Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

(Slip Opinion) OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

LITTLE SISTERS OF THE POOR SAINTS PETER AND
PAUL HOME v. PENNSYLVANIA ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT

No. 19–431. Argued May 6, 2020—Decided July 8, 2020*
The Patient Protection and Affordable Care Act of 2010 (ACA) requires
covered employers to provide women with “preventive care and screen-
ings” without “any cost sharing requirements,” and relies on Preven-
tive Care Guidelines (Guidelines) “supported by the Health Resources
and Services Administration” (HRSA) to determine what “preventive
care and screenings” includes. 42 U. S. C. §300gg–13(a)(4). Those
Guidelines mandate that health plans provide coverage for all Food
and Drug Administration approved contraceptive methods. When the
Departments of Health and Human Services, Labor, and the Treasury
(Departments) incorporated the Guidelines, they also gave HRSA the
discretion to exempt religious employers, such as churches, from
providing contraceptive coverage. Later, the Departments also prom-
ulgated a rule accommodating qualifying religious organizations that
allowed them to opt out of coverage by self-certifying that they met
certain criteria to their health insurance issuer, which would then ex-
clude contraceptive coverage from the employer’s plan and provide
participants with separate payments for contraceptive services with-
out imposing any cost-sharing requirements.
Religious entities challenged the rules under the Religious Freedom
Restoration Act of 1993 (RFRA). In Burwell v. Hobby Lobby Stores,
Inc., 573 U. S. 682, this Court held that the contraceptive mandate
substantially burdened the free exercise of closely held corporations
with sincerely held religious objections to providing their employees
with certain methods of contraception. And in Zubik v. Burwell, 578
——————
* Together with 19–454, Trump, President of the United States, et al.
v. Pennsylvania et al., on certiorari to the same Court.
2 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Syllabus

U. S. ___, the Court opted to remand without deciding the RFRA ques-
tion in cases challenging the self-certification accommodation so that
the parties could develop an approach that would accommodate em-
ployers’ concerns while providing women full and equal coverage.
Under Zubik’s direction and in light of Hobby Lobby’s holding, the
Departments promulgated two interim final rules (IFRs). The first
significantly expanded the church exemption to include an employer
that “objects . . . based on its sincerely held religious beliefs,” “to its
establishing, maintaining, providing, offering, or arranging [for] cov-
erage or payments for some or all contraceptive services.” 82 Fed. Reg.
47812. The second created a similar “moral exemption” for employers
with sincerely held moral objections to providing some or all forms of
contraceptive coverage. The Departments requested post-promulga-
tion comments on both IFRs.
Pennsylvania sued, alleging that the IFRs were procedurally and
substantively invalid under the Administrative Procedure Act (APA).
After the Departments issued final rules, responding to post-promul-
gation comments but leaving the IFRs largely intact, New Jersey
joined Pennsylvania’s suit. Together they filed an amended complaint,
alleging that the rules were substantively unlawful because the De-
partments lacked statutory authority under either the ACA or RFRA
to promulgate the exemptions. They also argued that the rules were
procedurally defective because the Departments failed to comply with
the APA’s notice and comment procedures. The District Court issued
a preliminary nationwide injunction against the implementation of the
final rules, and the Third Circuit affirmed.
Held:
1. The Departments had the authority under the ACA to promulgate
the religious and moral exemptions. Pp. 14–22.
(a) As legal authority for both exemptions, the Departments in-
voke §300gg–13(a)(4), which states that group health plans must pro-
vide women with “preventive care and screenings . . . as provided for
in comprehensive guidelines supported by [HRSA].” The pivotal
phrase, “as provided for,” grants sweeping authority to HRSA to define
the preventive care that applicable health plans must cover. That
same grant of authority empowers it to identify and create exemptions
from its own Guidelines. The “fundamental principle of statutory in-
terpretation that ‘absent provision[s] cannot be supplied by the
courts,’ ” Rotkiske v. Klemm, 589 U. S. ___, ___ applies not only to add-
ing terms not found in the statute, but also to imposing limits on an
agency’s discretion that are not supported by the text, see Watt v. En-
ergy Action Ed. Foundation, 454 U. S. 151, 168. Concerns that the
exemptions thwart Congress’ intent by making it significantly harder
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Syllabus

for interested women to obtain seamless access to contraception with-
out cost-sharing cannot justify supplanting the text’s plain meaning.
Even if such concerns are legitimate, they are more properly directed
at the regulatory mechanism that Congress put in place. Pp. 14–18.
(b) Because the ACA provided a basis for both exemptions, the
Court need not decide whether RFRA independently compelled the De-
partments’ solution. However, the argument that the Departments
could not consider RFRA at all is without merit. It is clear from the
face of the statute that the contraceptive mandate is capable of violat-
ing RFRA. The ACA does not explicitly exempt RFRA, and the regu-
lations implementing the contraceptive mandate qualify as “Federal
law” or “the implementation of [Federal] law” under RFRA. §2000bb–
3(a). Additionally, this Court stated in Hobby Lobby that the mandate
violated RFRA as applied to entities with complicity-based objections.
And both Hobby Lobby and Zubik instructed the Departments to con-
sider RFRA going forward. Moreover, in light of the basic require-
ments of the rulemaking process, the Departments’ failure to discuss
RFRA at all when formulating their solution would make them sus-
ceptible to claims that the rules were arbitrary and capricious for fail-
ing to consider an important aspect of the problem. Pp. 19–22.
2. The rules promulgating the exemptions are free from procedural
defects. Pp. 22–26.
(a) Respondents claim that because the final rules were preceded
by a document entitled “Interim Final Rules with Request for Com-
ments” instead of “General Notice of Proposed Rulemaking,” they are
procedurally invalid under the APA. The IFRs’ request for comments
readily satisfied the APA notice requirements. And even assuming
that the APA requires an agency to publish a document entitled “notice
of proposed rulemaking,” there was no “prejudicial error” here, 5
U. S. C. §706. Pp. 22–24.
(b) Pointing to the fact that the final rules made only minor alter-
ations to the IFRs, respondents also contend that the final rules are
procedurally invalid because nothing in the record suggests that the
Departments maintained an open mind during the post-promulgation
process. The “open-mindedness” test has no basis in the APA. Each of
the APA’s procedural requirements was satisfied: The IFRs provided
sufficient notice, §553(b); the Departments “g[a]ve interested persons
an opportunity to participate in the rule making through submission
of written data, views or arguments,” §553(c); the final rules contained
“a concise general statement of their basis and purpose,” ibid.; and
they were published more than 30 days before they became effective,
§553(d). Pp. 24–26.
930 F. 3d 543, reversed and remanded.
4 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Syllabus

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and ALITO, GORSUCH, and KAVANAUGH, JJ., joined. ALITO, J., filed a con-
curring opinion, in which GORSUCH, J., joined. KAGAN, J., filed an opinion
concurring in the judgment, in which BREYER, J., joined. GINSBURG, J.,
filed a dissenting opinion, in which SOTOMAYOR, J., joined.
 Cite as: 591 U. S. ____ (2020) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 19–431 and 19–454
_________________

LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME, PETITIONER
19–431 v.
PENNSYLVANIA, ET AL.

DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES, ET AL., PETITIONERS
19–454 v.
PENNSYLVANIA, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[July 8, 2020]

JUSTICE THOMAS delivered the opinion of the Court.
In these consolidated cases, we decide whether the Gov-
ernment created lawful exemptions from a regulatory re-
quirement implementing the Patient Protection and Afford-
able Care Act of 2010 (ACA), 124 Stat. 119. The
requirement at issue obligates certain employers to provide
contraceptive coverage to their employees through their
group health plans. Though contraceptive coverage is not
required by (or even mentioned in) the ACA provision at is-
sue, the Government mandated such coverage by promul-
gating interim final rules (IFRs) shortly after the ACA’s
passage. This requirement is known as the contraceptive
mandate.
After six years of protracted litigation, the Departments
2 LITTLE SISTERS OF THE POOR SAINTS PETER
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Opinion of the Court

of Health and Human Services, Labor, and the Treasury
(Departments)—which jointly administer the relevant ACA
provision1—exempted certain employers who have religious
and conscientious objections from this agency-created man-
date. The Third Circuit concluded that the Departments
lacked statutory authority to promulgate these exemptions
and affirmed the District Court’s nationwide preliminary
injunction. This decision was erroneous. We hold that the
Departments had the authority to provide exemptions from
the regulatory contraceptive requirements for employers
with religious and conscientious objections. We accordingly
reverse the Third Circuit’s judgment and remand with in-
structions to dissolve the nationwide preliminary injunc-
tion.
I
The ACA’s contraceptive mandate—a product of agency
regulation—has existed for approximately nine years. Lit-
igation surrounding that requirement has lasted nearly as
long. In light of this extensive history, we begin by summa-
rizing the relevant background.
A
The ACA requires covered employers to offer “a group
health plan or group health insurance coverage” that pro-
vides certain “minimum essential coverage.” 26 U. S. C.
§5000A(f )(2); §§4980H(a), (c)(2). Employers who do not
comply face hefty penalties, including potential fines of
$100 per day for each affected employee. §§4980D(a)–(b);
see also Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682,
696–697 (2014). These cases concern regulations promul-
gated under a provision of the ACA that requires covered
employers to provide women with “preventive care and
screenings” without “any cost sharing requirements.” 42

——————
1 See 42 U. S. C. §300gg–92; 29 U. S. C. §1191c; 26 U. S. C. §9833.
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Opinion of the Court

U. S. C. §300gg–13(a)(4).2
The statute does not define “preventive care and screen-
ings,” nor does it include an exhaustive or illustrative list
of such services. Thus, the statute itself does not explicitly
require coverage for any specific form of “preventive care.”
Hobby Lobby, 573 U. S., at 697. Instead, Congress stated
that coverage must include “such additional preventive care
and screenings . . . as provided for in comprehensive guide-
lines supported by the Health Resources and Services Ad-
ministration” (HRSA), an agency of the Department of
Health and Human Services (HHS). §300gg–13(a)(4). At
the time of the ACA’s enactment, these guidelines were not
yet written. As a result, no specific forms of preventive care
or screenings were (or could be) referred to or incorporated
by reference.
Soon after the ACA’s passage, the Departments began
promulgating rules related to §300gg–13(a)(4). But in do-
ing so, the Departments did not proceed through the notice
and comment rulemaking process, which the Administra-
tive Procedure Act (APA) often requires before an agency’s
regulation can “have the force and effect of law.” Perez v.
Mortgage Bankers Assn., 575 U. S. 92, 96 (2015) (internal
quotation marks omitted); see also 5 U. S. C. §553. Instead,
the Departments invoked the APA’s good cause exception,
which permits an agency to dispense with notice and com-
ment and promulgate an IFR that carries immediate legal
force. §553(b)(3)(B).
The first relevant IFR, promulgated in July 2010, primar-
ily focused on implementing other aspects of §300gg–13. 75
——————
2 The ACA exempts “grandfathered” plans from 42 U. S. C. §300gg–

13(a)(4)—i.e., “those [plans] that existed prior to March 23, 2010, and
that have not made specified changes after that date.” Burwell v. Hobby
Lobby Stores, Inc., 573 U. S. 682, 699 (2014). See §§18011(a), (e); 29 CFR
§2590.715–1251 (2019). As of 2018, an estimated 16 percent of employ-
ees “with employer-sponsored coverage were enrolled in a grandfathered
group health plan.” 84 Fed. Reg. 5971 (2019).
4 LITTLE SISTERS OF THE POOR SAINTS PETER
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Opinion of the Court

Fed. Reg. 41728. The IFR indicated that HRSA planned to
develop its Preventive Care Guidelines (Guidelines) by Au-
gust 2011. Ibid. However, it did not mention religious ex-
emptions or accommodations of any kind.
As anticipated, HRSA released its first set of Guidelines
in August 2011. The Guidelines were based on recommen-
dations compiled by the Institute of Medicine (now called
the National Academy of Medicine), “a nonprofit group of
volunteer advisers.” Hobby Lobby, 573 U. S., at 697. The
Guidelines included the contraceptive mandate, which re-
quired health plans to provide coverage for all contraceptive
methods and sterilization procedures approved by the Food
and Drug Administration as well as related education and
counseling. 77 Fed. Reg. 8725 (2012).
The same day the Guidelines were issued, the Depart-
ments amended the 2010 IFR. 76 Fed. Reg. 46621 (2011).
When the 2010 IFR was originally published, the Depart-
ments began receiving comments from numerous religious
employers expressing concern that the Guidelines would
“impinge upon their religious freedom” if they included con-
traception. Id., at 46623. As just stated, the Guidelines
ultimately did contain contraceptive coverage, thus making
the potential impact on religious freedom a reality. In the
amended IFR, the Departments determined that “it [was]
appropriate that HRSA . . . tak[e] into account the [man-
date’s] effect on certain religious employers” and concluded
that HRSA had the discretion to do so through the creation
of an exemption. Ibid. The Departments then determined
that the exemption should cover religious employers, and
they set out a four-part test to identify which employers
qualified. The last criterion required the entity to be a
church, an integrated auxiliary, a convention or association
of churches, or “the exclusively religious activities of any
religious order.” Ibid. HRSA created an exemption for
these employers the same day. 78 Fed. Reg. 39871 (2013).
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Opinion of the Court

Because of the narrow focus on churches, this first exemp-
tion is known as the church exemption.
The Guidelines were scheduled to go into effect for plan
years beginning on August 1, 2012. 77 Fed. Reg. 8725–
8726. But in February 2012, before the Guidelines took ef-
fect, the Departments promulgated a final rule that tempo-
rarily prevented the Guidelines from applying to certain re-
ligious nonprofits. Specifically, the Departments stated
their intent to promulgate additional rules to “accommo-
dat[e] non-exempted, non-profit organizations’ religious ob-
jections to covering contraceptive services.” Id., at 8727.
Until that rulemaking occurred, the 2012 rule also provided
a temporary safe harbor to protect such employers. Ibid.
The safe harbor covered nonprofits “whose plans have con-
sistently not covered all or the same subset of contraceptive
services for religious reasons.”3 Thus, the nonprofits who
availed themselves of this safe harbor were not subject to
the contraceptive mandate when it first became effective.
The Departments promulgated another final rule in 2013
that is relevant to these cases in two ways. First, after re-
iterating that §300gg–13(a)(4) authorizes HRSA “to issue
guidelines in a manner that exempts group health plans es-
tablished or maintained by religious employers,” the De-
partments “simplif[ied]” and “clarif[ied]” the definition of a
religious employer. 78 Fed. Reg. 39873.4 Second, pursuant
——————
3 Dept. of Health and Human Servs., Center for Consumer Information

and Insurance Oversight, Centers for Medicare & Medicaid Services,
Guidance on the Temporary Enforcement Safe Harbor for Certain Em-
ployers, Group Health Plans and Group Health Insurance Issuers With
Respect to the Requirement To Cover Contraceptive Services Without
Cost Sharing Under Section 2713 of the Public Health Service Act, Sec-
tion 715(a)(1) of the Employee Retirement Income Security Act, and Sec-
tion 9815(a)(1) of the Internal Revenue Code, p. 2 (2013).
4 The Departments took this action to prevent an unduly narrow inter-

pretation of the church exemption, in which “an otherwise exempt plan
[was] disqualified because the employer’s purposes extend[ed] beyond
the inculcation of religious values or because the employer . . . serve[d]
6 LITTLE SISTERS OF THE POOR SAINTS PETER
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Opinion of the Court

to that same authority, the Departments provided the an-
ticipated accommodation for eligible religious organiza-
tions, which the regulation defined as organizations that
“(1) [o]ppos[e] providing coverage for some or all of the con-
traceptive services . . . on account of religious objections;
(2) [are] organized and operat[e] as . . . nonprofit entit[ies];
(3) hol[d] [themselves] out as . . . religious organization[s];
and (4) self-certif[y] that [they] satisf[y] the first three cri-
teria.” Id., at 39874. The accommodation required an eli-
gible organization to provide a copy of the self-certification
form to its health insurance issuer, which in turn would ex-
clude contraceptive coverage from the group health plan
and provide payments to beneficiaries for contraceptive ser-
vices separate from the health plan. Id., at 39878. The De-
partments stated that the accommodation aimed to “pro-
tec[t]” religious organizations “from having to contract,
arrange, pay, or refer for [contraceptive] coverage” in a way
that was consistent with and did not violate the Religious
Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488,
42 U. S. C. §2000bb et seq. 78 Fed. Reg. 39871, 39886–
39887. This accommodation is referred to as the self-certi-
fication accommodation.
B
Shortly after the Departments promulgated the 2013 fi-
nal rule, two religious nonprofits run by the Little Sisters
of the Poor (Little Sisters) challenged the self-certification
accommodation. The Little Sisters “are an international
congregation of Roman Catholic women religious” who have
operated homes for the elderly poor in the United States
since 1868. See Mission Statement: Little Sisters of the
Poor, http://www.littlesistersofthepoor.org/mission-statement.

