Michigan Catholic Conference & Catholic Family Services v. Burwell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0121p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

MICHIGAN CATHOLIC CONFERENCE and CATHOLIC ┐

FAMILY SERVICES D/B/A CATHOLIC CHARITIES │

DIOCESE OF KALAMAZOO (13-2723); THE CATHOLIC │

DIOCESE OF NASHVILLE, CATHOLIC CHARITIES OF │ Nos. 13-2723/6640

TENNESSEE, INC., CAMP MARYMOUNT, INC., MARY, │

QUEEN OF ANGELS, INC., ST. MARY VILLA, INC., >

│

DOMINICAN SISTERS OF ST. CECILIA │

CONGREGATION, and AQUINAS COLLEGE (13-6640), │

Plaintiffs-Appellants, │

│

│

v. │

│

SYLVIA MATTHEWS BURWELL, Secretary of the │

United States Department of Health and Human │

Services; THOMAS E. PEREZ, Secretary of the United │

States Department of Labor; JACOB J. LEW, │

Secretary of the United States Department of │

Treasury; UNITED STATES DEPARTMENT OF HEALTH │

AND HUMAN SERVICES; UNITED STATES │

│

DEPARTMENT OF LABOR; and UNITED STATES

│

DEPARTMENT OF THE TREASURY,

│

Defendants-Appellees. │

┘

Appeal from the United States District Court for the

Western District of Michigan at Grand Rapids;

No. 1:13-cv-01247—Gordon J. Quist, District Judge.

and

Appeal from the United States District Court for the

Middle District of Tennessee at Nashville;

No. 3:13-cv-01303—Todd J. Campbell, District Judge.

Argued: May 8, 2014

Decided and Filed: June 11, 2014

1

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 2

Before: MOORE and ROGERS, Circuit Judges; NIXON, District Judge.*

_________________

COUNSEL

ARGUED: Matthew A. Kairis, JONES DAY, Columbus, Ohio, for Appellants. Adam C. Jed,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON

BRIEF: Matthew A. Kairis, Melissa Dunlap Palmisciano, Neil Vakharia, JONES DAY,

Columbus, Ohio, for Appellants. Adam C. Jed, Mark B. Stern, Alisa B. Klein, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Charles E.

Davidow, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington, D.C.,

Daniel Mach, Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

Washington, D.C., Ayesha N. Khan, AMERICANS UNITED FOR SEPARATION OF

CHURCH AND STATE, Washington, D.C., B. Eric Restuccia, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Amici Curiae.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. The plaintiffs-appellants in this consolidated

appeal are non-profit entities affiliated with the Catholic Church who have religious objections to

certain preventive care standards under the Patient Protection and Affordable Care Act.

Specifically, the appellants object to the requirement that their employer-based health insurance

plans cover all Food and Drug Administration-approved contraception, sterilization methods, and

counseling. All of the appellants are eligible for either an exemption from the requirement or an

accommodation to the requirement, through which the entities will not pay for the contraceptive

products and services and the coverage will be independently administered by an insurance

issuer or third-party administrator. Nonetheless, in their complaints filed in the District Courts

for the Middle District of Tennessee and Western District of Michigan, the appellants alleged

that the contraceptive-coverage requirement violated the Religious Freedom Restoration Act; the

Free Speech, Free Exercise, and Establishment Clauses of the First Amendment; and the

Administrative Procedure Act. Both district courts denied the appellants’ motions for a

*

The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by

designation.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 3

preliminary injunction. We AFFIRM the denials of preliminary injunctions to all appellants on

all claims.

I. BACKGROUND

A. Factual Background

The appellants allege that they are Catholic entities that provide “spiritual, educational,

social, and financial services to members of their communities, Catholic and non-Catholic alike.”

MCC R. 1 (MCC Compl. at ¶ 1) (Page ID #2); CDN R. 1 (CDN Compl. at ¶ 2) (Page ID #2).1

All appellants currently provide health plans to their employees. Michigan Catholic

Conference (“MCC”) offers a self-insured group health plan that is “administered by separate

third party administrators, 2 Blue Cross Blue Shield of Michigan and Express Scripts.” MCC R.

1 (Compl. at ¶ 41) (Page ID #13). Catholic Charities of Kalamazoo is a “Covered Unit[]” whose

employees may participate in the plan that MCC offers its employees. MCC R. 1 (Compl. at

¶¶ 41, 50–51) (Page ID #13, 15). The remaining appellants—the Catholic Diocese of Nashville

(“CDN”);3 Catholic Charities of Tennessee, Inc. (“Catholic Charities of Tennessee”); Camp

Marymount, Inc. (“Camp Marymount”); Mary, Queen of Angels, Inc. (“MQA”); St. Mary Villa,

Inc. (“St. Mary Villa”); Aquinas College; and Dominican Sisters of St. Cecilia Congregation

(“St. Cecilia Congregation”)—offer fully-insured group health plans.4 CDN R. 1 (Compl. at

¶¶ 43, 61, 71, 79, 80, 107, 129) (Page ID #13, 17, 19, 20, 25, 30).

1

MCC R. refers to documents in Michigan Catholic Conference et al. v. Burwell et al., No. 13-2723, and

CDN R. refers to documents in Catholic Diocese of Nashville et al. v. Burwell et al., No. 13-6640.

2

“A self-insured plan is one in which benefits are paid from contributions supplied by the employer without

the assistance of outside insurance.” 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013). “An

employer is said to have a ‘self-insured’ plan if [the employer] bears the financial risk of paying claims.”

Government Br. at 7 n.1. Many companies that offer self-insured plans hire an insurance company or other outside

entity, referred to as a third-party administrator, “to administer their plans, performing functions such as developing

networks of providers, negotiating payment rates, and processing claims.” Id.

3

CDN offers its employees a choice including a preferred provider option (“PPO plan”) and a high-

deductible option. CDN R. 1 (Compl. at ¶ 43) (Page ID #13). The PPO plan meets the definition of a

“grandfathered plan” under the ACA; thus, at this time, that plan is exempt from the contraceptive-coverage

requirement. CDN R. 1 (Compl. at ¶ 46) (Page ID #13).

4

“An insured plan, also known as a fully insured plan, is one in which insurance is purchased from a

regulated insurance company.” 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013).

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 4

MCC, CDN, and St. Cecilia Congregation allege that they are eligible for the total exemption

from the contraceptive-coverage requirement for “religious employers,” meaning that their

health plans need not provide contraceptive coverage. MCC R. 1 (Compl. at ¶ 9) (Page ID #4);

CDN R. 1 (Compl. at ¶ 14) (Page ID #7). The remaining appellants allege that they are eligible

for the accommodation for certain religiously affiliated non-profits. MCC R. 1 (Compl. at ¶ 11)

(Page ID #5); CDN R. 1 (Compl. at ¶ 10) (Page ID #5).

Regulatory Background

The enactment of the Patient Protection and Affordable Care Act (“ACA”) in 2010

established new minimum standards requiring employer-based group health plans and health

insurance issuers to cover certain services without cost-sharing through a deductible or other

payment by the plan participant or beneficiary. 42 U.S.C. § 300gg-13. The term “group health

plan” is broadly defined to include both insured group health plans and self-insured group health

plans: “[t]he term ‘group health plan’ means an employee welfare benefit plan . . . to the extent

that the plan provides medical care (as defined in paragraph (2)) and including items and services

paid for as medical care) to employees or their dependents (as defined under the terms of the

plan) directly or through insurance, reimbursement, or otherwise.” 42 U.S.C. § 300gg-91(a)(1).

