In the
United States Court of Appeals
For the Seventh Circuit
Nos. 14-1430 & 14-1431
GRACE SCHOOLS, et al., AND DIOCESE OF
FORT WAYNE-SOUTH BEND, INC., et al.,
Plaintiffs-Appellees,
v.
SYLVIA MATHEWS BURWELL, et al.,
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Indiana.
Nos. 3:12-cv-00459-JD-CAN and 1:12-cv-00159-JD-RBC —
Jon E. DeGuilio, Judge.
ARGUED DECEMBER 3, 2014 — DECIDED SEPTEMBER 4, 2015
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. The district court entered a prelimi-
nary injunction in favor of the plaintiffs, a number of religious,
not-for-profit organizations, preventing the defendants from
applying or enforcing the so-called “contraceptive mandate”
of the Patient Protection and Affordable Care Act of 2010
(“ACA”) to the plaintiffs. See 42 U.S.C. § 300gg-13(a)(4); Pub.
2 Nos. 14-1430 & 14-1431
L. No. 111-148, 124 Stat. 119 (2010). The plaintiffs contend that
the ACA’s accommodations for religious organizations impose
a substantial burden on their free exercise of religion, and that
the ACA and accompanying regulations are not the least
restrictive means of furthering a compelling government
interest, in violation of the plaintiffs’ rights under the Religious
Freedom Restoration Act of 1993 (“RFRA”). See 42 U.S.C. §
2000bb et seq. The defendants, several agencies of the United
States government, appeal. We conclude that ACA does not
impose a substantial burden on the plaintiffs’ free exercise
rights and so we reverse and remand. However, we will
maintain the injunction for a period of sixty days in order to
allow the district court adequate time to address additional
arguments made by the parties but not addressed prior to this
appeal.
I.
The ACA requires group health plans and third-party
administrators of self-insured plans to cover preventive care
for women under guidelines supported by the Health Re-
sources and Services Administration (“HRSA”), a component
of the Department of Health and Human Services (“HHS”). 42
U.S.C. § 300gg-13(a)(4); 45 C.F.R. § 147.130(a)(1)(iv); University
of Notre Dame v. Burwell, 786 F.3d 606, 607 (7th Cir. 2015)
(hereafter “Notre Dame II”); University of Notre Dame v. Sebelius,
743 F.3d 547, 548 (7th Cir. 2014), vacated by 135 S. Ct. 1528
(2015) (hereafter “Notre Dame I”). The relevant guidelines
include “all Food and Drug Administration approved contra-
ceptive methods, sterilization procedures, and patient educa-
tion and counseling for all women with reproductive capac-
ity.” 77 Fed. Reg. 8725-26. The regulations adopted by the three
Nos. 14-1430 & 14-1431 3
Departments implementing this part of the ACA require
coverage of, among other things, all of the contraceptive
methods described in the guidelines. See 45 C.F.R.
§ 147.130(a)(1)(iv) (HHS); 29 C.F.R. § 2590.715-2713(a)(1)(iv)
(Labor); 26 C.F.R. § 54.9815-2713(a)(1)(iv) (Treasury).1
In anticipation of objections from religious organizations to
these requirements, the Departments provided an exemption
from the contraception coverage provision for religious
employers. 45 C.F.R. § 147.131(a). A religious employer is
defined as “an organization that is organized and operates as
a nonprofit entity and is referred to in section 6033(a)(3)(A)(i)
or (iii) of the Internal Revenue Code of 1986, as amended.”
45 C.F.R. § 147.131(a); 26 U.S.C. § 6033(a)(3)(A). That provision
of the Internal Revenue Code, in turn, refers to “churches, their
integrated auxiliaries, and conventions or associations of
churches,” and “the exclusively religious activities of any
religious order.” 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). But the
exemption did not cover religiously-affiliated non-profit
corporations such as schools and hospitals that did not meet
the IRS guidelines for religious employers. The Departments
therefore adopted additional regulations providing accommo-
dations for group health plans provided by these non-profit
1
All three of these regulations have been amended since this suit was filed.
The most recent amendments, which are scheduled to take effect Sept. 14,
2015, address accommodations for closely-held for-profit corporations
whose owners have religious objections to some or all of the contraceptive
coverage requirements of the ACA. See Burwell v. Hobby Lobby, 134 S. Ct.
2751 (2014). Because these most recent amendments are not relevant to the
issues raised here, we will be referring to the version of the regulations in
effect at the time this suit was filed, unless we state otherwise.
4 Nos. 14-1430 & 14-1431
religious corporations, called “eligible organizations” in the
regulations:
(b) Eligible organizations. An eligible organization
is an organization that satisfies all of the following
requirements:
(1) The organization opposes providing coverage for
some or all of any contraceptive services required to
be covered under § 147.130(a)(1)(iv) on account of
religious objections.
(2) The organization is organized and operates as a
nonprofit entity.
(3) The organization holds itself out as a religious
organization.
(4) The organization self-certifies, in a form and
manner specified by the Secretary, that it satisfies
the criteria in paragraphs (b)(1) through (3) of this
section, and makes such self-certification available
for examination upon request by the first day of the
first plan year to which the accommodation in
paragraph (c) of this section applies. The
self-certification must be executed by a person
authorized to make the certification on behalf of the
organization, and must be maintained in a manner
consistent with the record retention requirements
under section 107 of the Employee Retirement
Income Security Act of 1974.
Nos. 14-1430 & 14-1431 5
45 C.F.R. § 147.131(b).2 See also 78 Fed. Reg. 39,874-75.
Eligible organizations are not required “to contract,
arrange, pay, or refer for contraceptive coverage” to which
they have religious objections. 78 Fed. Reg. 39,874. The
government developed a two-page form for eligible organiza-
tions to use to comply with this accommodation, the “EBSA
Form 700 – Certification.”3 The short form requires the eligible
organization to supply its name, the name and title of the
individual authorized to make the certification on behalf of the
organization, and a mailing address and telephone number for
that individual. The form also requires a signature verifying
the statement, “I certify the organization is an eligible organi-
zation (as described in 26 CFR 54.9815-2713A(a), 29 CFR
2590.715-2713A(a); 45 CFR 147.131(b)) that has a religious
objection to providing coverage for some or all of any contra-
ceptive services that would otherwise be required to be
covered.” The organization must then provide a copy of the
certification to the organization’s health insurance issuer or, for
self-insured plans, to its third-party administrator. The insurer
or administrator receiving the certification is obligated to
provide (or arrange for the provision of) contraception cover-
age for the health plan’s participants without cost sharing
through alternate mechanisms established by the regulations.
2
This regulation will also be updated as of Sept. 14, 2015. Again, we cite to
the earlier version.
3
The form can be found at http://www.dol.gov/ebsa/pdf/preventive
serviceseligibleorganizationcertificationform.pdf, last visited September 3,
2015.
6 Nos. 14-1430 & 14-1431
45 C.F.R. § 147.131(c). The insurer4 may not impose a charge of
any variety, either directly or indirectly, on the eligible
organization for the provision of contraception services.5 The
insurer must also inform plan participants that the eligible
organization will not provide or fund any contraception
coverage. 45 C.F.R. § 147.131(d). As we will discuss below,
since the filing of this suit, these regulations have been
amended to allow a second method of objecting to contracep-
tive coverage, by notifying HHS directly of any religiously-
based objection.
The plaintiffs are various religiously-based non-profit
organizations including the Diocese of Fort Wayne-South
Bend, Inc. (“Diocese”); Catholic Charities of the Diocese of Fort
Wayne-South Bend, Inc. (“Catholic Charities”); Saint Anne
Home & Retirement Community of the Diocese of Fort Wayne-
4
From this point forward, when we use the term “insurer,” we mean to
include third-party administrators in those instances where the plan is self-
insured unless we state otherwise.
5
Insurers are expected to recoup the costs of contraceptive coverage from
savings on pregnancy medical care as well as from other regulatory offsets.
See Notre Dame II, 786 F.3d at 609–10; 78 Fed. Reg. 38977-78 (“Issuers are
prohibited from charging any premium, fee, or other charge to eligible
organizations or their plans, or to plan participants or beneficiaries, for
making payments for contraceptive services, and must segregate the
premium revenue collected from eligible organizations from the monies
they use to make such payments. In making such payments, the issuer must
ensure that it does not use any premiums collected from eligible organiza-
tions.”). Third-party administrators may seek reimbursement of up to 110%
of their costs from the government. Notre Dame II, 786 F.3d at 609; 45 C.F.R.
§ 156.50(d)(3).
Nos. 14-1430 & 14-1431 7
South Bend, Inc. (“St. Anne Home”); Franciscan Alliance, Inc.;
Specialty Physicians of Illinois LLC (“Specialty Physicians”);
University of Saint Francis (“St. Francis”); Our Sunday Visitor,
Inc. (“Sunday Visitor”); Biola University, Inc. (“Biola”) and
Grace Schools. The plaintiffs objected below to the regulatory
scheme, which they characterize as a “contraceptive services
mandate,” on numerous grounds. Primarily, they asserted that
the regulations force them to participate in a system that
contravenes their religious beliefs in violation of the RFRA. 42
U.S.C. § 2000bb et seq.6 In particular, they are forced to contract
with insurers or third-party administrators that will provide
their employees (and, in some cases, their students) with
coverage for contraceptives, sterilization, and abortion-
inducing products, all in violation of their deeply held reli-
gious beliefs. The accommodation provides them no relief,
they contended below, because it causes them to trigger and
facilitate the same objectionable services for their employees
and students. A non-complying employer7 who does not meet
6
The plaintiffs also allege that the challenged statute and regulations
violate their rights under the First Amendment and under the Administra-
tive Procedures Act, 5 U.S.C. § 500 et seq. Because the district court issued
the injunction after considering only the RFRA, and because neither side
has briefed the other issues, we will confine our discussion to the RFRA. On
remand, the plaintiffs are free to pursue their other theories for relief and,
in fact, we will leave the injunction in place for a limited time in order to
allow the court to consider those additional claims.
7
The disputed regulations apply equally to employers providing insurance
to employees and to institutions of higher education providing student
health insurance. See 45 C.F.R. § 147.131(f). Some of the plaintiffs provide
(continued...)
8 Nos. 14-1430 & 14-1431
an exemption faces fines of $2000 per year per full time
employee8 for not providing insurance that meets coverage
requirements, 26 U.S.C. § 4980H(c), or $100 per day per
employee for providing insurance that excludes the required
contraceptive coverage, 26 U.S.C. § 4980D, and will face the
risk of other enforcement actions.
The Diocese itself is exempted from challenged require-
ments under the religious employer exemption,9 and the
remaining plaintiffs are subject to the accommodation for non-
profit, religiously-affiliated employers. The government does
not contest the sincerity of the plaintiffs’ religious objections to
the required contraceptive coverage. Moreover, all of the
plaintiffs consider the provision of health insurance for their
employees and students to be part of their religious mission.
7
(...continued)
both employee and student health coverage.
8
When calculating the number of employees for the purpose of assessing
this penalty, the statute directs that thirty employees be subtracted from the
total number of employees, essentially reducing the penalty by $60,000 per
year for affected employers. 26 U.S.C. § 4980H(c)(2)(D)(i).
9
Although the Diocese is itself exempt, the Diocesan Health Plan insures
employees of the non-exempt Catholic Charities. In order to protect
Catholic Charities from having to comply with either the contraceptive
mandate or the accommodation, the Diocese has forgone almost $200,000
annually in increased premiums in order to maintain its grandfathered
status under the ACA. See 42 U.S.C. § 18011. Grandfathered plans are those
health plans that need not comply with the coverage requirements of the
ACA because they were in existence when the ACA was adopted and have
not made certain changes to the terms of their plans.
Nos. 14-1430 & 14-1431 9
Although the plaintiffs concede that they are not required
to pay for the objectionable services, they contended in the
district court that being forced to contract with insurers or
third-party administrators who must then provide those
services makes them a facilitator of objectionable conduct,
complicit in activity that violates their core religious beliefs.
The plaintiffs also asserted below that the government’s
interest in providing contraceptive services is not compelling
and that the means the government employed are not the least
restrictive available to achieve the government’s goals. On
those bases, the plaintiffs sought and received a preliminary
injunction in the district court.
The district court noted that the RFRA prohibits the federal
government from placing substantial burdens on a person’s
exercise of religion unless it can demonstrate that applying the
burden is “in furtherance of a compelling governmental
interest,” and is the “least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-1(a) and
(b). The court first considered whether the contraception
regulations create a substantial burden on eligible employers
in light of the accommodation provided by the regulations.
Citing our opinion in Korte v. Sebelius, 735 F.3d 654 (7th Cir.
2013), cert. denied, 134 S. Ct. 2903 (2014), the court noted that
“the pertinent inquiry for the substantial burden test under
RFRA is whether the claimant has an honest conviction that
what the government is requiring or pressuring him to do
conflicts with his religious beliefs and whether the governmen-
tal pressure exerts a sufficiently coercive influence on the
plaintiffs’ religious practice.” Grace Schools v. Sebelius,
988 F. Supp. 2d 935, 950 (N.D. Ind. 2013); Diocese of Fort Wayne-
10 Nos. 14-1430 & 14-1431
South Bend, Inc. v. Sebelius, 988 F. Supp. 2d 958, 972 (N.D. Ind.
2013). The court found that the plaintiffs sincerely believe that
the accommodation compels them to facilitate and serve as a
conduit for objectionable contraceptive services for their
employees and students. If the plaintiffs want to provide
health insurance for their students and employees as part of
their religious mission (and in order to avoid the fines imposed
by the ACA on employers who fail to meet coverage require-
ments), the court reasoned, then they must either provide the
objectionable coverage themselves or comply with the accom-
modation.