——————
people of different religious faiths.” 78 Fed. Reg. 39874. But see post, at
12–13 (GINSBURG, J., dissenting) (arguing that the church exemption
only covered houses of worship).
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Opinion of the Court

They feel called by their faith to care for their elderly resi-
dents regardless of “faith, finances, or frailty.” Brief for
Residents and Families of Residents at Homes of the Little
Sisters of the Poor as Amici Curiae 14. The Little Sisters
endeavor to treat all residents “as if they were Jesus
[Christ] himself, cared for as family, and treated with dig-
nity until God calls them to his home.” Complaint ¶14 in
Little Sisters of the Poor Home for the Aged, Denver, Colo. v.
Sebelius, No. 1:13–cv–02611 (D Colo.), p. 5 (Complaint).
Consistent with their Catholic faith, the Little Sisters
hold the religious conviction “that deliberately avoiding re-
production through medical means is immoral.” Little Sis-
ters of the Poor Home for the Aged, Denver, Colo. v. Burwell,
794 F. 3d 1151, 1167 (CA10 2015). They challenged the self-
certification accommodation, claiming that completing the
certification form would force them to violate their religious
beliefs by “tak[ing] actions that directly cause others to pro-
vide contraception or appear to participate in the Depart-
ments’ delivery scheme.” Id., at 1168. As a result, they al-
leged that the self-certification accommodation violated
RFRA. Under RFRA, a law that substantially burdens the
exercise of religion must serve “a compelling governmental
interest” and be “the least restrictive means of furthering
that compelling governmental interest.” §§2000bb–1(a)–(b).
The Court of Appeals disagreed that the self-certification
accommodation substantially burdened the Little Sisters’
free exercise rights and thus rejected their RFRA claim.
Little Sisters, 794 F. 3d, at 1160.
The Little Sisters were far from alone in raising RFRA
challenges to the self-certification accommodation. Reli-
gious nonprofit organizations and educational institutions
across the country filed a spate of similar lawsuits, most
resulting in rulings that the accommodation did not violate
RFRA. See, e.g., East Texas Baptist Univ. v. Burwell, 793
F. 3d 449 (CA5 2015); Geneva College v. Secretary, U. S.
Dept. of Health and Human Servs., 778 F. 3d 422 (CA3
8 LITTLE SISTERS OF THE POOR SAINTS PETER
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Opinion of the Court

2015); Priests for Life v. United States Dept. of Health and
Human Servs., 772 F. 3d 229 (CADC 2014); Michigan Cath-
olic Conference v. Burwell, 755 F. 3d 372 (CA6 2014); Uni-
versity of Notre Dame v. Sebelius, 743 F. 3d 547 (CA7 2014);
but see Sharpe Holdings, Inc. v. United States Dept. of
Health and Human Servs., 801 F. 3d 927 (CA8 2015); Dordt
College v. Burwell, 801 F. 3d 946 (CA8 2015). We granted
certiorari in cases from four Courts of Appeals to decide the
RFRA question. Zubik v. Burwell, 578 U. S. ___, ___ (2016)
(per curiam). Ultimately, however, we opted to remand the
cases without deciding that question. In supplemental
briefing, the Government had “confirm[ed]” that “ ‘contra-
ceptive coverage could be provided to petitioners’ employ-
ees, through petitioners’ insurance companies, without any
. . . notice from petitioners.’ ” Id., at ___ (slip op., at 3). Pe-
titioners, for their part, had agreed that such an approach
would not violate their free exercise rights. Ibid. Accord-
ingly, because all parties had accepted that an alternative
approach was “feasible,” ibid., we directed the Government
to “accommodat[e] petitioners’ religious exercise while at
the same time ensuring that women covered by petitioners’
health plans receive full and equal health coverage, includ-
ing contraceptive coverage,” id., at ___ (slip op., at 4) (inter-
nal quotation marks omitted).
C
Zubik was not the only relevant ruling from this Court
about the contraceptive mandate. As the Little Sisters and
numerous others mounted their challenges to the self-
certification accommodation, a host of other entities chal-
lenged the contraceptive mandate itself as a violation of
RFRA. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 723
F. 3d 1114 (CA10 2013) (en banc); Korte v. Sebelius, 735
F. 3d 654 (CA7 2013); Gilardi v. United States Dept. of
Health and Human Servs., 733 F. 3d 1208 (CADC 2013);
Conestoga Wood Specialties Corp. v. Secretary of U. S. Dept.
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Opinion of the Court

of Health and Human Servs., 724 F. 3d 377 (CA3 2013); Au-
tocam Corp. v. Sebelius, 730 F. 3d 618 (CA6 2013). This
Court granted certiorari in two cases involving three closely
held corporations to decide whether the mandate violated
RFRA. Hobby Lobby, 573 U. S. 682.
The individual respondents in Hobby Lobby opposed four
methods of contraception covered by the mandate. They
sincerely believed that human life begins at conception and
that, because the challenged methods of contraception
risked causing the death of a human embryo, providing
those methods of contraception to employees would make
the employers complicit in abortion. Id., at 691, 720. We
held that the mandate substantially burdened respondents’
free exercise, explaining that “[if] the owners comply with
the HHS mandate, they believe they will be facilitating
abortions, and if they do not comply, they will pay a very
heavy price.” Id., at 691. “If these consequences do not
amount to a substantial burden,” we stated, “it is hard to
see what would.” Ibid. We also held that the mandate did
not utilize the least restrictive means, citing the self-certi-
fication accommodation as a less burdensome alternative.
Id., at 730–731.
Thus, as the Departments began the task of reformulat-
ing rules related to the contraceptive mandate, they did so
not only under Zubik’s direction to accommodate religious
exercise, but also against the backdrop of Hobby Lobby’s
pronouncement that the mandate, standing alone, violated
RFRA as applied to religious entities with complicity-based
objections.
D
In 2016, the Departments attempted to strike the proper
balance a third time, publishing a request for information
on ways to comply with Zubik. 81 Fed. Reg. 47741. This
attempt proved futile, as the Departments ultimately con-
cluded that “no feasible approach” had been identified.
10 LITTLE SISTERS OF THE POOR SAINTS PETER
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Opinion of the Court

Dept. of Labor, FAQs About Affordable Care Act Implemen-
tation Part 36, p. 4 (2017). The Departments maintained
their position that the self-certification accommodation was
consistent with RFRA because it did not impose a substan-
tial burden and, even if it did, it utilized the least restrictive
means of achieving the Government’s interests. Id., at 4–
5.
In 2017, the Departments tried yet again to comply with
Zubik, this time by promulgating the two IFRs that served
as the impetus for this litigation. The first IFR significantly
broadened the definition of an exempt religious employer to
encompass an employer that “objects . . . based on its sin-
cerely held religious beliefs,” “to its establishing, maintain-
ing, providing, offering, or arranging [for] coverage or pay-
ments for some or all contraceptive services.” 82 Fed. Reg.
47812 (2017). Among other things, this definition included
for-profit and publicly traded entities. Because they were
exempt, these employers did not need to participate in the
accommodation process, which nevertheless remained
available under the IFR. Id., at 47806.
As with their previous regulations, the Departments once
again invoked §300gg–13(a)(4) as authority to promulgate
this “religious exemption,” stating that it “include[d] the
ability to exempt entities from coverage requirements an-
nounced in HRSA’s Guidelines.” Id., at 47794. Addition-
ally, the Departments announced for the first time that
RFRA compelled the creation of, or at least provided the
discretion to create, the religious exemption. Id., at 47800–
47806. As the Departments explained: “We know from
Hobby Lobby that, in the absence of any accommodation,
the contraceptive-coverage requirement imposes a substan-
tial burden on certain objecting employers. We know from
other lawsuits and public comments that many religious en-
tities have objections to complying with the [self-certification]
accommodation based on their sincerely held religious be-
liefs.” Id., at 47806. The Departments “believe[d] that the
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Opinion of the Court

Court’s analysis in Hobby Lobby extends, for the purposes
of analyzing a substantial burden, to the burdens that an
entity faces when it religiously opposes participating in the
[self-certification] accommodation process.” Id., at 47800.
They thus “conclude[d] that it [was] appropriate to expand
the exemption to other . . . organizations with sincerely held
religious beliefs opposed to contraceptive coverage.” Id., at
47802; see also id., at 47810–47811.
The second IFR created a similar “moral exemption” for
employers—including nonprofits and for-profits with no
publicly traded components—with “sincerely held moral”
objections to providing some or all forms of contraceptive
coverage. Id., at 47850, 47861–47862. Citing congressional
enactments, precedents from this Court, agency practice,
and state laws that provided for conscience protections, id.,
at 47844–47847, the Departments invoked their authority
under the ACA to create this exemption, id., at 47844. The
Departments requested post-promulgation comments on
both IFRs. Id., at 47813, 47854.
E
Within a week of the 2017 IFRs’ promulgation, the Com-
monwealth of Pennsylvania filed an action seeking declar-
atory and injunctive relief. Among other claims, it alleged
that the IFRs were procedurally and substantively invalid
under the APA. The District Court held that the Common-
wealth was likely to succeed on both claims and granted a
preliminary nationwide injunction against the IFRs. The
Federal Government appealed.
While that appeal was pending, the Departments issued
rules finalizing the 2017 IFRs. See 83 Fed. Reg. 57536
(2018); 83 Fed. Reg. 57592, codified at 45 CFR pt. 147
(2018). Though the final rules left the exemptions largely
intact, they also responded to post-promulgation comments,
explaining their reasons for neither narrowing nor expand-
ing the exemptions beyond what was provided for in the
12 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Opinion of the Court

IFRs. See 83 Fed. Reg. 57542–57545, 57598–57603. The
final rule creating the religious exemption also contained a
lengthy analysis of the Departments’ changed position re-
garding whether the self-certification process violated
RFRA. Id., at 57544–57549. And the Departments ex-
plained that, in the wake of the numerous lawsuits chal-
lenging the self-certification accommodation and the failed
attempt to identify alternative accommodations after the
2016 request for information, “an expanded exemption ra-
ther than the existing accommodation is the most appropri-
ate administrative response to the substantial burden iden-
tified by the Supreme Court in Hobby Lobby.” Id., at
57544–57545.
After the final rules were promulgated, the State of New
Jersey joined Pennsylvania’s suit and, together, they filed
an amended complaint. As relevant, the States—respond-
ents here—once again challenged the rules as substantively
and procedurally invalid under the APA. They alleged that
the rules were substantively unlawful because the Depart-
ments lacked statutory authority under either the ACA or
RFRA to promulgate the exemptions. Respondents also as-
serted that the IFRs were not adequately justified by good
cause, meaning that the Departments impermissibly used
the IFR procedure to bypass the APA’s notice and comment
procedures. Finally, respondents argued that the pur-
ported procedural defects of the IFRs likewise infected the
final rules.
The District Court issued a nationwide preliminary in-
junction against the implementation of the final rules the
same day the rules were scheduled to take effect. The Fed-
eral Government appealed, as did one of the homes oper-
ated by the Little Sisters, which had in the meantime inter-
vened in the suit to defend the religious exemption.5 The

——————
5 The Little Sisters moved to intervene in the District Court to defend
 Cite as: 591 U. S. ____ (2020) 13

Opinion of the Court

appeals were consolidated with the previous appeal, which
had been stayed.
The Third Circuit affirmed. In its view, the Departments
lacked authority to craft the exemptions under either stat-
ute. The Third Circuit read 42 U. S. C. §300gg–13(a)(4) as
empowering HRSA to determine which services should be
included as preventive care and screenings, but not to carve
out exemptions from those requirements. It also concluded
that RFRA did not compel or permit the religious exemption
because, under Third Circuit precedent that was vacated
and remanded in Zubik, the Third Circuit had concluded
that the self-certification accommodation did not impose a
substantial burden on free exercise. As for respondents’
procedural claim, the court held that the Departments
lacked good cause to bypass notice and comment when
promulgating the 2017 IFRs. In addition, the court deter-
mined that, because the IFRs and final rules were “virtually
identical,” “[t]he notice and comment exercise surrounding
the Final Rules [did] not reflect any real open-mindedness.”
Pennsylvania v. President of United States, 930 F. 3d 543,
568–569 (2019). Though it rebuked the Departments for
their purported attitudinal deficiencies, the Third Circuit
did not identify any specific public comments to which the
agency did not appropriately respond. Id., at 569, n. 24.6
——————
the 2017 religious-exemption IFR, but the District Court denied that mo-
tion. The Third Circuit reversed. After that reversal, the Little Sisters
appealed the District Court’s preliminary injunction of the 2017 IFRs,
and that appeal was consolidated with the Federal Government’s appeal.
6 The Third Circuit also determined sua sponte that the Little Sisters

lacked appellate standing to intervene because a District Court in Colo-
rado had permanently enjoined the contraceptive mandate as applied to
plans in which the Little Sisters participate. This was error. Under our
precedents, at least one party must demonstrate Article III standing for
each claim for relief. An intervenor of right must independently demon-
strate Article III standing if it pursues relief that is broader than or dif-
ferent from the party invoking a court’s jurisdiction. See Town of Chester
v. Laroe Estates, Inc., 581 U. S. ___, ___ (2017) (slip op., at 6). Here, the
14 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Opinion of the Court

We granted certiorari. 589 U. S. ___ (2020).
II
Respondents contend that the 2018 final rules providing
religious and moral exemptions to the contraceptive man-
date are both substantively and procedurally invalid. We
begin with their substantive argument that the Depart-
ments lacked statutory authority to promulgate the rules.
A
The Departments invoke 42 U. S. C. §300gg–13(a)(4) as
legal authority for both exemptions. This provision of the
ACA states that, “with respect to women,” “[a] group health
plan and a health insurance issuer offering group or indi-
vidual health insurance coverage shall, at a minimum pro-
vide . . . such additional preventive care and screenings not
described in paragraph (1) as provided for in comprehensive
guidelines supported by [HRSA].” The Departments main-
tain, as they have since 2011, that the phrase “as provided
for” allows HRSA both to identify what preventive care and
screenings must be covered and to exempt or accommodate
certain employers’ religious objections. See 83 Fed. Reg.
57540–57541; see also post, at 3 (KAGAN, J., concurring in
judgment). They also argue that, as with the church ex-
emption, their role as the administering agencies permits
them to guide HRSA in its discretion by “defining the scope
of permissible exemptions and accommodations for such
guidelines.” 82 Fed. Reg. 47794. Respondents, on the other
hand, contend that §300gg–13(a)(4) permits HRSA to only
list the preventive care and screenings that health plans
“shall . . . provide,” not to exempt entities from covering

——————
Federal Government clearly had standing to invoke the Third Circuit’s
appellate jurisdiction, and both the Federal Government and the Little
Sisters asked the court to dissolve the injunction against the religious
exemption. The Third Circuit accordingly erred by inquiring into the
Little Sisters’ independent Article III standing.
 Cite as: 591 U. S. ____ (2020) 15

Opinion of the Court

those identified services. Because that asserted limitation
is found nowhere in the statute, we agree with the Depart-
ments.
“Our analysis begins and ends with the text.” Octane Fit-
ness, LLC v. ICON Health & Fitness, Inc., 572 U. S. 545,
553 (2014). Here, the pivotal phrase is “as provided for.”
To “provide” means to supply, furnish, or make available.
See Webster’s Third New International Dictionary 1827
(2002) (Webster’s Third); American Heritage Dictionary
1411 (4th ed. 2000); 12 Oxford English Dictionary 713 (2d
ed. 1989). And, as the Departments explained, the word
“as” functions as an adverb modifying “provided,” indicat-
ing “the manner in which” something is done. 83 Fed. Reg.
57540. See also Webster’s Third 125; 1 Oxford English Dic-
tionary, at 673; American Heritage Dictionary 102 (5th ed.
2011).
On its face, then, the provision grants sweeping authority
to HRSA to craft a set of standards defining the preventive
care that applicable health plans must cover. But the stat-
ute is completely silent as to what those “comprehensive
guidelines” must contain, or how HRSA must go about cre-
ating them. The statute does not, as Congress has done in
other statutes, provide an exhaustive or illustrative list of
the preventive care and screenings that must be included.
See, e.g., 18 U. S. C. §1961(1); 28 U. S. C. §1603(a). It does
not, as Congress did elsewhere in the same section of the
ACA, set forth any criteria or standards to guide HRSA’s
selections. See, e.g., 42 U. S. C. §300gg–13(a)(3) (requiring
“evidence-informed preventive care and screenings” (em-
phasis added)); §300gg–13(a)(1) (“evidence-based items or
services”). It does not, as Congress has done in other con-
texts, require that HRSA consult with or refrain from con-
sulting with any party in the formulation of the Guidelines.
See, e.g., 16 U. S. C. §1536(a)(1); 23 U. S. C. §138. This
means that HRSA has virtually unbridled discretion to de-
cide what counts as preventive care and screenings. But
16 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Opinion of the Court

the same capacious grant of authority that empowers
HRSA to make these determinations leaves its discretion
equally unchecked in other areas, including the ability to
identify and create exemptions from its own Guidelines.
Congress could have limited HRSA’s discretion in any
number of ways, but it chose not to do so. See Ali v. Federal
Bureau of Prisons, 552 U. S. 214, 227 (2008); see also Rot-
kiske v. Klemm, 589 U. S. ___, ___ (2019) (slip op., at 6);
Husted v. A. Philip Randolph Institute, 584 U. S. ___, ___
(2018) (slip op., at 16). Instead, it enacted “ ‘expansive lan-
guage offer[ing] no indication whatever’ ” that the statute
limits what HRSA can designate as preventive care and
screenings or who must provide that coverage. Ali, 552
U. S., at 219–220 (quoting Harrison v. PPG Industries, Inc.,
446 U. S. 578, 589 (1980)). “It is a fundamental principle of
statutory interpretation that ‘absent provision[s] cannot be
supplied by the courts.’ ” Rotkiske, 589 U. S., at ___ (slip
op., at 5) (quoting A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 94 (2012)); Nichols v. United
States, 578 U. S. ___, ___ (2016) (slip op., at 6). This princi-
ple applies not only to adding terms not found in the stat-
ute, but also to imposing limits on an agency’s discretion
that are not supported by the text. See Watt v. Energy Ac-
tion Ed. Foundation, 454 U. S. 151, 168 (1981). By intro-
ducing a limitation not found in the statute, respondents
ask us to alter, rather than to interpret, the ACA. See Nich-
ols, 578 U. S., at ___ (slip op., at 6).
By its terms, the ACA leaves the Guidelines’ content to
the exclusive discretion of HRSA. Under a plain reading of
the statute, then, we conclude that the ACA gives HRSA
broad discretion to define preventive care and screenings
and to create the religious and moral exemptions.7

