Little Sisters of the Poor Home for the Aged v. Burwell

BALDOCK, Circuit Judge,

dissenting in part.

Today the Court holds, among other things, that the ACA contraceptive Mandate’s accommodation scheme does not substantially burden religious non-profits that object to facilitating contraceptive or abortifacient coverage because opting out does not cause, authorize, or otherwise facilitate such coverage.1 The Court’s opinion provides perhaps the most thorough explanation of the accommodation scheme’s nuanced mechanics that I have yet read. And for argument’s sake, I follow its holding as to the insured plaintiffs’ and Little Sisters plaintiffs’ RFRA claims.2 But I cannot join the Court’s holding as to the other self-insured plaintiffs’ RFRA claims, as that holding contradicts the Court’s own reasoning and thorough explanation of the accommodation scheme.

In reality, the accommodation scheme forces the self-insured plaintiffs to perform an act that causes their beneficiaries to receive religiously objected-to coverage. The fines the government uses to compel this act thus impose a substantial burden on the self-insured plaintiffs’ religious exercise. Moreover, less restrictive means exist to achieve the government’s contraceptive coverage goals here. I must therefore dissent in part.

I. When is a Bueden on Religious Exercise “Substaotial?”

The first step of a RFRA claim requires plaintiffs to show (1) that the federal government has imposed a substantial burden on a (2) sincere (3) exercise of religion. See 42 U.S.C. § 2000bb-l(a). The unique threshold question we and so many other courts are currently grappling with, however, is how to determine whether a substantial burden exists where a law compels religious adherents to perform an act they sincerely oppose when this opposition might be based on a faulty understanding of the law. See, e.g., E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449, 455-56, 2015 WL 3852811, at *3 (5th Cir. June 22, 2015).

Several learned judges have argued compellingly that, under Burwell v. Hobby Lobby Stores, Inc., — U.S. -, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), the amount of coercion the government uses to force a religious adherent to perform an act she sincerely believes is inconsistent with her understanding of her religion’s requirements is the only consideration relevant to whether a burden is “substantial” under RFRA. See, e.g., Priests For Life v. U.S. Dep’t of Health & Human Servs., No. 13-5368, slip op. at 17-22 (D.C. Cir. May 20, 2015) (Brown, J., dissenting from the denial of rehearing en banc); id. at 35 (Kavanaugh, J., dissenting from the denial of rehearing en banc); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 628 (7th Cir.2015) (Flaum, J., dissenting); Eternal Word Television Network, Inc. v. Sec’y, Dep’t of Health & Human Servs., 756 F.3d 1339, 1340 (11 th Cir.2014) (Pryor, J. specially concurring); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1137 (10th Cir.2013) (“Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.”); cf. E.E.O.C. v. Abercrombie & Fitch Stores, *1209Inc., — U.S.-, 135 S.Ct. 2028, 2031-33, 192 L.Ed.2d 35 (2015) (analyzing a plaintiff’s exercise as a “religious practice” under Title VII where the act was motivated by “her understanding of her religion’s requirements”).

These judges assert that whether religious objectors properly understand the legal significance of the compelled act has no bearing on the substantial burden analysis. E.g., Priests For Life, No. 13-5368, slip op. at 35 (Kavanaugh, J., dissenting) (“But what if the religious organizations are misguided in thinking that this scheme • ... makes them complicit in facilitating contraception or abortion? That is not our call to make under the first prong of RFRA.”). And Hobby Lobby supports this position well, as questioning a religious adherent’s understanding of the significance of a compelled action comes dangerously close to' questioning “whether the religious belief asserted in a RFRA case is reasonable” — a “question that the federal courts have no business addressing.” Hobby Lobby, 134 S.Ct. at 2778.

Under this understanding of RFRA, the accommodation scheme substantially burdens any religious non-profit that objects to performing an act that would cause or otherwise make it complicit in providing contraceptive coverage simply because the scheme uses substantial fines to compel an act that the non-profit sincerely believes would have that effect. The actual legal significance of the compelled act is irrelevant to the substantial burden analysis. And because the government has conceded (2) the sincerity of (3) the religious exercise at issue, the only issue left to address is whether the government has shown that the accommodation scheme survives strict scrutiny. The judges who take this position, so far, all agree that the government has not made this showing. Priests For Life., No. 13-5368, slip op. at 22-25 (Brown, J., dissenting); id. at 46-51 (Ka-vanaugh, J., dissenting); Notre Dame, 786 F.3d at 629-30 (Flaum, J., dissenting); Eternal Word Television Network, 756 F.3d at 1348-49 (Pryor, J. specially concurring).