And the plaintiffs sincerely believe that invoking the
accommodation facilitates and enables the provision of
contraceptive services to their employees and students; the
accommodation, in short, makes them complicit in the provi-
sion of services to which they possess a religious objection.
That they need not pay for the services provides no relief from
their religious dilemma, the district court reasoned, because
they must violate their religious beliefs by either forgoing
providing health insurance to their employees and students, or
they must take critical steps (i.e. comply with the accommoda-
tion) to facilitate a third party’s provision of the objectionable
coverage. Because failure to take either of these equally
objectionable routes would result in the imposition of large
financial penalties, the district court found that the plaintiffs
demonstrated that the ACA imposes a substantial burden on
their free exercise rights in contravention of the RFRA. The
court then assumed that the government possessed a compel-
ling interest in providing seamless contraceptive services to
women in group health plans, but found that the accommoda-
Nos. 14-1430 & 14-1431 11
tion was not the least restrictive means of accomplishing that
goal. The court therefore enjoined the defendants from
enforcing against the plaintiffs the requirements “to provide,
pay for, or otherwise facilitate access to coverage for FDA
approved contraceptive methods, abortion-inducing drugs,
sterilization procedures, and related patient education and
counseling.” Grace Schools, 988 F. Supp. 2d at 958; Diocese of
Fort-Wayne-South Bend, 988 F. Supp. 2d at 980. The government
appeals.
II.
Several months after the district court entered the injunc-
tions for the plaintiffs here, we issued our opinion in Notre
Dame I, where we affirmed the denial of a motion for a prelimi-
nary injunction under strikingly similar circumstances to those
presented by these appeals. The government asserts that our
decision in Notre Dame I controls the result here and requires
that we reverse the preliminary injunctions granted by the
district court. The plaintiffs argue that Notre Dame I is distin-
guishable and that application of the substantial burden test
from Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014),
and Korte requires that we affirm the preliminary injunctions
here. After this appeal was fully briefed and argued, the
Supreme Court vacated and remanded our opinion in Notre
Dame I “for further consideration in light of Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751 (2014).” University of Notre
Dame v. Burwell, 135 S. Ct. 1528 (2015). We recently issued a
new opinion addressing the effect of Hobby Lobby on Notre
Dame’s appeal. See Notre Dame II, 786 F.3d at 615–19. We will
begin our analysis with our original Notre Dame I opinion,
which continues to apply to some of the questions raised here,
12 Nos. 14-1430 & 14-1431
before we turn to Notre Dame II. “We review the district court's
findings of fact for clear error, its balancing of the factors for a
preliminary injunction under the abuse of discretion standard,
and its legal conclusions de novo.” United Air Lines, Inc. v. Air
Line Pilots Ass’n, Int’l, 563 F.3d 257, 269 (7th Cir. 2009). To
obtain a preliminary injunction, a party must establish that it
is likely to succeed on the merits, that it is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in its favor, and that issuing an injunc-
tion is in the public interest. Smith v. Executive Dir. of Ind. War
Mem’ls Comm’n, 742 F.3d 282, 286 (7th Cir. 2014).
A.
In Notre Dame I, a non-profit Catholic university moved to
enjoin the enforcement of the ACA’s contraception provisions
against it. 743 F.3d at 551. Notre Dame provides health benefits
to its employees and students. The university self-insures the
employees and utilizes a third-party administrator to manage
the plan. It contracts directly with an insurance provider for
the student health plan. 743 F.3d at 549. The ACA requires the
university, as an eligible organization, either to provide
contraceptive coverage for its employees or to comply with the
accommodation by opting out through the use of the EBSA
Form 700 certification (“Form 700"), which we described above.
743 F.3d at 550. The relevant regulations required Notre Dame
to provide the completed Form 700 to its third-party adminis-
trator and to the insurer of the student plan. Notre Dame filed
suit shortly before the deadline for complying with the
accommodation and moved for a preliminary injunction. The
district court denied the motion and Notre Dame appealed,
with fewer than two weeks left to meet the deadline for
Nos. 14-1430 & 14-1431 13
compliance. We denied the university’s motion for an injunc-
tion pending the appeal but ordered expedited briefing. On the
last day to comply with the regulations, Notre Dame signed
the Form 700 and supplied it to its insurer and third-party
administrator. 743 F.3d at 551. The appeal proceeded.
We noted that Notre Dame’s primary objection was to the
regulations surrounding the Form 700 certification. One
regulation provides that:
the copy of the self-certification [EBSA Form 700]
provided by the eligible [to opt out] organization
[Notre Dame] to a third party administrator
[Meritain] (including notice of the eligible organiza-
tion's refusal to administer or fund contraceptive
benefits) … shall be an instrument under which the
plan is operated, [and] shall be treated as a designa-
tion of the third party administrator as the plan
administrator under section 3(16) of ERISA for any
contraceptive services required to be covered under
§ 2590.715–2713(a)(1)(iv) of this chapter to which the
eligible organization objects on religious grounds.
Notre Dame I, 743 F.3d at 552–53 (quoting 29 C.F.R. § 2510.3-16).
Notre Dame interpreted that regulation as if its mailing of the
Form 700 to its insurer and its third-party administrator were
the cause of the provision of contraceptive services to its
employees and students, in violation of its religious beliefs. We
noted that was not the case. Instead, the Form 700 allows the
university to opt out of the provision of objectionable services
entirely and the law then places the burden of providing the
14 Nos. 14-1430 & 14-1431
services on the insurer and the third-party administrator. 743
F.3d at 553.
In assessing the likelihood of Notre Dame’s success on the
merits, we considered and rejected the school’s claim that
filling out and mailing the Form 700 is a “substantial burden”
on the university’s exercise of religion. 743 F.3d at 554. Notre
Dame complained that completing the form and distributing
it to the insurer and third-party administrator triggered
contraceptive coverage for employees and students, making
the university complicit in the provision of objectionable
services and burdening the university’s religious exercise. We
found that the Form 700 self-certification does not trigger,
cause or otherwise enable the provision of contraceptive
services:
Federal law, not the religious organization's signing
and mailing the form, requires health-care insurers,
along with third-party administrators of self-insured
health plans, to cover contraceptive services. By
refusing to fill out the form Notre Dame would
subject itself to penalties, but Aetna [the insurer] and
Meritain [the third-party administrator] would still
be required by federal law to provide the services to
the university’s students and employees unless and
until their contractual relation with Notre Dame
terminated.
Notre Dame I, 743 F.3d at 554. We also rejected Notre Dame’s
argument that its insurer and third-party administrator would
not have been authorized as plan fiduciaries to provide the
contraceptive services until the school executed Form 700.
Nos. 14-1430 & 14-1431 15
743 F.3d at 554–55. The law and the regulations (and not the
Form 700) designate the insurer and third-party administrator
as plan fiduciaries who are then obligated by federal law to
provide the contraceptive services. 743 F.3d at 555. We also
concluded that the contraception regulations do not impose a
substantial burden simply because the university must contract
with a third party willing to provide (at the behest of the
government) the services that Notre Dame finds objectionable.
Because that third party did not object to providing the
services, we called any such claim speculative and not a
ground for equitable relief. We emphasized, in the end, that it
was not the Form 700 or anything that Notre Dame was
required to do by the regulatory accommodation that caused
the university’s employees and students to receive the objec-
tionable coverage; rather it was federal law that authorized,
indeed required, insurers and third-party administrators to
provide coverage. 743 F.3d at 559. Because the true objection
was not to actions that the school itself was required to take
but rather to the government’s independent actions in mandat-
ing contraceptive coverage, we concluded that there was no
substantial burden on the university’s religious exercise.
743 F.3d at 559.
B.
As litigation on the ACA’s contraception requirements has
progressed in other cases and other circuits, new regulations
have been issued in response to interim orders from the
Supreme Court. In Little Sisters of the Poor Home for the Aged,
Denver, Colo. v. Sebelius, 134 S. Ct. 1022 (2014), after a district
court declined to enjoin the operation of the ACA against a
religious organization that did not wish to file the Form 700,
16 Nos. 14-1430 & 14-1431
the Court entered an injunction pending the appeal of that
decision:
If the employer applicants inform the Secretary of
Health and Human Services in writing that they are
non-profit organizations that hold themselves out as
religious and have religious objections to providing
coverage for contraceptive services, the respondents
are enjoined from enforcing against the applicants
the challenged provisions of the Patient Protection
and Affordable Care Act and related regulations
pending final disposition of the appeal by the
United States Court of Appeals for the Tenth Circuit.
To meet the condition for injunction pending appeal,
applicants need not use the form prescribed by the
Government and need not send copies to third-party
administrators. The Court issues this order based on
all the circumstances of the case, and this order
should not be construed as an expression of the
Court's views on the merits.
Little Sisters, 134 S. Ct. at 1022. The order, in short, relieved the
Little Sisters of their obligation to file the Form 700 so long as
they directly notified the government of their objection.
Subsequently, the Court entered a similar injunction in a
case within our circuit. See Wheaton College v. Burwell, 134 S. Ct.
2806 (2014). After essentially repeating the language from the
very short order in Little Sisters, the Court clarified:
Nothing in this interim order affects the ability of
the applicant's employees and students to obtain,
without cost, the full range of FDA approved contra-
Nos. 14-1430 & 14-1431 17
ceptives. The Government contends that the appli-
cant's health insurance issuer and third-party ad-
ministrator are required by federal law to provide
full contraceptive coverage regardless whether the
applicant completes EBSA Form 700. The applicant
contends, by contrast, that the obligations of its
health insurance issuer and third-party administra-
tor are dependent on their receipt of notice that the
applicant objects to the contraceptive coverage
requirement. But the applicant 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.
Wheaton College, 134 S. Ct. at 2807. As with Little Sisters, the
order relieved Wheaton College of its obligation to file Form
700 as long as it notified the government directly of its objec-
tion. But the government was permitted to use this direct
notice to facilitate the coverage required by the ACA.
And finally, after the Third Circuit reversed a temporary
injunction sought by a religious employer and granted by a
district court, the Court again intervened:
The application for an order recalling and staying
the issuance of the mandate of the Court of Appeals
pending the filing and disposition of a petition for a
18 Nos. 14-1430 & 14-1431
writ of certiorari, having been submitted to Justice
Alito and by him referred to the Court, the applica-
tion as presented is denied. The Court furthermore
orders: If the applicants ensure that the Secretary of
Health and Human Services is in possession of all
information necessary to verify applicants’ eligibility
under 26 CFR § 54.9815-2713A(a) or 29 CFR §
2590.715-2713A(a) or 45 CFR § 147.131(b) (as appli-
cable), the respondents are enjoined from enforcing
against the applicants the challenged provisions of
the Patient Protection and Affordable Care Act and
related regulations pending final disposition of their
petition for certiorari. Nothing in this interim order
affects the ability of the applicants’ or their organiza-
tions’ employees to obtain, without cost, the full
range of FDA approved contraceptives. Nor does
this order preclude the Government from relying on
the information provided by the applicants, to the
extent it considers it necessary, to facilitate the
provision of full contraceptive coverage under the
Act. See Wheaton College v. Burwell, 573 U. S. ___
(2014). This order should not be construed as an
expression of the Court’s views on the merits. Ibid.
Justice Sotomayor would deny the application.
Zubik v. Burwell, 2015 WL 3947586 (June 29, 2015) (full text
found at http://www.supremecourt.gov/search.aspx?
filename=/docketfiles/14a1065.htm, last visited September 3,
2015). As a result of these interim orders from the Supreme
Court, the regulations have been amended so that objectors
may now notify HHS directly rather than filing the Form 700.
Nos. 14-1430 & 14-1431 19
And the government may, in turn, facilitate the required
contraceptive coverage based on such notice.
C.
We turn to our recent decisions in Notre Dame II and
Wheaton College v. Burwell, 791 F.3d 792 (7th Cir. 2015). In Notre
Dame II, we noted that, shortly after filing its suit and immedi-
ately before the regulatory deadline, the university signed the
Form 700 and sent it to the insurer of its students and the third-
party administrator of its employee plan. That action left us
wondering what relief Notre Dame sought. Ultimately, we
determined, Notre Dame wanted
us to enjoin the government from forbidding Notre
Dame to bar Aetna and Meritain from providing
contraceptive coverage to any of the university's
students or employees. Because of its contractual
relations with the two companies, which continue to
provide health insurance coverage and administra-
tion for medical services apart from contraception as
a method of preventing pregnancy, Notre Dame
claims to be complicit in the sin of contraception. It
wants to dissolve that complicity by forbidding
Aetna and Meritain—with both of which, to repeat,
it continues to have contractual relations—to pro-
vide any contraceptive coverage to Notre Dame
students or staff. The result would be that the
students and staff currently lacking coverage other
than from Aetna or Meritain would have to fend for
themselves, seeking contraceptive coverage else-
where in the health insurance market.
20 Nos. 14-1430 & 14-1431
Notre Dame II, 786 F.3d at 611. The university’s primary
objection to the ACA was that its contractual relationship with
its insurer and third-party administrator made the school a
conduit for the provision of objectionable services. According
to Notre Dame, the contraception regulations imposed a
substantial burden on it by forcing the university to identify
and contract with a third party willing to provide objectionable
contraceptive services. 786 F.3d at 611–12.
We noted that, although Notre Dame is the final arbiter of
its religious beliefs, only the courts may determine whether the
law actually forces the university to act in a way that would
violate those beliefs. 786 F.3d at 612. The record contained no
evidence to support a conduit theory. Nor is it within our usual
practice to enjoin non-parties such as Notre Dame’s insurer
and third-party administrator. We also rejected Notre Dame’s
claim that the regulation requiring employers to provide Form
700 to its insurers was the cause of the provision of contracep-
tive services; rather the services are provided because federal
law requires the insurers to provide them. Notre Dame II,
786 F.3d at 613–14 (“It is federal law, rather than the religious
organization's signing and mailing the form, that requires
health-care insurers, along with third-party administrators of
self-insured health plans, to cover contraceptive services.”).
