate” cause. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 104 (N.Y.

1928) (Andrews, J., dissenting) (“What we do mean by the word ‘proximate’ is

that, because of convenience, of public policy, of a rough sense of justice, the law

arbitrarily declines to trace a series of events beyond a certain point. That is not

logic, it is practical politics.”). According to the majority, because federal law

entails the authorization to require third-party administrators to provide

contraceptive coverage, opting out is only “an incidental cause of contraceptive

coverage being provided.” See ante at 44–45.

I fail to see, however, how affirmatively opting out of the contraceptive

mandate under the accommodation could be deemed anything other than a

“substantial factor” or “material concurring cause” directly leading to the provision

of religiously objectionable coverage. Anderson v. Minneapolis, St. Paul & Sault

Ste. Marie Ry. Co., 146 Minn. 430, 436–37, 439 (1920). Opting out under the

accommodation sets in motion a chain of events leading to the provision of

contraceptive coverage as inexorably as night follows day. 32 Once an employer

32 Eternal Word Television Network and the Dioceses object only to their own, government-mandated participation under the contraceptive mandate. They do not—and indeed

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opts out, only then does the Government become authorized to regulate third-party

administrators. See Grace Sch. v. Burwell, 801 F.3d 788, 808 (7th Cir. 2015)

(Manion, J., dissenting) (describing “the accommodation’s tangled mess” as “the

long and winding extension cord the government uses to power its contraceptive

mandate”). So authorized, there can be no doubt that the Government will in turn

flex its newfound regulatory muscle to require the provision of contraceptive

coverage.

cannot—seek “to require the Government itself to behave” in accordance with their beliefs. See Bowen v. Roy, 476 U.S. 693, 696–700, 106 S. Ct. 2147, 2150–52, 90 L. Ed. 2d 735 (1986) (denying relief to Abenaki man objecting on religious grounds to the Government’s “‘use’” of his daughter’s already-issued Social Security number). The majority’s reliance on Bowen and its ilk is, therefore, inapposite. Likewise inapposite is the Majority’s analogizing the accommodation to the process used by conscientious objectors to opt of a military draft. See ante at 46. As Judge Manion puts it in his thorough debunking of this familiar trope, This is not like the case of a conscientious objector who objects and the government finds a replacement. Under the regulations, the government does not find the replacement, the nonprofit does. The designation does not take place unless the nonprofit either delivers the self-certification form to its insurer or TPA, or uses the alternative notice to inform the government who its insurer or TPA is and which health plan is at issue. By insisting that the nonprofit deliver the form or supply the plan information for the government's use, the government uses the objecting nonprofit to do its dirty work. The government has not provided an exit—it offers a revolving door with only one opening. ... This is not the case of a conscientious objector walking into the draft board, voicing his objection, being excused, and walking out. For the analogy to fit the HHS accommodation, the draft board must decide that every objector will be replaced by the objector’s friend, and the objector’s objection is only effective if the objector delivers written notice of his objection to his friend or tells the draft board who his friend is and where the board can find him. Then, the objector must send his friend money so that his friend will remain his friend for the purpose of being his replacement. Grace Sch. v. Burwell, 801 F.3d 788, 812 & n.11 (7th Cir. 2015) (Manion, J., dissenting).

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This clear and uninterrupted causal chain holds whether an employer sends

Form 700 directly to its third-party administrator or submits less-formal notice

indirectly to the Secretary of Health and Human Services, just as a pilot reaches his

destination as certainly flying direct as with a layover. An employer connecting

these dots would hardly need the insight of Henry Friendly to conclude that its

actions caused, in a direct and material fashion, the religiously objectionable

outcome. “After all, if the form were meaningless, why would the Government

require it?” Priests for Life v. U.S. Dep’t of Health and Human Servs., Nos. 13-

5368, 13-5371, 14-5021, 2015 WL 5692512, at *17 (D.C. Cir. May 20, 2015)

(Kavanaugh, J., dissenting from denial of rehearing en banc)

But this analogy can be stretched only so far. Common-law principles of

causation, however fundamental to our legal heritage, are simply too unreliable a

light to guide RFRA’s substantial-burden analysis. 33 Reading into RFRA some

sort of proximate-cause limitation would reintroduce the exact same

“attenuat[ion]” argument rejected by the Supreme Court in Hobby Lobby for

“dodg[ing] the question that RFRA presents.” 573 U.S. at __, 134 S. Ct. at 2777–

78. To do so would be an illegitimate foray into the realm of personal faith, and

33 “There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion [as defining ‘proximate cause’]. Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the best approach.” W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on Torts § 41 at 263 (5th ed. 1984).