Congressional hearings emphasized the importance of coverage without cost-sharing for

women’s specific healthcare needs because “women have different health needs than men, and

these needs often generate additional costs.” 155 Cong. Rec. 29049, 29070 (Dec. 2, 2009)

(statement of Sen. Feinstein). “Women of childbearing age spent 68 percent more in out-of-

pocket health care costs than men.” Id. Additionally, the legislative debates recognized that

medical costs disproportionately discourage women from seeking treatment: “[w]omen are more

likely than men to neglect care or treatment because of cost.” 155 Cong. Rec. S11985, S11987

(daily ed. Nov. 30. 2009) (statement of Sen. Mikulski). The enacted law thus required coverage

for, “with respect to women, such additional preventive care and screenings . . . as provided for

in comprehensive guidelines supported by the Health Resources and Services Administration.”

42 U.S.C. § 300gg-13(a)(4); see also Group Health Plans and Health Insurance Issuers Relating

to Coverage of Preventive Services under the Patient Protection and Affordable Care Act,

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77 Fed. Reg. 8725-01, 8725 (Feb. 15, 2012) (to be codified at 29 C.F.R. pt. 2590; 45 C.F.R. pt.

147).

For assistance in developing the guidelines for covered “preventive care and screenings,”

id., the Health Resources and Services Administration (“HRSA”) asked the Institute of Medicine

(“IOM”) to bring together a committee to “conduct a review of effective preventive services to

ensure women’s health and well-being.” IOM, Clinical Preventive Services for Women: Closing

the Gaps (“Closing the Gaps”) (2011), 1.5 “The Institute of Medicine was established in 1970

by the National Academy of Sciences to secure the services of eminent members of appropriate

professions in the examination of policy matters pertaining to the health of the public.” Id. at iv.

The members of the Committee on Preventive Services for Women (“Committee”) included

“specialists in disease prevention, women’s health issues, adolescent health issues, and evidence-

based guidelines.” Id. at 2. The Committee recommended preventive measures that “met the

following criteria:

● The condition to be prevented affects a broad population;

● The condition to be prevented has a large potential impact on health and

well-being; and

● The quality and strength of the evidence is supportive.

Id. at 8. The Committee made eight recommendations6 for preventive services for women,

including coverage for “the full range of Food and Drug Administration-approved contraceptive

methods, sterilization procedures, and patient education and counseling for women with

reproductive capacity.” Id. at 10; see also 77 Fed. Reg. at 8725. This recommendation was

based on the Committee’s concern about the high rate of unintended pregnancy in the United

States; forty-nine percent of pregnancies in 2001 “were unintended—defined as unwanted or

mistimed at the time of conception,” a rate much higher than comparable developed countries.

Closing the Gaps at 102. The rate of unintended pregnancy “is more likely among 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.” Id. The Committee

5

The report may be read online for free at: http://www.iom.edu/Reports/2011/Clinical-Preventive-

Services-for-Women-Closing-the-Gaps.aspx.

6

One of the sixteen members of the Committee, Anthony Lo Sasso, dissented from the report.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 6

concluded that contraceptive coverage would greatly decrease the risk of unwanted pregnancies,

adverse pregnancy outcomes, and other negative health consequences, and significantly reduce

women’s medical costs. Id. at 102–07. The regulations promulgated by the agencies

implementing the ACA required group health plans and insurance issuers offering group or

individual health insurance coverage to provide coverage without cost-sharing for preventive

care and screenings provided for in guidelines supported by the HRSA. See 26 C.F.R.

§ 54.9815-2713A (Tax); 29 C.F.R. § 2590.715-2713A (Labor); 45 C.F.R. § 147.131 (Health and

Human Services).7

The regulations provide for a religious-employer exemption from the contraceptive-

coverage requirement and an accommodation for certain non-profits that do not qualify for the

exemption but that object to contraceptive coverage on religious grounds. The government first

developed the religious-employer exemption, under which HRSA is authorized to “establish an

exemption . . . with respect to a group health plan established or maintained by a religious

employer (and health insurance coverage provided in connection with a group health plan

established or maintained by a religious employer) with respect to any requirement to cover

contraceptive services under such guidelines.” 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); see 26 U.S.C. §§ 6033(a)(3)(A)(i), (iii) (referring to “churches, their

integrated auxiliaries, and conventions or associations of churches” and “the exclusively

religious activities of any religious order.”).

Based on objections that the religious-employer exemption as borrowed from the Tax

Code was drawn too narrowly, the government developed a special accommodation for certain

non-profits. The accommodation was intended to “meet two goals—providing contraceptive

coverage without cost-sharing to individuals who want it and accommodating non-exempted,

non-profit organizations’ religious objections to covering contraceptive services.” 77 Fed. Reg.

7

The Department of Treasury, Department of Labor, and Department of Health and Human Services

promulgated identical regulations regarding the framework. See 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2590.715-

2713A; 45 C.F.R. § 147.131. For the sake of simplicity, we cite only the Department of Labor regulations.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 7

at 8727. The final regulations permitted “eligible organization[s]” to obtain the accommodation

if the organization “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[.]

45 C.F.R. § 147.131(b).

The process by which an organization obtains the exemption and the accommodation will

be discussed as relevant to the appellants’ claims.

B. Procedural History

MCC and Catholic Charities of Kalamazoo (together, “MCC plaintiffs”) filed suit in the

District Court for the Western District of Michigan on November 14, 2013. CDN, Catholic

Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, St. Cecilia Congregation, and

Aquinas College (together, “CDN plaintiffs”) filed suit in the District Court for the Middle

District of Tennessee on November 22, 2013. Both sets of plaintiffs alleged that the

contraceptive-coverage requirement violated the Religious Freedom Restoration Act; the Free

Exercise, Free Speech, and Establishment Clauses of the First Amendment, and the

Administrative Procedure Act. In November 2013, the plaintiffs moved for preliminary

injunctions in their respective district courts. The District Court for the Western District of

Michigan denied a preliminary injunction on all claims because the plaintiffs had not shown a

likelihood of success on the merits of their claims. Michigan Catholic Conference v. Sebelius

No. 1:13-CV-1247, 2013 WL 6838707, at *13 (W.D. Mich. Dec. 27, 2013). The District Court

for the Middle District of Tennessee held that the plaintiffs waived their claims under the

Administrative Procedure Act, and denied a preliminary injunction on all other claims because

the plaintiffs had not shown a likelihood of success on the merits of their claims. Catholic

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 8

Diocese of Nashville v. Sebelius, No. 3:13-01303, 2013 WL 6834375, at *4–10 (M.D. Tenn.

Dec. 26, 2013).

The appellants now appeal the denials of their motions for a preliminary injunction.

II. ANALYSIS

A. Standard of Review

As we recently stated in a unanimous en banc decision, there are:

four factors [the district court] must balance when considering a motion for

preliminary injunction: (1) whether the movant has a strong likelihood of success

on the merits; (2) whether the movant would suffer irreparable injury without the

injunction; (3) whether issuance of the injunction would cause substantial harm to

others; and (4) whether the public interest would be served by issuance of the

injunction. When a party seeks a preliminary injunction on the basis of a

potential constitutional violation, the likelihood of success on the merits often will

be the determinative factor. Whether the movant is likely to succeed on the

merits is a question of law we review de novo. We review for abuse of discretion,

however, the district court’s ultimate determination as to whether the four

preliminary injunction factors weigh in favor of granting or denying preliminary

injunctive relief. This standard is deferential, but the court may reverse the

district court if it improperly applied the governing law, used an erroneous legal

standard, or relied upon clearly erroneous findings of fact.

City of Pontiac Retired Emps. Ass’n v. Schimmel, No. 12-2087, 2014 WL 1758913, at *2 (6th

Cir. May 5, 2014) (en banc) (internal quotation marks and citations omitted). “The party seeking

a preliminary injunction bears a burden of justifying such relief, including showing irreparable

harm and likelihood of success.” McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012).