Because the insurer must provide the services no matter what
the employer does, we noted that “signing the form simply
shifts the financial burden from the university to the govern-
ment, as desired by the university.” 786 F.3d at 615. See supra
note 5. We thus re-asserted the core reasoning of our earlier
opinion before turning to any effect that Hobby Lobby had on
the case.
Nos. 14-1430 & 14-1431 21
Hobby Lobby, we noted, involved closely-held for-profit
corporations whose owners objected on religious grounds to
the contraceptive mandate. The Supreme Court held that the
RFRA applied to nonreligious institutions owned by persons
with sincerely held religious objections to the ACA’s contra-
ception regulations. Hobby Lobby, 134 S. Ct. at 2776–78; Notre
Dame II, 786 F.3d at 615. The Court noted that the companies’
objections could be addressed by allowing them to invoke the
same accommodation that the government created for religious
non-profit employers, namely signing and filing the Form 700.
134 S. Ct. at 2782. The Court left open the issue of whether the
accommodation that was adequate for nonreligious, for-profit
corporations would be sufficient to protect the rights of
religious non-profit employers. As to that issue, we examined
various alternative schemes that Notre Dame proposed as
possible accommodations and found each of them lacking. We
also noted that the Supreme Court had created an alternative
to Form 700 by allowing employers to notify the government
directly of its objection to the mandate. Notre Dame II, 786 F.3d
at 617–18; Wheaton College, 134 S. Ct. at 2806. We rejected Notre
Dame’s objections to the Wheaton College alternative notice,
citing Bowen v. Roy, 476 U.S. 693 (1986). We noted that the Roy
Court rejected Roy's religious objection to the government's
use of his daughter's Social Security number for its purposes.
The Court held “Roy may no more prevail on his religious
objection to the Government's use of a Social Security number
for his daughter than he could on a sincere religious objection
to the size or color of the Government's filing cabinets.” Roy,
476 U.S. at 700. Notre Dame's objection to the government
designating insurers as substitutes to provide contraceptive
22 Nos. 14-1430 & 14-1431
coverage was an analogous challenge to the government's
management of its affairs and, accordingly, Notre Dame had
not demonstrated a substantial burden to its religious exercise.
Notre Dame II, 786 F.3d at 618.
In Wheaton College, we similarly rejected a religious school’s
objections to the contraception regulations under the RFRA,
the First Amendment and the Administrative Procedures Act.
791 F.3d at 801. The college asserted that the government was
using the school’s insurance plan and putting additional terms
into its contracts with insurers in order to provide the objec-
tionable coverage. The college sought an injunction prohibiting
the government’s effort to use Wheaton’s plans as the vehicle
for making contraceptive coverage available to its employees
and students. It objected to notifying its insurers or the
government that it claimed a religious exemption, and also to
providing the government with the names of its insurers so
that the government could then implement the coverage
separate from the college. We noted that the ACA and accom-
panying regulations do not alter any employer’s insurance
plans or contracts. 791 F.3d at 794. Nor is the college being
forced to allow the use of its plan to provide objectionable
services. The ACA and regulations require only that the college
notify either its insurers or the government that it objects,
which takes the school out of the loop. 791 F.3d at 795. As in
Notre Dame II, we rejected the claim that the provision of notice
to insurers or the government somehow triggers or facilitates
the provision of objectionable coverage. 791 F.3d at 796. As was
the case with Notre Dame, Wheaton also objected to being
forced to contract with insurers which, in turn, provided
objectionable services, contending that this made the college
Nos. 14-1430 & 14-1431 23
complicit in the provision of those services. We saw no
complicity in the operation of the law, which makes every
effort to separate religious employers from the provision of
any objectionable services.
We again noted that courts generally do not enjoin non-
parties, and Wheaton had not made its insurers parties to the
suit. Wheaton also expressed a reluctance to identify its
insurers to the government, instead preferring that the govern-
ment discover through its own research the names of the
insurers. But Wheaton made no connection between the means
for identifying the insurers and its religious commitments. We
also noted Wheaton’s assertion that its students and employees
sign a covenant agreeing to abide by the school’s moral
standards, indicating perhaps that Wheaton’s concerns about
the ACA are largely academic because the employees and
students are unlikely to actually use the services offered.
Finally, we rejected Wheaton’s claims under the First Amend-
ment, ERISA and the Administrative Procedures Act, all issues
which were not argued in the instant appeal, and so we will
not address them further. 791 F.3d at 797–800.
Before we move on to the plaintiffs’ objections in this case,
we note that the case law analyzing the contraceptive mandate
is rapidly evolving. Recently, the six other circuits to consider
these same issues have all come to the same conclusion as our
opinions in Notre Dame and Wheaton College, namely, that the
contraceptive mandate, as modified by the accommodation,
does not impose a substantial burden on religious organiza-
tions under the RFRA. See Catholic Health Care System v.
Burwell, — F.3d —, 2015 WL 4665049, *7-*16 (2d Cir. Aug. 7,
2015) (concluding that the accommodation does not impose a
24 Nos. 14-1430 & 14-1431
substantial burden); Little Sisters of the Poor Home for the Aged v.
Burwell, 794 F.3d 1151 , 2015 WL 4232096, *16 (10th Cir. 2015),
petition for cert. filed, 84 USLW 3056 (U.S. July 24, 2015) (No. 15-
105) (concluding that the mandate does not impose a substan-
tial burden on religious exercise under RFRA and affirming the
denial of a preliminary injunction in one instance and revers-
ing the grant of preliminary injunctions in two others); East
Texas Baptist University v. Burwell, 793 F.3d 449, 459 (5th Cir.
2015), petition for cert. filed, 84 USLW 3050 (U.S. July 8, 2015)
(No. 15-35) (holding that the ACA does not impose a substan-
tial burden under the RFRA and reversing the grant of a
preliminary injunction); Geneva College v. Secretary United States
Department of Health & Human Servs., 778 F.3d 422, 442 (3d Cir.
2015), petition for cert. filed, 83 USLW 3894 (U.S. May 29, 2015)
(Nos. 14-1418 & 14A1065), and stay denied by Zubik v. Burwell,
135 S.Ct. 2924, 2015 WL 3947586 (June 29, 2015) (reversing
grant of preliminary injunction and concluding that the
accommodation procedures do not impose a substantial
burden on religious exercise); Priests for Life v. United States
Dep’t of Health & Human Servs., 772 F.3d 229, 256 (D.C. Cir.
2014), petition for cert. filed, 83 USLW 3918 (U.S. June 9, 2015)
(No. 14-1453) (affirming denial of injunctive relief and conclud-
ing that the ACA’s mandate does not impose a substantial
burden on religious exercise); Michigan Catholic Conference v.
Burwell, 755 F.3d 372, 390 (6th Cir. 2014), cert. granted, judgment
vacated and remanded, 135 S. Ct. 1914 (2015), reissued, — F.3d —
2015 WL 4979692 (6th Cir. Aug. 21, 2015) (because objectors
may obtain the accommodation from the
contraceptive-coverage requirement without providing, paying
for, and/or facilitating access to contraception, the contracep-
Nos. 14-1430 & 14-1431 25
tive-coverage requirement does not impose a substantial
burden on their exercise of religion).10 No court of appeals has
concluded that the contraceptive mandate imposes a substan-
tial burden under the RFRA.
D.
After this court issued its opinion in Notre Dame II, we
asked the parties to file position statements addressing the
effect of that opinion on this appeal. We turn now to the
parties’ position statements as well as the arguments raised in
their original briefs. The government, in its original brief,
contended that Notre Dame I was controlling. It argued that the
plaintiffs are permitted to opt out of providing contraceptive
coverage, and that the plaintiffs improperly object to require-
ments imposed by the accommodation on third parties rather
than on themselves. The government also asserted that it is the
province of the court rather than the plaintiffs to determine
whether a particular regulation or law “substantially” burdens
the plaintiffs’ free exercise of religion under the RFRA. Finally,
the government maintained that, even if we were to determine
that the regulations impose a substantial burden on the
plaintiffs under the RFRA, the government’s interest in
10
The Sixth Circuit released its opinion a few weeks prior to the issuance
of Hobby Lobby, but denied rehearing en banc several months later. The
Supreme Court subsequently granted the petition for certiorari, vacated the
opinion and remanded for further consideration in light of Hobby Lobby. The
Sixth Circuit recently reissued and reaffirmed its earlier opinion and filed
a supplemental opinion addressing Hobby Lobby. The Sixth Circuit continues
to hold that the ACA’s contraception provisions do not impose a substantial
burden under RFRA. Michigan Catholic, 2015 WL 4979692, *6- *15.
26 Nos. 14-1430 & 14-1431
providing the coverage is compelling and the regulations are
narrowly tailored to meet that interest.
In its position statement, the government adds that Notre
Dame II rejected all of the arguments raised by the plaintiffs
here. Specifically, the government again notes that the regula-
tions allow the plaintiffs to opt out of providing the mandated
contraceptive services, making them effectively exempt. After
objectors opt out, the government tasks third parties with
providing the coverage. Moreover, the opt-out does not
operate as a trigger or cause for the coverage; rather federal
law imposes on third parties the obligation to provide the
coverage. Nothing in the ACA or regulations makes the
plaintiffs complicit or allows their contracts with insurers or
third party administrators to act as conduits for the provision
of contraceptive services. The government repeats that, even if
the regulations impose a substantial burden on the plaintiffs’
free exercise of religion under the RFRA, the regulations serve
a compelling government interest and are the least restrictive
means of achieving those interests. According to the govern-
ment, our opinion in Notre Dame II demonstrates that the
current regulations are narrowly tailored to achieve the
compelling interest, and that none of the plaintiffs’ suggested
alternatives would be effective.
In their opening brief, the plaintiffs argued, as they did
below, that the contraception regulations impose a substantial
burden on their exercise of religion. The plaintiffs asserted that
they exercise their religion “by refusing to take actions in
furtherance of a regulatory scheme to provide their employees
with access to abortion-inducing products, contraceptives,
sterilization, and related education and counseling.” Brief at
Nos. 14-1430 & 14-1431 27
29. The plaintiffs maintained that submitting Form 700 renders
them complicit in a grave moral wrong because the form has
certain legal effects that facilitate the provision of the objection-
able services. The accommodation, the plaintiffs added,
requires them to amend the documents governing their health
plans to provide the very coverage to which they object. The
plaintiffs also objected to contracting with and paying premi-
ums to insurance companies or third party administrators that
are authorized to provide their employees with contraceptive
coverage. Moreover, the plaintiffs pointed out that if they fail
to comply with the regulations, they will face onerous fines.
The plaintiffs asserted that Notre Dame I is distinguishable on
the facts, and that Notre Dame I did not address the arguments
of the Catholic appellees here that (1) the Diocese is being
forced to forgo $200,000 annually in increased premiums in
order to maintain its grandfathered status11 to avoid its plan
becoming a conduit for objectionable coverage for the employ-
ees of Catholic Charities that are enrolled in the Diocese’s
health plan; and (2) the mandate has the additional effect of
artificially dividing the Catholic Church into a “worship arm”
and a “good works arm.”
The plaintiffs also maintained in their opening brief that the
government’s “substantial burden” analysis incorrectly focuses
on the nature of the actions that the regulations require the
11
“Grandfathered plans” are plans that were in existence when the ACA
was adopted and that have not made certain changes to the terms of the
plans. Grandfathered plans need not comply with the ACA’s coverage
requirements. See 42 U.S.C. § 18011; 26 C.F.R. § 54.9815-1251T. Certain
increases in premiums could cause a plan to lose its grandfathered status
and thus become subject to the ACA’s coverage requirements.
28 Nos. 14-1430 & 14-1431
plaintiffs to take rather than the pressure the government has
placed on the plaintiffs to take those actions. They contended
that the focus of the analysis should be on the intensity of the
coercion applied by the government to act contrary to their
religious beliefs. Finally, they asserted that they object to
actions they themselves must take under the regulations, not
to the actions of third parties.
In their position statement, the plaintiffs contend that Notre
Dame II is distinguishable on the facts, that it is not binding
here, and that it is based on legal errors. Finally, the plaintiffs
argue that the strict scrutiny analysis in Notre Dame II is both
foreclosed by the government’s concession in this case and
inconsistent with circuit precedent.
E.
We turn to the specific objections raised by the plaintiffs
here. They contend that the accommodation does not operate
as a true “opt-out” because it requires them to engage in
numerous religiously objectionable actions. The actions to
which the plaintiffs object fall under two categories: first, the
mandate requires them to contract with insurance companies
or third-party administrators that are authorized to provide the
objectionable coverage and which will provide that coverage
once the plaintiffs communicate their objections. Second, they
must submit the Form 700 or notify the government directly of
their objection. They sincerely believe that the required actions
render them complicit in a grave moral wrong because their
insurance contracts serve as conduits for the provision of the
objectionable services, and the notification triggers or facilitates
the provision of objectionable services. They practice their
Nos. 14-1430 & 14-1431 29
religion, they assert, by refusing to take actions “in furtherance
of” a scheme to provide the objectionable services. And if they
decline to engage in these actions, the mandate subjects them
to onerous fines.
The core of the disagreement between the plaintiffs and the
government lies in how we apply the substantial burden test.
The plaintiffs cite our decision in Korte for the proposition that
the substantial burden test under the RFRA focuses primarily
on the intensity of the coercion applied by the government to
act contrary to religious beliefs. Korte, 735 F.3d at 683. Citing
Hobby Lobby, they also assert that the RFRA allows private
religious believers to decide for themselves whether taking a
particular action (such as filing the Form 700 or contracting
with an insurance company) is connected to objectionable
conduct in a way that is sufficient to make it immoral. Hobby
Lobby, 134 S. Ct. at 2778.