——————
7 Though not necessary for this analysis, our decisions in Zubik v. Bur-

well, 578 U. S. ___ (2016) (per curiam), and Hobby Lobby, 573 U. S. 682,
implicitly support the conclusion that §300gg–13(a)(4) empowered HRSA
 Cite as: 591 U. S. ____ (2020) 17

Opinion of the Court

The dissent resists this conclusion, asserting that the De-
partments’ interpretation thwarts Congress’ intent to pro-
vide contraceptive coverage to the women who are inter-
ested in receiving such coverage. See post, at 1, 21 (opinion
of GINSBURG, J.). It also argues that the exemptions will
make it significantly harder for interested women to obtain
seamless access to contraception without cost sharing, post,
at 15–17, which we have previously “assume[d]” is a com-
pelling governmental interest, Hobby Lobby, 573 U. S., at
728; but see post, at 10–12 (ALITO, J., concurring). The De-
partments dispute that women will be adversely impacted
by the 2018 exemptions. 82 Fed. Reg. 47805. Though we
express no view on this disagreement, it bears noting that
such a policy concern cannot justify supplanting the text’s
plain meaning. See Gitlitz v. Commissioner, 531 U. S. 206,
220 (2001). “It is not for us to rewrite the statute so that it
covers only what we think is necessary to achieve what we
think Congress really intended.” Lewis v. Chicago, 560
U. S. 205, 215 (2010).
Moreover, even assuming that the dissent is correct as an
empirical matter, its concerns are more properly directed at
——————
to create the exemptions. As respondents acknowledged at oral argu-
ment, accepting their interpretation of the ACA would require us to con-
clude that the Departments had no authority under the ACA to promul-
gate the initial church exemption, see Tr. of Oral Arg. 69–71, 91, which
by extension would mean that the Departments lacked authority for the
2013 self-certification accommodation. That reading of the ACA would
create serious tension with Hobby Lobby, which pointed to the self-certi-
fication accommodation as an example of a less restrictive means avail-
able to the Government, 573 U. S., at 730–731, and Zubik, which ex-
pressly directed the Departments to “accommodat[e]” petitioners’
religious exercise, 578 U. S., at ___ (slip op., at 4). It would be passing
strange for this Court to direct the Departments to make such an accom-
modation if it thought the ACA did not authorize one. In addition, we
are not aware of, and the dissent does not point to, a single case predat-
ing Hobby Lobby or Zubik in which the Departments took the position
that they could not adopt a different approach because they lacked the
statutory authority under the ACA to do so.
18 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Opinion of the Court

the regulatory mechanism that Congress put in place to
protect this assumed governmental interest. As even the
dissent recognizes, contraceptive coverage is mentioned no-
where in §300gg–13(a)(4), and no language in the statute
itself even hints that Congress intended that contraception
should or must be covered. See post, at 4–5 (citing legisla-
tive history and amicus briefs). Thus, contrary to the dis-
sent’s protestations, it was Congress, not the Departments,
that declined to expressly require contraceptive coverage in
the ACA itself. See 83 Fed. Reg. 57540. And, it was Con-
gress’ deliberate choice to issue an extraordinarily “broad
general directiv[e]” to HRSA to craft the Guidelines, with-
out any qualifications as to the substance of the Guidelines
or whether exemptions were permissible. Mistretta v.
United States, 488 U. S. 361, 372 (1989). Thus, it is Con-
gress, not the Departments, that has failed to provide the
protection for contraceptive coverage that the dissent
seeks.8
No party has pressed a constitutional challenge to the
breadth of the delegation involved here. Cf. Gundy v.
United States, 588 U. S. ___ (2019). The only question we
face today is what the plain language of the statute author-
izes. And the plain language of the statute clearly allows
the Departments to create the preventive care standards as
well as the religious and moral exemptions.9
——————
8 HRSA has altered its Guidelines multiple times since 2011, always

proceeding without notice and comment. See 82 Fed. Reg. 47813–47814;
83 Fed. Reg. 8487; 85 Fed. Reg. 722–723 (2020). Accordingly, if HRSA
chose to exercise that discretion to remove contraception coverage from
the next iteration of its Guidelines, it would arguably nullify the contra-
ceptive mandate altogether without proceeding through notice and com-
ment. The combination of the agency practice of proceeding without no-
tice and comment and HRSA’s discretion to alter the Guidelines, though
not necessary for our analysis, provides yet another indication of Con-
gress’ failure to provide strong protections for contraceptive coverage.
9 The dissent does not attempt to argue that the self-certification ac-

commodation can coexist with its interpretation of the ACA. As for the
 Cite as: 591 U. S. ____ (2020) 19

Opinion of the Court

B
The Departments also contend, consistent with the rea-
soning in the 2017 IFR and the 2018 final rule establishing
the religious exemption, that RFRA independently com-
pelled the Departments’ solution or that it at least author-
ized it.10 In light of our holding that the ACA provided a
basis for both exemptions, we need not reach these argu-
ments.11 We do, however, address respondents’ argument
that the Departments could not even consider RFRA as
they formulated the religious exemption from the contra-
ceptive mandate. Particularly in the context of these cases,
it was appropriate for the Departments to consider RFRA.
As we have explained, RFRA “provide[s] very broad pro-
tection for religious liberty.” Hobby Lobby, 573 U. S., at
693. In RFRA’s congressional findings, Congress stated
that “governments should not substantially burden reli-
gious exercise,” a right described by RFRA as “unalienable.”
42 U. S. C. §§2000bb(a)(1), (3). To protect this right, Con-

——————
church exemption, the dissent claims that it is rooted in the First Amend-
ment’s respect for church autonomy. See post, at 12–13. But the dissent
points to no case, brief, or rule in the nine years since the church exemp-
tion’s implementation in which the Departments defended its validity on
that ground. The most the dissent can point to is a stray comment in the
rule that expanded the self-certification accommodation to closely held
corporations in the wake of Hobby Lobby. See post, at 13 (quoting 80
Fed. Reg. 41325 (2015)).
10 The dissent claims that “all agree” that the exemption is not sup-

ported by the Free Exercise Clause. Post, at 2. A constitutional claim is
not presented in these cases, and we express no view on the merits of
that question.
11 The dissent appears to agree that the Departments had authority

under RFRA to “cure” any RFRA violations caused by its regulations.
See post, at 14, n. 16 (disclaiming the view that agencies must wait for
courts to determine a RFRA violation); see also supra, at 5 (explaining
that the safe harbor and commitment to developing an accommodation
occurred prior to the Guidelines going into effect). The dissent also does
not—as it cannot—dispute our directive in Zubik.
20 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Opinion of the Court

gress provided that the “[g]overnment shall not substan-
tially burden a person’s exercise of religion even if the bur-
den results from a rule of general applicability” unless “it
demonstrates that application of the burden . . . is in fur-
therance of a compelling governmental interest; and . . . is
the least restrictive means of furthering that compelling
governmental interest.” §§2000bb–1(a)–(b). Placing Con-
gress’ intent beyond dispute, RFRA specifies that it “applies
to all Federal law, and the implementation of that law,
whether statutory or otherwise.” §2000bb–3(a). RFRA also
permits Congress to exclude statutes from RFRA’s protec-
tions. §2000bb–3(b).
It is clear from the face of the statute that the contracep-
tive mandate is capable of violating RFRA. The ACA does
not explicitly exempt RFRA, and the regulations imple-
menting the contraceptive mandate qualify as “Federal
law” or “the implementation of [Federal] law.” §2000bb–
3(a); cf. Chrysler Corp. v. Brown, 441 U. S. 281, 297–298
(1979). Additionally, we expressly stated in Hobby Lobby
that the contraceptive mandate violated RFRA as applied
to entities with complicity-based objections. 573 U. S., at
736. Thus, the potential for conflict between the contracep-
tive mandate and RFRA is well settled. Against this back-
drop, it is unsurprising that RFRA would feature promi-
nently in the Departments’ discussion of exemptions that
would not pose similar legal problems.
Moreover, our decisions all but instructed the Depart-
ments to consider RFRA going forward. For instance,
though we held that the mandate violated RFRA in Hobby
Lobby, we left it to the Federal Government to develop and
implement a solution. At the same time, we made it abun-
dantly clear that, under RFRA, the Departments must ac-
cept the sincerely held complicity-based objections of reli-
gious entities. That is, they could not “tell the plaintiffs
that their beliefs are flawed” because, in the Departments’
view, “the connection between what the objecting parties
 Cite as: 591 U. S. ____ (2020) 21

Opinion of the Court

must do . . . and the end that they find to be morally wrong
. . . is simply too attenuated.” Hobby Lobby, 573 U. S., at
723–724. Likewise, though we did not decide whether the
self-certification accommodation ran afoul of RFRA in Zu-
bik, we directed the parties on remand to “accommodat[e]”
the free exercise rights of those with complicity-based ob-
jections to the self-certification accommodation. 578 U. S.,
at ___ (slip op., at 4). It is hard to see how the Departments
could promulgate rules consistent with these decisions if
they did not overtly consider these entities’ rights under
RFRA.
This is especially true in light of the basic requirements
of the rulemaking process. Our precedents require final
rules to “articulate a satisfactory explanation for [the] ac-
tion including a rational connection between the facts found
and the choice made.” Motor Vehicle Mfrs. Assn. of United
States, Inc. v. State Farm Mut. Automobile Ins. Co., 463
U. S. 29, 43 (1983) (internal quotation marks omitted). This
requirement allows courts to assess whether the agency has
promulgated an arbitrary and capricious rule by “entirely
fail[ing] to consider an important aspect of the problem [or]
offer[ing] an explanation for its decision that runs counter
to the evidence before [it].” Ibid.; see also Department of
Commerce v. New York, 588 U. S. ___, ___–___ (2019)
(BREYER, J., concurring in part and dissenting in part) (slip
op., at 3–4); Genuine Parts Co. v. EPA, 890 F. 3d 304, 307
(CADC 2018); Pacific Coast Federation of Fishermen’s
Assns. v. United States Bur. of Reclamation, 426 F. 3d 1082,
1094 (CA9 2005). Here, the Departments were aware that
Hobby Lobby held the mandate unlawful as applied to reli-
gious entities with complicity-based objections. 82 Fed.
Reg. 47799; 83 Fed. Reg. 57544–57545. They were also
aware of Zubik’s instructions. 82 Fed. Reg. 47799. And,
aside from our own decisions, the Departments were mind-
ful of the RFRA concerns raised in “public comments and
22 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Opinion of the Court

. . . court filings in dozens of cases—encompassing hun-
dreds of organizations.” Id., at 47802; see also id., at 47806.
If the Departments did not look to RFRA’s requirements or
discuss RFRA at all when formulating their solution, they
would certainly be susceptible to claims that the rules were
arbitrary and capricious for failing to consider an important
aspect of the problem.12 Thus, respondents’ argument that
the Departments erred by looking to RFRA as a guide when
framing the religious exemption is without merit.
III
Because we hold that the Departments had authority to
promulgate the exemptions, we must next decide whether
the 2018 final rules are procedurally invalid. Respondents
present two arguments on this score. Neither is persuasive.
A
Unless a statutory exception applies, the APA requires
agencies to publish a notice of proposed rulemaking in the
Federal Register before promulgating a rule that has legal
force. See 5 U. S. C. §553(b). Respondents point to the fact
that the 2018 final rules were preceded by a document en-
titled “Interim Final Rules with Request for Comments,”
not a document entitled “General Notice of Proposed Rule-
making.” They claim that since this was insufficient to sat-
isfy §553(b)’s requirement, the final rules were procedurally
invalid. Respondents are incorrect. Formal labels aside,

——————
12 Here, too, the Departments have consistently taken the position that

their rules had to account for RFRA in response to comments that the
rules would violate that statute. See Dept. of Labor, FAQs About Afford-
able Care Act Implementation Part 36, pp. 4–5 (2017) (2016 Request for
Information); 78 Fed. Reg. 39886–39887 (2013 rule); 77 Fed. Reg. 8729
(2012 final rule). As the 2017 IFR explained, the Departments simply
reached a different conclusion on whether the accommodation satisfied
RFRA. See 82 Fed. Reg. 47800–40806 (summarizing the previous ways
in which the Departments accounted for RFRA and providing a lengthy
explanation for the changed position).
 Cite as: 591 U. S. ____ (2020) 23

Opinion of the Court

the rules contained all of the elements of a notice of pro-
posed rulemaking as required by the APA.
The APA requires that the notice of proposed rulemaking
contain “reference to the legal authority under which the
rule is proposed” and “either the terms or substance of the
proposed rule or a description of the subjects and issues in-
volved.” §§553(b)(2)–(3). The request for comments in the
2017 IFRs readily satisfies these requirements. That re-
quest detailed the Departments’ view that they had legal
authority under the ACA to promulgate both exemptions,
82 Fed. Reg. 47794, 47844, as well as authority under
RFRA to promulgate the religious exemption, id., at 47800–
47806. And respondents do not—and cannot—argue that
the IFRs failed to air the relevant issues with sufficient
detail for respondents to understand the Departments’ po-
sition. See supra, at 10–11. Thus, the APA notice require-
ments were satisfied.
Even assuming that the APA requires an agency to pub-
lish a document entitled “notice of proposed rulemaking”
when the agency moves from an IFR to a final rule, there
was no “prejudicial error” here. §706. We have previously
noted that the rule of prejudicial error is treated as an “ad-
ministrative law . . . harmless error rule,” National Assn. of
Home Builders v. Defenders of Wildlife, 551 U. S. 644, 659–
660 (2007) (internal quotation marks omitted). Here, the
Departments issued an IFR that explained its position in
fulsome detail and “provide[d] the public with an oppor-
tunity to comment on whether [the] regulations . . . should
be made permanent or subject to modification.” 82 Fed.
Reg. 47815; see also id., at 47852, 47855. Respondents thus
do not come close to demonstrating that they experienced
any harm from the title of the document, let alone that they
have satisfied this harmless error rule. “The object [of no-
tice and comment], in short, is one of fair notice,” Long Is-
land Care at Home, Ltd. v. Coke, 551 U. S. 158, 174 (2007),
and respondents certainly had such notice here. Because
24 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Opinion of the Court

the IFR complied with the APA’s requirements, this claim
fails.13
B
Next, respondents contend that the 2018 final rules are
procedurally invalid because “nothing in the record sig-
nal[s]” that the Departments “maintained an open mind
throughout the [post-promulgation] process.” Brief for Re-
spondents 27. As evidence for this claim, respondents point
to the fact that the final rules made only minor alterations
to the IFRs, leaving their substance unchanged. The Third
Circuit applied this “open-mindedness” test, concluding
that because the final rules were “virtually identical” to the
IFRs, the Departments lacked the requisite “flexible and
open-minded attitude” when they promulgated the final
rules. 930 F. 3d, at 569 (internal quotation marks omitted).
We decline to evaluate the final rules under the open-
mindedness test. We have repeatedly stated that the text
of the APA provides the “ ‘maximum procedural require-
ments’ ” that an agency must follow in order to promulgate
a rule. Perez, 575 U. S., at 100 (quoting Vermont Yankee
Nuclear Power Corp. v. Natural Resources Defense Council,
Inc., 435 U. S. 519, 524 (1978)). Because the APA “sets
forth the full extent of judicial authority to review executive
agency action for procedural correctness,” FCC v. Fox Tele-
vision Stations, Inc., 556 U. S. 502, 513 (2009), we have re-
peatedly rejected courts’ attempts to impose “judge-made
procedur[es]” in addition to the APA’s mandates, Perez, 575
U. S., at 102; see also Pension Benefit Guaranty Corpora-
tion v. LTV Corp., 496 U. S. 633, 654–655 (1990); Vermont
Yankee, 435 U. S., at 549. And like the procedures that we
have held invalid, the open-mindedness test violates the
——————
13 We note as well that the Departments promulgated many other IFRs

in addition to the three related to the contraceptive mandate. See, e.g.,
75 Fed. Reg. 27122 (dependent coverage); id., at 34538 (grandfathered
health plans); id., at 37188 (pre-existing conditions).
 Cite as: 591 U. S. ____ (2020) 25

Opinion of the Court

“general proposition that courts are not free to impose upon
agencies specific procedural requirements that have no ba-
sis in the APA.” LTV Corp., 496 U. S., at 654. Rather than
adopting this test, we focus our inquiry on whether the De-
partments satisfied the APA’s objective criteria, just as we
have in previous cases. We conclude that they did.
Section 553(b) obligated the Departments to provide ade-
quate notice before promulgating a rule that has legal force.
As explained supra, at 22–23, the IFRs provided sufficient
notice. Aside from these notice requirements, the APA
mandates that agencies “give interested persons an oppor-
tunity to participate in the rule making through submission
of written data, views, or arguments,” §553(c); states that
the final rules must include “a concise general statement of
their basis and purpose,” ibid.; and requires that final rules
must be published 30 days before they become effective,
§553(d).
The Departments complied with each of these statutory
procedures. They “request[ed] and encourag[ed] public
comments on all matters addressed” in the rules—i.e., the
basis for the Departments’ legal authority, the rationales
for the exemptions, and the detailed discussion of the ex-
emptions’ scope. 82 Fed. Reg. 47813, 47854. They also gave
interested parties 60 days to submit comments. Id., at
47792, 47838. The final rules included a concise statement
of their basis and purpose, explaining that the rules were
“necessary to protect sincerely held” moral and religious ob-
jections and summarizing the legal analysis supporting the
exemptions. 83 Fed. Reg. 57592; see also id., at 57537–
57538. Lastly, the final rules were published on November
15, 2018, but did not become effective until January 14,
2019—more than 30 days after being published. Id., at
57536, 57592. In sum, the rules fully complied with “ ‘the
maximum procedural requirements [that] Congress was
willing to have the courts impose upon agencies in conduct-
26 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Opinion of the Court

ing rulemaking procedures.’ ” Perez, 575 U. S., at 102 (quot-
ing Vermont Yankee, 435 U. S., at 524). Accordingly, re-
spondents’ second procedural challenge also fails.14
* * *
For over 150 years, the Little Sisters have engaged in
faithful service and sacrifice, motivated by a religious call-
ing to surrender all for the sake of their brother. “[T]hey
commit to constantly living out a witness that proclaims the
unique, inviolable dignity of every person, particularly
those whom others regard as weak or worthless.” Com-
plaint ¶14. But for the past seven years, they—like many
other religious objectors who have participated in the liti-
gation and rulemakings leading up to today’s decision—
have had to fight for the ability to continue in their noble
work without violating their sincerely held religious beliefs.
After two decisions from this Court and multiple failed reg-
ulatory attempts, the Federal Government has arrived at a
solution that exempts the Little Sisters from the source
of their complicity-based concerns—the administratively
imposed contraceptive mandate.
We hold today that the Departments had the statutory
authority to craft that exemption, as well as the contempo-
raneously issued moral exemption. We further hold that
the rules promulgating these exemptions are free from pro-
cedural defects. Therefore, we reverse the judgment of the
Court of Appeals and remand the cases for further proceed-
ings consistent with this opinion.
It is so ordered.