B. Religious Freedom Restoration Act

The appellants argue that the contraceptive-coverage requirement violates the Religious

Freedom Restoration Act (“RFRA”) because it imposes a substantial burden on their exercise of

religion by forcing them to provide, pay for, and/or facilitate access to insurance coverage for

contraception, and the contraceptive-coverage requirement is not the least restrictive means to

further a compelling government interest. Both district courts concluded that the contraceptive-

coverage requirement does not impose a substantial burden on the exercise of religion because

the plaintiffs were eligible for either the exemption or the accommodation from the requirement.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 9

To analyze properly the appellants’ claim under RFRA, we begin with the genesis of the

law. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court held that if a state law survived

constitutional challenge, it would be “because any incidental burden on the free exercise of

appellant’s religion may be justified by a ‘compelling state interest in the regulation of a subject

within the State’s constitutional power to regulate . . . .” Id. at 403 (quoting NAACP v. Button,

371 U.S. 415, 438 (1963)). The Supreme Court rejected the compelling-interest test in

Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872

(1990), stating that:

The government’s ability to enforce generally applicable prohibitions of socially

harmful conduct, like its ability to carry out other aspects of public policy, cannot

depend on measuring the effects of a governmental action on a religious

objector’s spiritual development. To make an individual’s obligation to obey

such a law contingent upon the law’s coincidence with his religious beliefs,

except where the State’s interest is compelling—permitting him, by virtue of his

beliefs, to become a law unto himself—contradicts both constitutional tradition

and common sense.

Id. at 884–85 (quotation marks and internal citations omitted). In “direct response” to

Employment Division v. Smith, Congress enacted RFRA. City of Boerne v. Flores, 521 U.S. 507,

512 (1997). RFRA’s stated purposes are:

(1) to restore the compelling interest test as set forth in Sherbert v. Verner,

374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to

guarantee its application in all cases where free exercise of religion is

substantially burdened; and

(2) to provide a claim or defense to persons whose religious exercise is

substantially burdened by government.

42 U.S.C. § 2000bb(b). Under RFRA, the government may not “substantially burden a person’s

exercise of religion even if the burden results from a rule of general applicability” unless the

government demonstrates that application of the burden “(1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of furthering that compelling

governmental interest.” 8 42 U.S.C. §§ 2000bb-1(a), (b).

8

As a preliminary matter, we note two questions that have not been raised by the parties in this case and

that, because we conclude that the contraceptive-coverage requirement does not violate RFRA, we need not address.

First, whether the appellants, all of whom are non-profit corporations, are “persons” capable of the “exercise of

religion” within the meaning of RFRA. Second, whether RFRA applies to a later-enacted statute. RFRA contains

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 10

We follow a two-step process for analyzing RFRA claims:

First, the plaintiff must make out a prima facie case by establishing Article III

standing and showing that the law in question would (1) substantially burden (2) a

sincere (3) religious exercise. If the plaintiff makes out a prima facie case, it falls

to the government to demonstrate[ ] that application of the burden to the person

(1) is in furtherance of a compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling governmental interest. The

government carries the burdens of both production and persuasion when it seeks

to justify a substantial burden on a sincere religious practice.

Autocam Corp. v. Sebelius, 730 F.3d 618, 625 (6th Cir. 2013) (internal quotation marks and

citations omitted). “Where the state conditions receipt of an important benefit upon conduct

proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by

religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to

violate his beliefs, a burden upon religion exists.” Thomas v. Review Bd. of Indiana Emp’t Sec.

Div., 450 U.S. 707, 717–18 (1981). But a government action does not constitute a substantial

burden on the exercise of religion even if “the challenged Government action would interfere

significantly with private persons’ ability to pursue spiritual fulfillment according to their own

religious beliefs” if the governmental action does not coerce the individuals to violate their

religious beliefs or deny them the “rights, benefits, and privileges enjoyed by other citizens.”

Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988).

an express-reference requirement providing that “[f]ederal statutory law adopted after November 16, 1993 is subject

to this chapter unless such law explicitly excludes such application by reference to this chapter.” 42 U.S.C.

§ 2000bb-3(b). Essentially, RFRA purports to bind all later Congresses unless they specifically reject the

application of RFRA by the means specified by the earlier Congress that enacted RFRA. The Supreme Court has

questioned the binding effect of express-reference requirements. Marcello v. Bonds, 349 U.S. 302, 310 (1955)

(refusing “to require the Congress to employ magical passwords in order to effectuate an exemption from” a

previously enacted statute). In Dorsey v. United States, the Court treated a savings statute with an express-reference

requirement as:

in effect a less demanding interpretive requirement. That is because statutes enacted by one

Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt

the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier

statute but as modified. And Congress remains free to express any such intention either expressly

or by implication as it chooses.

--U.S.--, 132 S. Ct. 2321, 2331 (2012) (emphasis added) (citations omitted). See also Lockhart v. United States,

546 U.S. 142, 149–50 (2005) (Scalia, J., concurring) (identifying RFRA as a statute with an express-reference

requirement and remarking that “it does no favor to the Members of Congress, and to those who assist in drafting

their legislation, to keep secret the fact that such express-reference provisions are ineffective.”). Thus, Congress

may reject the application of RFRA to a later-enacted statute without explicitly stating that RFRA does not apply.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 11

The exercise of religion that appellants argue is burdened by the contraceptive-coverage

requirement is their “refus[al] to take certain actions in furtherance of a regulatory scheme to

provide their employees with coverage for abortion-inducing products, contraceptives,

sterilization, and related education and counseling.” Appellant Br. at 26–27. The government

does not dispute that the appellants’ desire not to participate in the provision of contraception is a

sincere religious belief.

The government does argue, however, that the contraceptive-coverage requirement does

not impose a substantial burden on the appellants’ exercise of religion. Because the appellants

all concede that they are eligible for either the exemption or the accommodation, they need not

actually participate in the contraceptive-coverage requirement. Government Br. at 18–19. The

appellants respond that the exemption and accommodation do not alleviate the burden of the

contraceptive-coverage requirement because the process to obtain the exemption or

accommodation forces the appellants “to play an integral role in the delivery of objectionable

products and services to their employees.” Appellant Br. at 27–29.

First, we must address the appellants’ argument that the court should defer to their

conclusion that the exemption and accommodation arrangement forces them to provide, pay for,

and/or facilitate access to contraceptive coverage. See Appellant Br. at 18–20 (describing the

district court’s conclusion that the contraceptive-coverage requirement imposes a burden on third

parties, not the appellants, as a “foray into the theology behind Catholic precepts on

contraception [that] was manifestly improper”) (internal quotation marks omitted); Appellant Br.

at 36 (“Whether the accommodation relieves Appellants of moral culpability for their actions

(i.e., allows them to opt out) or makes them complicit in a grave moral wrong is a question of

religious conscience for [Appellants] to decide.”) (internal quotation marks omitted). Put

another way, the appellants appear to ask the court to defer not only to their belief that requesting

the exemption or the accommodation makes them complicit in sin, but also to defer to their

understanding of how the regulatory measure actually works.

But as was recently explained, “there is nothing about RFRA or First Amendment

jurisprudence that requires the Court to accept plaintiffs’ characterization of the regulatory

scheme on its face.” Roman Catholic Archbishop of Washington v. Sebelius, --F. Supp. 2d--, No.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 12

13-1441, 2013 WL 6729515, at *14 (D.D.C. Dec. 20, 2013), injunction granted pending appeal,

No. 13-5371 (D.C. Cir. Dec. 31, 2013)). Although we are in no position to determine the moral

or theological consequences of appellants requesting the exemption or accommodation, we must

determine the legal consequences. Whether a government obligation substantially burdens the

exercise of religion is a question of law, not a “question[] of fact, proven by the credibility of the

claimant.” Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011)). We “accept[ ] as true the

factual allegations that [appellants’] beliefs are sincere and of a religious nature—but not the

legal conclusion, cast as a factual allegation, that [their] religious exercise is substantially

burdened.” Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C Cir. 2008). Thus, although we

acknowledge that the appellants believe that the regulatory framework makes them complicit in

the provision of contraception, we will independently determine what the regulatory provisions

require and whether they impose a substantial burden on appellants’ exercise of religion.