Notwithstanding the strength of those positions, I will proceed under the following assumptions to highlight an even deeper problem lurking within the self-insured accommodation scheme: First, I will assume that whether a burden on religious exercise is “substantial” turns not only on the amount of coercion the government uses to compel an act (no one disputes the substantiality of the fines at issue here), but also on “how the law or policy being challenged actually operates and affects religious exercise.” Ante, at 1177. Second, I will assume this Court may tell a religious adherent she does not face a substantial burden on her religious exercise if her understanding of the law is flawed. Third, I will assume that any burden the accommodation scheme imposes on Plaintiffs — who object to performing any act that would cause or otherwise make them complicit in providing various forms of contraceptive coverage — cannot be substantial unless they show, for example, how their compelled act causes that coverage. See Ante, at 1180-91.

The Court tells Plaintiffs they cannot make this showing “because opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage.” Ante, at 1190. If showing this causation is a prerequisite to establishing a substantial burden, the Court properly rejects the insured plaintiffs’ RFRA claim, as their action or inaction will not affect whether their plan beneficiaries receive objected-to coverage. But the self-insured plaintiffs’ inaction will prevent their plan beneficiaries from receiving the coverage. If their beneficiaries receive this coverage, it is only because the self-insured plain*1210tiffs, by opting out, caused that effect. Thus, the self-insured plaintiffs have shown how their opting out would cause the provision and receipt of objected-to coverage and established a substantial burden on their religious exercise.

II. The Critical Distinction In This Case

I have nothing to add to the Court’s summary of the background in these cases, and very little to add to its explanation of the detailed mechanics of the ACA accommodation scheme. But a critical distinction within the scheme bears repeating. Under the ACA accommodation scheme, in ,the insured health plan context, “a health insurance issuer ... would be obligated to provide contraceptive coverage under the ACA whether or not [the insured nonprofit] delivered the Form or notification to HHS.” Ante, at 1182 n. 28 (citing 42 U.S.C. § 300gg-13). But in the self-insured context, a TPA would be “authorized and obligated to provide the coverage ... only if the religious non-profit ... opts out.” Ante, at 1182 (emphases added); see also 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).

The Fifth, Sixth, and Seventh Circuits failed to recognize this distinction. See E. Tex. Baptist, 793 F.3d at 458-59, 2015 WL 3852811, at *5; Notre Dame, 786 F.3d at 614; Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 387 (6th Cir.2014), cert. granted, judgment vacated — U.S.-, 135 S.Ct. 1914, 191 L.Ed.2d 760 (2015). The Third and D.C. Circuits failed to appreciate its significance. See Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 438 (3d Cir.2015); Priests For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 254-56 (D.C. Cir.2014). This Court considers the distinction “unremarkable.” Ante, at 1182. I disagree. The distinction makes a difference, and juxtaposing the insured plaintiffs and self-insured plaintiffs forces that difference into bold relief.

A. The Insured Plaintiffs

Assuming causation is key, I agree the accommodation scheme does not substantially burden the insured plaintiffs’ religious exercise. As the Court explains, even total inaction on the part of an insured non-profit still results in its plan participants and beneficiaries receiving the coverage to which they are entitled under the ACA because the government has independently obligated a third party (insurance issuers) to provide it.3 See Ante, at 1180-81. Opting out in the insured context does not cause the receipt of contraceptive coverage; rather, it merely absolves the eligible insured nonprofit of any responsibility for the contraceptive coverage its plan participants and beneficiaries will receive whether it opts out or not. Thus, assuming Plaintiffs must show how opting out causes coverage, the accommodation scheme does not substantially burden the insured plaintiffs’ exercise of religion. The insured accommodation is more akin to traditional conscientious objector schemes: the government can and will conscript the actors it needs to achieve its goals whether objectors opt out or not.

The same cannot be said of the self-insured plaintiffs, however.

*1211 B. The Self-Insured Plaintiffs

Unlike the insured plaintiffs, the ACA leaves the self-insured plaintiffs in a position where, by refusing to opt out, they can prevent their plan beneficiaries from receiving the objected-to coverage the beneficiaries are entitled to and would otherwise receive under the ACA. In other words, their plan participants and beneficiaries will receive the coverage only if they opt out as the government commands. This makes their opting out a but-for cause of the receipt of the coverage.

The Court views this ability to prevent Contraceptive coverage by inaction as nothing more than the ability to disobey the law. See Ante, at 1184-85 & n. 35. But that is the same limited ability the plaintiffs in Hobby Lobby possessed, and it goes to the heart of the substantial burden the self-insured plaintiffs face here. “In Hobby Lobby, the plaintiffs] .:. could choose only between (1) complying with the ACA by providing the coverage or (2) not complying and paying significant penalties.” Ante, at 1160 (citing Hobby Lobby, 134 S.Ct. at 2759-60). Similarly, these self-insured plaintiffs must choose between (1) complying with the ACA by taking an action that ultimately causes their beneficiaries to receive this coverage or (2) not complying and paying significant penalties. This is a Hobson’s choice, which we have long held imposes a substantial burden under RFRA. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir.2010) (“We conclude that a religious exercise is substantially burdened under [RFRA] 42 U.S.C. § 2000cc-l(a) when a government ... presents the plaintiff with a Hobson’s choice — an illusory choice where the only realistically possible course of action trenches on an adherent’s sincerely held religious belief.”); Hobby Lobby, 723 F.3d at 1141 (10th Cir.2013) (explaining that the choice between compromising religious beliefs and paying fines under the ACA “is precisely the sort of Hobson’s choice described in Abdulhaseeb ”).