——————
14 Because we conclude that the IFRs’ request for comment satisfies

the APA’s rulemaking requirements, we need not reach respondents’ ad-
ditional argument that the Departments lacked good cause to promul-
gate the 2017 IFRs.
 Cite as: 591 U. S. ____ (2020) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 19–431 and 19–454
_________________

LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME, PETITIONER
19–431 v.
PENNSYLVANIA, ET AL.

DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES, ET AL., PETITIONERS
19–454 v.
PENNSYLVANIA, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[July 8, 2020]

JUSTICE ALITO, with whom JUSTICE GORSUCH joins,
concurring.
In these cases, the Court of Appeals held, among other
things, (1) that the Little Sisters of the Poor lacked stand-
ing to appeal, (2) that the Affordable Care Act (ACA) does
not permit any exemptions from the so-called contraceptive
mandate, (3) that the Departments responsible for issuing
the challenged rule1 violated the Administrative Procedure

——————
1 The Health Resources and Services Administration (HRSA), a divi-

sion of the Department of Health and Human Services, creates the “com-
prehensive guidelines” on “coverage” for “additional preventive care and
screenings” for women, 42 U. S. C. §300gg–13(a)(4), but the statute is
jointly administered and enforced by the Departments of Health and Hu-
man Services, Labor, and Treasury (collectively Departments), see
§300gg–92; 29 U. S. C. §1191c; 26 U. S. C. §9833. The Departments
promulgated the exemptions at issue here, which were subsequently in-
corporated into the guidelines by HRSA. See 83 Fed. Reg. 57536 (2018);
id., at 57592.
2 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
ALITO, J., concurring

Act (APA) by failing to provide notice of proposed rulemak-
ing, and (4) that the final rule creating the current exemp-
tions is invalid because the Departments did not have an
open mind when they considered comments to the rule.
Based on this analysis, the Court of Appeals affirmed the
nationwide injunction issued by the District Court.
This Court now concludes that all the holdings listed
above were erroneous, and I join the opinion of the Court in
full. We now send these cases back to the lower courts,
where the Commonwealth of Pennsylvania and the State of
New Jersey are all but certain to pursue their argument
that the current rule is flawed on yet another ground,
namely, that it is arbitrary and capricious and thus violates
the APA. This will prolong the legal battle in which the
Little Sisters have now been engaged for seven years—even
though during all this time no employee of the Little Sisters
has come forward with an objection to the Little Sisters’
conduct.
I understand the Court’s desire to decide no more than is
strictly necessary, but under the circumstances here, I
would decide one additional question: whether the Court of
Appeals erred in holding that the Religious Freedom Resto-
ration Act (RFRA), 42 U. S. C. §§2000bb–2000bb–4, does
not compel the religious exemption granted by the current
rule. If RFRA requires this exemption, the Departments
did not act in an arbitrary and capricious manner in grant-
ing it. And in my judgment, RFRA compels an exemption
for the Little Sisters and any other employer with a similar
objection to what has been called the accommodation to the
contraceptive mandate.
I
Because the contraceptive mandate has been repeatedly
modified, a brief recapitulation of this history may be help-
ful. The ACA itself did not require that insurance plans
 Cite as: 591 U. S. ____ (2020) 3

ALITO, J., concurring

include coverage for contraceptives. Instead, the Act pro-
vided that plans must cover those preventive services found
to be appropriate by the Health Resources and Services Ad-
ministration (HRSA), an agency of the Department of
Health and Human Services. 42 U. S. C. §300gg–13(a)(4).
In 2011, HRSA recommended that plans be required to
cover “ ‘[a]ll . . . contraceptive methods’ ” approved by the
Food and Drug Administration. 77 Fed. Reg. 8725 (2012).
(I will use the term “contraceptive mandate” or simply
“mandate” to refer to the obligation to provide coverage for
contraceptives under any of the various regimes that have
existed since the promulgation of this original rule.) At the
direction of the relevant Departments, HRSA simultane-
ously created an exemption from the mandate for
“churches, their integrated auxiliaries, and conventions or
associations of churches,” as well as “the exclusively reli-
gious activities of any religious order.” 76 Fed. Reg. 46623
(2011); see 77 Fed. Reg. 8726. (I will call this the “church
exemption.”) This narrow exemption was met with strong
objections on the ground that it furnished insufficient pro-
tection for religious groups opposed to the use of some or all
of the listed contraceptives.
The Departments responded by issuing a new regulation
that created an accommodation for certain religious non-
profit employers. See 78 Fed. Reg. 39892–39898 (2013). (I
will call this the “accommodation.”) Under this accommo-
dation, a covered employer could certify its objection to its
insurer (or, if its plan was self-funded, to its third-party
plan administrator), and the insurer or third-party admin-
istrator would then proceed to provide contraceptive cover-
age to the objecting entity’s employees. Unlike the earlier
church exemption, the accommodation did not exempt these
religious employers from the contraceptive mandate, but
the Departments construed invocation of the accommoda-
tion as compliance with the mandate.
Meanwhile, the contraceptive mandate was challenged
4 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
ALITO, J., concurring

by various employers who had religious objections to
providing coverage for at least some of the listed contracep-
tives but were not covered by the church exemption or the
accommodation. In Burwell v. Hobby Lobby Stores, Inc.,
573 U. S. 682 (2014), we held that RFRA prohibited the ap-
plication of the regulation to closely held, for-profit corpora-
tions that fell into this category. The Departments re-
sponded by issuing a new regulation that attempted to
codify our holding by allowing closely-held corporations to
utilize the accommodation. See 80 Fed. Reg. 41343–41347
(2015).2
Although this modification solved one RFRA problem, the
contraceptive mandate was still objectionable to some reli-
gious employers, including the Little Sisters. We consid-
ered those objections in Zubik v. Burwell, 578 U. S. ___
(2016) (per curiam), but instead of resolving the legal dis-
pute, we vacated the decisions below and remanded, in-
structing the parties to attempt to come to an agreement.
Unfortunately, after strenuous efforts, the outgoing admin-
istration reported on January 9, 2017, that no reconciliation
could be reached.3 The Little Sisters and other employers
objected to engaging in any conduct that had the effect of
making contraceptives available to their employees under
their insurance plans, and no way of providing such cover-
age to their employees without using their plans could be
found.

——————
2 In the regulation, the Departments also responded to our holding in

Wheaton College v. Burwell, 573 U. S. 958 (2014), by allowing employers
who invoked the accommodation to notify the Government of their objec-
tion, rather than filing the objection with their insurer or third-party ad-
ministrator. See 80 Fed. Reg. 41337.
3 Dept. of Labor, FAQs About Affordable Care Act Implementation

Part 36 (Jan. 9, 2017), https://www.dol.gov/sites/dolgov/files/EBSA/
about-ebsa/our-activities/resource-center/faqs/aca-part-36.pdf.
 Cite as: 591 U. S. ____ (2020) 5

ALITO, J., concurring

In 2017, the new administration took up the task of at-
tempting to find a solution. After receiving more than
56,000 comments, it issued the rule now before us, which
made the church exemption available to non-governmental
employers who object to the provision of some or all contra-
ceptive services based on sincerely held religious beliefs.4
45 CFR §147.132 (2019); see 83 Fed. Reg. 57540, 57590.
(The “religious exemption.”) The Court of Appeals, as
noted, held that RFRA did not require this new rule.
II
A
RFRA broadly prohibits the Federal Government from vi-
olating religious liberty. See 42 U. S. C. §2000bb–1(a). It
applies to every “branch, department, agency, [and] instru-
mentality” of the Federal Government, as well as any “per-
son acting under the color of ” federal law. §2000bb–2(1).
And this prohibition applies to the “implementation” of fed-
eral law. §2000bb–3(a). Thus, unless the ACA or some
other subsequently enacted statute made RFRA inapplica-
ble to the contraceptive mandate, the Departments respon-
sible for administering that mandate are obligated to do so
in a manner that complies with RFRA.
No provision of the ACA abrogates RFRA, and our deci-
sion in Hobby Lobby, 573 U. S., at 736, established that ap-
plication of the contraceptive mandate must conform to
RFRA’s demands. Thus, it was incumbent on the Depart-
ments to ensure that the rules implementing the mandate
were consistent with RFRA, as interpreted in our decision.
B
Under RFRA, the Federal Government may not “substan-
tially burden a person’s exercise of religion even if the bur-
den results from a rule of general applicability,” unless it
——————
4 A similar exemption was provided for employers with moral objec-

tions. See 45 CFR §147.33.
6 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
ALITO, J., concurring

“demonstrates that application of the burden to the per-
son—(1) is in furtherance of a compelling governmental in-
terest; and (2) is the least restrictive means of furthering
that compelling governmental interest.” §§2000bb–1(a)–
(b). Applying RFRA to the contraceptive mandate thus pre-
sents three questions. First, would the mandate substan-
tially burden an employer’s exercise of religion? Second, if
the mandate would impose such a burden, would it never-
theless serve a “compelling interest”? And third, if it serves
such an interest, would it represent “the least restrictive
means of furthering” that interest?
Substantial burden. Under our decision in Hobby Lobby,
requiring the Little Sisters or any other employer with a
similar religious objection to comply with the mandate
would impose a substantial burden. Our analysis of this
question in Hobby Lobby can be separated into two parts.
First, would non-compliance have substantial adverse prac-
tical consequences? 573 U. S., at 720–723. Second, would
compliance cause the objecting party to violate its religious
beliefs, as it sincerely understands them? Id., at 723–726.
The answer to the first question is indisputable. If a cov-
ered employer does not comply with the mandate (by
providing contraceptive coverage or invoking the accommo-
dation), it faces penalties of $100 per day for each of its em-
ployees. 26 U. S. C. §4980D(b)(1). “And if the employer de-
cides to stop providing health insurance altogether and at
least one full-time employee enrolls in a health plan and
qualifies for a subsidy on one of the government-run ACA
exchanges, the employer must pay $2,000 per year for each
of its full-time employees. §§4980H(a), (c)(1).” 573 U. S., at
697. In Hobby Lobby, we found these “severe” financial con-
sequences sufficient to show that the practical effect of non-
compliance would be “substantial.”5 Id., at 720.
——————
5 This is one of the differences between these cases and Bowen v. Roy,
 Cite as: 591 U. S. ____ (2020) 7

ALITO, J., concurring

Our answer to the second question was also perfectly
clear. If an employer has a religious objection to the use of
a covered contraceptive, and if the employer has a sincere
religious belief that compliance with the mandate makes it
complicit in that conduct, then RFRA requires that the be-
lief be honored. Id., at 724–725. We noted that the objec-
tion raised by the employers in Hobby Lobby “implicate[d]
a difficult and important question of religion and moral phi-
losophy, namely, 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 724. We noted that
different individuals have different beliefs on this question,
but we were clear that “federal courts have no business ad-
dressing . . . whether the religious belief asserted in a RFRA
case is reasonable.” Ibid. Instead, the “function” of a court
is “ ‘narrow’ ”: “ ‘to determine’ whether the line drawn re-
flects ‘an honest conviction.’ ” Id., at 725 (quoting Thomas
v. Review Bd. of Ind. Employment Security Div., 450 U. S.
707, 716 (1981)).
Applying this holding to the Little Sisters yields an obvi-
ous answer. It is undisputed that the Little Sisters have a
sincere religious objection to the use of contraceptives and
that they also have a sincere religious belief that utilizing
the accommodation would make them complicit in this con-
duct. As in Hobby Lobby, “it is not for us to say that their
religious beliefs are mistaken or insubstantial.” 573 U. S.,
at 725.
In reaching a contrary conclusion, the Court of Appeals
adopted the reasoning of a prior Third Circuit decision hold-

——————
476 U. S. 693 (1986). See post, at 18–19 (opinion of GINSBURG, J.) (relying
on Bowen to conclude that accommodation was unnecessary). In Bowen,
the objecting individuals were not faced with penalties or “coerced by the
Governmen[t] into violating their religious beliefs.” Lyng v. Northwest
Indian Cemetery Protective Assn., 485 U. S. 439, 449 (1988).
8 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
ALITO, J., concurring

ing that “ ‘the submission of the self-certification form’ ” re-
quired by the mandate would not “ ‘trigger or facilitate the
provision of contraceptive coverage’ ” and would not make
the Little Sisters “ ‘ “complicit” in the provision’ ” of objected-
to services. 930 F. 3d 543, 573 (2019) (quoting Geneva Col-
lege v. Secretary of U. S. Dept. of Health and Human Servs.,
778 F. 3d 422, 437–438 (CA3 2015), vacated and remanded
sub nom. Zubik, 578 U. S. ___).
The position taken by the Third Circuit was similar to
that of the Government when Zubik was before us. Oppos-
ing the position taken by the Little Sisters and others, the
Government argued that what the accommodation required
was not materially different from simply asking that an ob-
jecting party opt out of providing contraceptive coverage
with the knowledge that by doing so it would cause a third
party to provide that coverage. According to the Govern-
ment, everything that occurred following the opt-out was a
result of governmental action.6
Petitioners disagreed. Their concern was not with noti-
fying the Government that they wished to be exempted
from complying with the mandate per se,7 but they objected
to two requirements that they sincerely believe would make
them complicit in conduct they find immoral. First, they
took strong exception to the requirement that they main-
tain and pay for a plan under which coverage for contracep-
tives would be provided. As they explained, if they “were
willing to incur ruinous penalties by dropping their health
plans, their insurance companies would have no authority

——————
6 See Brief for Respondents in Zubik v. Burwell, O. T. 2015, Nos. 14–

1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, 15–191, pp. 35–41.
7 See Brief for Petitioners in Zubik v. Burwell, O. T. 2015, Nos. 15–35,

15–105, 15–119, 15–191, p. 45.
 Cite as: 591 U. S. ____ (2020) 9

ALITO, J., concurring

or obligation to provide or procure the objectionable cover-
age for [their] plan beneficiaries.”8 Second, they also ob-
jected to submission of the self-certification form required
by the accommodation because without that certification
their plan could not be used to provide contraceptive cover-
age.9 At bottom, then, the Government and the religious
objectors disagreed about the relationship between what
the accommodation demanded and the provision of contra-
ceptive coverage.
Our remand in Zubik put these two conflicting interpre-
tations to the test. In response to our request for supple-
mental briefing, petitioners explained their position in the
following terms. “[T]heir religious exercise” would not be
“infringed” if they did not have to do anything “ ‘more than
contract for a plan that does not include coverage for some
or all forms of contraception,’ even if their employees re-
ceive[d] cost-free contraceptive coverage from the same in-
surance company.” 578 U. S., at ___ (slip op., at 3). At the
time, the Government thought that it might be possible to
achieve this result under the ACA, ibid., but subsequent at-
tempts to find a way to do this failed. After great effort, the
Government was forced to conclude that it was “not aware
of the authority, or of a practical mechanism,” for providing
contraceptive coverage “specifically to persons covered by
an objecting employer, other than by using the employer’s
plan, issuer, or third party administrator.” 83 Fed. Reg.
57545–57546.
The inescapable bottom line is that the accommodation
demanded that parties like the Little Sisters engage in con-
duct that was a necessary cause of the ultimate conduct to
which they had strong religious objections. Their situation
was the same as that of the conscientious objector in
——————
8 Brief for Petitioners in Zubik v. Burwell, O. T. 2015, Nos. 14–1418,