1. Appellants Eligible for the Exemption

MCC, CDN, and St. Cecilia Congregation allege that they are eligible for the religious-

employer exemption from the contraceptive-coverage requirement. MCC R. 1 (Compl. at ¶ 9)

(Page ID #4); CDN R. 1 (Compl. at ¶ 14) (Page ID #7). The government agrees that these three

appellants are “exempt from the contraceptive coverage requirement under 45 C.F.R.

§ 147.131(a).” Government Br. at 9–10, 18; see also Government Br. at 13. The appellants do

not object to any specific act that they must engage in to obtain the exemption. Indeed, the

government states that these “[p]laintiffs are . . . already exempt from the requirement to provide

contraceptive coverage.” Government Br. at 13. Because both parties agree that MCC, CDN,

and St. Cecilia Congregation are eligible for the exemption and because the appellants do not

identify any particular action that they must take to obtain the exemption that burdens their

exercise of religion, appellants have not demonstrated a strong likelihood of success on the

merits of this claim.

2. Appellants Eligible for the Accommodation

The contraceptive-coverage framework does not impose a burden on the exercise of

religion by those remaining appellants who are eligible for the accommodation. If an entity has

an insured group health insurance plan, all that the entity must do to obtain the accommodation is

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 13

“furnish[] a copy of the self-certification . . . to each issuer that would otherwise provide such

coverage in connection with the group health plan.”9 29 C.F.R. § 2590.715-2713A(c)(1). If an

entity has a self-insured plan, such as Catholic Charities of Kalamazoo, all that the entity must do

to obtain the accommodation is “[c]ontract with one or more third party administrators”10 and

“provide[] each third party administrator that will process claims for any contraceptive services11

. . . with a copy of the self-certification.” 29 C.F.R. § 2590.715-2713A(b)(1)(i), (ii). That is the

entirety of the conduct that the objecting organization must engage in to obtain the

accommodation.

The appellants are not required to “provide” contraceptive coverage. They are not

required physically to distribute contraception to their employees upon request, and the eligible

organization’s health plan does not host the coverage. Upon receipt of the self-certification

form, the insurance issuer “must—(A) Expressly exclude contraceptive coverage from the group

health insurance coverage provided in connection with the group health plan.” 29 C.F.R.

§ 2590.715-2713A(c)(2)(i)(A). In the self-insured context, the self-certification form declares to

the third-party administrator that “[t]he eligible organization will not act as the plan

administrator or claims administrator with respect to claims for contraceptive services.”

29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A). Instead, the third-party administrator “shall be

responsible for . . . compliance with” the preventive care and screenings provided for in the

HRSA guidelines. 29 C.F.R. § 2510.3-16(b), (b)(1) (referencing obligations in 42 U.S.C.

§ 300gg-13 and 29 C.F.R. § 2590.715-2713A(b)(1)(ii)). Thus, although the insurance issuer or

third-party administrator will provide contraceptive coverage, the appellants will not.

9

Nothing in the record indicates that any of the insurance issuers with which the appellants contract has

refused to provide contraceptive coverage upon receipt of a self-certification form.

10

Catholic Charities of Kalamazoo, the only appellant alleging that it is eligible for the accommodation and

has a self-insured plan, already contracts with a third-party administrator. This appellant participates in the MCC

Plan, “which consists of self-funded medical and prescription benefits administered by separate third party

administrators, Blue Cross Blue Shield of Michigan and Express Scripts, respectively.” MCC R. 1 (Compl. at ¶¶ 41,

50) (Page ID #13, 15).

11

Nothing in the record indicates that Catholic Charities of Kalamazoo’s third-party administrator has

refused to provide contraceptive coverage upon receipt of a self-certification form.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 14

The appellants are not required to “pay for” contraceptive coverage. When an insurance

issuer receives the self-certification form, it “must . . . Provide separate payments for any

contraceptive services.” 29 C.F.R. § 2590.715-2713A(c)(2)(i)(B). The eligible organization’s

money will not fund the contraceptive coverage: “[t]he issuer must segregate premium revenue

collected from the eligible organization from the monies used to provide payments for

contraceptive services.” 29 C.F.R. § 2590.715-2713A(c)(2)(ii). When a third-party

administrator receives the self-certification form, it must “provide or arrange payments for

contraceptive services” either by providing the payments itself or arranging for an issuer or

another entity to provide the payments. 29 C.F.R. § 2590.715-2713A(b)(2)(i), (ii). In either

situation, whoever is providing the payments may not “impose[] a premium, fee, or other charge,

or any portion thereof, directly or indirectly, on the eligible organization, the group health plan,

or plan participants or beneficiaries.” 29 C.F.R. § 2590.715-2713A(b)(2)(i), (ii); (c)(2)(ii). The

accommodated entity does not even need to be the one to tell the employees about the

contraceptive coverage. The regulations require the insurance issuer or third-party administrator

to provide written notice to plan participants and beneficiaries “specify[ing] that the eligible

organization does not administer or fund contraceptive benefits, but that the third party

administrator or issuer, as applicable, provides separate payments for contraceptive services.”

29 C.F.R. § 2590.715-2713A(d). Thus, although the insurance issuer or third-party administrator

will pay for contraceptive coverage, the appellants will not.

Moreover, the appellants are not required to “facilitate access to” contraceptive coverage.

The crux of the appellants’ “facilitation” argument is that providing the self-certification form to

the insurance issuer or third-party administrator “triggers” the provision of the contraceptive

coverage to their employees. Appellant Br. at 9, 27–31. This argument rests on two assumptions

that are, perhaps, two sides of the same coin: first, that the insurance issuer and third-party

administrator could not provide the coverage until they receive a self-certification form and

second, that the insurance issuer and third-party administrator then provide the coverage because

they received the self-certification form.

Submitting the self-certification form to the insurance issuer or third-party administrator

does not “trigger” contraceptive coverage; it is federal law that requires the insurance issuer or

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 15

the third-party administrator to provide this coverage. The ACA requires “[a] group health

plan12 and a health insurance issuer offering group or individual health insurance coverage” to

“provide coverage for . . . with respect to women, such additional preventive care and screenings

. . . as provided for in comprehensive guidelines supported by the Health Resources and Services

Administration.” 42 U.S.C. §§ 300gg-13(a), (a)(4). Thus, under the ACA, the appellants’ health

plans and insurance issuers must provide contraceptive coverage without cost-sharing, whether

or not the appellants decide to self-certify. “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.” Univ. of Notre Dame, 743 F.3d at 554.

“Because Congress has imposed an independent obligation on insurers to provide contraceptive

coverage to Appellants’ employees, those employees will receive contraceptive coverage from

their insurers even if Appellants self-certify—but not because Appellants self-certify.” Roman

Catholic Archbishop of Washington v. Sebelius, No. 13-5371; Priests for Life v. U.S. Dep’t of

Health and Human Servs., No. 13-5368 (D.C. Cir. Dec. 31, 2013) (Tatel, J., dissenting from

injunction pending appeal). The obligation to cover contraception will not be triggered by the

act of self-certification—it already was triggered by the enactment of the ACA.

The appellants allege that providing, paying for, and/or facilitating access to

contraceptive coverage burdens their exercise of religion. As discussed supra, the exemption

and accommodation framework does not require them to do any of these things. The framework

does not permit them to prevent their insurance issuer or third-party administrator from

providing contraceptive coverage to their employees pursuant to independent obligations under

federal law. However, the inability to “restrain the behavior of a third party that conflicts with

the [appellants’] religious beliefs,” Michigan Catholic Conference, 2013 WL 6838707, at *7,

does not impose a burden on the appellants’ exercise of religion. “[W]hile a religious institution

has broad immunity from being required to engage in acts that violate the tenets of its faith, it has

12

Group health plan is broadly defined and includes both insured group health plans and self-insured group

health plans: “[t]he term ‘group health plan’ means an employee welfare benefit plan . . . to the extent that the plan

provides medical care (as defined in paragraph (2)) and including items and services paid for as medical care) to

employees or their dependents (as defined under the terms of the plan) directly or through insurance, reimbursement,

or otherwise.” 42 U.S.C. § 300gg-91(a)(1).