In Korte, we noted that “exercise of religion” means “any
exercise of religion, whether or not compelled by, or central to,
a system of religious belief.” 735 F.3d at 682; 42 U.S.C.
§ 2000cc–5(7)(A). A substantial burden on free exercise may
arise when the government compels a religious person to
perform acts undeniably at odds with fundamental tenets of
that person’s religious beliefs, and also when the government
places substantial pressure on a person to modify his or her
behavior in a way that violates religious beliefs. Korte, 735 F.3d
at 682. “Put another way, the substantial-burden inquiry
evaluates the coercive effect of the governmental pressure on
the adherent's religious practice and steers well clear of
deciding religious questions.” Korte, 735 F.3d at 683. Relying on
Korte and Hobby Lobby, the plaintiffs urge us to engage in a
30 Nos. 14-1430 & 14-1431
two-step analysis of first identifying the religious belief at
issue, and second, determining whether the government has
placed substantial pressure on the plaintiffs to violate that
belief.
The plaintiffs are correct that it is not our province to decide
religious questions. Hobby Lobby, 134 S. Ct. at 2778 (the RFRA
presents the question of whether the mandate imposes a
substantial burden on the ability of the objecting parties to
conduct business in accordance with their religious beliefs, but
courts have no business addressing whether the religious belief
asserted is reasonable); Notre Dame II, 786 F.3d at 612 (an
objector is the final arbiter of its religious beliefs); Little Sisters
of the Poor, 794 F.3d at —, 2015 WL 4232096, at *19 (substantial-
ity does not permit a court to scrutinize the theological merit
of a plaintiff's religious beliefs); Geneva College, 778 F.3d at 436
(courts should defer to the reasonableness of a plaintiff’s
religious beliefs). The plaintiffs in Hobby Lobby were closely-
held, for-profit corporations that were required by the ACA to
provide and pay for health insurance which included coverage
of certain emergency contraceptives that they believed oper-
ated as abortifacients. Similar to the plaintiffs here, they
believed that providing the required coverage is connected to
the destruction of an embryo in a way that is sufficient to make
it immoral for them to provide the coverage. “This belief
implicates a difficult and important question of religion and
moral philosophy, 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 commis-
sion of an immoral act by another.” Hobby Lobby, 134 S. Ct at
2778.
Nos. 14-1430 & 14-1431 31
So we defer to the plaintiffs’ sincerely held beliefs regard-
ing questions of religion and moral philosophy. But whether
the government has imposed a substantial burden on their
religious exercise is a legal determination. Notre Dame II,
786 F.3d at 612; Little Sisters of the Poor, 794 F.3d at —, 2015 WL
4232096, at *18; East Texas Baptist University, 793 F.3d at 456–59
& n.33; Geneva College, 778 F.3d at 436; Priests for Life, 772 F.3d
at 247–49; Michigan Catholic, 755 F.3d at 385. And we are not
required to defer to the plaintiffs’ beliefs about the operation
of the law. Notre Dame II, 786 F.3d at 612 (although an objector
is the final arbiter of its religious beliefs, it is for the courts to
determine whether the law actually forces the objector to act in
a way that would violate those beliefs); Little Sisters of the Poor,
794 F.3d at —, 2015 WL 4232096, at *18 (courts need not accept
the legal conclusion, cast as a factual allegation, that a plain-
tiff’s religious exercise is substantially burdened); Geneva
College, 778 F.3d at 436 (courts need not accept an objector’s
characterization of a regulatory scheme on its face but may
consider the nature of the action required of the objector, the
connection between that action and the objector’s beliefs, and
the extent to which that action interferes with or otherwise
affects the objector’s exercise of religion, all without delving
into the objector’s beliefs); Michigan Catholic, 755 F.3d at 385
(although a court may acknowledge that the objectors believe
that the regulatory framework makes them complicit in the
provision of contraception, the court will independently
determine what the regulatory provisions require and whether
they impose a substantial burden on the objector's exercise of
religion). In this instance, and as was the case in Notre Dame I
and II, the plaintiffs misapprehend the operation of federal
32 Nos. 14-1430 & 14-1431
law. As many courts have noted, contraceptive coverage under
the ACA results from federal law, not from any actions
required by objectors under the accommodations. Notre Dame
II, 786 F.3d at 614; and 786 F.3d at 623 (Hamilton, J., concur-
ring); Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096,
at *16; East Texas Baptist, 793 F.3d at 459; Geneva College, 778
F.3d at 437; Michigan Catholic, 755 F.3d at 387.
The first action to which the plaintiffs object is filing the
Form 700. They assert that the Form 700 is far more than a
simple notification or objection, that it instead (1) designates
the third party administrator as plan administrator and claims
administrator for contraceptive benefits; (2) serves as an
instrument under which the plans are operated vis-à-vis
contraceptive services; and (3) apprises the third party admin-
istrator of its obligations to provide contraceptive coverage. We
rejected this very argument in Notre Dame II, holding that
treating the mailing of the Form 700 as the cause of the
provision of contraceptive services is legally incorrect. 786 F.3d
at 613. The Form 700, we noted, has the effect of throwing the
entire administrative and financial burden of providing
contraception on the insurer and the third party administrator.
786 F.3d at 613–14. As a result, the burden is lifted from the
objector’s shoulders. 786 F.3d at 614. “It is federal law, rather
than the religious organization's signing and mailing the form,
that requires health-care insurers, along with third-party
administrators of self-insured health plans, to cover contracep-
tive services.” 786 F.3d at 614. See also Little Sisters of the Poor,
794 F.3d at —, 2015 WL 4232096 at *16 & *22-24 (finding that
plaintiffs do not “trigger” or otherwise cause contraceptive
coverage because federal law, not the act of opting out, entitles
Nos. 14-1430 & 14-1431 33
plan participants and beneficiaries to coverage); Geneva College,
778 F.3d at 437–38 (same); Michigan Catholic, 755 F.3d at 387
(same).
Moreover, the regulations have been amended during this
litigation, and now employers need not file the Form 700.
Instead, consistent with the Supreme Court’s interim orders in
Little Sisters of the Poor and Wheaton College, the plaintiffs may
contact the Department of Health and Human Services
directly, alerting the government that they have a religious
objection to providing contraceptive coverage, and providing
only the name and contact information for their insurers or
third party administrators. 80 Fed. Reg. 41342-47 (July 14,
2015). The burden then falls on the government to make
appropriate arrangements with the insurer or third-party
administrator to provide coverage for contraceptive services.
The plaintiffs object to that action as well, asserting that it also
makes them complicit in the provision of coverage. But that
notification does nothing more than completely remove an
objector from the provision of the objectionable services. See
Geneva College, 778 F.3d at 436 (“While the Supreme Court
reinforced in Hobby Lobby that we should defer to the reason-
ableness of the appellees' religious beliefs, this does not bar our
objective evaluation of the nature of the claimed burden and
the substantiality of that burden on the appellees' religious
exercise.”). As we noted in our Notre Dame opinions, the
plaintiffs are in the strange position of objecting not to the
contraceptive mandate itself but to the accommodation that
relieves them of any involvement in the implementation of the
contraceptive mandate. Notre Dame I, 743 F.3d at 557–58; Notre
Dame II, 786 F.3d at 621 (Hamilton, J., concurring). See also Little
34 Nos. 14-1430 & 14-1431
Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d —, 2015
WL 4232096, *14-15 (10th Cir. 2015) (noting the unusual nature
of a claim that attacks the government's attempt to accommo-
date religious exercise by providing a means to opt out of
compliance with a generally applicable law).
[T]he arrangements the government makes to find
substitutes for those given the benefit of a religious
exemption are imposed as a matter of federal law,
not as a result of the exemption itself. The party
claiming the exemption is not entitled to raise a
religious objection to the arrangements the govern-
ment makes for a substitute.
Notre Dame II, 786 F.3d at 623 (Hamilton, J., concurring). In
short, requiring an employer to notify the government of its
objection to the mandate is no more burdensome than the
government’s use of a girl’s Social Security number in a
benefits program even though her father sincerely believed
that the use of the number would harm his daughter’s spirit.
See Notre Dame II, 786 F.3d at 618–19 (discussing Bowen v. Roy,
476 U.S. 693 (1986)). So too with the plaintiffs here.
The second action to which the plaintiffs object is contract-
ing with insurers and third-party administrators who will then
provide the objectionable coverage, albeit at no cost to, and
without further involvement of, the plaintiffs. The plaintiffs
admittedly want to provide their employees and students with
health insurance; indeed they have said that it is part of their
religious mission to do so. But they wish to provide health
insurance without the objectionable coverage. Yet this is
exactly what the accommodation allows them to do. Notre
Nos. 14-1430 & 14-1431 35
Dame II, 786 F.3d at 621–22 (Hamilton, J., concurring) (once an
employer files the Form 700 or notifies the government directly
of its religious objection, it can avoid contracting, paying,
arranging, or referring for the objectionable contraceptive
care); Wheaton College, 791 F.3d at 795–96 (once the college
notifies its insurer or the government of its religious objections,
the college and its health plans are bypassed). As with the
notification requirement, the plaintiffs believe that their
contracts further the provision of objectionable services. They
assert that the government is using their health plans or
altering the terms of their health plans to provide contraceptive
coverage. But once they have objected, the government does
not use the health plans or contracts at all, much less alter any
terms. See Wheaton College, 791 F.3d at 796 (“Call this ‘using’ the
health plans? We call it refusing to use the health plans.”). As
we noted in Wheaton College:
The upshot is that the college contracts with health
insurers for contraceptive coverage exclusive of
coverage for emergency contraceptives, and the
Department of Health and Human Services con-
t r a c t s w i t h t h o s e in s u r e r s t o c o ve r
emergency-contraceptive benefits. The latter con-
tracts are not part of the college's health plans, and
so the college is mistaken when it tells us that the
government is “interfering” with the college’s
contracts with its insurers. The contracts, which do
not require coverage of emergency contraception,
are unchanged. New contracts are created, to which
the college is not a party, between the government
and the insurers.
36 Nos. 14-1430 & 14-1431
Wheaton College, 791 F.3d at 796. We rejected any notion of
complicity in the provision of contraceptive services arising
from the mere existence of a contract to provide health insur-
ance without any contraceptive coverage. 791 F.3d at 797. See
also Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096 at
*16 (the de minimis administrative tasks required to opt out of
the mandate relieves objectors from complicity); East Texas
Baptist, 793 F.3d at 461 (“Under the accommodation, the
contracts are solely for services to which the plaintiffs do not
object; the contracts do not provide for the insurers and
third-party administrators to cover contraceptives, do not
make it easier for those entities to pay for contraceptives, and
do not imply endorsement of contraceptives.”).
To the extent that the act of opting out causes the legal
responsibility to provide contraceptive coverage to shift from
the plaintiffs to their insurers or third-party administrators,
this feature relieves rather than burdens their religious
exercise. Little Sisters of the Poor, 794 F.3d at —, 2015 WL
4232096 at *16. As our colleagues in the Tenth Circuit noted,
“An opt out religious accommodation typically contemplates
that a non-objector will replace the religious objector and take
over any legal responsibilities.” Little Sisters of the Poor, 794
F.3d at —, 2015 WL 4232096, *16 n.21; East Texas Baptist, 793
F.3d at 461–62 (RFRA does not entitle plaintiffs to block third
parties such as the government or insurers from engaging in
conduct with which the plaintiffs disagree); Geneva College, 778
F.3d at 438 n.13 (the provision of contraceptive coverage is not
dependent upon the objector’s contract with its insurance
company); Michigan Catholic, 755 F.3d at 388 (the government's
imposition of an independent obligation on a third party does
Nos. 14-1430 & 14-1431 37
not impose a substantial burden on an objector’s exercise of
religion).
Finally, the Catholic plaintiffs here (namely, the Diocese,
Catholic Charities, St. Anne Home, Franciscan Alliance,
Specialty Physicians, St. Francis and Sunday Visitor) assert
what they characterize as unique RFRA claims that were not
presented in the Notre Dame appeal and therefore are not
resolved by the Notre Dame opinions. In particular, they argue
that the mandate substantially burdens the Diocese’s religious
exercise by forcing it to forgo almost $200,000 annually in
increased premiums to maintain its grandfathered status so
that it may avoid its health plan becoming a conduit for
objectionable coverage for Catholic Charities’ employees who
are enrolled in its health plan. See note 11 supra. But if the
Diocese were to lose its grandfathered status, it would become
exempt from the ACA’s contraceptive mandate, and Catholic
Charities would be able to opt out of the mandate by employ-
ing the accommodation. As we just concluded, that scenario
would not impose a substantial burden on the free exercise
rights of either the Diocese or Catholic Charities.
The Catholic plaintiffs also contend that the mandate has
the effect of artificially dividing the Catholic Church into a
“worship” arm (the Diocese) and a “good works” arm (the
remaining Catholic plaintiffs). Again, though, groups affiliated
with the Diocese may opt out of providing contraceptive
coverage using the accommodation and thus continue to
provide health coverage under the Diocese’s health plan. Both
arms of the Church are therefore extricated from the provision
of objectionable contraceptive services, albeit through different
means. Moreover, any division is created not by the ACA but
38 Nos. 14-1430 & 14-1431
by the Internal Revenue Code that excepts “churches, their
integrated auxiliaries, and conventions or associations of
churches” from certain requirements. See 26 U.S.C.
§ 6033(a)(3)(A)(i). It is difficult to see how laws and regulations
that grant tax advantages to churches and their integrated
auxiliaries somehow impose a substantial burden on affiliates.
III.