1. The Obvious Causal Connection

If causation is key to showing a substantial burden, see Ante, at 1173-74, 1180-91, the self-insured plaintiffs have surely shown that burden. Certainly, a shifting legal responsibility alone may not necessarily create a causal relationship. But here, the self-insured plaintiffs’ opt out causes the coverage because (1) the government cannot force plaintiffs themselves to provide the coverage, Hobby Lobby, 134 S.Ct. at 2785, and (2) the government cannot shift the ability (let alone the responsibility) to provide the coverage to non-objectors unless the self-insured plaintiffs opt out. See 29 C.F.R. § 2590.715-2713A(b)(2); Ante, at 1181-82. Opting out is thus the only way their plan participants and beneficiaries may receive the coverage.

Put another way, if the self-insured plaintiffs do not opt out, who will provide the coverage for their plan participants and beneficiaries? The answer: no one. The self-insured plaintiffs cannot do so per their faith; the TPAs cannot do so per the law. Thus, the self-insured accommodation renders any duty to provide, and any entitlement to receive, contraceptive coverage wholly unenforceable and thus illusory — unless and until the self-insured plaintiffs opt out. Cf. Pennington v. Northrop Grumman Space & Mission Sys. Corp., 269 Fed.Appx. 812, 819 (10th Cir.2008) (unpublished) (“[W]hen a promise, in reality, promises nothing — it is illusory.” (Internal marks and citation omitted)).

To fully understand why no one can or will provide this objected-to coverage unless the self-insured plaintiffs perform a compelled act, one must view the ACA Mandate and accommodation scheme in light of Hobby Lobby. Hobby Lobby clearly holds forcing religious employers to pro*1212vide objected-to contraceptive coverage violates RFRA. 134 S.Ct. at 2785. So, if any entity is to provide the coverage, it must be a third party. The insured accommodation independently conscripts third parties to provide the coverage. But as this Court points out, the self-insured accommodation was drafted such that no third party can provide the coverage in the self-insured context unless and until the objecting religious employer opts out. Ante, at 1181-82; see also Eternal Word Television Network, 756 F.3d at 1347 (Pryor, J., specially concurring) (explaining that, without the Form or letter, a TPA “has no legal authority to step into the shoes of the [non-profít] and provide contraceptive coverage to the employees and beneficiaries of the [non-profit]”). As such, a third party’s legal authority (ie. permission) to provide the coverage is wholly dependent upon (ie. caused by) the self-insured non-profit opting out.

The Court believes we should focus on the fact that the ACA “entitle[s] plan participants and beneficiaries to coverage whether or not the plaintiffs opt out” and imposes a duty on “either the religious non-profit organization or the TPA” to provide that coverage. Ante, at 1174, 1186. But this reasoning (1) fails to consider the ACA Mandate in light of the limitations Hobby Lobby already imposed, and (2) confuses legal concepts (duty and entitlement) with real-world effects (provision and receipt).

First, the Court’s focus on the ACA’s requirement that “either the religious nonprofit organization or the TPA” provide the coverage, Ante, at 1186, ignores the fact that the government cannot require the religious non-profit to provide the coverage under Hobby Lobby. By ignoring the limitation Hobby Lobby imposes on the government, the Court simultaneously acknowledges that “opting out is necessarily a but-for cause of someone else — the TPA — providing contraceptive coverage,” Ante, at 1186, and nevertheless rejects the self-insured plaintiffs’ RFRA claims for lack of causation. Ante, at 1189-90. But again, Hobby Lobby forbids the government from placing this requirement on the non-profits themselves. So if opting out is necessarily a but-for cause of someone else providing the coverage, it is necessarily a but-for cause of anyone providing the coverage at all. Essentially, the Court concedes but-for cause and then turns around and denies the existence of any causation. What?

Second, the Court asserts that the self-insured plaintiffs’ opt out will not cause the actual provision and receipt of objected-to coverage because the ACA creates an independent, albeit illusory, duty and entitlement related to that coverage. True, opting out does not cause entitlement to contraceptive coverage — the ACA entitles all health plan beneficiaries to contraceptive coverage. But these beneficiaries will not receive that coverage unless the self-insured plaintiffs do something to cause its provision from a third party. In other words, the ACA may independently say “someone” has a duty to provide contraceptive coverage, see 29 C.F.R. § 2590.715-2713, but no one can or will honor that duty and provide the coverage unless the self-insured plaintiffs opt out. No self-insured plaintiff will honor it because the government cannot force them to under Hobby Lobby, and no third party can honor it because no third party has authority to do so without an opt out. Based on this error, the Court concludes that “federal law, not the actions of the religious objector, ensures that plan participants and beneficiaries will receive contraceptive coverage.” Ante, at 1183-84 (emphasis added). But that is simply wrong. As explained above, federal law alone does not ensure receipt of the coverage from the self-insured plaintiffs; and it does not even allow, let alone ensure, re*1213ceipt of that coverage from a third party unless the self-insured plaintiffs opt out. Rather, federal law, only in conjunction with the self-insured plaintiffs’ opt out, allows plan participants and beneficiaries to receive contraceptive coverage.4