14–1453, 14–1505, p. 49.
9 Brief for Petitioners in Zubik, O. T. 2015, Nos. 15–35, 15–105, 15–

119, 15–191, at 44.
10 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
ALITO, J., concurring

Thomas, 450 U. S., at 715, who refused to participate in the
manufacture of tanks but did not object to assisting in the
production of steel used to make the tanks. Where to draw
the line in a chain of causation that leads to objectionable
conduct is a difficult moral question, and our cases have
made it clear that courts cannot override the sincere reli-
gious beliefs of an objecting party on that question. See
Hobby Lobby, 573 U. S., at 723–726; Thomas, 450 U. S., at
715–716.
For these reasons, the contraceptive mandate imposes a
substantial burden on any employer who, like the Little Sis-
ters, has a sincere religious objection to the use of a listed
contraceptive and a sincere religious belief that compliance
with the mandate (through the accommodation or other-
wise) makes it complicit in the provision to the employer’s
workers of a contraceptive to which the employer has a re-
ligious objection.
Compelling interest. In Hobby Lobby, the Government
asserted and we assumed for the sake of argument that the
Government had a compelling interest in “ensuring that all
women have access to all FDA-approved contraceptives
without cost sharing.” 573 U. S., at 727. Now, the Govern-
ment concedes that it lacks a compelling interest in provid-
ing such access, Reply Brief in No. 19–454, p. 10, and this
time, the Government is correct.
In order to show that it has a “compelling interest” within
the meaning of RFRA, the Government must clear a high
bar. In Sherbert v. Verner, 374 U. S. 398 (1963), the deci-
sion that provides the foundation for the rule codified in
RFRA, we said that “ ‘[o]nly the gravest abuses, endanger-
ing paramount interest’ ” could “ ‘give occasion for [a] per-
missible limitation’ ” on the free exercise of religion. Id., at
406. Thus, in order to establish that it has a “compelling
interest” in providing free contraceptives to all women, the
Government would have to show that it would commit one
of “the gravest abuses” of its responsibilities if it did not
 Cite as: 591 U. S. ____ (2020) 11

ALITO, J., concurring

furnish free contraceptives to all women.
If we were required to exercise our own judgment on the
question whether the Government has an obligation to pro-
vide free contraceptives to all women, we would have to
take sides in the great national debate about whether the
Government should provide free and comprehensive medi-
cal care for all. Entering that policy debate would be incon-
sistent with our proper role, and RFRA does not call on us
to express a view on that issue. We can answer the compel-
ling interest question simply by asking whether Congress
has treated the provision of free contraceptives to all
women as a compelling interest.
“ ‘[A] law cannot be regarded as protecting an interest “of
the highest order” . . . when it leaves appreciable damage to
that supposedly vital interest unprohibited.’ ” Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547
(1993). Thus, in considering whether Congress has mani-
fested the view that it has a compelling interest in provid-
ing free contraceptives to all women, we must take into ac-
count “exceptions” to this asserted “ ‘rule of general
applicability.’ ” Gonzales v. O Centro Espírita Beneficente
União do Vegetal, 546 U. S. 418, 436 (2006) (quoting
§2000bb–1(a)). And here, there are exceptions aplenty. The
ACA—which fails to ensure that millions of women have
access to free contraceptives—unmistakably shows that
Congress, at least to date, has not regarded this interest as
compelling.
First, the ACA does not provide contraceptive coverage
for women who do not work outside the home. If Congress
thought that there was a compelling need to make free con-
traceptives available for all women, why did it make no pro-
vision for women who do not receive a paycheck? Some of
these women may have a greater need for free contracep-
tives than do women in the work force.
Second, if Congress thought that there was a compelling
need to provide cost-free contraceptives for all working
12 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
ALITO, J., concurring

women, why didn’t Congress mandate that coverage in the
ACA itself? Why did it leave it to HRSA to decide whether
to require such coverage at all?
Third, the ACA’s very incomplete coverage speaks vol-
umes. The ACA “exempts a great many employers from
most of its coverage requirements.” Hobby Lobby, 573
U. S., at 699. “[E]mployers with fewer than 50 employees
are not required to provide” any form of health insurance,
and a number of large employers with “ ‘grandfathered’ ”
plans need not comply with the contraceptive mandate.
Ibid.; see 26 U. S. C. §4980H(c)(2); 42 U. S. C. §18011. Ac-
cording to a recent survey, 13% of the 153 million Ameri-
cans with employer-sponsored health insurance are en-
rolled in a grandfathered plan, while only 56% of small
firms provide health insurance. Kaiser Family Foundation,
Employer Health Benefits: 2019 Annual Survey 7, 44, 209
(2019). In Hobby Lobby, we wrote that “the contraceptive
mandate ‘presently does not apply to tens of millions of peo-
ple,’ ” 573 U. S., at 700, and it appears that this is still true
apart from the religious exemption.10
Fourth, the Court’s recognition in today’s decision that
the ACA authorizes the creation of exemptions that go be-
yond anything required by the Constitution provides fur-
ther evidence that Congress did not regard the provision
of cost-free contraceptives to all women as a compelling
interest.
Moreover, the regulatory exemptions created by the De-
partments and HRSA undermine any claim that the agen-
cies themselves viewed the provision of contraceptive cov-
erage as sufficiently compelling. From the outset, the
church exemption has applied to churches, their integrated

——————
10 In contrast, the Departments estimated that plans covering 727,000

people would take advantage of the religious exemption, and thus that
between 70,500 and 126,400 women of childbearing age would be affected
by the religious exemption. 83 Fed. Reg. 57578, 57581.
 Cite as: 591 U. S. ____ (2020) 13

ALITO, J., concurring

auxiliaries, and associations. 76 Fed. Reg. 46623. And be-
cause of the way the accommodation operates under the
Employee Retirement Income Security Act of 1974, the De-
partments treated a number of self-insured non-profit or-
ganizations established by churches or associations of
churches, including religious universities and hospitals, as
“effectively exempted” from the contraceptive mandate
as well. Brief for Petitioners in No. 19–454, p. 4. The
result was a complex and sometimes irrational pattern of
exemptions.
The dissent frames the allegedly compelling interest
served by the mandate in different terms—as an interest in
providing “seamless” cost-free coverage, post, at 1, 14, 21
(opinion of GINSBURG, J.)––but this is an even weaker ar-
gument. What “seamless” coverage apparently means is
coverage under the insurance plan furnished by a woman’s
employer. So as applied to the Little Sisters, the dissent
thinks that it would be a grave abuse if an employee wish-
ing to obtain contraceptives had to take any step that would
not be necessary if she wanted to obtain any other medical
service. See post, at 16–17. Apparently, it would not be
enough if the Government sent her a special card that could
be presented at a pharmacy to fill a prescription for contra-
ceptives without any out-of-pocket expense. Nor would it
be enough if she were informed that she could obtain free
contraceptives by going to a conveniently located govern-
ment clinic. Neither of those alternatives would provide
“seamless coverage,” and thus, according to the dissent,
both would be insufficient. Nothing short of capitulation on
the part of the Little Sisters would suffice.
This argument is inconsistent with any reasonable un-
derstanding of the concept of a “compelling interest.” It is
undoubtedly convenient for employees to obtain all types of
medical care and all pharmaceuticals under their general
health insurance plans, and perhaps there are women
whose personal situation is such that taking any additional
14 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
ALITO, J., concurring

steps to secure contraceptives would be a notable burden.
But can it be said that all women or all working women
have a compelling need for this convenience?
The ACA does not provide “seamless” coverage for all
forms of medical care. Take the example of dental care.
Although lack of dental care can cause great pain and may
lead to serious health problems, the ACA does not require
that a plan cover dental services. Millions of employees
must secure separate dental insurance or pay dentist bills
out of their own pockets.
In short, it is undoubtedly true that the contraceptive
mandate provides a benefit that many women may find
highly desirable, but Congress’s enactments show that it
has not regarded the provision of free contraceptives or the
furnishing of “seamless” coverage as “compelling.”
Least restrictive means. Even if the mandate served a
compelling interest, the accommodation still would not sat-
isfy the “exceptionally demanding” least-restrictive-means
standard. Hobby Lobby, 573 U. S., at 728. To meet this
standard, the Government must “sho[w] that it lacks other
means of achieving its desired goal without imposing a sub-
stantial burden on the exercise of religion.” Ibid.; see also
Holt v. Hobbs, 574 U. S. 352, 365 (2015) (“ ‘[I]f a less restric-
tive means is available for the Government to achieve its
goals, the Government must use it’ ”).
In Hobby Lobby, we observed that the Government has
“other means” of providing cost-free contraceptives to
women “without imposing a substantial burden on the ex-
ercise of religion by the objecting parties.” 573 U. S., at 728.
“The most straightforward way,” we noted, “would be for
the Government to assume the cost of providing the . . . con-
traceptives . . . to any women who are unable to obtain them
under their health-insurance policies.” Ibid. In the context
of federal funding for health insurance, the cost of such a
 Cite as: 591 U. S. ____ (2020) 15

ALITO, J., concurring

program would be “minor.” Id., at 729.11
The Government argued that we should not take this op-
tion into account because it lacked statutory authority to
create such a program, see ibid., but we rejected that argu-
ment, id., at 729–730. Certainly, Congress could create
such a program if it thought that providing cost-free contra-
ceptives to all women was a matter of “paramount” concern.
As the Government now points out, Congress has taken
steps in this direction. “[E]xisting federal, state, and local
programs,” including Medicaid, Title X, and Temporary As-
sistance for Needy Families, already “provide free or subsi-
dized contraceptives to low-income women.” Brief for Peti-
tioners in No. 19–454, at 27; see also 83 Fed. Reg. 57548,
57551 (discussing programs).12 And many women who

——————
11 In 2019, the Government is estimated to have spent $737 billion sub-

sidizing health insurance for individuals under the age of 65; $287 billion
of that went to employment-related coverage. CBO, Federal Subsidies
for Health Insurance for People Under Age 65: 2019 to 2029, pp. 15–16
(2019). While the cost of contraceptive methods varies, even assuming
the most expensive options, which range around $1,000 a year, the cost
of providing this coverage to the 126,400 women who are estimated to be
impacted by the religious exemption would be $126.4 million. See Ko-
sova, National Women’s Health Network, How Much Do Different Kinds
of Birth Control Cost Without Insurance? (Nov. 17, 2017), http://
nwhn.org /much-different-kinds-birth-control-cost-without-insurance/
(discussing contraceptive methods ranging from $240 to $1,000 per year);
83 Fed. Reg. 57581 (estimating that up to 126,400 women will be affected
by the religious exemption).
12 The Government recently amended the definitions for Title X’s fam-

ily planning program to help facilitate access to contraceptives for
women who work for an employer invoking the religious and moral ex-
emptions. See 84 Fed. Reg. 7734 (2019). These definitions now provide
that “for the purpose of considering payment for contraceptive services
only,” a “low income family” “includes members of families whose annual
income” would otherwise exceed the threshold “where a woman has
health insurance coverage through an employer . . . [with] a sincerely
held religious or moral objection to providing such [contraceptive] cover-
age.” 42 CFR §59.2(2).
16 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
ALITO, J., concurring

work for employers who have religious objections to the con-
traceptive mandate may be able to receive contraceptive
coverage through a family member’s health insurance plan.
In sum, the Departments were right to conclude that ap-
plying the accommodation to sincere religious objectors vi-
olates RFRA. See id., at 57546. All three prongs of the
RFRA analysis—substantial burden, compelling interest,
and least restrictive means—necessitate this answer.
III
Once it was apparent that the accommodation ran afoul
of RFRA, the Government was required to eliminate the vi-
olation. RFRA does not specify the precise manner in which
a violation must be remedied; it simply instructs the Gov-
ernment to avoid “substantially burden[ing]” the “exercise
of religion”—i.e., to eliminate the violation. §2000bb–1(a);
see also §2000bb–1(c) (providing for “appropriate relief ” in
judicial suit). Thus, in Hobby Lobby, once we held that ap-
plication of the mandate to the objecting parties violated
RFRA, we left it to the Departments to decide how best to
rectify this problem. See 573 U. S., at 736; 79 Fed. Reg.
51118 (2014) (proposing to modify the accommodation to ex-
tend it to closely held corporations in light of Hobby Lobby);
80 Fed. Reg. 41324 (final rule explaining that “[t]he Depart-
ments believe that the definition adopted in these regula-
tions complies with and goes beyond what is required by
RFRA and Hobby Lobby”).
The same principle applies here. Once it is recognized
that the prior accommodation violated RFRA in some of its
applications, it was incumbent on the Departments to elim-
inate those violations, and they had discretion in crafting
what they regarded as the best solution.
The solution they devised cures the problem, and it is not
clear that any narrower exemption would have been suffi-
cient with respect to parties with religious objections to the
 Cite as: 591 U. S. ____ (2020) 17

ALITO, J., concurring

accommodation. As noted, after great effort, the Govern-
ment concluded that it was not possible to solve the problem
without using an “employer’s plan, issuer, or third party ad-
ministrator.” 83 Fed. Reg. 57546. As a result, the Depart-
ments turned to the current rule, under which an objecting
party must certify that it “objects, based on its sincerely
held religious beliefs, to its establishing, maintaining,
providing, offering, or arranging for (as applicable)” either
“[c]overage or payments for some or all contraceptive ser-
vices” or “[a] plan, issuer, or third party administrator that
provides or arranges such coverage or payments.” 45 CFR
§§147.132(a)(2)(i)–(ii).
The States take exception to the new religious rule on
several grounds. First, they complain that it grants an ex-
emption to some employers who were satisfied with the
prior accommodation, but there is little basis for this argu-
ment. An employer who is satisfied with the accommoda-
tion may continue to operate under that regime. See
§§147.131(c)–(d); 83 Fed. Reg. 57569–57571. And unless an
employer has a religious objection to the accommodation, it
is unclear why an employer would give it up. The accom-
modation does not impose any cost on an employer, and it
provides an added benefit for the employer’s work force.
The States also object to the new rule because it makes
exemptions available to publicly traded corporations, but
the Government is “not aware” of any publicly traded cor-
porations that object to compliance with the mandate. Id.,
at 57562. For all practical purposes, therefore, it is not
clear that the new rule’s provisions concerning entities that
object to the mandate on religious grounds go any further
than necessary to bring the mandate into compliance with
RFRA.
In any event, while RFRA requires the Government to
employ the least restrictive means of furthering a compel-
ling interest that burdens religious belief, it does not re-
18 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
ALITO, J., concurring

quire the converse—that an accommodation of religious be-
lief be narrowly tailored to further a compelling interest.
The latter approach, which is advocated by the States, gets
RFRA entirely backwards. See Brief for Respondents 45
(“RFRA could require the religious exemption only if it was
the least restrictive means of furthering [the Government’s
compelling interest]”). Nothing in RFRA requires that
a violation be remedied by the narrowest permissible
corrective.
Needless to say, the remedy for a RFRA problem cannot
violate the Constitution, but the new rule does not have
that effect. The Court has held that there is a constitutional
right to purchase and use contraceptives. Griswold v. Con-
necticut, 381 U. S. 479 (1965); Carey v. Population Services
Int’l, 431 U. S. 678 (1977). But the Court has never held
that there is a constitutional right to free contraceptives.
The dissent and the court below suggest that the new rule
is improper because it imposes burdens on the employees of
entities that the rule exempts, see post, at 14–17; 930 F. 3d,
at 573–574,13 but the rule imposes no such burden. A
woman who does not have the benefit of contraceptive cov-
erage under her employer’s plan is not the victim of a bur-
den imposed by the rule or her employer. She is simply not
the beneficiary of something that federal law does not pro-
vide. She is in the same position as a woman who does not
work outside the home or a woman whose health insurance
——————
13 Both the dissent and the court below refer to the statement in Cutter

v. Wilkinson, 544 U. S. 709, 720 (2005), that “courts must take adequate
account of the burdens a requested accommodation may impose on non-
beneficiaries,” but that statement was made in response to the argument
that RFRA’s twin, the Religious Land Use and Institutionalized Persons
Act, 42 U. S. C. §2000cc et seq., violated the Establishment Clause. The
only case cited by Cutter in connection with this statement, Estate of
Thornton v. Caldor, Inc., 472 U. S. 703 (1985), involved a religious ac-
commodation that the Court held violated the Establishment Clause.
Before this Court, the States do not argue––and there is no basis for an
argument—that the new rule violates that Clause.
 Cite as: 591 U. S. ____ (2020) 19

ALITO, J., concurring

is provided by a grandfathered plan that does not pay for
contraceptives or a woman who works for a small business
that may not provide any health insurance at all.
* * *
I would hold not only that it was appropriate for the De-
partments to consider RFRA, but also that the Depart-
ments were required by RFRA to create the religious ex-
emption (or something very close to it). I would bring the
Little Sisters’ legal odyssey to an end.
 Cite as: 591 U. S. ____ (2020) 1

KAGANK
, J.,
AGAN , J., concurring
concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 19–431 and 19–454
_________________

LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME, PETITIONER
19–431 v.
PENNSYLVANIA, ET AL.

DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES, ET AL., PETITIONERS
19–454 v.
PENNSYLVANIA, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[July 8, 2020]

JUSTICE KAGAN, with whom JUSTICE BREYER joins, con-
curring in the judgment.
I would uphold HRSA’s statutory authority to exempt
certain employers from the contraceptive-coverage man-
date, but for different reasons than the Court gives. I also
write separately because I question whether the exemp-
tions can survive administrative law’s demand for reasoned
decisionmaking. That issue remains open for the lower
courts to address.
The majority and dissent dispute the breadth of the dele-
gation in the Women’s Health Amendment to the ACA. The
Amendment states that a health plan or insurer must offer
coverage for “preventive care and screenings . . . as pro-
vided for in comprehensive guidelines supported by [HRSA]
for purposes of this paragraph.” 42 U. S. C. §300gg–
13(a)(4). The disputed question is just what HRSA can
“provide for.” Both the majority and the dissent agree that
2 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
KAGAN, J., concurring in judgment

HRSA’s guidelines can differentiate among preventive ser-
vices, mandating coverage of some but not others. The opin-
ions disagree about whether those guidelines can also dif-
ferentiate among health plans, exempting some but not
others from the contraceptive-coverage requirement. On
that question, all the two opinions have in common is equal
certainty they are right. Compare ante, at 16 (majority
opinion) (Congress “enacted expansive language offer[ing]
no indication whatever that the statute limits what HRSA
can designate as preventive care and screenings or who
must provide that coverage” (internal quotation marks
omitted)), with post, at 9 (GINSBURG, J., dissenting) (“Noth-
ing in [the statute] accord[s] HRSA authority” to decide
“who must provide coverage” (internal quotation marks
omitted; emphasis in original)).
Try as I might, I do not find that kind of clarity in the
statute. Sometimes when I squint, I read the law as giving
HRSA discretion over all coverage issues: The agency gets
to decide who needs to provide what services to women. At
other times, I see the statute as putting the agency in
charge of only the “what” question, and not the “who.” If I
had to, I would of course decide which is the marginally bet-
ter reading. But Chevron deference was built for cases like
these. See Chevron U. S. A. Inc. v. Natural Resources De-
fense Council, Inc., 467 U. S. 837, 842–843 (1984); see also
Arlington v. FCC, 569 U. S. 290, 301 (2013) (holding that
Chevron applies to questions about the scope of an agency’s
statutory authority). Chevron instructs that a court facing
statutory ambiguity should accede to a reasonable interpre-
tation by the implementing agency. The court should do so
because the agency is the more politically accountable ac-
tor. See 467 U. S., at 865–866. And it should do so because
the agency’s expertise often enables a sounder assessment
of which reading best fits the statutory scheme. See id., at
865.
 Cite as: 591 U. S. ____ (2020) 3

KAGAN, J., concurring in judgment

Here, the Departments have adopted the majority’s read-
ing of the statutory delegation ever since its enactment.
Over the course of two administrations, the Departments
have shifted positions on many questions involving the
Women’s Health Amendment and the ACA more broadly.
But not on whether the Amendment gives HRSA the ability
to create exemptions to the contraceptive-coverage man-
date. HRSA adopted the original church exemption on the
same capacious understanding of its statutory authority as
the Departments endorse today. See 76 Fed. Reg. 46623
(2011) (“In the Departments’ view, it is appropriate that
HRSA, in issuing these Guidelines, takes into account the
effect on the religious beliefs of certain religious employers
if coverage of contraceptive services were required”).1
While the exemption itself has expanded, the Departments’
reading of the statutory delegation—that the law gives
HRSA discretion over the “who” question—has remained
the same. I would defer to that longstanding and reasona-
ble interpretation.
But that does not mean the Departments should prevail
when these cases return to the lower courts. The States
challenged the exemptions not only as outside HRSA’s stat-
utory authority, but also as “arbitrary [and] capricious.” 5
——————
1 The First Amendment cannot have separately justified the church ex-

emption, as the dissent suggests. See post, at 12–13 (opinion of
GINSBURG, J.). That exemption enables a religious institution to decline
to provide contraceptive coverage to all its employees, from a minister to
a building custodian. By contrast, the so-called ministerial exception of
the First Amendment (which the dissent cites, see post, at 13) extends
only to select employees, having ministerial status. See Our Lady of Gua-
dalupe School v. Morrissey-Berru, 591 U. S. ___, ___ (2020) (slip op., at
14–16); Hosanna-Tabor Evangelical Lutheran Church and School v.
EEOC, 565 U. S. 171, 190 (2012). (Too, this Court has applied the min-
isterial exception only to protect religious institutions from employment
discrimination suits, expressly reserving whether the exception excuses
their non-compliance with other laws. See id., at 196.) And there is no
general constitutional immunity, over and above the ministerial excep-
tion, that can protect a religious institution from the law’s operation.
4 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
KAGAN, J., concurring in judgment

U. S. C. §706(2)(A). Because the courts below found for the
States on the first question, they declined to reach the sec-
ond. That issue is now ready for resolution, unaffected by
today’s decision. An agency acting within its sphere of del-
egated authority can of course flunk the test of “reasoned
decisionmaking.” Michigan v. EPA, 576 U. S. 743, 750
(2015). The agency does so when it has not given “a satis-
factory explanation for its action”—when it has failed to
draw a “rational connection” between the problem it has
identified and the solution it has chosen, or when its
thought process reveals “a clear error of judgment.” Motor
Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut.
Automobile Ins. Co., 463 U. S. 29, 43 (1983) (internal quo-
tation marks omitted). Assessed against that standard of
reasonableness, the exemptions HRSA and the Depart-
ments issued give every appearance of coming up short.2
Most striking is a mismatch between the scope of the re-
ligious exemption and the problem the agencies set out to
address. In the Departments’ view, the exemption was
“necessary to expand the protections” for “certain entities
and individuals” with “religious objections” to contracep-
tion. 83 Fed. Reg. 57537 (2018). Recall that under the old
system, an employer objecting to the contraceptive mandate
for religious reasons could avail itself of the “self-certifica-
tion accommodation.” Ante, at 6. Upon making the certifi-
cation, the employer no longer had “to contract, arrange,
[or] pay” for contraceptive coverage; instead, its insurer
would bear the services’ cost. 78 Fed. Reg. 39874 (2013).
That device dispelled some employers’ objections—but not
all. The Little Sisters, among others, maintained that the
accommodation itself made them complicit in providing
contraception. The measure thus failed to “assuage[ ]” their

——————
2 I speak here only of the substantive validity of the exemptions. I

agree with the Court that the final rules issuing the exemptions were
procedurally valid.
 Cite as: 591 U. S. ____ (2020) 5

KAGAN, J., concurring in judgment

“sincere religious objections.” 82 Fed. Reg. 47799 (2017).
Given that fact, the Departments might have chosen to ex-
empt the Little Sisters and other still-objecting groups from
the mandate. But the Departments went further still.
Their rule exempted all employers with objections to the
mandate, even if the accommodation met their religious
needs. In other words, the Departments exempted employ-
ers who had no religious objection to the status quo (be-
cause they did not share the Little Sisters’ views about com-
plicity). The rule thus went beyond what the Departments’
justification supported—raising doubts about whether the
solution lacks a “rational connection” to the problem de-
scribed. State Farm, 463 U. S., at 43.3
And the rule’s overbreadth causes serious harm, by the
Departments’ own lights. In issuing the rule, the Depart-
ments chose to retain the contraceptive mandate itself. See
83 Fed. Reg. 57537. Rather than dispute HRSA’s prior find-
ing that the mandate is “necessary for women’s health and
well-being,” the Departments left that determination in
place. HRSA, Women’s Preventive Services Guidelines
(Dec. 2019), www.hrsa.gov/womens-guidelines-2019; see 83
Fed. Reg. 57537. The Departments thus committed them-
selves to minimizing the impact on contraceptive coverage,
——————
3 At oral argument, the Solicitor General argued that the rule’s overin-

clusion is harmless because the accommodation remains available to all
employers who qualify for the exemption. See Tr. of Oral Arg. 20–23.
But in their final rule, the Departments themselves acknowledged the
prospect that some employers without a religious objection to the accom-
modation would switch to the exemption. See 83 Fed. Reg. 57576–57577
(“Of course, some of the[ ] religious” institutions that “do not conscien-
tiously oppose participating” in the accommodation “may opt for the ex-
panded exemption[,] but others might not”); id., at 57561 (“[I]t is not
clear to the Departments” how many of the religious employers who had
used the accommodation without objection “will choose to use the ex-
panded exemption instead”). And the Solicitor General, when pressed at
argument, could offer no evidence that, since the rule took effect, employ-
ers without the Little Sisters’ complicity beliefs had declined to avail
themselves of the new exemption. Tr. of Oral Arg. 22.
6 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
KAGAN, J., concurring in judgment

even as they sought to protect employers with continuing
religious objections. But they failed to fulfill that commit-
ment to women. Remember that the accommodation pre-
serves employees’ access to cost-free contraceptive cover-
age, while the exemption does not. See ante, at 5–6. So the
Departments (again, according to their own priorities)
should have exempted only employers who had religious ob-
jections to the accommodation—not those who viewed it as
a religiously acceptable device for complying with the man-
date. The Departments’ contrary decision to extend the ex-
emption to those without any religious need for it yielded
all costs and no benefits. Once again, that outcome is hard
to see as consistent with reasoned judgment. See State
Farm, 463 U. S., at 43.4
Other aspects of the Departments’ handiwork may also
prove arbitrary and capricious. For example, the Depart-
ments allow even publicly traded corporations to claim a re-
ligious exemption. See 83 Fed. Reg. 57562–57563. That
option is unusual enough to raise a serious question about
whether the Departments adequately supported their
choice. Cf. Burwell v. Hobby Lobby Stores, Inc., 573 U. S.
682, 717 (2014) (noting the oddity of “a publicly traded cor-
poration asserting RFRA rights”). Similarly, the Depart-
ments offer an exemption to employers who have moral, ra-
ther than religious, objections to the contraceptive
mandate. Perhaps there are sufficient reasons for that de-
cision—for example, a desire to stay neutral between reli-
gion and non-religion. See 83 Fed. Reg. 57603–57604. But

——————
4 In a brief passage in the interim final rule, the Departments sug-

gested that an exemption is “more workable” than the accommodation in
addressing religious objections to the mandate. 82 Fed. Reg. 47806. But
the Departments continue to provide the accommodation to any religious
employers who request that option, thus maintaining a two-track sys-
tem. See ante, at 10; n. 3, supra. So ease of administration cannot sup-
port, at least without more explanation, the Departments’ decision to of-
fer the exemption more broadly than needed.
 Cite as: 591 U. S. ____ (2020) 7

KAGAN, J., concurring in judgment

RFRA cast a long shadow over the Departments’ rulemak-
ing, see ante, at 19–22, and that statute does not apply to
those with only moral scruples. So a careful agency would
have weighed anew, in this different context, the benefits of
exempting more employers from the mandate against the
harms of depriving more women of contraceptive coverage.
In the absence of such a reassessment, it seems a close call
whether the moral exemption can survive.
None of this is to say that the Departments could not is-
sue a valid rule expanding exemptions from the contracep-
tive mandate. As noted earlier, I would defer to the Depart-
ments’ view of the scope of Congress’s delegation. See
supra, at 3. That means the Departments (assuming they
act hand-in-hand with HRSA) have wide latitude over ex-
emptions, so long as they satisfy the requirements of rea-
soned decisionmaking. But that “so long as” is hardly noth-
ing. Even in an area of broad statutory authority—maybe
especially there—agencies must rationally account for their
judgments.
 Cite as: 591 U. S. ____ (2020) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 19–431 and 19–454
_________________

LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME, PETITIONER
19–431 v.
PENNSYLVANIA, ET AL.

DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES, ET AL., PETITIONERS
19–454 v.
PENNSYLVANIA, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[July 8, 2020]

JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR
joins, dissenting.
In accommodating claims of religious freedom, this Court
has taken a balanced approach, one that does not allow the
religious beliefs of some to overwhelm the rights and inter-
ests of others who do not share those beliefs. See, e.g., Es-
tate of Thornton v. Caldor, Inc., 472 U. S. 703, 708–710
(1985); United States v. Lee, 455 U. S. 252, 258–260 (1982).
Today, for the first time, the Court casts totally aside coun-
tervailing rights and interests in its zeal to secure religious
rights to the nth degree. Specifically, in the Women’s
Health Amendment to the Patient Protection and Afforda-
ble Care Act (ACA), 124 Stat. 119; 155 Cong. Rec. 28841
(2009), Congress undertook to afford gainfully employed
women comprehensive, seamless, no-cost insurance cover-
age for preventive care protective of their health and well-
being. Congress delegated to a particular agency, the
2 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

Health Resources and Services Administration (HRSA), au-
thority to designate the preventive care insurance should
cover. HRSA included in its designation all contraceptives
approved by the Food and Drug Administration (FDA).
Destructive of the Women’s Health Amendment, this
Court leaves women workers to fend for themselves, to seek
contraceptive coverage from sources other than their em-
ployer’s insurer, and, absent another available source of
funding, to pay for contraceptive services out of their own
pockets. The Constitution’s Free Exercise Clause, all agree,
does not call for that imbalanced result.1 Nor does the Re-
ligious Freedom Restoration Act of 1993 (RFRA), 42
U. S. C. §2000bb et seq., condone harm to third parties oc-
casioned by entire disregard of their needs. I therefore dis-
sent from the Court’s judgment, under which, as the Gov-
ernment estimates, between 70,500 and 126,400 women
would immediately lose access to no-cost contraceptive ser-
vices. On the merits, I would affirm the judgment of the
U. S. Court of Appeals for the Third Circuit.
I
A
Under the ACA, an employer-sponsored “group health
plan” must cover specified “preventive health services”
without “cost sharing,” 42 U. S. C. §300gg–13, i.e., without

——————
1 In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494

U. S. 872 (1990), the Court explained that “the right of free exercise does
not relieve an individual of the obligation to comply with a valid and
neutral law of general applicability on the ground that the law proscribes
(or prescribes) conduct that his religion prescribes (or proscribes).” Id.,
at 879 (internal quotation marks omitted). The requirement that insur-
ers cover FDA-approved methods of contraception “applies generally, . . .
trains on women’s well-being, not on the exercise of religion, and any
effect it has on such exercise is incidental.” Burwell v. Hobby Lobby
Stores, Inc., 573 U. S. 682, 745 (2014) (GINSBURG, J., dissenting). Smith
forecloses “[a]ny First Amendment Free Exercise Clause claim [one]
might assert” in opposition to that requirement. 573 U. S., at 744.
 Cite as: 591 U. S. ____ (2020) 3

GINSBURG, J., dissenting

such out-of-pocket costs as copays or deductibles.2 Those
enumerated services did not, in the original draft bill, in-
clude preventive care specific to women. “To correct this
oversight, Senator Barbara Mikulski introduced the
Women’s Health Amendment,” now codified at §300gg–
13(a)(4). Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682,
741 (2014) (GINSBURG, J., dissenting); see also 155 Cong.
Rec. 28841. This provision was designed “to promote equal-
ity in women’s access to health care,” countering gender-
based discrimination and disparities in such access. Brief
for 186 Members of the United States Congress as Amici
Curiae 6 (hereinafter Brief for 186 Members of Congress).
Its proponents noted, inter alia, that “[w]omen paid signifi-
cantly more than men for preventive care,” and that “cost
barriers operated to block many women from obtaining
needed care at all.” Hobby Lobby, 573 U. S., at 742
(GINSBURG, J., dissenting); see, e.g., 155 Cong. Rec. 28844
(statement of Sen. Hagan) (“When . . . women had to choose
between feeding their children, paying the rent, and meet-
ing other financial obligations, they skipped important pre-
ventive screenings and took a chance with their personal
health.”).
Due to the Women’s Health Amendment, the preventive
health services that group health plans must cover include,
“with respect to women,” “preventive care and screenings
. . . provided for in comprehensive guidelines supported by
——————
2 This requirement does not apply to employers with fewer than 50 em-

ployees, 26 U. S. C. §4980H(c)(2), or “grandfathered health plans”—
plans in existence on March 23, 2010 that have not thereafter made spec-
ified changes in coverage, 42 U. S. C. §18011(a), (e); 45 CFR §147.140(g)
(2018). “Federal statutes often include exemptions for small employers,
and such provisions have never been held to undermine the interests
served by these statutes.” Hobby Lobby, 573 U. S., at 763 (GINSBURG, J.,
dissenting). “[T]he grandfathering provision,” “far from ranking as a
categorical exemption, . . . is temporary, intended to be a means for grad-
ually transitioning employers into mandatory coverage.” Id., at 764
(internal quotation marks omitted).
4 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

[HRSA].” §300gg–13(a)(4). Pursuant to this instruction,
HRSA undertook, after consulting the Institute of Medi-
cine,3 to state “what preventive services are necessary for
women’s health and well-being and therefore should be con-
sidered in the development of comprehensive guidelines for
preventive services for women.”4 The resulting “Women’s
Preventive Services Guidelines” issued in August 2011.5
Under these guidelines, millions of women who previously
had no, or poor quality, health insurance gained cost-free
access, not only to contraceptive services but as well to, in-
ter alia, annual checkups and screenings for breast cancer,
cervical cancer, postpartum depression, and gestational di-
abetes.6 As to contraceptive services, HRSA directed that,
to implement §300gg–13(a)(4), women’s preventive services
encompass “all [FDA] approved contraceptive methods,
sterilization procedures, and patient education and coun-
seling for all women with reproductive capacity.”7
Ready access to contraceptives and other preventive
measures for which Congress set the stage in §300gg–
13(a)(4) both safeguards women’s health and enables

——————
3 “The [Institute of Medicine] is an arm of the National Academy of

Sciences, an organization Congress established for the explicit purpose
of furnishing advice to the Government.” Id., at 742, n. 3 (internal quo-
tation marks omitted).
4 HRSA, U. S. Dept. of Health and Human Services (HHS), Women’s

Preventive Services Guidelines, www.hrsa.gov/womens-guidelines/
index.html.
5 77 Fed. Reg. 8725 (2012).
6 HRSA, HHS, Women’s Preventive Services Guidelines, supra.
7 77 Fed. Reg. 8725 (alterations and internal quotation marks omitted).