The accommodation does not serve as a trigger or a conduit
for the provision of contraceptive services. Notre Dame II,
786 F.3d at 612–15; Wheaton College, 791 F.3d at 795–97. It is the
operation of federal law, not any actions that the plaintiffs
must take, that causes the provisions of services that the
plaintiffs find morally objectionable. The accommodation has
the legal effect of removing from objectors any connection to
the provision of contraceptive services. As we noted above,
every other circuit court to consider the issue of whether the
mandate imposes a substantial burden on religious exercise
has come to the same conclusion. As a result, the plaintiffs are
not entitled to a preliminary injunction against the enforcement
of the ACA regulations. If they wish to object, they may either
employ the Form 700 or they may notify the Department of
Health and Human Services directly. We extend the injunc-
tions here for 60 days so that the district court may consider in
the first instance the additional arguments that plaintiffs raised
in support of injunctive relief. We reverse the district court’s
judgments and remand for proceedings consistent with this
opinion.
REVERSED AND REMANDED.
Nos. 14‐1430 & 14‐1431 39
MANION, Circuit Judge, dissenting.
The HHS accommodation is the long and winding exten‐
sion cord the government uses to power its contraceptive
mandate. It winds through regulations and additions and
revisions. The court, through a perfunctory examination, in‐
terprets the accommodation’s twisted framework and holds
that it frees the religious nonprofits from having to power
the mandate themselves and, thus, does not violate the
RFRA. The court is wrong: A thorough examination reveals
that the accommodation’s tangled mess is hiding the fact that
the extension cord gets its power from the nonprofits’ health
plans and must be plugged in before it will work. It also ex‐
poses the fact that the government is forcing the nonprofits
to plug in the accommodation themselves by signing the
self‐certification or providing the alternative notice.
This dissent, as long and detailed as it is, reveals that the
accommodation never relieves the religious nonprofits or
their health plans from the provision of contraceptive ser‐
vices which burdens their religious exercise. Section I ex‐
plains how the court, as many others have before it, uses a
caricature of the HHS accommodation to avoid accepting the
nonprofits’ sincerely held religious belief as required by the
Supreme Court in Burwell v. Hobby Lobby Stores, Inc., 134 S.
Ct. 2751 (2014). Section II shows that the nonprofits correctly
understand the accommodation’s operation, so that the court
must accept their sincerely held religious belief and hold
that the accommodation imposes a substantial burden on
their religious exercise. Section III demonstrates that the
government has utterly failed to prove that the HHS ac‐
40 Nos. 14‐1430 & 14‐1431
commodation furthers a compelling governmental interest:
The government has failed to establish any of the causal
links necessary to prove that increasing the availability of
contraceptive services will improve the health of women
generally, let alone that of the nonprofits’ employees. Fur‐
thermore, the government’s stated interest is overbroad, un‐
derinclusive, and marginal at best. Section IV demonstrates
that, even if the government had a compelling interest, the
accommodation is not the least restrictive means. For these
reasons, Section V concludes that the HHS accommodation
violates RFRA, which means the nonprofits have a signifi‐
cant likelihood of success on the merits of their claim and the
district court’s preliminary injunction should be affirmed.
For the many reasons that follow, I dissent.
I. The court refuses to apply RFRA.
RFRA prevents the government from substantially bur‐
dening a person’s religious exercise unless the burden on the
person is the least restrictive means of furthering a compel‐
ling governmental interest. 42 U.S.C. § 2000bb‐1. The Su‐
preme Court has made it abundantly clear that courts are
wholly incompetent to decide whether a governmental ac‐
tion burdens a person’s religious exercise. Rather, courts
must accept a person’s sincere belief that it is a burden. Hob‐
by Lobby, 134 S. Ct. at 2778–79. Courts determine whether the
burden is substantial, but they do so by examining the level
of coercion applied to compel compliance, not what is re‐
quired by that compliance and to what extent it violates the
person’s religion. Id. at 2779; Korte v. Sebelius, 735 F.3d 654,
683 (7th Cir. 2013). Thus, the proper analysis is to determine
Nos. 14‐1430 & 14‐1431 41
first, that the nonprofits have a sincere belief that compliance
with the law would violate their religion, and second, that
the pressure applied by the government to coerce compli‐
ance with the law is substantial. The outcome of a thorough
and proper analysis is ultimately simple and straightfor‐
ward: As in Hobby Lobby, the government concedes the sin‐
cerely held religious belief and the fines imposed for non‐
compliance are “enormous.” Hobby Lobby, 134 S. Ct. at 2779.
So, following Hobby Lobby, the accommodation imposes a
substantial burden. That the government labels it an ac‐
commodation makes no difference to the burden it imposes
on the nonprofits. The analysis remains the same.
The court does not apply these straightforward steps be‐
cause it balks at the idea that we must accept a person’s as‐
sertion that a law burdens their religion. The court fears that
such a rule will allow a person to escape any number of reg‐
ulations, including this brave new world of free and univer‐
sal contraceptives, unless the government can meet the strict
scrutiny test laid down by RFRA.1 This was the same con‐
cern that prompted the Supreme Court’s decision to limit
free exercise protections in Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872 (1990). Hobby Lobby,
134 S. Ct. at 2761–62. Nevertheless, when it enacted RFRA,
Congress meant to restore exactly the level of protection to
religious exercise that now so concerns the court. Id. at 2761–
1 What goes unsaid by this critique is the conclusion that the non‐
profits’ religious beliefs are less deserving of protection than the gov‐
ernment’s scheme to marginally increase the availability of contraceptive
services for certain employees.
42 Nos. 14‐1430 & 14‐1431
62; Korte, 735 F.3d at 671–72. So, foreclosed by the Supreme
Court, the court rules as it and many others have before: The
court rejects the nonprofits’ sincere belief that compliance
with the HHS accommodation is prohibited by their religion
by holding that the nonprofits misunderstand the manner in
which the accommodation operates. Then, acting as an ex‐
pert theologian, the court holds that the accommodation’s
operation as understood by the court is not a substantial
burden to the nonprofits’ religious exercise. Ante, at 38; see
also Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. 2015);
Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015)
(Notre Dame II); Michigan Catholic Conference v. Burwell, 2015
WL 4979692 (6th Cir. Aug. 21, 2015); Little Sisters of the Poor
Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir. Jul. 14,
2015); East Texas Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir.
Jun. 22, 2015); Geneva College v. Secretary United States Dep’t of
Health & Human Servs., 778 F.3d 422 (3d Cir. 2015); Priests for
Life v. United States Dep’t of Health & Human Servs., 772 F.3d
229 (D.C. Cir. 2014). But cf. Notre Dame II, 786 F.3d at 626
(Flaum, J., dissenting); Little Sisters, 794 F.3d 1151, 2015 WL
4232096, *41 (Baldock, J., dissenting); Priests for Life v. United
States HHS, 2015 U.S. App. LEXIS 8326, *16 (D.C. Cir. May
20, 2015) (en banc denied) (Brown, J. and Kavanaugh, J., dis‐
senting); Eternal Word Television Network, Inc. v. Sec’y, U.S.
Dep’t of Health & Human Servs., 756 F.3d 1339, 1340 (11th Cir.
2014) (Pryor, J., concurring).
The court does this by improperly judging the nonprofits’
religious beliefs and ignoring the penalties used for compli‐
ance. Had the nonprofits said that they sincerely believe that
the HHS accommodation violates their religion and left it at
Nos. 14‐1430 & 14‐1431 43
that, perhaps the injunction would remain in place because
there would be nothing for the court to attack. But since the
nonprofits said that they sincerely believe that the accom‐
modation violates their religion because the accommodation
makes them complicit in the provision of contraceptive ser‐
vices, the court has attacked their claim that the law makes
them complicit. The court is right that it is “not required to
defer to the plaintiffs’ beliefs about the operation of the law.”
Ante, at 31. Nevertheless, it is the nonprofits that are right
about the operation of the law, not the court.
II. The accommodation imposes a substantial burden on
the nonprofits’ religious exercise.
The court denies that the self‐certification and alternative
notice process trigger the provision of contraceptive cover‐
age. According to the court, it is federal law, not the self‐
certification form or alternative notice, which results in the
contraceptive coverage. The court says that self‐certification
throws the burden of contraceptive coverage on to the non‐
profits’ health insurance issuers (insurers) and third party
administrators (TPAs). Ante, at 32. But how does this lift the
burden off the nonprofits when the accommodation imposes
the “free” contraceptive coverage requirement only on the
insurers and TPAs that the nonprofits have hired? In spite of
that imposition, the court also denies that the accommoda‐
tion uses the nonprofits’ health plans to provide the contra‐
ceptive coverage. Instead, it says that the government con‐
tracts with the insurers and TPAs to provide the coverage to
only the beneficiaries on the nonprofits’ health plans. Ante, at
35. But, given that connection with the nonprofits’ health
44 Nos. 14‐1430 & 14‐1431
plans, how can the provision of coverage be completely in‐
dependent of those same plans?
The court can only make such sweeping claims by ignor‐
ing the true operation of the accommodation and the legal
consequences the government has attached to the self‐
certification and alternative notice. The court may think that
the nonprofits “throw” their burden onto their insurers and
TPAs, but it ignores who is forced to do the throwing and
who ultimately carries the burden once thrown. A close ex‐
amination of the manner in which the regulations actually
operate reveals that the government’s promise of accommo‐
dation is illusory. The nonprofits’ claim that the HHS ac‐
commodation makes them complicit in the provision of con‐
traceptive coverage becomes obvious.
A. The self‐certification form and alternative notice
trigger the coverage of contraceptive services.
The court holds that the self‐certification and alternative
notice are simply signs that the nonprofits have opted out of
providing contraceptive coverage, and once the sign is made
known the law obliges the nonprofits’ insurers and TPAs to
provide the unwanted coverage. Ante, at 32–33. In reality,
once the nonprofits formally object, they are opted in. The
self‐certification and alternative notice do more than give
notice of the nonprofits’ objections. And they are much more
than de minimis paperwork necessary to effectuate the non‐
profits’ objection. They create the insurers’ and TPAs’ obliga‐
Nos. 14‐1430 & 14‐1431 45
tion to provide the contraceptive coverage.2 For a nonprofit
with a self‐insured plan, the effect of the self‐certification
and alternative notice is abundantly clear: the government
makes them legal instruments under which the nonprofit’s
health plan is operated. This then allows the regulations to
treat them as legal designations of the TPA as plan adminis‐
trator and claims administrator for coverage of contraceptive
services under the nonprofit’s health plan.3 Only a nonprofit
can designate its plan administrator.4 The government’s abil‐
ity to define how a plan administrator is designated does not
give it the power to designate who will be a plan administra‐
2 45 C.F.R. § 147.131(c)(2)(i) (“A group health insurance issuer that re‐
ceives a copy of the self‐certification or notification … must … [p]rovide sepa‐
rate payments for any contraceptive services for plan participants and
beneficiaries for so long as they remain enrolled in the plan.” (emphasis
added)); 29 C.F.R. § 2590.715–2713A(c)(2)(i) (identical requirement for
TPAs); 78 Fed. Reg. 39878 (listing among the key elements of the accom‐
modation the need for eligible organizations with insured group health
plans to self‐certify and that it is the “issuer that receives a self‐
certification” that must comply with the accommodation’s require‐
ments); 78 Fed. Reg. 39880 (“A third party administrator that receives a
copy of the self‐certification … must provide or arrange separate pay‐
ments for contraceptive services … .”).
3 78 Fed. Reg. 39879 (“The self‐certification … will be treated as a
designation of the third party administrator(s) as plan administrator and
claims administrator for contraceptive benefits pursuant to section 3(16)
of ERISA.”); 29 C.F.R. § 2510.3–16 (defining the term plan administrator
to include the regulatory treatment of the self‐certification and alterna‐
tive notice as acts of designation and declaring that each “shall be an in‐
strument under which the plan is operated”).
4 29 U.S.C. § 1102(a)(2).
46 Nos. 14‐1430 & 14‐1431
tor.5 For the TPA to have the necessary authority to provide
coverage for contraceptive services, the nonprofit must desig‐
nate the TPA as a plan administrator.6 Such an act would ob‐
viously violate the nonprofit’s religion. So the government
has loaded the self‐certification and alternative notice with
the legal significance of designating the TPA. It is not the op‐
eration of law. It is the acts of self‐certification and alterna‐
tive notice that designate the TPA and facilitate the provision
of the unwanted contraception coverage. Without possession
of the self‐certification or alternative notice, the TPA cannot
receive reimbursement for the provision of contraceptives.7
In sum, the government can only require the nonprofits’
TPAs to cover contraceptive services if the nonprofits give
the government the legal authority to do so. The government
has hidden that legal authority in self‐certification and alter‐
native notice.
For insurers the situation is not as clear, but it is not the
less burdensome. The law requires insurers to include con‐
traceptive coverage in every health plan they offer.8 (Insurers
will not, however, provide something for which they are not
5 29 U.S.C. § 1002(16)(A).
6 78 Fed. Reg. 39880 (“The third party administrator serving as the
plan administrator for contraceptive benefits ensures that there is a party
with legal authority to arrange for payments for contraceptive services
and administer claims in accordance with ERISA’s protections for plan
participants and beneficiaries.”).
7 See infra note 18.
8 45 C.F.R. § 147.131(a)(1).
Nos. 14‐1430 & 14‐1431 47
paid.9) The self‐certification and alternative notice permit an
insurer to offer a health plan that appears not to include con‐
traceptive coverage. But this is on the condition that the in‐
surer still provides the coverage itself in the form of direct
payments.10 The assertion that it is the operation of law that
designates an objecting nonprofit’s insurer as the replace‐
ment is misleading. It ignores the fact that but for the non‐
profit’s hiring of the insurer, and the nonprofit’s continuing
contractual relationship with it, the government (or the op‐
eration of law) would not make any designation. Without
the objection and designation by the nonprofits, the insurer
is not required to act at all, despite the court’s claim to the
contrary. The government has turned the act of objecting into
the act of designating and it cannot escape the consequences
of that conflation by calling it an act of law.