These errors, taken together, cause the Court to reject a straw man rather than the self-insured plaintiffs’ RFRA claims. The self-insured plaintiffs do not claim a RFRA violation based on the fact that the ACA created an entitlement to contraceptive coverage; they object to the causal role they must play in providing that coverage.5

A proper accommodation may relieve otherwise substantial burdens on religious exercise, but this accommodation fails to do so, at least in the self-insured context. And to be sure, “[a] burden does not rise to the level of being substantial when it places an inconsequential or de minimis burden on an adherent’s religious exercise.” Ante, at 1178 (quoting Priests for Life, 772 F.3d at 246). But here, the accommodation scheme foists upon the self-insured plaintiffs a choice with dire consequences. Either (1) they refuse to act, which would avoid causing their plan beneficiaries to receive objected-to coverage but trigger crippling fines for violating the law or (2) they act, which would cause the receipt of this coverage and violate their faith. If “the purpose of religious accommodation” was to permit religious objectors “to avoid a religious burden and to comply with the law,” see Ante, at 1185, it fails to achieve that purpose. Rather, the accommodation foists upon the self-insured plaintiffs a Hobson’s choice and thus a substantial burden on their exercise of religion. Abdulhaseeb, 600 F.3d at 1315.

2. This is Not a Conscientious Objector Accommodation Scheme

The Court believes this accommodation scheme akin to the conscientious objector *1214schemes used for military conscription. See Ante, at 1184 n. 38. Not so. The accommodation scheme may function like a conscientious objector scheme in some regards, but it ultimately forces objectors to play a very different and causal role.

Military conscription law generally requires male citizens to register for the draft and allows the President to draft a certain number of men from that pool of candidates into active duty in the Armed Forces.6 See, e.g., Arver v. United States, 245 U.S. 366, 375-76, 38 S.Ct. 159, 62 L.Ed. 349 (1918) (allowing the President to draft up to two groups of 500,000 men). After registering, conscientious objectors can opt out of serving in combat. 50 App. U.S.C. § 456(j). But they cannot reduce the number of men the President ultimately drafts. Whether objectors lawfully register and opt out, or register and then choose unlawfully to avoid induction, or even choose unlawfully not to register at all, the President can and will draft the same number of men needed for war. See LAWRENCE M. BaSKIR & WlLLIAM A. STRAUSS, Chance and Ciroumstanoe: The Draft, The War, and The Vietnam Generation 14-28 (1978) (explaining that the government’s Vietnam draft policies “did not care who was drafted as long as enough people were drafted”).

Indeed, the Court’s reliance on Sheridan v. United States, 483 F.2d 169 (8th Cir.1973), highlights this difference. In Sheridan, the defendant registered for the draft but did not lawfully opt out. Instead, he simply refused to be inducted. Id. at 170. But the result under conscription law was the same: “another person [was] called in his place.” Id. at 174. In other words, like the insured plaintiffs, no matter what conscientious objectors do or refuse to do, the government can and will achieve its military draft goals.

The opposite result occurs under the self-insured accommodation scheme. If a self-insured plaintiff simply refuses to provide coverage and does not opt out, the government cannot call a third party in its place. The accommodation scheme thus places the self-insured plaintiffs in a very different position vis-a-vis helping the government achieve its religiously objectionable goals. Conscientious objectors cannot prevent the government from conscripting their replacements; but the self-insured plaintiffs can completely prevent the government from even authorizing their TPAs to provide objected-to coverage. Conscientious objectors also need not identify a related third party to serve in their stead; but the self-insured plaintiffs must identify a related third party through a form or letter. And this form or letter is the only means by which the government can authorize that third party to serve in their stead. Under conscientious objector schemes, the government may independently draft non-objecting Americans into combat to further its war efforts; conscientious objectors have no power to stop it. But under the self-insured accommodation scheme the government needs the self-insured plaintiffs to commit an act to further its contraceptive coverage efforts; their beneficiaries will not receive this coverage unless they commit that act and cause that result. Such a conscientious objector 'scheme — where the government could draft a replacement soldier only if the initial conscientious objector opted out and identified a previously ineligible relative to serve in his stead — would be immensely problematic, to say the least.7