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federal courts are “singularly ill equipped” to parse the moral reasoning and

theological conclusions of religious believers, especially in light of secular judges’

unspecified and almost certainly inconsistent determinations of legal causation.

Thomas, 450 U.S. at 715, 101 S. Ct. at 1431. No matter how elaborate the Rube

Goldberg machine the Government manages to jerry-rig, it is simply not our place

to decide for Eternal Word Television Network and the Dioceses their degree of

complicity when forced to topple the initial domino.

Accordingly, for eligible organizations that object to opting out under the

accommodation, the contraceptive mandate burdens their religious exercise to the

same impermissible extent as the plaintiffs’ in Hobby Lobby.

III.

Concluding that the contraceptive mandate substantially burdens Eternal

Word Television Network’s and the Dioceses’ religious exercise does not end the

matter. The Government can still prevail if it is able to show that the contraceptive

mandate is “in furtherance of a compelling governmental interest” and the

accommodation is “the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000bb-1(b).

The Government fails to make this showing. For purposes of this opinion, I

assume that the accommodation serves “a legitimate and compelling interest in the

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health of female employees.” 34 See Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

__, __, 134 S. Ct. 2751, 2786, 189 L. Ed. 2d 675 (2014) (Kennedy, J., concurring).

There is no need to reach the merits of this assumed compelling interest, whatever

its exact nature, because the accommodation is not the least-restrictive means

capable of achieving any government interest that could conceivably be called

compelling. Accord id. at __, 134 S. Ct. at 2779–80 (Alito, J.).

IV.

If the notion that the accommodation does not substantially burden religious

exercise is “[r]ubbish,” Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t

of Health and Human Servs., 756 F.3d 1339, 1347 (11th Cir. 2014) (William

Pryor, J., concurring), then the majority’s further notion that the contraceptive

mandate passes RFRA’s “exceptionally demanding” scrutiny is rubbish on stilts.

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __, 134 S. Ct. 2751, 2780, 189

L. Ed. 2d 675 (2014). In codifying the familiar language of strict scrutiny—the

“most demanding test known to constitutional law,” City of Boerne v. Flores, 521

U.S. 507, 534, 117 S. Ct. 2157, 2171, 138 L. Ed. 2d 624 (1997)—Congress erected

34 I pause to note my skepticism of the Government’s proposed gloss on the compelling interest allegedly served by the contraceptive mandate. Providing “seamless” contraceptive coverage—that is, providing coverage without cost sharing or additional administrative hurdles—and identifying organizations that opt out of the contraceptive mandate appear to me to be derivative considerations of feasibility and administrative convenience rather than compelling interests in their own right. As such, these considerations are better left to the least-restrictive- means prong of the RFRA inquiry.

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RFRA as a mighty bulwark, entrenching against Government incursion the

freedom of religious liberty throughout the United States Code. To surmount these

protections, the Government has the burden of “show[ing] that it lacks other means

of achieving its desired goal without imposing a substantial burden on the exercise

of religion by the objecting parties.” Hobby Lobby, 573 U.S. at __, 134 S. Ct. at

2780. Carrying this burden is no mean feat. “If a less restrictive means is

available for the Government to achieve its goals, the Government must use it.”

Holt v. Hobbs, 574 U.S. __, __, 135 S. Ct. 853, 864, 190 L. Ed. 2d 747 (2015)

(quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815, 120 S. Ct.

1878, 1887, 146 L. Ed. 2d 865 (2000)) (alteration omitted).

So, is there a less-restrictive alternative of ensuring that the female

employees of employers with religious objections to the contraceptive mandate

nonetheless continue to receive cost-free access to the challenged services? Of

course there is. As the Hobby Lobby majority observed: “The most

straightforward way of doing this would be for the Government to assume the cost

of providing” the objectionable contraceptive coverage. 573 U.S. at __, 134 S. Ct.

at 2780. Though the Court did not ultimately need to reach the question of

whether direct Government provision of contraceptive coverage would constitute a

less-restrictive alternative because the plaintiffs did not object to the

accommodation, id. at __, 1354 S. Ct. at 2780–82, we must do so here. And I fail

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to see any reason why the Court’s persuasive reasoning should not be adopted.