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 16

no right to prevent other institutions, whether the government or a health insurance company,

from engaging in acts that merely offend the institution.” Univ. of Notre Dame, 743 F.3d at 552.

The government’s imposition of an independent obligation on a third party does not

impose a substantial burden on the appellants’ exercise of religion. In Bowen v. Roy, a pre-Smith

Free Exercise case, the Supreme Court rejected a Free Exercise claim against the government’s

use of a Native American child’s Social Security number. The father of the child “believe[d] the

use of the number may harm his daughter’s spirit.” 476 U.S. 693, 699 (1986). The Court

concluded that the Free Exercise Clause did not allow an individual to force the Government to

conform its conduct to the individual’s religious beliefs. “Never to our knowledge has the Court

interpreted the First Amendment to require the Government itself to behave in ways that the

individual believes will further his or her spiritual development or that of his or her family.” Id.

The family “may not demand that the Government join in their chosen religious practices . . . .

As a result, 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.” Id. at 700. Just as the government’s use of the

child’s Social Security number “does not itself in any degree impair [the family’s] ‘freedom to

believe, express, and exercise[e]’ [their] religion,” id., the Government’s instruction to insurance

issuers and third-party administrators to provide contraceptive coverage does not force the

appellants to provide, pay for, and/or facilitate access to the coverage.

Similarly, in Kaemmerling v. Lappin the D.C. Circuit rejected a RFRA claim because the

challenged government action did not require anything of the challenger. A prisoner expressed

religious objections to the government collecting and analyzing his DNA profile pursuant to the

DNA Act. 553 F.3d 669, 678–79 (D.C. Cir. 2008). The court held that the prisoner “cannot

identify any ‘exercise’ which is the subject of the burden to which he objects” because the

governmental process of extracting DNA “involves no action or forbearance on [the prisoner’s]

part, nor does it otherwise interfere with any religious act in which he engages.” Id. at 679.

Here, the only thing that the exemption and accommodation framework requires of the appellants

is conduct in which they already engage. They will continue to sponsor health plans, contract

with insurance issuers or third-party administrators, and declare their opposition to providing

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 17

contraceptive coverage to their insurance issuer and third-party administrator. Michigan

Catholic Conference, 2013 WL 6838707, at *7. The only difference in conduct is on the part of

the insurance issuer or third-party administrator; appellants “are not required to ‘modify [their]

behavior.’ Rather, it is the TPA [or insurance issuer] that is required to modify its behavior and

take action by providing contraceptive services—without the assistance of” the appellant. Id.

Employees and beneficiaries will receive contraceptive coverage, but that coverage will be

“despite plaintiffs’ religious objections, not because of them.” Government Br. at 26. Again, the

insurance issuers and third-party administrators are not parties to this suit and have not expressed

any opposition to complying with the contraceptive-coverage requirement. The fact that the

regulations require the insurance issuers and third-party administrators to modify their behavior

does not demonstrate a substantial burden on the appellants.

In addition to the objection to the self-certification form, the appellants raise various

procedural objections to the accommodation framework, none of which is meritorious. The

appellants object to having to offer enrollment paperwork to allow employees to enroll in the

plan overseen by the third party and to sending health-plan enrollment paperwork to the third

party. Appellant Br. at 29. The regulations do not require either of these acts; the regulations

specifically provide that the third-party administrator or insurance issuer (not the accommodated

eligible organization) notifies plan participants and beneficiaries of the availability of payments

for contraceptive services. See 29 C.F.R. §§ 2590.715-2713A(d). The appellants object to

having to “[i]dentify for a third party which of their employees will participate in the plan.”

Appellant Br. at 29. Again, this is not required by the regulations. Moreover, because these

appellants already contract with insurance issuers and third-party administrators, the insurance

issuers and third-party administrators presumably already have lists of plan participants and

beneficiaries. Finally, the appellants object to having to “[r]efrain from canceling their insurance

arrangement with a third party authorized to provide the objectionable products and services.”

Appellant Br. at 29. Once again, the regulations do not prohibit the appellants from canceling an

insurance arrangement, and the appellants have not expressed any actual intent to do so.

Because these objections do not go to actual requirements of the contraceptive-coverage

framework, they clearly do not demonstrate a substantial burden on appellants’ exercise of

religion.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 18

The appellants argue that the exemption and accommodation mechanism pressures them

to modify their behavior and violate their religious beliefs because previously they informed

their insurance issuer or third-party administrator of their opposition to contraception and those

entities did not cover contraception, but now they will inform their insurance issuer or third-party

administrator of their opposition and those entities will cover contraception. But that is an

objection to the later independent action of a third party, not to an obligation imposed on the

appellants by the government. It is not the act of self-certification that causes the insurance

issuer and the third-party administrator to cover contraception, it is the law of the United States

that does that. Self-certification allows the eligible organization to tell the insurance issuer and

third-party administrator “‘we’re excused from the new federal obligation relating to

contraception,’ and in turn, the government tells those insurance companies, ‘but you’re not.’”

Univ. of Notre Dame, 743 F.3d at 557. Perhaps the appellants would like to retain the authority

to prevent their insurance issuer or third-party administrator from providing contraceptive

coverage to appellants’ employees, but “RFRA is not a mechanism to advance a generalized

objection to a governmental policy choice, even if it is one sincerely based upon religion.”

Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *2.

Because these appellants may obtain the accommodation from the contraceptive-

coverage requirement without providing, paying for, and/or facilitating access to contraception,

the contraceptive-coverage requirement does not impose a substantial burden on these

appellants’ exercise of religion. Therefore, these appellants have not demonstrated a strong

likelihood of success on the merits of their RFRA claim.

C. First Amendment

1. Free Speech Clause

“It is . . . a basic First Amendment principle that freedom of speech prohibits the

government from telling people what they must say.” Agency for Int’l Dev. v. Alliance for Open

Soc’y Int’l, Inc., --U.S.--, 133 S. Ct. 2321, 2327 (2013) (internal quotation marks omitted). “The

government may not prohibit the dissemination of ideas that it disfavors, nor compel the

endorsement of ideas that it approves.” Knox v. Serv. Emps. Int’l Union, Local 1000, --U.S.--,

132 S. Ct. 2277, 2288 (2012). The appellants argue that the contraceptive-coverage requirement

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 19

violates the Free Speech Clause of the First Amendment by forcing them to provide, pay for,

and/or facilitate access to contraception counseling; forcing them to speak against their beliefs by

filling out the self-certification form; and imposing a “gag order” by prohibiting them from

interfering with or seeking to influence a third-party administrator’s decision to cover

contraception. We conclude that the contraceptive coverage requirement does not violate the

Free Speech Clause of the First Amendment, and will address each of the subclaims in turn.

a. Contraceptive counseling

First, the appellants argue that the contraceptive-coverage requirement unconstitutionally

compels speech by forcing them to provide, pay for, and/or facilitate access to counseling about

contraception, and that this obligation violates their religious opposition “to providing any

support for ‘counseling’ that encourages, promotes, or facilitates such practices.” Appellant Br.

at 57–58. The guidelines recommended coverage without cost-sharing for “the full range of

Food and Drug Administration-approved contraceptive methods, sterilization procedures, and

patient education and counseling for women with reproductive capacity.” Closing the Gaps at

10; see also 77 Fed. Reg. at 8725. Presumably, this counseling would include discussion of the

range of contraceptive options, how the various products work, and what may be a good fit for

the counseled individual’s health profile and lifestyle.