This is not like the case of a conscientious objector who
objects and the government finds a replacement. Under the
regulations, the government does not find the replacement,
the nonprofit does. The designation does not take place un‐
less the nonprofit either delivers the self‐certification form to
its insurer or TPA, or uses the alternative notice to inform
the government who its insurer or TPA is and which health
plan is at issue. By insisting that the nonprofit deliver the
form or supply the plan information for the government’s
use, the government uses the objecting nonprofit to do its
9 See infra note 21.
10 See supra note 2.
48 Nos. 14‐1430 & 14‐1431
dirty work. The government has not provided an exit—it of‐
fers a revolving door with only one opening.11
Furthermore, this is not like the case of a conscientious
objector who refuses to object and goes to jail, and the gov‐
ernment still finds a replacement. If the nonprofits refuse to
self‐certify or provide the alternative notice and instead pay
the huge fines, their insurers and TPAs will not automatical‐
ly provide the contraception coverage. To comply with the
law, the insurers would refuse to sell plans without the cov‐
erage, while the TPA would refuse to provide their services.
In spite of the huge monetary penalties, the nonprofits
would still be prevented from providing health plans for
their employees, which they have asserted is also a violation
of their religious beliefs. So the no‐win substantial burden
would hit them on both sides.
The court has implied that requiring the nonprofit to
identify its insurer (or TPA) is merely the most efficient
means for the government to achieve its objective, Wheaton,
791 F.3d at 798, but efficiency does not excuse the substantial
burden imposed by the requirement. Identifying its insurer
so that the government can instruct that insurer to provide
11 This is not the case of a conscientious objector walking into the
draft board, voicing his objection, being excused, and walking out. For
the analogy to fit the HHS accommodation, the draft board must decide
that every objector will be replaced by the objector’s friend, and the ob‐
jector’s objection is only effective if the objector delivers written notice of
his objection to his friend or tells the draft board who his friend is and
where the board can find him. Then, the objector must send his friend
money so that that his friend will remain his friend for the purpose of
being his replacement.
Nos. 14‐1430 & 14‐1431 49
contraceptive coverage is just as burdensome to the nonprof‐
it as if it had to pick its own replacement, because it has
done just that by hiring its insurer and then objecting to the
coverage requirement. That the nonprofits could not object if
the government, on its own, were to find a replacement in‐
surer and discover to which employees it had to provide the
coverage is not relevant. Of course the nonprofits would not
have an objection to the government contracting with a third
party to provide the contraceptive coverage to other third
parties. They believe the provision of objectionable contra‐
ceptives is always immoral, but they know they have no le‐
gal means to stop the government from contracting with
third parties. That is not what is happening here. The gov‐
ernment is using the nonprofits, their health plans, and their
contractual relationships with their insurers and TPAs, to
provide the contraception coverage to which they object.
B. The accommodation uses the nonprofits’ health
plans.
The HHS accommodation requires significantly more in‐
volvement on the part of the nonprofits and their health
plans than the court relates. For starters, the accommodation
does not create independent policies or contracts. In fact, as
the nonprofits assert, the accommodation relies wholly on
the existing contract between the nonprofits and the insurers
and TPAs to provide separate payments directly to the non‐
profits’ health plan beneficiaries.12 The accommodation must
12 78 Fed. Reg. 39874 (“[T]he accommodations established under
these final regulations do not require the issuance of a separate excepted bene‐
fits individual health insurance policy covering contraceptive services … but
50 Nos. 14‐1430 & 14‐1431
use the existing insurance contracts to issue payments be‐
cause separate policies would violate insurance laws.13 The
separate payments are only provided so long as an employ‐
ee is enrolled in the nonprofit’s health plan, thus requiring
the nonprofits’ health plans to determine eligibility.14 The ac‐
commodation also relies on the nonprofits’ health plans’ en‐
rollment procedures. The insurers and TPAs must provide
notice of the separate payments when they provide notice of
the other benefits under the nonprofits’ health plans.15 The
separate payments can be limited to the same provider net‐
work as the other plan benefits.16 The end result is that the
instead require a simpler method of providing direct payments for con‐
traceptive services.” (emphasis added)).
13 78 Fed. Reg. 39876 (“As the payments at issue derive solely from a
federal regulatory requirement, not a health insurance policy, they do
not implicate issues such as issuer licensing and product approval re‐
quirements under state law … ”).
14 45 C.F.R. § 147.131(c)(2)(i)(B) (insurers must “[p]rovide separate
payments for any contraceptive services … for plan participants and
beneficiaries for so long as they remain enrolled in the plan.”); 29 C.F.R.
§ 2590.715–2713A(c)(2)(i)(B) (identical regulatory requirements for
TPAs).
15 78 Fed. Reg. 39881 (“The notice [regarding the provision of contra‐
ceptive services] must be provided contemporaneous with (to the extent
possible), but separate from, any application materials distributed in connec‐
tion with enrollment (or re‐enrollment) in coverage … .” (emphasis add‐
ed)).
16 78 Fed. Reg. 39877 (“[A]n issuer … may require that contraceptive
services be obtained in‐network (if an issuer has a network of providers) in
order for plan participants and beneficiaries to obtain such services
without cost sharing.” (emphasis added)).
Nos. 14‐1430 & 14‐1431 51
contraceptive services become a de facto benefit under the
nonprofits’ health plans.17 The government admitted as
much when it stated that it was by design that the accom‐
modation makes the provision of contraceptive coverage
“seamless[]” with the other plan benefits. Gov’t Supp and
Reply Br., 14. These circumstances sharply conflict with the
court’s conclusion that the accommodation does not use the
nonprofits’ health plans and “makes every effort to separate
religious employers from the provision of any objectionable
services.” Ante, at 23. “[E]very effort” does not disguise the
fact that the offensive provision is inseparably imbedded in
the nonprofits’ health plan. Id.
A further indication that the accommodation uses the
nonprofits’ health plans is the fact that the only way an em‐
ployee receives coverage for contraceptive services under the
accommodation is to enroll in the objecting nonprofit’s
health plan. An employee cannot reject coverage under the
nonprofit’s plan and still receive coverage under the accom‐
modation. The coverage under the accommodation is not
separate from the coverage under the nonprofit’s health
plan. It is the employee’s status as a beneficiary of the non‐
profit’s health plan, not as an employee, that entitles the em‐
ployee to coverage under the accommodation. Simply being
hired as an employee is not enough to receive coverage; an
17 78 Fed. Reg. 39880 (“[T]he self‐certification … identifies the limited
set of plan benefits (that is, contraceptive coverage) that the employer re‐
fuses to provide and that the third party administrator must therefore provide
or arrange for an issuer or another entity to provide.” (emphasis added)).
52 Nos. 14‐1430 & 14‐1431
employee must enroll in the nonprofit’s health plan. Cf. Notre
Dame II, 786 F.3d at 617.
C. The nonprofits are involved in the payment for con‐
traceptive services.
Finally, there is the matter of payment. For TPAs, the self‐
certification and alternative notice act as authorizations for
payment, without which the TPAs cannot receive reim‐
bursement from the government for payments made under
the accommodation.18 The government assumed that the re‐
imbursements for TPAs would not be passed on to the non‐
18 Payments for contraceptive services provided by TPAs under the
HHS accommodation are funded through an adjustment (i.e., discount)
to the federally‐facilitated exchange (FFE) user fee. See 78 Fed. Reg.
39882. The FFE user fee is paid by insurance issuers that participate in a
federal health care exchange to support the operations of the exchange.
See 78 Fed. Reg. 15412; 45 C.F.R. § 156.50(c). The amount of the adjust‐
ment is equal to the total amount of the payments made for contracep‐
tive services provided by the TPA plus an allowance of at least 10 percent
for administrative costs. 45 C.F.R. § 156.50(d)(3). To receive the FFE user
fee adjustment, a TPA must submit to HHS “[a]n attestation that the
payments for contraceptive services were made in compliance with 26
CFR 54.9815‐2713A(b)(2) or 29 CFR 2590.715‐2713A(b)(2).” 45 CFR §
156.50(d)(2)(iii)(E). Both the provisions cited by § 156.50 provide that the
TPA will provide the separate payments for contraceptive services “[i]f a
third party administrator receives a copy of the self‐certification from an
eligible organization or a notification.” 26 CFR § 54.9815‐2713AT(b)(2)
and 29 CFR § 2590.715‐2713A(b)(2). Moreover, § 156.50 requires a TPA
which receives an adjustment to maintain for 10 years and make availa‐
ble upon request “[a] copy of the self‐certification referenced in 26 CFR
54.9815‐2713A(a)(4) or 29 CFR 2590.715‐2713A(a)(4) for each self‐insured
plan with respect to which an adjustment is received.” 45 CFR §
156.50(d)(7)(i).
Nos. 14‐1430 & 14‐1431 53
profits but, as more nonprofits are forced to use the accom‐
modation and more contraceptive services are provided un‐
der the accommodation, that assumption is unlikely to prove
true.19 For insurers there is ostensibly no reimbursement be‐
cause the government claims the cost of contraceptive ser‐
vices will be offset by the reduction in unintended pregnan‐
cies.20 Whether this claim is true will be hard to determine
because the regulations allow insurers to recapture costs for
contraceptive services provided under the accommodation
through what is called the “risk corridor program.”21 The
19 The government assumed that the adjustments granted under the
accommodation for 2014 would be small enough to have no impact on
the fee. 78 Fed. Reg. 39882. However, the FFE user fee will have to be
increased to cover 1) more adjustments as more nonprofits are forced to
take advantage of this accommodation, and 2) greater adjustments be‐
cause the HHS mandate incentivizes more expensive forms of contracep‐
tion. An increase in the FFE user fee will eventually be recouped through
an increase in premiums, albeit an increase across the insurance issuer’s
entire portfolio, but the nonprofits may be in that same portfolio.
20 78 Fed. Reg. 39877 (“The Departments continue to believe, and
have evidence to support, that, with respect to the accommodation for
insured coverage established under these final regulations, providing
payments for contraceptive services is cost neutral for issuers.”).
21 78 Fed. Reg. 39878 (“[A]n issuer of group health insurance cover‐
age that makes payments for contraceptive services under these final
regulations may treat those payments as an adjustment to claims costs
for purposes of medical loss ratio and risk corridor program calculations.
This adjustment compensates for any increase in incurred claims associ‐
ated with making payments for contraceptive services.”). The “risk cor‐
ridor program” is a complex cost‐sharing program in which insurers
with healthier beneficiaries cover the costs of insurers which either failed
to raise premiums or could not raise premiums enough to cover more
54 Nos. 14‐1430 & 14‐1431
program is temporary, but since the HHS accommodation
was enacted during the program’s implementation, it will be
difficult to determine how the accommodation’s separate
payments affect premiums. Nevertheless, if it were true that
payments for contraceptive services are cost‐neutral, then
the premiums that would otherwise go toward childbirths
are instead used for contraceptive services in order to reduce
costly beneficiaries, including those that received separate payments for
contraceptive services. See 45 C.F.R. § 153.500 et seq.; 78 Fed. Reg. 7235
(“Section 1342 of the Affordable Care Act directs the Secretary to estab‐
lish a temporary risk corridors program that provides for the sharing in
gains or losses resulting from inaccurate rate setting from 2014 through
2016 between the Federal government and certain participating plans.”);
see also 78 Fed. Reg. 72323 (“In 2014, HHS will also operationalize the
premium stabilization programs established by the Affordable Care
Act—the risk adjustment, reinsurance, and risk corridors programs—
which are intended to mitigate the impact of possible adverse selection
and stabilize the price of health insurance in the individual and small
group markets.”). The program is supposed to pay for itself, but the reg‐
ulations allow the government to use appropriated funds to cover insur‐
er loses. See 79 Fed. Reg. 30260 (“In the unlikely event of a shortfall for
the 2015 program year, HHS recognizes that the Affordable Care Act
requires the Secretary to make full payments to issuers. In that event,
HHS will use other sources of funding for the risk corridors payments,
subject to the availability of appropriations.”). Perhaps this is why insur‐
ers do not object to the HHS accommodation. Insurers know that the
federal government will ultimately bear the burden of covering the costs
for contraceptive services they are unable to recoup. The risk corridor
program has been criticized as a health insurer bailout program. See No‐
am N. Levey, Critics call Obama funding plan for health insurer losses a
‘bailout’, L.A. TIMES, May 21, 2014, http://www.latimes.com/nation/la‐
na‐insurance‐bailout‐20140521‐story.html (last visited Sept. 3, 2015).
Nos. 14‐1430 & 14‐1431 55
childbirths because the nonprofits’ premiums are the only
source of funding. This is also an objectionable outcome.
D. The proper substantial burden analysis: the court
must accept the nonprofits’ sincere belief that the accommo‐
dation violates their religion because the nonprofits under‐
stand its operation.
The HHS accommodation is a purposely complicated act
of bureaucratic legalese and accounting tricks that enables
the government to claim that the objecting nonprofits have
nothing to do with the provision of contraceptive services.
Yet, as shown in much detail above, the accommodation in‐
fects the nonprofits’ health plans with an offensive provision
that eradicates their purpose, which is the exercise of the
nonprofits’ religion. It is the nonprofits which understand
the operation of the HHS accommodation, not the court, and
we must accept their sincere belief that it violates their reli‐
gion. The accommodation imposes a substantial burden be‐
cause the nonprofits have a sincere belief that compliance
with the law violates their religion and the penalties applied
by the government to coerce compliance are enormous.