*1215In relying on conscientious objector schemes the Court commits the same error it levies against this dissent: it fails to appreciate the broader structures of both the accommodation and conscientious objector schemes. In comparing the two schemes, the Court focuses only on the acts the objector must perform to opt out, and what happens if the objector performs those acts. The comparison totally ignores the broader and more critical difference between the two schemes: what happens if the objector refuses to perform those acts? Conscription law requires that “someone” go to war, and in the end “someone” will go to war. The law is such. that the government can and will shift this legal duty to a non-objector regardless of the objector’s action or inaction. Conversely, the ACA says “someone” must provide contraceptive coverage, but the self-insured accommodation was drafted such that if the self-insured plaintiffs choose to do nothing rather than opt out, no one will actually provide that coverage. Again, the government cannot force the plaintiffs to provide the coverage, and it cannot shift the duty to provide the coverage unless the self-insured plaintiffs choose to opt out. If the government could independently shift this duty (as conscription law allows) or eliminate the need to shift the duty at all (as the insured accommodation does) that might eliminate the causal role the self-insured plaintiffs currently face. But presently, the law forces the self-insured plaintiffs into gatek-eeping positions and then uses fines to force them to open the gates.

3. The Supreme Court’s Little Sisters and Wheaton College Orders

The Court also believes the accommodation scheme does not impose a substantial burden on- self-insured non-profits because the government’s new alternative notice accommodation — which forces an objecting non-profit to write a letter to HHS opting out and identifying its TP As and/or health insurance issuers — is essentially akin to the Supreme Court’s injunctions pending appeal in Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, — U.S.-, 134 S.Ct 1022, 187 L.Ed.2d 867 (2014), Wheaton College v. Burwell, — U.S.-, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014), and most recently Zubik v. Burwell, Nos. 14A1065, 14-1418, — U.S. -, 135 S.Ct. 2924, 2924, — L.Ed.3d -, 2015 WL 3947586, at *1 (U.S. June 29, 2015). See Ante, at 1178-79 n. 25,1187 n. 39. But the Court’s reliance on these interim orders appears to be based on two flawed assumptions: (1) that the notices required by these orders were sufficient to authorize a TPA to provide coverage it could not provide before, and (2) even assuming this dubious interpretation of the orders, that they approved of compelling religious non-profits to play this causal role under RFRA’s first step (no substantial burden) as opposed to approving of *1216such compulsion only where it satisfies RFRA’s second step (strict scrutiny).

As to the first assumption, the Little Sisters order nowhere contemplates allowing the government to use the Little Sisters’ interim written notice to facilitate coverage by alternative means. And the Wheaton College order did not allow the government to rely on Wheaton’s interim written notice, either. Rather, it allowed the government to rely on preexisting knowledge that Wheaton qualified for exemption and would not provide certain contraceptive coverage. See Wheaton Coll., 184 S.Ct. at 2807 (“But [Wheaton] has already notified the Government— without using EBSA Form 700 — that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” (emphases added)). Moreover, as Justice Sotomayor’s dissent in Wheaton College shows, the written notices required in Wheaton College, Little Sisters, and Zu-bik were insufficient to authorize TPA coverage under the then-effective accommodation, and may remain insufficient even under the new alternative accommodation. See Wheaton Coll., 134 S.Ct. at 2814 n. 6 (Sotomayor, J., dissenting).8

To the extent Wheaton College allows the government to rely on its knowledge of Wheaton’s objection, this merely tracks the Supreme Court’s decision in Bowen v. Roy, where the Court rejected a Free Exercise challenge to the government’s use of a social security number it already possessed and concluded that the First Amendment does not “require the government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” 476 U.S. at 693, 699, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986). But importantly:

a majority of justices [in Roy ] indicated that the requirement that applicants furnish a social security number was a different matter. Five justices either concluded or strongly suggested that the government could not require an applicant to provide the number on a benefits application if the applicant had a sincere religious objection to doing so.

Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 567 (7th Cir.2014) (Flaum, J., dissenting) (emphasis in original), cert, granted, judgment vacated sub nom. Univ. of Notre Dame v. Burwell, — U.S.-, 135 S.Ct. 1528, 191 L.Ed.2d 557 (2015); see Roy, 476 U.S. at 714-16, 106 S.Ct. 2147 (Blackmun, J., concurring in part), 732,106 S.Ct. 2147 (O’Connor, J., concurring in part and dissenting in part) (“The rise of the welfare state was not the fall of the Free Exercise Clause.”), 733, 106 S.Ct. 2147 (White, J., dissenting).

Moreover, the Court may well have expressly allowed for this reliance in Whea-ton College because, unlike the Little Sisters, Wheaton provides insurance through both self-insured plans and insured plans subject to the Mandate. See Wheaton Coll. v. Burwell, 50 F.Supp.3d 939, 944 (N.D.Ill.2014) (Wheaton “offers its health insurance pursuant to six plans: two in*1217sured HMO plans, a [grandfathered] PPO plan, two self-funded prescription drug plans, and an insured student health plan.” (footnote omitted)). Thus, unlike the wholly self-insured Little Sisters, the government might independently ensure that an issuer from at least one of these insured health plans provides full contracép-tive coverage to at least some of Wheaton’s various plan beneficiaries under the current ACA regime without forcing Wheaton to play a causal role in the receipt of that coverage.