The regulations certainly do not require the accommodated entity to “provide” this

counseling. The accommodated entity need not discuss or acknowledge the existence of the

counseling coverage; the regulations require the insurance issuer or third-party administrator to

inform plan participants and beneficiaries that separate payments are available for counseling

and other contraceptive services. See 29 C.F.R. §§ 2590.715-2713A(d). The regulations make

no attempt to stop the appellants’ practice of “counsel[ing] men and women against” using

contraception. Appellant Br. at 57, 58. See Rumsfeld v. Forum for Academic and Institutional

Rights, Inc. (“FAIR”), 547 U.S. 47, 65 (2006) (upholding a statute against a free-exercise

challenge; the statute required law schools to give military recruiters equal access to other

recruiters as a condition on receipt of certain federal funds, but “[n]othing about recruiting

suggests that law schools agree with any speech by recruiters, and nothing in the Solomon

Amendment restricts what the law schools may say about the military’s policies.”). Thus, in no

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 20

way do the regulations compel the appellants’ speech by forcing them to provide contraceptive

counseling.

The regulations also do not compel the appellants’ speech by forcing them to pay for

contraceptive counseling. As discussed supra, the regulations specifically prohibit an insurance

issuer or third-party administrator from passing on the cost of complying with the contraceptive-

coverage requirement, which includes the cost of contraceptive counseling. See 29 C.F.R.

§ 2590.715-2713A(b)(2), (c)(2).

Finally, the requirements do not force the appellants to facilitate access to contraceptive

counseling. It is not clear what speech, exactly, the appellants believe is compelled by the

facilitation of such coverage; in any event, as discussed supra, it is federal law, not the

appellants’ actions, that requires their insurance issuer or third-party administrator to provide

insurance coverage for contraceptive counseling. The contraceptive coverage is provided

through a government regulation of the insurance issuer and third-party administrator, not

through the appellants’ health insurance plan. See 29 C.F.R. § 2590.715-2713A(c)(2)(i)(A)

(upon receipt of the self-certification form, the insurance issuer “must—(A) Expressly exclude

contraceptive coverage from the group health insurance coverage provided in connection with

the group health plan”); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A) (the self-certification form

declares to the third-party administrator that “[t]he eligible organization will not act as the plan

administrator or claims administrator with respect to claims for contraceptive services”). Thus,

the framework does not require appellants to “host or accommodate another speaker’s message”

through their insurance plan. FAIR, 547 U.S. at 63; cf. Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Group of Boston, Inc., 515 U.S. 557, 566 (1995) (requiring a parade organizer to allow

a group whose message it opposes to participate in the parade is unconstitutional forced

accommodation of speech); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U.S. 1,

20–21 (1986) (plurality opinion) (forcing a utility company to include a third-party

organization’s newsletter with the utility bill is unconstitutional forced accommodation of

speech).

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 21

The contraceptive counseling provision does not violate the Free Speech Clause of the

First Amendment. Thus, appellants have not demonstrated a strong likelihood of success on the

merits of this claim.

b. Self-certification Form

Second, the appellants argue that the requirement that they complete the self-certification

form in order to obtain the accommodation “compels Appellants to engage in speech that triggers

provision of the objectionable products and services, and [ ] deprives Appellants of the freedom

to speak on the issue of abortion and contraception on their own terms, at a time and place of

their own choosing, outside of the confines of the Government’s regulatory scheme.” Appellant

Br. at 58. As discussed supra, the self-certification form does not trigger the provision of

contraceptive coverage, but instead it triggers the entities’ disassociation from what they deem to

be the objectionable coverage. Thus, this framework is nothing like the unconstitutional state

campaign finance law in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, where

the state provided matching funds for publicly financed candidates when a privately financed

candidate or independent expenditure group spent over a certain amount on the election, thus

making the privately financed candidate’s political expenditures a trigger of funding to his or her

adversary. --U.S.--, 131 S. Ct. 2806, 2818 (2011). The self-certification form does not have a

similar triggering function. Additionally, the self-certification form does not deprive appellants

of the freedom to speak out about abortion and contraception on their own terms. The form

requires the appellants to assert their opposition to contraception in order to opt out of a

generally applicable government program. Successful compelled-speech cases are those when

“an individual is obliged personally to express a message he disagrees with, imposed by the

government.” Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005). Even assuming that

the government is compelling this speech, it is not speech that the appellants disagree with and

so cannot be the basis of a First Amendment claim. Thus, the self-certification requirement does

not compel speech in violation of the First Amendment, and so the appellants have not

demonstrated a strong likelihood of success on the merits of this claim.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 22

c. “Gag Order”

Finally, the appellants argue that the accommodation framework imposes an

unconstitutional “gag order” by prohibiting eligible organizations with self-insured group plans

from interfering with, or seeking to influence, a third-party administrator’s decision to provide

contraceptive coverage. Specifically, the regulation provides:

The eligible organization must not, directly or indirectly, seek to interfere with a

third party administrator’s arrangements to provide or arrange separate payments

for contraceptive services for participants or beneficiaries, and must not, directly

or indirectly, seek to influence the third party administrator’s decision to make

any such arrangements.

29 C.F.R. § 2590.715-2713A(b)(iii). A footnote in the commentary to the regulations states that

“[n]othing in these final regulations prohibits an eligible organization from expressing its

opposition to the use of contraceptives.” Coverage of Certain Preventive Services Under the

Affordable Care Act, 78 Fed. Reg. 39870, 39880 n.41 (July 2, 2013) (to be codified at 29 C.F.R.

§ 2510, 2590; 45 C.F.R. § 147, 156). The regulations thus draw a line between impermissible

efforts to interfere with or influence a third-party administrator’s provision of contraceptive

coverage and permissible expressions of opposition to contraceptives.

The appellants have presented their objections to this regulation at a very high level of

generality and fail to identify what protected speech this regulation chills.13 It is not clear what

the appellants want to do or say that they believe this regulation prohibits. Do the appellants feel

chilled from having a calm discussion with their third-party administrator about Catholic

doctrine, discouraging third-party administrators from entering into or maintaining contractual

relationships with religiously affiliated organizations, encouraging the insurance issuer to violate

federal law and refuse to provide contraceptive coverage, or something else altogether? We do

13

Only the MCC plaintiffs raised this claim in their complaint, where they allege that contraceptive-

coverage requirement “impos[es] a gag order that prohibits Plaintiffs from speaking out in any way that might

‘influence,’ ‘directly or indirectly,’ the decision of a third party administrator to provide or procure contraceptive

products and services to Plaintiffs’ employees.” MCC R. 1 (Compl. at ¶ 188) (Page ID #44–45). In their motion for

a preliminary injunction in the district court, they repeated this general argument and asserted that “[p]laintiffs

believe that contraception is immoral, and by expressing that conviction they routinely seek to ‘influence’ or

persuade their fellow citizens of that view.” MCC R. 15 (Prelim. Inj. Memo at 38) (Page ID #639). In their brief to

this court, the appellants make a brief, general argument that they “believe that contraception is contrary to their

faith, and speak and act accordingly. The Government has no authority to outlaw such expression.” Appellant Br.

at 55.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 23

not know. Not all speech is protected by the First Amendment; for example, “an employer is

free to communicate to his employees any of his general views about unionism” but may not

make “a ‘threat of reprisal or force or promise of benefit.” N.L.R.B. v. Gissel Packing Co.,

395 U.S. 575, 618 (1969). Given the failure to “[tell] us what [they] want[] to say but fear[] to

say” and the fact that “the government hasn’t clearly embraced an interpretation of the regulation

that would give rise to the [First Amendment] concerns,” Univ. of Notre Dame, 743 F.3d at 561,

the appellants have not demonstrated a strong likelihood of success on the merits of this claim.