The Government has not shown, as it must, that it would be able to provide the

same access to contraceptive coverage to the same women only if it can force

eligible organizations to violate their sincerely held religious beliefs.

Speaking bluntly, RFRA makes the Government put its money where its

mouth is. I see nothing in RFRA’s text or the subsequent case law that would

allow the Government to claim a compelling interest without having to spend a

single red cent to do anything about it. Significant here, the Government must

necessarily agree that RFRA compels it to fund contraceptive coverage otherwise

the accommodation would not exist at all. Indeed, the entire purpose of the

accommodation is to make the provision of contraceptive coverage independent of

the eligible organization, including segregating all the costs paid by the eligible

organization from all the expenditures for the objectionable services. Aware of the

fallacy of free-lunch thinking and absent any expectation of third-party

administrators acting out of purely eleemosynary impulse, the Government

committed itself to funding contraceptive coverage for certain religious objectors,35

albeit in roundabout fashion.

35 Notably, the Government did not similarly commit itself to fund contraceptive coverage for female employees of other employers with religious objections—either churches and church-affiliated organizations or eligible organizations that maintain self-insured health plans but do not use a third-party administrator. Nor did the Government commit itself to fund

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To be clear, the Government is already committed to fund the contraceptive

mandate under the current regulations. The Government reimburses third-party

administrators required to fund contraceptive coverage through a reduction in

Federally-facilitated Exchange user fees, the amount of money paid to be able to

offer insurance products on exchanges established by the Government under the

ACA. 36 Money is fungible; the Government finds itself in the same financial

position whether it declines to collect a tax liability of $500 or whether it collects

the $500 and then immediately refunds the same. By forgoing revenue to fund the

contraceptive coverage for the female employees of eligible organizations that opt

out under the accommodation, the Government is effectively paying for the

objectionable coverage. And in contrast to the half-measure of the

accommodation—which covers only a limited set of religiously objecting

employers and does not provide access to the female employees of churches and

church-affiliated organizations, employers with grandfathered health plans, or

contraceptive coverage for female employees of employers with grandfathered plans or employers with fewer than fifty full-time employees. Though there may be some level of backstop coverage provided by the other provisions of the ACA and Title X, see infra n.36, the Government’s failure to extend its largesse to these women may also call into question the contraceptive mandate’s asserted compelling interest—which, again, I assume the Government would be able to show—but certainly raises an obvious question: If the Government is able and willing to pay for some women to receive access to contraceptive coverage, why would it not be a less-restrictive means to do so in a more straightforward manner for all women at risk of being denied such access? 36 As discussed above, third-party administrators may either reduce their own Federally- facilitated Exchange user fees if they are also in the business of selling insurance or they may enter into a contractual arrangement with another insurer to recoup that insurer’s user fees. See 80 Fed. Reg. at 41328.

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employers with fewer than fifty full-time employees 37—providing for

contraceptive coverage directly without the accommodation’s administrative

rigmarole would allow the Government to offer cost-free access to each and every

woman in the United States should it choose to do so. And the Government has

failed to shoulder its burden to show that it would be unable to grant women access

to contraceptive coverage without the coerced involvement of Eternal Word

Television Network and the Dioceses.

Again, this straightforward application of well-established legal principles

should carry the day. But, again, the majority thinks otherwise. Specifically, the

majority concludes that the current iteration of the contraceptive mandate has

finally hit upon the least restrictive means of achieving the Government’s

compelling interest when “the cost to the government” and “the burden the

alternatives impose on the affected women” are taken into account. See ante at 63.

Though I do not dispute that these concerns are relevant to the least-restrictive-

37 For female employees whose health plans are not subject to the contraceptive mandate, the Government has stitched together a patchwork safety net under Title X and other provisions of the ACA. The record does not reveal how many women who would otherwise lack access to contraceptive services are eligible for coverage under this makeshift framework. Nor does the record reveal whether there are hundreds, thousands, or millions of women who will continue to go without such access, with or without the accommodation. Though a less-restrictive means need not be a perfect means, strict scrutiny demands that the Government’s chosen solution must be “neither seriously underinclusive nor seriously overinclusive.” Brown v. Entm’t Merchants Ass’n, 564 U.S. __, __, 131 S. Ct. 2729, 2741–42, 180 L. Ed. 2d 708 (2011).