III. The accommodation does not further a compelling gov‐
ernmental interest.
The government must grant the nonprofits an exemption
from the accommodation unless “it demonstrates that appli‐
cation of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restric‐
tive means of furthering that compelling governmental in‐
terest.” 42 U.S.C. § 2000bb‐1 (emphasis added). “This re‐
quires us to look beyond broadly formulated interests and to
56 Nos. 14‐1430 & 14‐1431
scrutinize the asserted harm of granting specific exemptions
to particular religious claimants—in other words, to look to
the marginal interest in enforcing the contraceptive mandate
in these cases.” Hobby Lobby, 134 S. Ct. at 2779 (internal quo‐
tation and alteration marks omitted). “RFRA creates a broad
statutory right to case‐specific exemptions from laws that
substantially burden religious exercise even if the law is neu‐
tral and generally applicable, unless the government can sat‐
isfy the compelling‐interest test.” Korte, 735 F.3d at 671. “In
short, RFRA operates as a kind of utility remedy for the inev‐
itable clashes between religious freedom and the realities of
the modern welfare state, which regulates pervasively and
touches nearly every aspect of social and economic life.” Id.
at 673.
“Congress’s express decision to legislate the compelling
interest test indicates that RFRA challenges should be adju‐
dicated in the same manner as constitutionally mandated
applications of the test … .” Gonzales v. O Centro Espirita Be‐
neficente Uniao do Vegetal, 546 U.S. 418, 430 (2006). Thus, the
government “must specifically identify an ‘actual problem’
in need of solving, and the curtailment of [the right] must be
actually necessary to the solution.” Brown v. Entmʹt Merchs.
Assʹn, 131 S. Ct. 2729, 2738 (2011) (citation omitted). This re‐
quires a “high degree of necessity.” Id. at 2741. The govern‐
ment must show a “direct causal link.” Id. at 2738. The gov‐
ernment’s “predictive judgment” is insufficient, “and be‐
cause it bears the burden of uncertainty, ambiguous proof
will not suffice.” Id. at 2738–39. (citation omitted). The gov‐
ernment must prove that what it seeks to regulate actually
causes the harm it wishes to prevent; evidence of a correlation
Nos. 14‐1430 & 14‐1431 57
is insufficient. Id. at 2739. “[S]tudies [that] suffer from signif‐
icant, admitted flaws in methodology” fail to provide this
proof. Id. If the regulation is underinclusive it is a sign that
the governmental interest is not compelling. Id. at 2740. Put
another way, “only those interests of the highest order and
those not otherwise served” can be considered compelling.
Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). But, “a law can‐
not 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 v. City of
Hialeah, 508 U.S. 520, 547 (1993) (internal quotation and al‐
teration marks omitted). Finally, the government does not
have a compelling interest in “[f]illing the remaining modest
gap” or in “each marginal percentage point by which its
goals are advanced.” Brown, 131 S. Ct. at 2741, n.9.
The government asserts the same interest in furtherance
of the HHS accommodation that it asserts in furtherance of
the HHS contraceptive mandate, namely, the increased
availability of contraceptive services to improve the health of
women. The government also says that it wishes to increase
the availability of contraceptive services to equalize the pro‐
vision of preventive care for women and men so that women
can participate in the workforce and society on an “equal
playing field with men.” The latter interest boils down to a
concern for women’s health. The government claims that the
inequality stems from the additional cost of contraception
and that the additional cost can deter women from using
contraceptives, thus allowing the negative health outcomes
that prevent women from achieving equal economic status.
77 Fed. Reg. 8728.
58 Nos. 14‐1430 & 14‐1431
To justify increasing the availability of contraception to
improve the health of women, the government relies exclu‐
sively on the Institute of Medicine’s 2011 study, Clinical Pre‐
ventive Services for Women: Closing the Gaps (IOM Study). The
IOM Study is a 235‐page study of the current preventative
services available for women. Only eight pages of the study
deal with the issue of contraceptive services. IOM Study,
102–09. The study does not claim that contraceptives im‐
prove women’s health generally, but that they prevent cer‐
tain negative health outcomes associated with unintended
pregnancies. See Priests for Life, 772 F.3d at 261 (“A core rea‐
son the government sought under the ACA to expand access
to contraception is that use of contraceptives reduces unin‐
tended pregnancies.”). The government’s interest advanced
by the accommodation, then, is best identified as increasing
the availability of contraceptive services in order to prevent
the negative health outcomes caused with unintended preg‐
nancies. When put to the test, the government’s interest fails
to prove compelling.22
A. A lack of available contraception and unintended
pregnancies are not actual problems in need of solving.
The HHS accommodation relies on a lengthy chain of
causality: 1) the accommodation will make contraceptives
more available by removing administrative and cost bur‐
dens; 2) if contraceptives are more available, then more
22 For a comprehensive explanation of how the government’s inter‐
est thoroughly fails the compelling interest test, see generally Helen Al‐
varé, No Compelling Interest: The “Birth Control” Mandate and Religious
Freedom, 58 VILL. L. REV. 379 (2013).
Nos. 14‐1430 & 14‐1431 59
women will use them; 3) if more women use contraceptives,
then there will be fewer unintended pregnancies; and 4) if
there are fewer unintended pregnancies, then there will be
fewer of the negative health outcomes associated with them.
The government, therefore, must prove more than the exist‐
ence of negative health outcomes. It must prove first, that
unintended pregnancies cause the negative outcomes; sec‐
ond, that contraceptive use will cause fewer unintended
pregnancies; and third a higher availability of contraceptives
will cause more women to use them. The IOM Study fails to
prove these “direct casual links.” Brown, 131 S. Ct. at 2738.
Instead, the study shows merely a correlation.
First, the study admits that “for some outcomes [of unin‐
tended pregnancy], research is limited.” Id. at 103. It then
proceeds to describe the outcomes correlated with unintend‐
ed pregnancies: outcomes that “may” or “may not” happen,
are “more” or “less likely,” have been “reported,” and have
“increased odds,” or are “associated with.” IOM Study 103.
Second, the study discusses “evidence of [contraceptive]
method effectiveness,” but does not prove that increasing
the use of even an effective contraceptive causes fewer unin‐
tended pregnancies. This is because such a simple correla‐
tion does not take into account the factors that inhibit perfect
use of contraception or the societal changes that result from
increased reliance on contraception.23 Rather than prove that
23 See Alvaré, supra note 22, at 408–411 for a discussion of the “grow‐
ing body of scholarship … indicating that the persistence or worsening
of high rates of unintended pregnancy, abortion, and sexually transmit‐
ted diseases, and also our nation’s high rates of nonmarital births (the
60 Nos. 14‐1430 & 14‐1431
greater contraceptive use causes fewer unintended pregnan‐
cies, the study only states that “evidence exists” that it does.
Id. at 105. The IOM study bases this statement on two other
studies, but they are insufficient to provide the necessary ev‐
idence.24 According to the study, “[i]t is thought that greater
use of long‐acting, reversible contraceptive methods—
including intrauterine devices and contraceptive implants
that require less action by the woman and therefore have
lower use failure rates—might help further reduce unintend‐
ed pregnancy rates.” Id. at 108 (emphasis added; citation
omitted).
Third, the study fails to prove that increasing the availa‐
bility of contraceptives will cause an increase in their use,
but concludes that “[t]he elimination of cost sharing for con‐
traception therefore could greatly increase its use, including
use of the more effective and longer‐acting methods, espe‐
cially among poor and low‐income women most at risk for
unintended pregnancy.” IOM Study, 109 (emphasis added).
However, the conclusion that eliminating cost sharing
“could” increase its use is based on two studies, neither of
which concerned contraceptive services specifically. The first
concerned preventative and primary care services generally,
and the second concerned mammograms. Id. The final claim
the study makes is that “when out‐of‐pocket costs for con‐
chief predictor of female poverty), are the ‘logical’ result—in economic
and psychological terms—of the new marketplace for sex and marriage
made possible by increasingly available contraception (in some cases,
combined with available abortion).”
24 Alvaré, supra note 22, at 399‐405.
Nos. 14‐1430 & 14‐1431 61
traceptives were eliminated or reduced, women were more
likely to rely on more effective long‐acting contraceptive
methods.” Id. But, a review of the study underlying that con‐
clusion reveals that “[w]e cannot be certain that the changes
in procurement were solely due to the removal of cost to the
patient, but there was a shift toward prescribing the most
effective methods ([intrauterine contraceptives] and injecta‐
ble contraceptives) and a substantial increase in prescribing
of [emergency contraceptive pills].”25 So, not only was the
study inconclusive, it is ambiguous regarding the IOM
Study’s intended purpose because a substantial increase in
emergency contraceptive pills would seem to follow from a
decrease in regular contraceptive use. On the whole, the
IOM study’s lack of causality renders the government’s claim
that it must increase the availability of contraceptives noth‐
ing more than a “predictive judgment.” Brown, 131 S. Ct. at
2738.
Another reason the IOM Study fails to prove “an ‘actual
problem’ in need of solving” is because it is overbroad.
Brown, 131 S. Ct. at 2738. The study starts with the estimation
that “[i]n 2001, … 49 percent of all pregnancies in the United
States were unintended,” but the study defines an unintend‐
ed pregnancy as one that is “unwanted or mistimed at the
time of conception.” IOM Study, 102. This definition includes
pregnancies that were unwanted at the time of conception,
but still wanted when the mother discovered she was preg‐
nant, and mothers who intended to become pregnant, but
25 Debbie Postlethwaite, et al., A comparison of contraceptive procure‐
ment pre‐ and post‐benefit change, 76 CONTRACEPTION 360, 364 (2007).
62 Nos. 14‐1430 & 14‐1431
did not intend to become pregnant by the specific conjugal
act that resulted in conception. The government has zero in‐
terest in preventing these pregnancies. Under the study’s
overbroad definition, “all sexually active women with re‐
productive capacity are at risk for unintended pregnancy.”
Id. at 103. Aside from the study’s problems with its own def‐
inition, unintended pregnancies are an extremely difficult
thing to quantify.26
Overall, the IOM Study lacks the necessary quality and
rigor. It heavily relies on studies from biased organizations,
such as the Guttmacher Institute and the journal
CONTRACEPTION, and offers no consideration of competing
studies. Id. at 102–109. The study’s own dissenting opinion
says it best:
Readers of the Report should be clear on the
fact that the recommendations were made
without high quality, systematic evidence of
the preventive nature of the services consid‐
ered. Put differently, evidence that use of the
services in question leads to lower rates of dis‐
ability or disease and increased rates of well‐
being is generally absent.
The view of this dissent is that the commit‐
tee process for evaluation of the evidence
lacked transparency and was largely subject to
the preferences of the committee’s composition.
Troublingly, the process tended to result in a
26 Alvaré, supra note 22, at 396–97.
Nos. 14‐1430 & 14‐1431 63
mix of objective and subjective determinations
filtered through a lens of advocacy. An abiding
principle in the evaluation of the evidence and
the recommendations put forth as a conse‐
quence should be transparency and strict ob‐
jectivity, but the committee failed to demon‐
strate these principles in the Report. This dis‐
sent views the evidence evaluation process as a
fatal flaw of the Report particularly in light of
the importance of the recommendations for
public policy and the number of individuals,
both men and women, that will be affected.
IOM Study, 232–33.
The study itself shows that the lack of available contra‐
ceptive services is not a problem in need of solving. Accord‐
ing to the IOM Study, “[c]ontraceptive coverage has become
standard practice for most private insurance and federally
funded insurance programs.” Id. at 108. Further, “[s]ince
1972, Medicaid, the state‐federal program for certain low‐
income individuals, has required coverage for family plan‐
ning in all state programs and has exempted family planning
services and supplies from cost‐sharing requirements.” Id.
Finally,
[C]omprehensive coverage of contraceptive
services and supplies [is] “the current insur‐
ance industry standard,” with more than 89
percent of insurance plans covering contracep‐
tive methods in 2002. A more recent 2010 sur‐
vey of employers found that 85 percent of large
64 Nos. 14‐1430 & 14‐1431
employers and 62 of small employers offered
coverage of FDA‐approved contraceptives.
Id. at 109 (citations omitted). Not only are contraceptive ser‐
vices already widely available, but they are also already
widely used: “More than 99 percent of U.S. women aged 15
to 44 years who have ever had sexual intercourse with a
male have used at least one contraceptive method.” IOM
Study, 103 (citation omitted). According to the Centers for
Disease Control and Prevention, contraceptive use is “virtu‐
ally universal among women of reproductive age.”27
The study similarly fails to prove that there is a need to
increase the availability of contraceptives to alleviate “the
increased risk of adverse pregnancy outcomes for pregnan‐
cies that are too closely spaced” or for “women with certain
chronic medical conditions” who “may need to postpone
pregnancy” and “women with serious medical conditions”
for whom “pregnancy may be contraindicated.” IOM Study,
103. Amazingly, the study does not even pretend to demon‐
strate a causal link in these circumstances, relying instead on
the reader to make the inference mistakenly. The study
hopes the reader ignores the common sense fact that women
in these circumstances have a higher incentive to use contra‐
ceptives if that is their chosen method to prevent these out‐
comes.
27 CDC, “Advance Data No. 350, Dec. 10, 2004: Use of Contraception
and Use of Family Planning Services in the United States: 1982‐2002”,
http://www.cdc.gov/nchs/data/ad/ad350.pdf (last visited Sept. 3, 2015).
Nos. 14‐1430 & 14‐1431 65
The study offers no evidence regarding the effects that
extra paperwork or other administrative and logistical ob‐
stacles would have on contraceptive availability or use. Such
a finding is absolutely necessary for the government to as‐
sert that it has a compelling interest in using the nonprofits’
health plans so that the coverage for contraceptive services
will be “seamless.” Instead, the IOM Study’s conclusions are
limited to the elimination of cost‐sharing and provide no
reason why a government‐run option would not work equal‐
ly as well as the HHS accommodation.