2. Free Exercise Clause

The Free Exercise Clause is not violated by neutral laws of general applicability, “even if

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

Lukumi Babalu Aye, Inc. v. City of Hialeah (“Church of the L.B.A.”), 508 U.S. 520, 531 (1993).

A law that is not neutral and of general applicability still does not violate the Free Exercise

Clause if the law is “justified by a compelling governmental interest” and “narrowly tailored to

advance that interest.” Id. at 531–32. The appellants argue that the contraceptive-coverage

requirement is not a neutral law of general applicability because they say it was targeted at

Catholic entities and has many exemptions. Appellant Br. at 53–54. On the contrary, the

contraceptive-coverage requirement is a neutral law of general applicability and does not violate

the Free Exercise Clause.

A law is not neutral “if the object of a law is to infringe upon or restrict practices because

of their religious motivation.” Church of the L.B.A., 508 U.S. at 533. “A law lacks facial

neutrality if it refers to a religious practice without a secular meaning discernible from the

language or context.” Id. However, “[f]acial neutrality is not determinative . . . ‘The Court must

survey meticulously the circumstances of governmental categories to eliminate, as it were,

religious gerrymanders.’” Id. at 534 (quoting Walz v. Tax Comm’n of New York City, 397 U.S.

664, 696 (1970) (Harlan, J., concurring)). The contraceptive-coverage requirement is a neutral

law. Neither the text nor the history of the statute and regulations promulgated pursuant to the

statute demonstrate that the requirement was targeted at a particular religious practice. There is

no evidence that Congress and the executive branch agencies “had as their object the suppression

of religion.” Id. at 542. The record does not “disclose[] animosity” towards the Catholic

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 24

practice of refusing to support access to contraception, the framework does not “by [its] own

terms target this religious exercise,” the program was not “gerrymandered with care to proscribe”

the Catholic exercise of religion with respect to contraception but not secular opposition to

contraception; and the arrangement does not “suppress much more religious conduct than is

necessary in order to achieve the legitimate ends asserted in their defense.” Id. at 542. The

appellants argue that the Government was aware of the refusal of Catholic employers to provide

contraceptive coverage and enacted the requirement to force Catholic employers to violate their

religious beliefs. Appellant Br. at 54. This argument is unpersuasive; the fact that the

Government has required a religiously affiliated entity to do something that it does not want to

on the basis of religion does not, ipso facto, mean that the law was targeted at religious practice.

Accordingly, the framework is neutral.

A law is not of general applicability if it “in a selective manner impose[s] burdens only

on conduct motivated by religious belief,” Church of the L.B.A., 508 U.S. at 543. The appellants

argue that the requirement is not generally applicable because grandfathered plans, small

businesses, and religious employers that obtain an exemption need not comply with the

contraceptive-coverage requirement. This argument misunderstands the meaning of general

applicability under our Free Exercise jurisprudence. “General applicability does not mean

absolute universality.” See Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008). A law need

not apply to every person or business in America to be generally applicable. A law is generally

applicable if it does not make distinctions based on religion. To determine this, we consider

whether the “legislature decide[d] that the governmental interests it seeks to advance are worthy

of being pursued only against conduct with a religious motivation.” Church of the L.B.A.,

508 U.S. at 542–43. The requirement at issue here does not pursue the governmental interest in

contraceptive coverage only against entities with a religiously motivated objection to providing

such coverage; that interest is pursued uniformly against all businesses that are not grandfathered

and have more than fifty employees. This includes entities that have no objection to the

requirement, entities that object for non-religious reasons such as general opposition to

government dictating healthcare requirements, and entities that object to the requirement for

religious reasons. See, e.g., Stormans, Inc. v. Selecky, 586 F.3d 1109, 1134 (9th Cir. 2009)

(holding a rule was generally applicable because “pharmacists who do not have a religious

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 25

objection to Plan B must comply with the rules to the same extent—no more and no less—than

pharmacies and pharmacists who may have a religious objection to Plan B”). In fact, the

availability of the exemption and the accommodation means that the law imposes a lesser burden

on those who object for religious reasons because they do not have to pay for the coverage.

Accordingly, the program is generally applicable.

Because the law requiring contraceptive coverage is neutral and generally applicable, it

does not violate the Free Exercise Clause even if it incidentally burdens the exercise of religion.

Thus, the appellants have not demonstrated a strong likelihood of success on the merits of this

claim.

3. Establishment Clause

“Congress shall make no law respecting an establishment of religion.” U.S. Const.

amend. I. However, “[the Supreme] Court has long recognized that the government may (and

sometimes must) accommodate religious practices and that it may do so without violating the

Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144–

45 (1987). The appellants argue that allowing some entities with a religious mission to obtain

the exemption and others to obtain only the accommodation violates the Establishment Clause

because the distinction “favors some types of religious organizations and denominations over

others” and creates an excessive entanglement between government and religion. Appellant Br.

at 59. Because the law’s distinction does not favor a certain denomination and does not cause

excessive entanglement between government and religion, the framework does not violate the

Establishment Clause.

“The clearest command of the Establishment Clause is that one religious denomination

cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).

“[N]o State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’” Id.

at 246 (quoting Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947)). For a claim such as this based

on the allegedly disparate treatment of religions, “the constitutional value at issue is ‘neutrality.’”

Gillette v. United States, 401 U.S. 437, 450 (1971). The line that the exemption and

accommodation framework draws between eligibility for the exemption and for the

accommodation is based on organizational form and purpose, not religious denomination. Such

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a distinction does not violate the Establishment Clause. “[R]eligious employers, defined as in

the cited regulation, have long enjoyed advantages (notably tax advantages) over other entities,

26 U.S.C. §§ 6033(a)(3)(A)(i), (iii), without these advantages being thought to violate the

establishment clause.” Univ. of Notre Dame, 743 F.3d at 560 (citing Walz, 397 U.S. at 672–73).

The appellants’ reliance on the Tenth Circuit’s decision in Colorado Christian University v.

Weaver, 534 F.3d 1245 (10th Cir. 2008), is misplaced. There, the Tenth Circuit held that a state

law permitting scholarship funding for students attending religious schools only if the school was

not “pervasively” sectarian violated the Establishment Clause. Id. at 1258–60. The law did not

make distinctions based on organizational form, as here; the Colorado law violated the

Establishment Clause because it discriminated based on the nature of religious belief and

practice at the university. Accordingly, that case provides no support for the appellants’

argument. The fact that all of the appellants are affiliated with the Catholic Church and some are

eligible for the exemption while others are eligible for the accommodation demonstrates that the

framework does not discriminate based on denomination. Because the exemption and

accommodation arrangement distinguishes between entities based on organizational form, not

denomination, it does not express an unconstitutional state preference on the basis of religion.

Further, the provisions do not excessively entangle government and religion. The

regulations define a “religious employer” 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). The referenced sections of the Internal

Revenue Code provide exceptions from certain tax-return filing requirements for “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), (iii). The IRS

considers numerous factors to determine if an entity is eligible for the exceptions in

§ 6033(a)(3)(A)(i), (iii). See Am. Guidance Found., Inc. v. United States, 490 F. Supp. 304, 306

(D.D.C. 1980). The appellants argue that “these factors favor some religious groups over others

. . . on the basis of intrusive judgments regarding beliefs, practices, and organizational

structures.” Appellant Br. at 63–64. However, the government argues that the “qualification for

the religious employer exemption does not require the government to make any determination,

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 27

whether as a result of the application of the non-exhaustive, non-binding list or otherwise.”

Government Br. at 54–55. Plaintiffs have not shown how this is not correct.

Because the exemption and accommodation provisions do not prefer a denomination or

excessively entangle government in religious practice, they do not violate the Establishment

Clause. Thus, the appellants have not demonstrated a strong likelihood of success on the merits

of this claim.