Thus, the Little Sisters, Wheaton College, and Zubik orders allow religious nonprofits to simply notify the government that they qualify for exemption and will not provide contraceptive coverage. The government may use its knowledge of these objections when choosing between independently available alternative means to ensure coverage is provided (as the conscientious objector and insured schemes do). But these orders do not allow the government to compel religious non-profits to furnish the document that is essential to cause their plan beneficiaries to receive objected-to coverage.

And yet, suppose these orders could be read to say that the written notices they required were legally sufficient to authorize a previously ineligible TPA to provide objected-to coverage. Under that dubious interpretation, the orders would indeed force self-insured religious objectors to perform an act that causes the ultimate provision of the coverage, as they would make the provision of the coverage wholly contingent upon the religious objectors’ acts of providing HHS with that notice. For all the reasons discussed above, that interpretation of the orders would impose a substantial burden on the self-insured plaintiffs’ exercise of religion.

So, turning to the Court’s second assumption, even under its dubious interpretation of the orders, the orders nowhere say that forcing religious non-profits to play this sort of causal role avoids imposing a substantial burden on their religious exercise. Instead, assuming the Court’s interpretation of these orders is correct, these orders would impose a substantial burden under RFRA’s first step and therefore must comply with RFRA’s second step (strict scrutiny). Indeed, Judge Ka-vanaugh has compellingly argued that these orders simply set forth a less restrictive means of achieving the government’s compelling interest in facilitating access to contraceptive coverage. See Priests For Life, No. 13-5368, slip op. at 46-51 (Kava-naugh, J., dissenting). These orders do not require religious non-profits to identify related third parties for the government to authorize and possibly conscript in their stead. Rather, they only require the nonprofits to inform HHS that they qualify for exemption and will not provide objected-to coverage. As discussed above regarding conscientious objector schemes, a significant difference exists between asking a religious objector to say simply “no” and compelling that objector to identify a related entity to serve as a scapegoat where no one else can.9

4. ERISA-Bound Plans v. ERISA-Exempt Church Plans

The burden the self-insured plaintiffs face is most salient with regards to Southern Nazarene, whose TPA is subject to ERISA enforcement and therefore will be not only authorized but also required to provide contraceptives to the participants and beneficiaries of Southern Nazarene’s self-insured plan only if Southern Nazar*1218ene opts out. See 29 C.F.R. § 2590.715-2718A(b)(2). Southern Nazarene’s opt out will thus clearly cause someone to provide contraceptive coverage where no one would or could before.

But the lack of an enforcement mechanism as to ERISA-exempt church plans does not itself remove the causal role and substantial burden that the accommodation scheme foists upon the church-plan plaintiffs. For example, the GuideStone Plan is an ERISA-exempt church plan, but at least one of its TPAs, Highmark, has indicated it will provide full contraceptive coverage for those self-insured organizations that use the GuideStone Plan and validly opt- out. And plaintiffs Reaching Souls, Truett-McConnell College, and Mid-America Christian University are all self-insured plaintiffs that use the GuideStone Plan. Ante, at 1168; SN Supp. Br. II at 9 n.2. So even though their opting out might not trigger an enforceable duty to provide objected-to coverage, these church plan plaintiffs have established that their opting out will actually cause Highmark to provide the coverage — coverage it cannot provide unless they opt out.

True, given the repeal of the accommodation scheme’s non-interference provision, church plans like the GuideStone Plan might try to fire TPAs like Highmark and replace them with TPAs that promise not to provide coverage for objected-to contraceptives, and those plaintiffs that use the GuideStone Plan might be able to fire GuideStone if it refuses to do so. See RS Oral at 12:57-13:10. Thus, by economic coercion, these plaintiffs might be able to ultimately stop the provision of the coverage they were initially forced to cause. But, the government maintains that “such conduct is generally unlawful and is prohibited under ... state and federal laws.” See 79 Fed.Reg. at 51,095. And none of this changes the present fact that if plaintiffs who use the GuideStone Plan opt out, they will cause Highmark to perform a religiously objected-to act on their behalf where Highmark previously could not do so. Thus, those self-insured plaintiffs that use the GuideStone Plan have shown “presently threatened injuries” warranting injunctive relief. Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 75 L.Ed. 602 (1931).

The Little Sisters plaintiffs, on the other hand, have not established this causal connection. The Little Sisters’ primary TPA, Brothers Services, is not bound by ERISA and has promised not to provide contraceptive coverage even if Little Sisters opts out. Little Sisters asserts that Brothers Trust also uses other TPAs who might choose to provide contraceptive coverage if they opt out, but they have not sufficiently developed this theory to bear the burden of establishing that their opting out will presently cause someone to provide contraceptive coverage to their plan beneficiaries.