Finally, the IOM Study does not concern the employees
of the nonprofits who are less likely to use contraception
given their own religious beliefs. Instead, its conclusions
mostly concern the “poor and low‐income women most at
risk for unintended pregnancy.” Id. at 109. The study’s hope
is that the elimination of cost sharing for contraception will
induce the poor to use more effective, long‐acting methods,
such as IUDs, implants, and sterilization. Id. at 108‐109.
However, “the government must establish a compelling and
specific justification for burdening these claimants.” Korte,
735 F.3d at 685; see also Hobby Lobby, 134 S. Ct. at 2761. The
IOM Study fails to prove any connection whatsoever with
the nonprofits’ employees. In fact, there are already a high
level of access to contraception, a higher rate of use, and an
increased use of more effective methods among the women
with more income and education.28 Simply put, the IOM
study fails to “specifically identify an ‘actual problem’ in
need of solving,” and, consequently, the government has
28 Avaré, supra note 22, at 426.
66 Nos. 14‐1430 & 14‐1431
failed to demonstrate a compelling interest. Brown, 131 S. Ct.
at 2738.
B. The accommodation is underinclusive.
The HHS accommodation’s underinclusiveness is another
sign that the governmental interest is not compelling. Id. at
2740. The government “leaves appreciable damage to that
supposedly vital interest unprohibited” by allowing reli‐
gious employers, grandfathered plans, and employers with
fewer than 50 employees to avoid providing contraceptive
coverage. Lukumi, 508 U.S. at 547 (internal quotation marks
omitted). Although more health plans will lose their grand‐
fathered status the longer the ACA is in place, the number of
persons employed by religious employers and organizations
with fewer than 50 employees will remain considerable in
light of the less than 2,000 covered employees concerned
here.
The accommodation is also underinclusive because it
does not account for the other causes of the negative health
outcomes the IOM Study correlates with unintended preg‐
nancies. According to the study, “women with unintended
pregnancies are more likely than those with intended preg‐
nancies to receive later or no prenatal care, to smoke and
consume alcohol during pregnancy, to be depressed during
pregnancy, and to experience domestic violence during
pregnancy.” IOM Study, 103. The study implies that unin‐
tended pregnancies cause these conditions, but there could
just as well be another cause that causes not only these con‐
ditions, but the unintended pregnancy as well: poverty, lack
of education, abuse, or other causes of risk taking behaviors.
Nos. 14‐1430 & 14‐1431 67
The HHS accommodation addresses none of these alterna‐
tive causes, focusing solely on unintended pregnancies. Most
notably, the study does not acknowledge the fact that preg‐
nancies resulting from failed contraceptives are also consid‐
ered unintended.
Most damaging to the government’s asserted interest in
the contraceptive mandate is the fact that those women most
at risk for an unintended pregnancy are “women who are
aged 18 to 24 years and unmarried, who have a low income,
who are not high school graduates, and who are members of
a racial or ethnic minority group.” IOM Study, 102 (citation
omitted). These women—let alone the nonprofits’ employ‐
ees—are less likely to be served by the HHS accommodation,
or the ACA’s contraception mandate generally, because they
are less likely to have the type of employment that qualifies
them for the health insurance under the ACA. These women
would not obtain contraceptive services through the HHS
accommodation, but through a number of government pro‐
grams such as Medicaid, 42 U.S.C. § 1396 et seq. (2010), and
the Title X Family Planning Program, 42 U.S.C. § 300 (2006).
“The consequence is that [the HHS accommodation] is wild‐
ly underinclusive when judged against its asserted justifica‐
tion, which … is alone enough to defeat it.” Brown, 131 S. Ct.
at 2740.
C. Forcing nonprofits to use the accommodation can on‐
ly provide a marginal increase in contraception.
Contraceptive services are already widely available and
their use is virtually universal. The HHS accommodation on‐
ly fills the “remaining modest gap” by making already prev‐
68 Nos. 14‐1430 & 14‐1431
alent contraceptive services free for employees of religious
nonprofits. Id. at 2741. This “can hardly be a compelling state
interest.” Id. Further, the “more focused inquiry” of RFRA
requires the government to demonstrate that it has a compel‐
ling interest in filling the gap made by the less than 2,000
employees of the nonprofits here. Hobby Lobby, 131 S. Ct. at
2779. This is even less of a compelling interest. Further still,
the accommodation fills in even less of the gap when viewed
from the perspective of unintended pregnancies. This is be‐
cause the accommodation seeks to treat unintended preg‐
nancies through contraceptive services, but contraceptives
are not always effective for a variety of reasons. Even if this
gap could be decreased by improving the effectiveness of
contraceptives, “the government does not have a compelling
interest in each marginal percentage point by which its goals
are advanced.” Brown, 131 S. Ct. at 2741, n.9.
D. A primary concern underlying the accommodation is
cost.
Cost appears to be a primary concern underlying the
HHS accommodation. After all, babies are expensive. Of the
IOM Study’s eight‐page discussion of contraceptives, a sig‐
nificant portion is spent on the cost savings to be expected
from their use despite the study’s acknowledgement that
cost considerations are out of scope:
Although it is beyond the scope of the
committee’s consideration, it should be
noted that contraception is highly cost‐
effective. The direct medical cost of unin‐
tended pregnancy in the United States was
Nos. 14‐1430 & 14‐1431 69
estimated to be nearly $5 billion in 2002, with
the cost savings due to contraceptive use esti‐
mated to be $19.3 billion. … It is thought that
greater use of long‐acting, reversible contra‐
ceptive methods—including intrauterine de‐
vices and contraceptive implants that require
less action by the woman and therefore have
lower use failure rates—might help further re‐
duce unintended pregnancy rates. Cost barri‐
ers to use of the most effective contraceptive
methods are important because long‐acting,
reversible contraceptive methods and steriliza‐
tion have high up‐front costs.
IOM Study, 107–08 (citations omitted). The study’s primary
conclusion is that the use of contraceptive services—
particularly longer‐acting methods like IUDs—will greatly
increase if they are free, “especially among poor and low‐income
women.” Id. at 109 (emphasis added). The appearance is that
the government desires to use contraceptives that “require
less action by the woman” to prevent poor, unmarried, mi‐
nority women from having babies, as if babies were a costly
disease. IOM Study, 108. Of course, this appearance is less‐
ened by the fact that the government is vigorously enforcing
the HHS contraception mandate on even religious nonprofits
through the accommodation.
Because the government has failed to prove that the HHS
accommodation furthers a compelling governmental inter‐
est, it is not allowed to burden the nonprofits’ religious exer‐
cise with the accommodation. 42 U.S.C. § 2000bb‐1. Thus, the
70 Nos. 14‐1430 & 14‐1431
government must grant the nonprofits the same exemption
that it grants to religious employers. 45 C.F.R. § 147.131(a).
IV. The accommodation is not the least restrictive means.
Even if the government had proved that the HHS ac‐
commodation was in furtherance of a compelling interest, it
would still have to grant the nonprofits’ an exemption from
the accommodation because the accommodation is not the
least restrictive means. 42 U.S.C. § 2000bb‐1(b)(2). The Su‐
preme Court in Hobby Lobby spoke of an obvious means that
would be less restrictive than the HHS accommodation:
The most straightforward way of doing this
would be for the Government to assume the
cost of providing the [objectionable] contracep‐
tives at issue to any women who are unable to
obtain them under their health‐insurance poli‐
cies due to their employers’ religious objec‐
tions. This would certainly be less restrictive of
the plaintiffs’ religious liberty, and HHS has
not shown … that this is not a viable alterna‐
tive.
131 S. Ct. at 2780. The government argues that RFRA does
not require the government to create entirely new programs
to accommodate religious objections, but the government
provides no authority for its position. The Court did not
hold that it was so in Hobby Lobby. Id. at 2786. Rather, the
Court stated that Congress understood that by passing
RFRA it might cost the government extra to avoid burdening
religion. Id. at 2781. Besides, the government already main‐
tains programs, such as Medicaid and the Title X Family
Nos. 14‐1430 & 14‐1431 71
Planning Program mentioned earlier, which could be opened
up to the employees of the nonprofits.
The government also argues that a government‐run pro‐
gram is not a valid means because it would create additional
burdens for the nonprofits’ employees and RFRA does not
protect religious exercise that “unduly restrict[s] other per‐
sons, such as employees, in protecting their own interests,
interests the law deems compelling.” Id. at 2786–87 (Kenne‐
dy, J., concurring). This requirement is not found in RFRA.
What the government fails to acknowledge is that the pur‐
pose of an inquiry into the burdens on others is to determine
whether a particular religious accommodation violates the
Establishment Clause. See Cutter v. Wilkinson, 544 U.S. 709,
719–20 (2005) (Ginsburg, J.). To determine whether a reli‐
gious accommodation under RFRA is compatible with the
Establishment Clause “courts must take adequate account of
the burdens a requested accommodation may impose on
nonbeneficiaries, and they must be satisfied that the Act’s
prescriptions are and will be administered neutrally among
different faiths.” Id. at 712 (citation omitted). A religious ac‐
commodation’s effect on third parties must be examined be‐
cause “[a]t some point, accommodation may devolve into
‘an unlawful fostering of religion.’” Id. at 714 (quoting Corpo‐
ration of Presiding Bishop of Church of Jesus Christ of Latter‐day
Saints v. Amos, 483 U.S. 327, 334‐335 (1987)). The Supreme
Court “has long recognized that the government may … ac‐
commodate religious practices … without violating the Es‐
tablishment Clause.” Id. at 713 (quoting Hobbie v. Unemploy‐
ment Appeals Comm’n of Fla., 480 U.S. 136, 144‐145 (1987)).
72 Nos. 14‐1430 & 14‐1431
Administering a government‐run program for contracep‐
tive coverage in order to relieve the nonprofits of the burden
on their religion imposed by the accommodation would not
“devolve into ‘an unlawful fostering of religion.’” Id. at 714.
A government‐run program would provide the contracep‐
tion coverage on a cost‐free basis. Any burden resulting from
an employee’s participation in the program would be de min‐
imis because it truly would be nothing more than additional
paperwork (unlike the self‐certification and alternative no‐
tice). Furthermore, such a small burden would be no differ‐
ent than the burden experienced by the many who obtain
dental and vision care benefits from different plans and fill
their prescriptions at pharmacies unassociated with their
health care providers. It would be absurd to say that such a
de minimis burden even came close to the establishment of
religion. Finally, any burden would be within the employee’s
power to avoid by changing employment to an employer
that provides the coverage. According to the government,
when the contraceptive services mandate was enacted, 85%
percent of large employers and 62% percent of small em‐
ployers already covered contraceptives services under the
health plans. Even more plans will cover contraceptives and
that coverage will be copayment‐free now that the mandate
is in force.
V. Conclusion
This dissent explores the road less traveled by. As de‐
tailed above, the detour exposes two serious misrepresenta‐
tions. First, the so‐called accommodation is nothing but a
mirage. The government strung together the complicated
Nos. 14‐1430 & 14‐1431 73
details to create a lengthy and twisted extension cord. The
end result is the de facto imposition of a provision offering
“free” birth control into the nonprofits’ necessary health
plans. The unwanted provision is very offensive and contra‐
ry to the nonprofits’ sincerely held religious beliefs. The im‐
position does not occur if the nonprofits refuse to plug in the
extension cord by refusing to self‐certify or otherwise indi‐
cate consent through the alternative notice. But this refusal
causes enormous, existential monetary penalties. So, there
are substantial burdens at both ends of the accommodation.
Second, deep into the detour is the falsehood behind the
government’s claim that increasing the availability of contra‐
ceptive services furthers a “compelling governmental inter‐
est.” That label is needed to overcome the nonprofits’ sin‐
cerely held religious beliefs that no one disputes. But, con‐
traceptive services are already widely available from the
great majority of employers. And, for the primarily targeted
poor and/or unemployed women, whom the mandate does
not affect, there are already programs like Medicaid and Ti‐
tle X that offer free contraceptive services. At its center, the
IOM Study recognizes that babies are medically very expen‐
sive, so the government endeavors to reduce “unexpected”
pregnancies to save money. In effect, the government con‐
siders pregnancy a preventable disease.
Aside from the fact that the government desires to sub‐
stantially burden the nonprofits’ religious exercise in fur‐
therance of an exaggerated, misnamed, and misdirected in‐
terest, there are, no doubt, less restrictive means of further‐
ing its interest. But why even go there? The government cer‐
74 Nos. 14‐1430 & 14‐1431
tainly has no compelling interest in forcing contraceptive
coverage into the nonprofits’ otherwise wanted and needed
health plans when they unanimously assert they don’t want
the coverage and don’t need it. The obvious solution for
these plaintiffs (and likely for the plaintiffs involved in the
similar—and similarly expensive—litigation in at least six
other federal circuits, see supra p.4) is for the government to
extend the religious employer exemption to all religious
nonprofits that object to the coverage. 45 C.F.R. § 147.131(a).
The nonprofits have shown a likelihood of success on
their claims that the HHS accommodation violates RFRA. 42
U.S.C. § 2000bb‐1. The preliminary injunction granted by the
district court should be affirmed. Korte, 735 F.3d at 666 (“Alt‐
hough the claim is statutory, RFRA protects First Amend‐
ment free‐exercise rights, and in First Amendment cases, the
likelihood of success on the merits will often be the determi‐
native factor.” (internal quotation marks omitted)).
For all these reasons, I dissent.
Grace Schools v. Sylvia Mathews Burwell
Court: Court of Appeals for the Seventh Circuit
Date filed: 2015-09-04
Citations: 801 F.3d 788
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