Proponents of the Women’s Health Amendment specifically anticipated
that HRSA would require coverage of family planning services. See, e.g.,
155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer); id., at 28843
(statement of Sen. Gillibrand); id., at 28844 (statement of Sen. Mikulski);
id., at 28869 (statement of Sen. Franken); id., at 28876 (statement of
Sen. Cardin); ibid. (statement of Sen. Feinstein); id., at 29307 (statement
of Sen. Murray).
 Cite as: 591 U. S. ____ (2020) 5

GINSBURG, J., dissenting

women to chart their own life’s course. Effective contracep-
tion, it bears particular emphasis, “improves health out-
comes for women and [their] children,” as “women with un-
intended pregnancies are more likely to receive delayed or
no prenatal care” than women with planned pregnancies.
Brief for 186 Members of Congress 5 (internal quotation
marks omitted); Brief for American College of Obstetricians
and Gynecologists et al. as Amici Curiae 10 (hereinafter
ACOG Brief ) (similar). Contraception is also “critical for
individuals with underlying medical conditions that would
be further complicated by pregnancy,” “has . . . health ben-
efits unrelated to preventing pregnancy,” (e.g., it can reduce
the risk of endometrial and ovarian cancer), Brief for Na-
tional Women’s Law Center et al. as Amici Curiae 23–24,
26 (hereinafter NWLC Brief ), and “improves women’s so-
cial and economic status,” by “allow[ing] [them] to invest in
higher education and a career with far less risk of an un-
planned pregnancy,” Brief for 186 Members of Congress 5–
6 (internal quotation marks omitted).
B
For six years, the Government took care to protect women
employees’ access to critical preventive health services
while accommodating the diversity of religious opinion on
contraception. The Internal Revenue Service (IRS), the
Employee Benefits Security Administration (EBSA), and
the Center for Medicare and Medicaid Services (CMS)
crafted a narrow exemption relieving houses of worship,
“their integrated auxiliaries,” “conventions or associations
of churches,” and “religious order[s]” from the contraceptive-
coverage requirement. 76 Fed. Reg. 46623 (2011). For
other nonprofit and closely held for-profit organizations op-
posed to contraception on religious grounds, the agencies
made available an accommodation rather than an exemp-
tion. See 78 Fed. Reg. 39874 (2013); Hobby Lobby, 573
U. S., at 730–731.
6 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

“Under th[e] accommodation, [an employer] can self-
certify that it opposes providing coverage for particular
contraceptive services. See 45 CFR §§147.131(b)(4),
(c)(1) [(2013)]; 26 CFR §§54.9815–2713A(a)(4), (b). If
[an employer] makes such a certification, the [em-
ployer’s] insurance issuer or third-party administrator
must ‘[e]xpressly exclude contraceptive coverage from
the group health insurance coverage provided in con-
nection with the group health plan’ and ‘[p]rovide sep-
arate payments for any contraceptive services required
to be covered’ without imposing ‘any cost-sharing re-
quirements . . . on the [employer], the group health
plan, or plan participants or beneficiaries.’ 45 CFR
§147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).” Id., at
731 (some alterations in original).8
The self-certification accommodation, the Court observed
in Hobby Lobby, “does not impinge on [an employer’s] belief
that providing insurance coverage for . . . contraceptives . . .
violates [its] religion.” Ibid. It serves “a Government inter-
est of the highest order,” i.e., providing women employees
“with cost-free access to all FDA-approved methods of con-
traception.” Id., at 729. And “it serves [that] stated in-
teres[t] . . . well.” Id., at 731; see id., at 693 (Government
properly accommodated employer’s religion-based objection
to covering contraceptives under employer’s health insur-
ance plan when the harm to women of doing so “would be
precisely zero”). Since the ACA’s passage, “[gainfully em-
ployed] [w]omen, particularly in lower-income groups, have
reported greater affordability of coverage, access to health
——————
8 This opinion refers to the contraceptive-coverage accommodation

made in 2013 as the “self-certification accommodation.” See ante, at 6
(opinion of the Court). Although this arrangement “requires the issuer
to bear the cost of [contraceptive] services, HHS has determined that
th[e] obligation will not impose any net expense on issuers because its
cost will be less than or equal to the cost savings resulting from th[ose]
services.” Hobby Lobby, 573 U. S., at 698–699.
 Cite as: 591 U. S. ____ (2020) 7

GINSBURG, J., dissenting

care, and receipt of preventive services.” Brief for 186 Mem-
bers of Congress 21.
C
Religious employers, including petitioner Little Sisters of
the Poor Saints Peter and Paul Home (Little Sisters), none-
theless urge that the self-certification accommodation ren-
ders them “complicit in providing [contraceptive] coverage
to which they sincerely object.” Brief for Little Sisters 35.
In 2017, responsive to the pleas of such employers, the Gov-
ernment abandoned its effort to both end discrimination
against employed women in access to preventive services
and accommodate religious exercise. Under new rules
drafted not by HRSA, but by the IRS, EBSA, and CMS, any
“non-governmental employer”—even a publicly traded for-
profit company—can avail itself of the religious exemption
previously reserved for houses of worship. 82 Fed. Reg.
47792 (2017) (interim final rule); 45 CFR
§147.132(a)(1)(i)(E) (2018). More than 2.9 million Ameri-
9

cans—including approximately 580,000 women of
childbearing age—receive insurance through organizations
newly eligible for this blanket exemption. 83 Fed. Reg.
57577–57578 (2018). Of cardinal significance, the exemp-
tion contains no alternative mechanism to ensure affected
women’s continued access to contraceptive coverage. See 45
CFR §147.132.
Pennsylvania and New Jersey, respondents here, sued to
enjoin the exemption. Their lawsuit posed this core ques-
tion: May the Government jettison an arrangement that
promotes women workers’ well-being while accommodating
employers’ religious tenets and, instead, defer entirely to
——————
9 Nonprofit and closely held for-profit organizations with “sincerely

held moral convictions” against contraception also qualify for the exemp-
tion. 45 CFR §147.133(a)(1)(i), (a)(2). Unless otherwise noted, this opin-
ion refers to the religious and moral exemptions together as “the exemp-
tion” or “the blanket exemption.”
8 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

employers’ religious beliefs, although that course harms
women who do not share those beliefs? The District Court
answered “no,” and preliminarily enjoined the blanket ex-
emption nationwide. 281 F. Supp. 3d 553, 585 (ED Pa.
2017). The Court of Appeals affirmed. 930 F. 3d 543, 576
(CA3 2019). The same question is now presented for ulti-
mate decision by this Court.
II
Despite Congress’ endeavor, in the Women’s Health
Amendment to the ACA, to redress discrimination against
women in the provision of healthcare, the exemption the
Court today approves would leave many employed women
just where they were before insurance issuers were obliged
to cover preventive services for them, cost free. The Gov-
ernment urges that the ACA itself authorizes this result, by
delegating to HRSA authority to exempt employers from
the contraceptive-coverage requirement. This argument
gains the Court’s approbation. It should not.
A
I begin with the statute’s text. But see ante, at 17 (opin-
ion of the Court) (overlooking my starting place). The
ACA’s preventive-care provision, 42 U. S. C. §300gg–13(a),
reads in full:
“A group health plan and a health insurance issuer
offering group or individual health insurance coverage
shall, at a minimum provide coverage for and shall not
impose any cost sharing requirements for—
“(1) evidence-based items or services that have in ef-
fect a rating of ‘A’ or ‘B’ in the current recommenda-
tions of the United States Preventive Services Task
Force;
“(2) immunizations that have in effect a recommen-
dation from the Advisory Committee on Immunization
 Cite as: 591 U. S. ____ (2020) 9

GINSBURG, J., dissenting

Practices of the Centers for Disease Control and Pre-
vention with respect to the individual involved; . . .
“(3) with respect to infants, children, and adoles-
cents, evidence-informed preventive care and screen-
ings provided for in the comprehensive guidelines
supported by [HRSA; and]
“(4) with respect to women, such additional preven-
tive care and screenings not described in paragraph (1)
as provided for in comprehensive guidelines supported
by [HRSA] for purposes of this paragraph.”
At the start of this provision, Congress instructed who is
to “provide coverage for” the specified preventive health ser-
vices: “group health plan[s]” and “health insurance is-
suer[s].” §300gg–13(a). As the Court of Appeals explained,
paragraph (a)(4), added by the Women’s Health Amend-
ment, granted HRSA “authority to issue ‘comprehensive
guidelines’ concern[ing] the type of services” group health
plans and health insurance issuers must cover with respect
to women. 930 F. 3d, at 570 (emphasis added). Nothing in
paragraph (a)(4) accorded HRSA “authority to undermine
Congress’s [initial] directive,” stated in subsection (a), “con-
cerning who must provide coverage for these services.”
Ibid. (emphasis added).
The Government argues otherwise, asserting that “[t]he
sweeping authorization for HRSA to ‘provide[ ] for’ and ‘sup-
port[ ]’ guidelines ‘for purposes of ’ the women’s preventive-
services mandate clearly grants HRSA the power not just
to specify what services should be covered, but also to pro-
vide appropriate exemptions.” Brief for HHS et al. 15.10
This terse statement—the entirety of the Government’s tex-
tual case—slights the language Congress employed. Most
visibly, the Government does not endeavor to explain how
——————
10 This opinion uses “Brief for HHS et al.” to refer to the Brief for Peti-

tioners in No. 19–454, filed on behalf of the Departments of HHS, Treas-
ury, and Labor, the Secretaries of those Departments, and the President.
10 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

any language in paragraph (a)(4) counteracts Congress’
opening instruction in §300gg–13(a) that group health
plans “shall . . . provide” specified services. See supra, at
8–9.
The Court embraces, and the opinion concurring in the
judgment adopts, the Government’s argument. The Court
correctly acknowledges that HRSA has broad discretion to
determine what preventive services insurers should pro-
vide for women. Ante, at 15. But it restates that HRSA’s
“discretion [is] equally unchecked in other areas, including
the ability to identify and create exemptions from its own
Guidelines.” Ante, at 16. See also ante, at 2–3 (KAGAN, J.,
concurring in judgment) (agreeing with this interpreta-
tion). Like the Government, the Court and the opinion con-
curring in the judgment shut from sight §300gg–13(a)’s
overarching direction that group health plans and health
insurance issuers “shall” cover the specified services. See
supra, at 8–9. That “ ‘absent provision[s] cannot be supplied
by the courts,’ ” ante, at 16 (quoting Rotkiske v. Klemm, 589
U. S. ___, ___ (2019) (slip op., at 5), militates against the
Court’s conclusion, not in favor of it. Where Congress
wanted to exempt certain employers from the ACA’s re-
quirements, it said so expressly. See, e.g., supra, at 3, n. 2.
Section 300gg–13(a)(4) includes no such exemption. See
supra, at 8–9.11
B
The position advocated by the Government and endorsed
by the Court and the opinion concurring in the judgment
encounters further obstacles.
Most saliently, the language in §300gg–13(a)(4) mirrors
——————
11 The only language to which the Court points in support of its con-

trary conclusion is the phrase “as provided for.” See ante, at 15. This
phrase modifies “additional preventive care and screenings.” §300gg–
13(a)(4). It therefore speaks to what services shall be provided, not who
must provide them.
 Cite as: 591 U. S. ____ (2020) 11

GINSBURG, J., dissenting

that in §300gg–13(a)(3), the provision addressing children’s
preventive health services. Not contesting here that HRSA
lacks authority to exempt group health plans from the chil-
dren’s preventive-care guidelines, the Government at-
tempts to distinguish paragraph (a)(3) from paragraph
(a)(4). Brief for HHS et al. 16–17. The attempt does not
withstand inspection.
The Government first observes that (a)(4), unlike (a)(3),
contemplates guidelines created “for purposes of this para-
graph.” (Emphasis added.) This language does not speak
to the scope of the guidelines HRSA is charged to create.
Moreover, the Government itself accounts for this textual
difference: The children’s preventive-care guidelines de-
scribed in paragraph (a)(3) were “preexisting guidelines . . .
developed for purposes unrelated to the ACA.” Brief for
HHS et al. 16. The guidelines on women’s preventive care,
by contrast, did not exist before the ACA; they had to be
created “for purposes of ” the preventive-care mandate.
§300gg–13(a)(4). The Government next points to the modi-
fier “evidence-informed” placed in (a)(3), but absent in
(a)(4). This omission, however it may bear on the kind of
preventive services for women HRSA can require group
health insurance to cover, does not touch or concern who is
required to cover those services.12
HRSA’s role within HHS also tugs against the Govern-
ment’s, the Court’s, and the opinion concurring in the judg-
ment’s construction of §300gg–13(a)(4). That agency was a
logical choice to determine what women’s preventive ser-
vices should be covered, as its mission is to “improve health
care access” and “eliminate health disparities.”13 First and
foremost, §300gg–13(a)(4) is directed at eradicating gender-
——————
12 The Court does not say whether, in its view, the exemption authority

it claims for women’s preventive care exists as well for HRSA’s children’s
preventive-care guidelines.
13 HRSA, HHS, Organization, www.hrsa.gov/about/organization/
index.html.
12 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

based disparities in access to preventive care. See supra, at
3. Overlooked by the Court, see ante, at 14–18, and the
opinion concurring in the judgment, see ante, at 2–3 (opin-
ion of KAGAN, J.), HRSA’s expertise does not include any
proficiency in delineating religious and moral exemptions.
One would not, therefore, expect Congress to delegate to
HRSA the task of crafting such exemptions. See King v.
Burwell, 576 U. S. 473, 486 (2015) (“It is especially unlikely
that Congress would have delegated this decision to [an
agency] which has no expertise in . . . policy of this sort.”).14
In fact, HRSA did not craft the blanket exemption. As
earlier observed, see supra, at 7, that task was undertaken
by the IRS, EBSA, and CMS. See also 45 CFR
§147.132(a)(1), 147.133(a)(1) (direction by the IRS, EBSA,
and CMS that HRSA’s guidelines “must not provide for”
contraceptive coverage in the circumstances described in
the blanket exemption (emphasis added)). Nowhere in 42
U. S. C. §300gg–13(a)(4) are those agencies named, as ear-
lier observed, see supra, at 8–9, an absence the Govern-
ment, the Court, and the opinion concurring in the judg-
ment do not deign to acknowledge. See Brief for HHS et al.
15–20; ante, at 14–18 (opinion of the Court); ante, at 2–3
(opinion of KAGAN, J.).
C
If the ACA does not authorize the blanket exemption, the
Government urges, then the exemption granted to houses
of worship in 2011 must also be invalid. Brief for HHS et al.
19–20. As the Court of Appeals explained, however, see 930
——————
14 A more logical choice would have been HHS’s Office for Civil

Rights (OCR), which “enforces . . . conscience and religious freedom
laws” with respect to HHS programs. HHS, OCR, About Us,
www.hhs.gov/ocr/about-us/index.html. Indeed, when the Senate intro-
duced an amendment to the ACA similar in character to the blanket ex-
emption, a measure that failed to pass, the Senate instructed that OCR
administer the exemption. 158 Cong. Rec. 1415 (2012) (proposed amend-
ment); id., at 2634 (vote tabling amendment).
 Cite as: 591 U. S. ____ (2020) 13