The Court also suggests self-insured non-profits “could relieve themselves of any lingering doubts they may have about causation by [1] employing an insured plan, [2] employing a self-insured church plan where the Departments lack authority to enforce the Mandate against their TPA, or [3] administering the self-insured plan on their own in-house without using a TPA.” Ante, at 1183 n. 32. But none of these options alleviate the substantial burden the accommodation scheme imposes. First, choosing to switch from a self-insured plan, where no coverage can be provided without an opt out, to an insured plan, where coverage will be provided by a third party, would simply mean choosing to cause that coverage by switching plans rather than opting out. Second, as discussed above, even in the church plan context, opting out may still cause a TPA to provide the coverage. Third, no plaintiff *1219in this case administers its plan in-house. So to the extent the Court opines on the legal effect the ACA Mandate might have on a plan not at issue in this case, the Court impermissibly exceeds its jurisdiction by “advising what the law would be upon a hypothetical state of facts.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)).

Given that we do not have jurisdiction to pass on this hypothetical, the self-insured plaintiffs should not have to rebut it to prove a present substantial burden under RFRA. But, because the Court goes there, administering a self-insured plan in-house without a TPA can be prohibitively complex, limit options for managing care, and create legal pitfalls that many non-profits simply cannot afford to handle. See Thomas R. McLean & Edward P. Richards, Health Care’s “Thirty Years War”: The Origins and Dissolution of Managed Care, 60 N.Y.U. Ann. Surv. Am. L. 283, 313 (2004). See generally Rhonda D. Orín and Daniel J. Healy, Self-Administering, Insuring and Funding Benefit Plans, 197-213 in Human Resources (Thompson 2007 Summer Edition).

C. Summing Up the Substantial Burden On the Self-Insured Plaintiffs

The Court concludes that the Plaintiffs’ causation arguments fail because “opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage.” Ante, at 1190. This conclusion is correct in the insured context. But the self-insured plaintiffs, with the exception of Little Sisters, have shown exactly how their act of opting out will cause someone to provide contraceptive coverage where their refusal to act would prevent that result. Unfortunately, the Court fails to see this obvious causal relationship because it ignores the clear holding of Hobby Lobby and fails to comprehend the difference between unenforceable entitlement and actual receipt. The government has left self-insured plaintiffs in a position where they must decide whether their beneficiaries will actually receive objected-to contraceptive coverage. The accommodation does not absolve these plaintiffs of this responsibility. Instead, it forces them to either (1) violate their sincere religious beliefs by performing an action that will cause their beneficiaries to receive objected-to coverage, or (2) violate the law and incur steep fines to obey those religious beliefs. Again, this is a Hobson’s choice and thus a substantial burden on their religious exercise under RFRA. Abdulhaseeb, 600 F.3d at 1317; Hobby Lobby, 723 F.3d at 1141.

III. Strict Scrutiny

Because the government has imposed a substantial burden on at least the self-insured plaintiffs’ religious exercise, under RFRA it must demonstrate that this burden is “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-l. Our precedent currently holds the government has no compelling interest in contraceptive coverage. See Hobby Lobby, 723 F.3d at 1143. But even assuming such a. compelling interest, see Hobby Lobby, 134 S.Ct. at 2780 (assuming the same), 2785-86 (Kennedy, J., concurring), 2799 (Ginsburg, J., dissenting), the government cannot show this scheme is the least restrictive means of furthering that interest. As discussed above, the Supreme Court’s interim orders in Little Sisters, Wheaton College, and Zubik, even when interpreted so as to force self-insured non-profits to play a necessary causal role in contraceptive coverage, provide a less restrictive means of achieving the *1220same goal. See Priests For Life, No. 13-5368, slip op. at 46-51 (Kavanaugh, J., dissenting). The existence of this less restrictive means dooms the current accommodation scheme under strict scrutiny. Hobby Lobby, 134 S.Ct. at 2781-82.

IV. Conclusion

“Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty,” Hobby Lobby, 134 S.Ct. at 2760, a liberty essential to our country’s constitutional tradition, albeit with boundaries difficult to define, see id. at 2785 (Kennedy, J., concurring). The Court today makes causation one of those boundaries. Even assuming this boundary, however, the self-insured plaintiffs in this case, with the exception of the Little Sisters plaintiffs, have clearly shown how their compelled act will cause their plan beneficiaries to receive objected-to coverage that they could not otherwise receive. Therefore, I dissent from the Court’s holding regarding these self-insured plaintiffs. Even assuming a causation requirement, I would still hold these self-insured plaintiffs have shown a substantial likelihood of success on the merits of their RFRA claim and that the other requirements for a preliminary injunction are met. I would therefore affirm the district court’s denial of a preliminary injunction in Little Sisters, 6 F.Supp.3d 1225, affirm the district court’s grant of a preliminary injunction in Reaching Souls, 2013 WL 6804259, and affirm in part (as to the self-insured plaintiffs: Southern Nazarene University and Mid-America University) and reverse in part (as to the insured plaintiffs: Oklahoma Baptist University and Oklahoma Wesleyan University) the district court’s grant of a preliminary injunction in Southern Nazarene, 2013 WL 6804265.