D. Administrative Procedure Act

Finally, the MCC appellants14 argue that the contraceptive-coverage requirement violates

the Administrative Procedure Act (APA) because the requirement violates the Weldon

Amendment and thus is “not in accordance with law,” and because the IOM guidelines

recommending that contraception be included as preventive care were not subject to notice-and-

comment rulemaking requirements. We conclude that the appellants have not demonstrated a

strong likelihood of success on the merits of the Weldon Amendment claim, and we decline to

reach the notice-and-comment claim.

1. Weldon Amendment

The MCC appellants argue that the contraceptive-coverage requirement violates the

Weldon Amendment and therefore is “not in accordance with law,” as required by the APA. The

APA provides that a “reviewing court shall . . . (2) hold unlawful and set aside agency action,

findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Weldon Amendment is a

rider to an appropriations bill that denies funding to federal agencies or programs “if such

agency, program, or government subjects any institutional or individual health care entity to

discrimination on the basis that the health care entity does not provide, pay for, provide coverage

of, or refer for abortions.”15 Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div.

14

Although the CDN plaintiffs included an APA claim in their complaint, that claim was not raised in the

motion for a preliminary injunction, and so the district court correctly treated the claim as waived for purposes of the

preliminary injunction. Catholic Diocese of Nashville, 2013 WL 6834375, at *10 n.13.

15

It is not clear that any of the MCC appellants who properly raised this claim is an “institutional or

individual health care entity” within the meaning of the Weldon Amendment. The Weldon Amendment defines

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 28

F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The district court held that the contraceptive-

coverage requirement does not violate the Weldon Amendment because the FDA-approved

emergency contraceptives are not defined as abortion-inducing products under federal law. The

appellants argue that this analysis is in error because the court should defer to the plan provider’s

definition of “abortion” and the appellants believe that the “morning-after pill (Plan B) and

Ulipristal (HRP 2000 or [e]lla)” are “abortion-inducing products.” Appellant Br. at 65.

The appellants are correct that the Weldon Amendment does not define abortion. The

appellants argue that the absence of a statutory definition means that the court should defer to

their independent interpretation of “abortion.” That is not how statutory interpretation works.

Rather, the federal courts will utilize traditional methods of statutory interpretation to determine

whether “abortion” in the Weldon Amendment includes FDA-approved emergency

contraceptives.

The government notes that the FDA-approved labels for

Plan B and ella describe these products as emergency contraceptives and do

not mention abortion. See FDA-approved label for Plan B, available at

http://www.accessdata.fda.gov/drugsatfda_docs/label/2009/021045s015lbl.pdf; FDA-approved

label for ella http://www.accessdata.fda.gov/drugsatfda_docs/label/2012/022474s002lbl.pdf.

The appellants do not identify any statutory or regulatory definition of abortion that includes

“[h]ealth care entity” as “an individual physician or other health care professional, a hospital, a provider-sponsored

organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility,

organization, or plan.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(2).

The appellants allege that the Michigan Catholic Conference Second Amended and Restated Group Health Benefit

Plan for Employees (“MCC Benefit Plan”) is a health plan. MCC R. 1 (MCC Compl. at ¶ 16) (Page ID #7).

However, it is not clear that the MCC Benefit Plan is an actual plaintiff in this case. The complaint is captioned

“MICHIGAN CATHOLIC CONFERENCE in its own name and on behalf of the MICHIGAN CATHOLIC

CONFERENCE SECOND AMENDED AND RESTATED GROUP HEALTH BENEFIT PLAN FOR

EMPLOYEES . . . .” MCC R. 1 (MCC Compl. at 1) (Page ID #1). Although the complaint describes MCC and

Catholic Charities as “plaintiff[s],” it does not describe the MCC Benefit Plan as a plaintiff. See id. at ¶¶ 16, 17

(Page ID #7). However, because we affirm the denial of the preliminary injunction on this claim, we need not

decide this issue at this time.

We also question the appellants’ assumption that MCC is discriminated against for refusing to provide

contraceptive coverage. MCC concedes that it is eligible for the religious-employer exemption. MCC R. 1 (Compl.

at ¶ 9) (Page ID #4). Consequently, its health insurance plan need not cover contraception or emergency

contraception. Thus, it is not clear how MCC is discriminated against for refusing to provide contraceptive

coverage. See Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *46 (holding that the

contraceptive-coverage requirement is consistent with the Weldon Amendment for entities that are eligible for the

exemption or the accommodation).

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 29

emergency contraceptives. Because the burden is on the appellants to demonstrate a strong

likelihood of success on the merits, and the appellants have neither asserted nor argued nor

presented evidence that the federal government classifies these drugs as abortifacients, they have

not shown a strong likelihood of success on the merits of their claim.

2. Notice and Comment

The appellants argue that the government violated the APA because it did not subject the

IOM recommendation that preventive services include contraceptive coverage to notice and

comment rulemaking pursuant to 5 U.S.C. § 553(b). Appellant Br. 66–68. This claim was not

properly raised in or decided by the district court, so we decline to address it for the first time on

appeal.

As discussed supra, the CDN plaintiffs did not raise any APA claims in their motion for a

preliminary injunction. The MCC plaintiffs’ only reference to a notice-and-comment claim is a

single sentence in the introduction section of their memorandum in support of the motion for a

preliminary injunction: “Finally, the Mandate violates the Administrative Procedure Act

(‘APA’) because Defendants failed to conduct notice-and-comment rulemaking, and it

contravenes the clear terms of the Weldon Amendment.” MCC R. 15 (Prelim. Inj. Memo. at 3)

(Page ID #604). In the argument section of the memorandum the MCC plaintiffs discussed the

Weldon Amendment issue, but did not return to the notice-and-comment issue. See id. at 44–45

(Page ID #645–46). The district court did not address the notice-and-comment argument in its

decision. See Michigan Catholic Conference, 2013 WL 6838707, at *13.

We generally do not consider issues raised for the first time on appeal. In re Cannon,

277 F.3d 838, 848 (6th Cir. 2002). “Factors guiding the determination of whether to consider an

issue for the first time on appeal include:

1) whether the issue newly raised on appeal is a question of law, or whether it

requires or necessitates a determination of facts; 2) whether the proper resolution

of the new issue is clear and beyond doubt; 3) whether failure to take up the issue

for the first time on appeal will result in a miscarriage of justice or a denial of

substantial justice; and 4) the parties’ right under our judicial system to have the

issues in their suit considered by both a district judge and an appellate court.

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 30

Id. (internal quotation marks omitted). Accordingly, we decline to exercise our discretion to

address this claim.

E. Other Factors for Injunctive Relief

We conclude that the appellants have not demonstrated a strong likelihood of success on

the merits of any of their properly raised claims. The other three factors that we consider in

evaluating a request for a preliminary injunction are: (2) whether the movant would suffer

irreparable injury without the injunction; (3) whether issuance of the injunction would cause

substantial harm to others; and (4) whether the public interest would be served by issuance of the

injunction. City of Pontiac Retired Emps. Ass’n, 2014 WL 1758913, at *2. When the alleged

injury is to a First Amendment freedom, as here, the strong likelihood of success on the merits

factor merges with the irreparable injury factor. “To the extent that [appellant] can establish a

likelihood of success on the merits of its First Amendment claim, it also has established the

possibility of irreparable harm as a result of the deprivation of the claimed free speech rights.”

Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). Conversely, if appellant

“does not have a likelihood of success on the merits . . . his argument that he is irreparably

harmed by the deprivation of his First Amendment right also fails.” McNeilly, 684 F.3d at 615.

Because the appellants do not demonstrate a strong likelihood of success on the merits of their

claims, they also do not demonstrate that they will suffer irreparable injury without the

injunction.

The district courts did not abuse their discretion by denying preliminary injunctions.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district courts’ denial of preliminary

injunctions. We lift the stay temporarily issued by this court pending resolution of this appeal.