GINSBURG, J., dissenting

F. 3d, at 570, n. 26, the latter exemption is not attributable
to the ACA’s text; it was justified on First Amendment
grounds. See Hosanna-Tabor Evangelical Lutheran
Church and School v. EEOC, 565 U. S. 171, 188 (2012) (the
First Amendment’s “ministerial exception” protects “the in-
ternal governance of [a] church”); 80 Fed. Reg. 41325 (2015)
(the exemption “recogni[zes] [the] particular sphere of au-
tonomy [afforded to] houses of worship . . . consistent with
their special status under longstanding tradition in our so-
ciety”).15 Even if the house-of-worship exemption extends
beyond what the First Amendment would require, see ante,
at 3, n. 1 (opinion of KAGAN, J.), that extension, as just ex-
plained, cannot be extracted from the ACA’s text.16
III
Because I conclude that the blanket exemption gains no
aid from the ACA, I turn to the Government’s alternative
argument. The religious exemption, if not the moral exemp-
tion, the Government urges, is necessary to protect reli-
gious freedom. The Government does not press a free exer-
cise argument, see supra, at 2, and n. 1, instead invoking
RFRA. Brief for HHS et al. 20–31. That statute instructs
that the “Government shall not substantially burden a per-
son’s exercise of religion even if the burden results from a
——————
15 On the broad scope the Court today attributes to the “ministerial ex-

ception,” see Our Lady of Guadalupe School v. Morrissey-Berru, 591 U. S.
___ (2020).
16 The Government does not argue that my view of the limited compass

of §300gg–13(a)(4) imperils the self-certification accommodation. Brief
for HHS et al. 19–20. But see ante, at 18, n. 9 (opinion of the Court).
That accommodation aligns with the Court’s decisions under the Reli-
gious Freedom Restoration Act of 1993 (RFRA). See infra, at 14–15. It
strikes a balance between women’s health and religious opposition to
contraception, preserving women’s access to seamless, no-cost contracep-
tive coverage, but imposing the obligation to provide such coverage di-
rectly on insurers, rather than on the objecting employer. See supra, at
6; infra, at 18–20. The blanket exemption, in contrast, entirely disre-
gards women employees’ preventive care needs.
14 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

rule of general applicability,” unless doing so “is the least
restrictive means of furthering [a] compelling governmen-
tal interest.” 42 U. S. C. §2000bb–1(a), (b).
A
1
The parties here agree that federal agencies may craft ac-
commodations and exemptions to cure violations of RFRA.
See, e.g., Brief for Respondents 36.17 But that authority is
not unbounded. Cutter v. Wilkinson, 544 U. S. 709, 720
(2005) (construing Religious Land Use and Institutional-
ized Persons Act of 2000, the Court cautioned that “ade-
quate account” must be taken of “the burdens a requested
accommodation may impose on nonbeneficiaries” of the
Act); Caldor, 472 U. S., at 708–710 (invalidating state stat-
ute requiring employers to accommodate an employee’s re-
ligious observance for failure to take into account the bur-
den such an accommodation would impose on the employer
and other employees). “[O]ne person’s right to free exercise
must be kept in harmony with the rights of her fellow citi-
zens.” Hobby Lobby, 573 U. S., at 765, n. 25 (GINSBURG, J.,
dissenting). See also id., at 746 (“[Y]our right to swing your
arms ends just where the other man’s nose begins.” (quoting
Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev.
932, 957 (1919))).
In this light, the Court has repeatedly assumed that any
religious accommodation to the contraceptive-coverage re-
quirement would preserve women’s continued access to
seamless, no-cost contraceptive coverage. See Zubik v. Bur-
well, 578 U. S. ___, ___ (2016) (per curiam) (slip op., at 4)

——————
17 But see, e.g., Brief for Professors of Criminal Law et al. as Amici

Curiae 8–11 (RFRA does not grant agencies independent rulemaking au-
thority; instead, laws allegedly violating RFRA must be challenged in
court). No party argues that agencies can act to cure violations of RFRA
only after a court has found a RFRA violation, and this opinion does not
adopt any such view.
 Cite as: 591 U. S. ____ (2020) 15

GINSBURG, J., dissenting

(“[T]he parties on remand should be afforded an oppor-
tunity to arrive at an approach . . . that accommodates pe-
titioners’ religious exercise while . . . ensuring that women
covered by petitioners’ health plans receive full and equal
health coverage, including contraceptive coverage.” (inter-
nal quotation marks omitted)); Wheaton College v. Burwell,
573 U. S. 958, 959 (2014) (“Nothing in this interim order
affects the ability of applicant’s employees and students to
obtain, without cost, the full range of [FDA] approved con-
traceptives.”); Hobby Lobby, 573 U. S., at 692 (“There are
other ways in which Congress or HHS could equally ensure
that every woman has cost-free access to . . . all [FDA]-
approved contraceptives. In fact, HHS has already devised
and implemented a system that seeks to respect the reli-
gious liberty of religious nonprofit corporations while en-
suring that the employees of these entities have precisely
the same access to all FDA-approved contraceptives as em-
ployees of [other] companies.”).
The assumption made in the above-cited cases rests on
the basic principle just stated, one on which this dissent re-
lies: While the Government may “accommodate religion be-
yond free exercise requirements,” Cutter, 544 U. S., at 713,
when it does so, it may not benefit religious adherents at
the expense of the rights of third parties. See, e.g., id., at
722 (“[A]n accommodation must be measured so that it does
not override other significant interests.”); Caldor, 472 U. S.,
at 710 (religious exemption was invalid for its “unyielding
weighting in favor of ” interests of religious adherents “over
all other interests”). Holding otherwise would endorse
“the regulatory equivalent of taxing non-adherents to sup-
port the faithful.” Brief for Church-State Scholars as Amici
Curiae 3.
2
The expansive religious exemption at issue here imposes
significant burdens on women employees. Between 70,500
16 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

and 126,400 women of childbearing age, the Government
estimates, will experience the disappearance of the contra-
ceptive coverage formerly available to them, 83 Fed. Reg.
57578–57580; indeed, the numbers may be even higher.18
Lacking any alternative insurance coverage mechanism,
see supra, at 7, the exemption leaves women two options,
neither satisfactory.
The first option—the one suggested by the Government
in its most recent rulemaking, 82 Fed. Reg. 47803—is for
women to seek contraceptive care from existing government-
funded programs. Such programs, serving primarily low-
income individuals, are not designed to handle an influx of
tens of thousands of previously insured women.19 Moreo-
ver, as the Government has acknowledged, requiring
women “to take steps to learn about, and to sign up for, a
new health benefit” imposes “additional barriers,”
“mak[ing] that coverage accessible to fewer women.” 78
Fed. Reg. 39888. Finally, obtaining care from a government-
——————
18 The Government notes that 2.9 million people were covered by the

209 plans that previously utilized the self-certification accommodation.
83 Fed. Reg. 57577. One hundred nine of those plans covering 727,000
people, the Government estimates, will use the religious exemption,
while 100 plans covering more than 2.1 million people will continue to use
the self-certification accommodation. Id., at 57578. If more plans, or
plans covering more people, use the new exemption, more women than
the Government estimates will be affected.
19 Title X “is the only federal grant program dedicated solely to provid-

ing individuals with comprehensive family planning and related preven-
tive health services.” HHS, About Title X Grants, www.hhs.gov/opa/
title-x-family-planning/about-title-x-grants/index.html. A recent rule
makes women who lose contraceptive coverage due to the religious ex-
emption eligible for Title X services. See 84 Fed. Reg. 7734 (2019). Ex-
panding eligibility, however, “does nothing to ensure Title X providers
actually have capacity to meet the expanded client population.” Brief for
National Women’s Law Center et al. as Amici Curiae 22. Moreover, that
same rule forced 1,041 health providers, serving more than 41% of Title
X patients, out of the Title X provider network due to their affiliation
with abortion providers. 84 Fed. Reg. 7714; Brief for Planned
Parenthood Federation of America et al. as Amici Curiae 18–19.
 Cite as: 591 U. S. ____ (2020) 17

GINSBURG, J., dissenting

funded program instead of one’s regular care provider cre-
ates a continuity-of-care problem, “forc[ing those] who lose
coverage away from trusted providers who know their med-
ical histories.” NWLC Brief 18.
The second option for women losing insurance coverage
for contraceptives is to pay for contraceptive counseling and
devices out of their own pockets. Notably, however, “the
most effective contraception is also the most expensive.”
ACOG Brief 14–15. “[T]he cost of an IUD [intrauterine de-
vice],” for example, “is nearly equivalent to a month’s full-
time pay for workers earning the minimum wage.” Hobby
Lobby, 573 U. S., at 762 (GINSBURG, J., dissenting). Faced
with high out-of-pocket costs, many women will forgo con-
traception, Brief for 186 Members of Congress 11, or resort
to less effective contraceptive methods, 930 F. 3d, at 563.
As the foregoing indicates, the religious exemption “rein-
troduce[s] the very health inequities and barriers to care
that Congress intended to eliminate when it enacted the
women’s preventive services provision of the ACA.” NWLC
Brief 5. “No tradition, and no prior decision under RFRA,
allows a religion-based exemption when [it] would be harm-
ful to others—here, the very persons the contraceptive cov-
erage requirement was designed to protect.” Hobby Lobby,
573 U. S., at 764 (GINSBURG, J., dissenting).20 I would
therefore hold the religious exemption neither required nor
permitted by RFRA.21

——————
20 Remarkably, JUSTICE ALITO maintains that stripping women of in-

surance coverage for contraceptive services imposes no burden. See ante,
at 18 (concurring opinion). He reaches this conclusion because, in his
view, federal law does not require the contraceptive coverage denied to
women under the exemption. Ibid. Congress, however, called upon
HRSA to specify contraceptive and other preventive services for women
in order to ensure equality in women employees’ access to healthcare,
thus safeguarding their health and well-being. See supra, at 2–5.
21 As above stated, the Government does not defend the moral exemp-

tion under RFRA. See supra, at 13.
18 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

B
Pennsylvania and New Jersey advance an additional ar-
gument: The exemption is not authorized by RFRA, they
maintain, because the self-certification accommodation it
replaced was sufficient to alleviate any substantial burden
on religious exercise. Brief for Respondents 36–42. That
accommodation, I agree, further indicates the religious ex-
emption’s flaws.
1
For years, religious organizations have challenged the
self-certification accommodation as insufficiently protective
of their religious rights. See, e.g., Zubik, 578 U. S., at ___
(slip op., at 3). While I do not doubt the sincerity of these
organizations’ opposition to that accommodation, Hobby
Lobby, 573 U. S., at 758–759 (GINSBURG. J., dissenting), I
agree with Pennsylvania and New Jersey that the accom-
modation does not substantially burden objectors’ religious
exercise.
As Senator Hatch observed, “[RFRA] does not require the
Government to justify every action that has some effect on
religious exercise.” 139 Cong. Rec. 26180 (1993). Bowen v.
Roy, 476 U. S. 693 (1986), is instructive in this regard.
There, a Native American father asserted a sincere reli-
gious belief that his daughter’s spirit would be harmed by
the Government’s use of her social security number. Id., at
697. The Court, while casting no doubt on the sincerity of
this religious belief, explained:
“Never to our knowledge has the Court interpreted the
First Amendment to require the Government itself to
behave in ways that the individual believes will further
his or her spiritual development or that of his or her
family. The Free Exercise Clause simply cannot be un-
derstood to require the Government to conduct its own
internal affairs in ways that comport with the religious
 Cite as: 591 U. S. ____ (2020) 19

GINSBURG, J., dissenting

beliefs of particular citizens.” Id., at 699.22
Roy signals a critical distinction in the Court’s religious
exercise jurisprudence: A religious adherent may be enti-
tled to religious accommodation with regard to her own con-
duct, but she is not entitled to “insist that . . . others must
conform their conduct to [her] own religious necessities.’ ”
Caldor, 472 U. S., at 710 (quoting Otten v. Baltimore &
Ohio R. Co., 205 F. 2d 58, 61 (CA2 1953) (Hand, J.); (em-
phasis added).23 Counsel for the Little Sisters acknowl-
edged as much when he conceded that religious “employers
could [not] object at all” to a “government obligation” to pro-
vide contraceptive coverage “imposed directly on the insur-
ers.” Tr. of Oral Arg. 41.24
But that is precisely what the self-certification accommo-
dation does. As the Court recognized in Hobby Lobby:
“When a group-health-insurance issuer receives notice that
[an employer opposes coverage for some or all contraceptive
services for religious reasons], the issuer must then exclude
[that] coverage from the employer’s plan and provide sepa-
rate payments for contraceptive services for plan partici-
pants.” 573 U. S., at 698–699; see also id., at 738 (Kennedy,
——————
22 JUSTICE ALITO disputes the relevance of Roy, asserting that the reli-

gious adherent in that case faced no penalty for noncompliance with the
legal requirement under consideration. See ante, at 6, n. 5. As JUSTICE
ALITO acknowledges, however, the critical inquiry has two parts. See
ante, at 6–7. It is not enough to ask whether noncompliance entails “sub-
stantial adverse practical consequences.” One must also ask whether
compliance substantially burdens religious exercise. Like Roy, my dis-
sent homes in on the latter question.
23 Even if RFRA sweeps more broadly than the Court’s pre-Smith ju-

risprudence in some respects, see Hobby Lobby, 573 U. S., at 695, n. 3;
but see id., at 749–750 (GINSBURG, J., dissenting), there is no cause to
believe that Congress jettisoned this fundamental distinction.
24 JUSTICE ALITO ignores the distinction between (1) a request for an

accommodation with regard to one’s own conduct, and (2) an attempt to
require others to conform their conduct to one’s own religious beliefs.
This distinction is fatal to JUSTICE ALITO’s argument that the self-
certification accommodation violates RFRA. See ante, at 6–10.
20 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

J., concurring) (“The accommodation works by requiring in-
surance companies to cover . . . contraceptive coverage for
female employees who wish it.” (emphasis added)). Under
the self-certification accommodation, then, the objecting
employer is absolved of any obligation to provide the con-
traceptive coverage to which it objects; that obligation is
transferred to the insurer. This arrangement “furthers the
Government’s interest [in women’s health] but does not im-
pinge on the [employer’s] religious beliefs.” Ibid.; see supra,
at 18–19.
2
The Little Sisters, adopting the arguments made by reli-
gious organizations in Zubik, resist this conclusion in two
ways. First, they urge that contraceptive coverage provided
by an insurer under the self-certification accommodation
forms “part of the same plan as the coverage provided by
the employer.” Brief for Little Sisters 12 (internal quota-
tion marks omitted). See also Tr. of Oral Arg. 29 (Little
Sisters object “to having their plan hijacked”); ante, at 8
(ALITO, J., concurring) (Little Sisters object to “main-
tain[ing] and pay[ing] for a plan under which coverage for
contraceptives would be provided”). This contention is con-
tradicted by the plain terms of the regulation establishing
that accommodation: To repeat, an insurance issuer “must
. . . [e]xpressly exclude contraceptive coverage from the
group health insurance coverage provided in connection
with the group health plan.” 45 CFR §147.131(c)(2)(i)(A)
(2013) (emphasis added); see supra, at 6.25

——————
25 Religious organizations have observed that, under the self-certification

accommodation, insurers need not, and do not, provide contraceptive cov-
erage under a separate policy number. Supp. Brief for Petitioners in Zu-
bik v. Burwell, O. T. 2015, No. 14–1418, p. 1. This objection does not
relate to a religious employer’s own conduct; instead, it concerns the in-
surer’s conduct. See supra, at 18–19.
 Cite as: 591 U. S. ____ (2020) 21

GINSBURG, J., dissenting

Second, the Little Sisters assert that “tak[ing] affirma-
tive steps to execute paperwork . . . necessary for the provi-
sion of ‘seamless’ contraceptive coverage to their employ-
ees” implicates them in providing contraceptive services to
women in violation of their religious beliefs. Little Sisters
Reply Brief 7. At the same time, however, they have been
adamant that they do not oppose merely “register[ing] their
objections” to the contraceptive-coverage requirement.
Ibid. See also Tr. of Oral Arg. 29, 42–43 (Little Sisters have
“no objection to objecting”); ante, at 8 (ALITO, J., concurring)
(Little Sisters’ “concern was not with notifying the Govern-
ment that they wished to be exempted from complying with
the mandate per se”). These statements, taken together, re-
veal that the Little Sisters do not object to what the self-
certification accommodation asks of them, namely, attest-
ing to their religious objection to contraception. See supra,
at 6. They object, instead, to the particular use insurance
issuers make of that attestation. See supra, at 18–19.26
But that use originated from the ACA and its once-imple-
menting regulation, not from religious employers’ self-
certification or alternative notice.
* * *
The blanket exemption for religious and moral objectors
to contraception formulated by the IRS, EBSA, and CMS is
inconsistent with the text of, and Congress’ intent for, both
the ACA and RFRA. Neither law authorizes it.27 The orig-

——————
26 JUSTICE ALITO asserts that the Little Sisters’ “situation [is] the same

as that of the conscientious objector in Thomas [v. Review Bd. of Ind.
Employment Security Div., 450 U. S. 707, 715 (1981)].” Ante, at 9–10. I
disagree. In Thomas, a Jehovah’s Witness objected to “work[ing] on
weapons,” 450 U. S., at 710, which is what his employer required of him.
As above stated, however, the Little Sisters have no objection to object-
ing, the only other action the self-certification accommodation requires
of them.
27 Given this conclusion, I need not address whether the exemption is
22 LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
GINSBURG, J., dissenting

inal administrative regulation accommodating religious ob-
jections to contraception appropriately implemented the
ACA and RFRA consistent with Congress’ staunch determi-
nation to afford women employees equal access to preven-
tive services, thereby advancing public health and welfare
and women’s well-being. I would therefore affirm the judg-
ment of the Court of Appeals.28

——————
procedurally invalid. See ante, at 22–26 (opinion of the Court).
28 Although the Court does not reach the issue, the District Court did

not abuse its discretion in issuing a nationwide injunction. The Admin-
istrative Procedure Act contemplates nationwide relief from invalid
agency action. See 5 U. S. C. §706(2) (empowering courts to “hold unlaw-
ful and set aside agency action”). Moreover, the nationwide reach of the
injunction “was ‘necessary to provide complete relief to the plaintiffs.’ ”
Trump v. Hawaii, 585 U. S. ___, ___, n. 15 (2018) (SOTOMAYOR, J., dis-
senting) (slip op., at 25, n. 13) (quoting Madsen v. Women's Health Cen-
ter, Inc., 512 U. S. 753, 765 (1994)). Harm to Pennsylvania and New
Jersey, the Court of Appeals explained, occurs because women who lose
benefits under the exemption “will turn to state-funded services for their
contraceptive needs and for the unintended pregnancies that may result
from the loss of coverage.” 930 F. 3d, at 562. This harm is not bounded
by state lines. The Court of Appeals noted, for example, that some
800,000 residents of Pennsylvania and New Jersey work—and thus re-
ceive their health insurance—out of State. Id., at 576. Similarly, many
students who attend colleges and universities in Pennsylvania and New
Jersey receive their health insurance from their parents’ out-of-state
health plans. Ibid.