. As I explain below, the Little Sisters plaintiffs, though self-insured, have not shown that their opting out will necessarily cause their plan participants and beneficiaries to receive contraceptive coverage. Accordingly, my use of the term "self-insured plaintiffs” does not refer to the Little Sisters unless otherwise stated.

. Even the government's proffered fourth option — declining to sponsor a group health plan — would not interfere with contraceptive coverage for the insured plaintiffs’ plan beneficiaries. Without an employer-sponsored plan, these beneficiaries would have to find other health insurance. See Nat'l Fed’n of Indep. Bus. v. Sebelius, —• U.S. -, 132 S.Ct. 2566, 2664, 183 L.Ed.2d 450 (2012) (Scalia, J., dissenting). And that insurance would likely cover contraceptives. See 42 U.S.C. § 300gg-13.

. Even with the opt-out, federal law does not always ensure receipt of the coverage. For example, the Court asserts “the ACA ensures plan participants and beneficiaries will receive contraceptive coverage” but simultaneously contradicts itself by acknowledging that TPAs for self-insured church plans may in fact decline to provide that coverage, in which case "plan participants and beneficiaries would not get the coverage to which they are otherwise entitled.” Ante, at 1188 & n. 41 (emphases added).

The Court’s attempt to paint these contradictory positions as consistent suffers from the same logical flaw highlighted above; that is, it confuses the actual provision and reaeipt of coverage with a concededly unenforceable entitlement and duty to provide it. If the law cannot force an unwilling TPA to provide contraceptive coverage, the TPA will not provide it, and the plan beneficiaries will not receive it. Cf. Mach Mining, LLC v. E.E.O.C., -U.S. -, 135 S.Ct. 1645, 1652-53, 191 L.Ed.2d 607 (2015) (acknowledging that even the government may violate the law, “especially so when [it faces] no consequence”). Thus, the existence of an unenforceable duty to provide contraceptive coverage does not ensure receipt, as this Court seems to believe.

. The Court also asserts that religious nonprofits "cannot preclude the government from requiring others to provide the legally required coverage in its stead,” Ante, at 1183, and "cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled under the ACA,” Ante, at 1193. I agree that this should not be the case but, unfortunately, the government drafted the self-insured accommodation such that the self-insured plaintiffs can, by inaction, do exactly that. As explained above, that is precisely why their opting out causes the receipt of objected-to coverage.

Moreover, to the extent this language connotes dissatisfaction with the problems created by the self-insured accommodation, such dissatisfaction is irrelevant to whether the law imposes a substantial burden under RFRA. Our job is not to “add words to the law to produce what is thought to be a desirable result.” Abercrombie & Fitch, 135 S.Ct. at 2033.

. Currently, "every male citizen of the United States ... between the ages of eighteen and twenty-six” must register in order to facilitate any eventual conscription into the Armed Forces. 50 App. U.S.C. § 453(a).

. The Court attempts to counter this point by referencing the Enrollment Act of 1863, which "permitted a draftee to avoid service only by either providing a substitute or paying $300.” Ante, at 1184 n. 33 (quoting Act *1215of March 3, 1863, ch. 75, § 13, 12 Stat. 731; 733 (1863)). But this act was a short-lived experiment that did not even survive to the end of that war. Moreover, resentment over the Enrollment Act and its opt-out provision triggered the "New York City draft riot, the largest [and deadliest] civil insurrection in American history apart from the South’s rebellion itself.” Eric Foner, Reconstruction: America’s Unfinished Revolution 1863-1877 at 32 (1988). "No case questioning the Civil War draft was heard by the Supreme Court, but it is known that Chief Justice Roger Taney prepared a rough outline of an opinion declaring the act unconstitutional.” Leon Friedman, Conscription and the Constitution, 67 Mich. L.Rev. 1493, 1546 (1969). Indeed, one eminent historian called the substitution provision a "grotesque monstrosit[y]” and stated "[t]he government could hardly have devised a worse law.” Bruce Catton, The Civil War 208 (1987). I would call that problematic.

. That is, even under the new alternative notice scheme, the “information necessary to verify applicants' eligibility under 26 CFR § 54.9815-2713A(a),” see Zubik, 135 S.Ct. at 2924, 2015 WL 3947586, at *1, does not contain all the information required by the regulations and thus might not qualify as a valid opt out sufficient to trigger TPA coverage, see 29 C.F.R. § 2590.715 — 2713A(b)(l)(ii)(B) (requiring the self-insured organization to provide, among other things “the plan name and type ... and the name and contact information for any of the plan's third party administrators”); Wheaton Coll., 134 S.Ct. at 2814 n. 6 (Sotomayor, J., dissenting).

. Moreover, this less restrictive means of achieving the same goal necessarily dooms the current self-insured accommodation scheme under strict scrutiny. See infra Part III.