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means inquiry, I cannot agree with the majority that they save the contraceptive

mandate from RFRA’s exceptionally demanding scrutiny.

The arguments advanced in the majority’s apology for the contraceptive

mandate seem to rest largely on speculative and overblown logistical problems the

Government might face if it were held responsible for furthering its asserted

compelling interest. According to the majority, if the Government were forced to

provide contraceptive coverage “outside the existing, largely employer-based,

insurance system,” whether directly or through tax credits, “Congress would need

to pass legislation that would fundamentally change how the majority of

Americans receive” contraceptive coverage specifically, if not healthcare

generally. See id. at 66–67. Likewise, if forced to keep the current model of

providing contraceptive coverage through eligible organizations’ health plans, “the

government would be hamstrung” because of the “gaps” in institutional knowledge

that would spring up regarding which female employees of which employers

would be covered by the Government and which are not. Id. at 72. As a result,

because the majority believes that adopting any of the alternatives it considers

would incur various administrative and transactions costs, the result would be less

access to contraceptive coverage, undermining the Government’s asserted

compelling interest. See id. at 70–71, 74.

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The majority’s insistence on assuming a virtually immutable regulatory and

statutory status quo is fundamentally misplaced. RFRA makes clear that it is the

“Government” that “shall not substantially burden a person’s exercise of religion,”

42 U.S.C. § 2000bb-1(a) (emphasis added), not just constituent parts acting within

their respective spheres of authority. In Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, for example, the Supreme Court specifically rejected the

Government’s position “that the Controlled Substances Act is [not] amenable to

judicially crafted exceptions [for the hallucinogen hoasca]” because of “the

existence of a congressional exemption for peyote.” 546 U.S. 418, 434, 126 S. Ct.

1211, 1222, 163 L. Ed. 2d 1017 (2006). It would be absurd to say, then, that we

cannot grant a judicially crafted exception here because the relevant administrative

agencies lacked the regulatory authority to promulgate exceptions that would have

been equally effective in achieving an allegedly compelling interest had there been

congressional action allowing them to do so. In short, if the Government as a

whole has a less-restrictive alternative available, the Government must use it.

The majority’s radically revisionist account of RFRA, in contrast, would

limit the universe of less-restrictive means to what the Executive Branch can

accomplish unilaterally by administrative fiat. This is a shocking reversal of our

Constitution’s prime directive: “All legislative Powers herein granted shall be

vested in a Congress of the United States.” U.S. Const. art. I, § 1. To the extent

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that the Government claims an interest of the highest order, it is only reasonable

that Congress be expected to pitch in when freewheeling regulators encounter

statutory roadblocks. The practical hurdles to providing the access to

contraceptive coverage the Government seeks would simply disappear if Congress

were to slightly tweak the contraceptive mandate’s statutory authorization under

ERISA and the ACA. By having Congress eliminate the need for eligible

organizations to affirmatively designate the third-party administrators of their

health plans—thus becoming directly involved in the provision of the

objectionable coverage—the Departments of Labor, Treasury, and Health and

Human Services would no longer need to substantially burden eligible

organizations by putting them to the “choice” of affirmatively violating their

sincerely held beliefs or paying massive penalties. And the Government has failed

to show why this could be accomplished without imposing any additional burden

on female employees only if eligible organizations were required to use the

accommodation. 38

38 To the extent that there may be additional administrative costs incurred in crafting an appropriately tailored exception to the contraceptive mandate, RFRA contemplates such costs and places them squarely on the Government’s shoulders. Even if the Government were to require female employees of exempt employers to fill out the sort of all-too-familiar paperwork associated with receiving health insurance, such a “burden”—in contrast to being forced to either violate a sincere religious conviction or face steep monetary penalties—would be, at most, “de minimis.” Cf. Catholic Health Care Sys. v. Burwell, 796 F.3d 207, 220 (2d Cir. 2015).

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Finally, the fate of the contraceptive mandate under RFRA is complicated by

the Government’s decision to condition benefits flowing to third parties on actions

taken by religious objectors in violation of their beliefs. I agree that granting an

exemption that would impose costs on third parties could, under certain

circumstances, run afoul of the Establishment Clause of the First Amendment. See

Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v.

Amos, 483 U.S. 327, 334–35, 107 S. Ct. 2862, 2868, 97 L. Ed. 2d 273 (1987) (“At

some point, accommodation may devolve into ‘an unlawful fostering of religion.’”

(quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 145,

107 S. Ct. 1046, 1051, 94 L. Ed. 2d 190 (1987))). But such an eventuality alone

does not automatically transform the Government’s chosen means into the least-

restrictive alternative required by RFRA. As the Supreme Court reiterated in

upholding the constitutionality of RLUIPA, RFRA’s sister statute, “‘there is room

for play in the joints between’ the Free Exercise and Establishment Clauses,

allowing the government to accommodate religion beyond free exercise

requirements, without offense to the Establishment Clause.” Cutter v. Wilkinson,

544 U.S. 709, 713, 125 S. Ct. 2113, 2117, 161 L. Ed. 2d 1020 (2005) (quoting

Locke v. Davey, 540 U.S. 712, 718, 124 S. Ct. 1307, 1311, 158 L. Ed. 2d 1 (2004)).

Granting Eternal Word Television Network and the Dioceses an exemption from

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the contraceptive mandate falls well within the space allowed for “play in the

joints,” wherever those exact boundaries may lie.

Here, the Government is essentially asking for a free pass on RFRA’s least-

restrictive-means requirement because the administrative agencies responsible for

crafting the contraceptive mandate decided—for administrative convenience—to

tie the provision of contraceptive coverage to eligible organizations’ affirmative

participation in an elaborate regulatory scheme. If we were to honor the

Government’s request, anytime regulators wanted to immunize their slapdash

efforts, regardless of the potential alternatives, they need only condition a benefit

to third parties on any substantial burden placed on religious exercise. Lest RFRA

is understood to have ushered in the apotheosis of the administrative state, surely

the rigorous standard of strict scrutiny cannot be so easily evaded.

Without a doubt, there are sundry ways for the Government to provide

women with cost-free access to contraceptive coverage. The administrative

agencies tasked with promulgating the regulatory structure that undergirds the

contraceptive mandate chose, because of convenience and their bounded statutory

authority, to do so in a manner that substantially burdens religious adherents. We

have been presented insufficient evidence to hold that the goal of increasing access

to contraceptive coverage could be reached only through the circuitous regulatory

pathways that have been cobbled together here. The Government, therefore, has

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failed to carry its burden to show that the contraceptive mandate is the least

restrictive means of furthering any assumed compelling interest.

V.

The sweeping protections for religious exercise Congress contemplated

when it enacted RFRA should not be denied to Eternal Word Television Network

and the Dioceses. RFRA’s text and purpose, as confirmed by well-established

precedent, extend these protections to religious adherents forced to choose between

affirmatively participating in a regulatory scheme that they sincerely believe would

make them complicit in denigrating the sanctity of human life and paying millions

of dollars in noncompliance penalties. Because the Government cannot show that

the latest iteration of its constantly evolving “accommodation” survives strict

scrutiny, RFRA bars enforcing the contraceptive mandate against those employers

whose religious exercise it substantially burdens.

By concluding otherwise, the majority diminishes the full range of religious

liberty that Congress sought to protect when it enacted RFRA. Recasting and

enfeebling RFRA’s standard as nothing more than “good enough for government

work” is a far cry from strict scrutiny’s typical charge of fiat justitia ruat caelum. 39

Perhaps the majority’s desire to bring RFRA’s statutory protections for religious

liberty closer in line with the less-demanding constitutional standard represents a

39 Let justice be done though the heavens may fall.

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superior policy judgment. Perhaps not. In any event, the majority’s application of

“water[ed] down” strict scrutiny is exactly the sort of wishy-washy treatment likely

to “subvert its rigors in the other fields where it applies” that motivated the

Supreme Court’s Smith decision in the first place. See Emp’t Div., Dep’t of Human

Res. of Or. v. Smith, 494 U.S. 872, 888, 110 S. Ct. 1595, 1605, 108 L. Ed. 2d 876

(1990). But by enacting RFRA, Congress confirmed that strict scrutiny “really

means what it says.” Id.; see also Hobby Lobby, 573 U.S. at __ n.3, 134 S. Ct. at

2761 n.3. Regardless of individual judges’ views of the wisdom motivating

RFRA, that was Congress’s call to make.

Respectfully, I DISSENT.