Priests for Life v. United States Department of Health & Human Services

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2014 Decided November 14, 2014

No. 13-5368

PRIESTS FOR LIFE, ET AL.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.,

APPELLEES

Consolidated with 13-5371, 14-5021

Appeals from the United States District Court

for the District of Columbia

(No. 1:13-cv-01261)

(No. 1:13-cv-01441)

Robert J. Muise argued the cause for appellants/cross-

appellees Priests For Life, et al. Noel J. Francisco argued the

cause for appellants/cross-appellees Roman Catholic

Archbishop of Washington, et al. With them on the briefs

were Eric Dreiband and David Yerushalmi.

Kimberlee Wood Colby was on the brief for amici curiae

The Association of Gospel Rescue Missions, et al. in support

of cross-appellants/cross-appellees.

2

Mark B. Stern, Attorney, U.S. Department of Justice,

argued the cause for appellees/cross-appellants. With him on

the brief were Stuart F. Delery, Assistant Attorney General,

Ronald C. Machen Jr., U.S. Attorney, Beth S. Brinkmann,

Deputy Assistant Attorney General, and Alisa B. Klein and

Adam C. Jed, Attorneys.

Martha Jane Perkins was on the brief for amici curiae

National Health Law Program, et al. in support of

appellees/cross-appellants.

Marcia D. Greenberger and Charles E. Davidow were on

the brief for amici curiae The National Women’s Law Center,

et al. in support of appellees/cross-appellants.

Ayesha N. Khan was on the brief for amici curiae

Americans United for Separation of Church and State, et al. in

support of appellees/cross-appellants.

Before: ROGERS, PILLARD and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: These consolidated cases

present the question whether a regulatory accommodation for

religious nonprofit organizations that permits them to opt out

of the contraceptive coverage requirement under the Patient

Protection and Affordable Care Act (“ACA”), 42 U.S.C.

§ 300gg-13(a)(4), itself imposes an unjustified substantial

burden on Plaintiffs’ religious exercise in violation of the

Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.

§ 2000bb et seq. Plaintiffs’ principal claim is that the

accommodation does not go far enough. They believe that,

even if they opted out, they would still play a role in

3

facilitating contraceptive coverage. They view the regulation

as thereby substantially burdening their religious exercise by

involving them in what the Plaintiffs and their faith call

“scandal,” i.e., leading others to do evil. Plaintiffs claim that

the government lacks a compelling interest in requiring them

to use the specific accommodation the regulations authorize,

making the burden unjustified and unlawful. They contend

that RFRA gives them a right to exclude contraceptive

coverage from their employees’ and students’ plans without

notice, and requires that the government be enjoined from

implementing the contraceptive coverage requirement.

* * *

As a consequence of a period of wage controls after

World War II during which employers created new fringe

benefits, the majority of people in the United States with

health insurance receive it under plans their employers

arrange through the private market. Congress chose in the

ACA not to displace that basic system. It sought instead to

expand the number of Americans insured and to improve and

subsidize health insurance coverage, in part by building on

the market-based system of employer-sponsored private

health insurance already in place. The contraceptive coverage

requirement and accommodation operate through that system.

The regulations implementing the ACA and its Women’s

Health Amendment impose a range of standard requirements

on group health plans, including that they cover contraceptive

services prescribed by a health care provider without

imposing any cost sharing on the patient. The contraceptive

coverage requirement derives from the ACA’s prioritization

of preventive care, and from Congress’ recognition that such

care has often been modeled on men’s health needs and thus

left women underinsured. As discussed below, Congress

4

included the Women’s Health Amendment in the ACA to

remedy the problem that women were paying significantly

more out of pocket for preventive care and thus often failed to

seek preventive services, including consultations,

prescriptions, and procedures relating to contraception. The

medical evidence prompting the contraceptive coverage

requirement showed that even minor obstacles to obtaining

contraception led to more unplanned and risky pregnancies,

with attendant adverse effects on women and their families.

Some employers, including the Catholic nonprofits in

this case, oppose contraception on religious grounds. The

Catholic Church teaches that contraception violates God’s

design because the natural and non-sinful purpose of sex is to

conceive a child within a marriage: Plaintiff Priests for Life,

quoting the Papal Encyclical Humanae Vitae, declares that

“‘any action which either before, at the moment of, or after

sexual intercourse, is specifically intended to prevent

procreation, whether as an end or as a means’—including

contraception and sterilization—is a grave sin.” J.A. 49. In

the view of the Catholic Church expressed through Humanae

Vitae, contraception enables the separation of sex from

reverence for the sexual partner, the understanding that sex

makes children, and the imperative of deep commitment to

marriage and family.

The Catholic Church itself is exempt from the

contraceptive coverage requirement, but Catholic nonprofits

have a long and broad history of service that goes far beyond

worship or proselytizing. Nationally, Catholic hospitals,

clinics, universities, schools, and social services groups

provide many services that are not inherently religious.

Catholic-identified nonprofits employ and enroll as students

millions of adults, not all of whom are co-religionists or share

the Catholic Church’s religious opposition to contraception.

5

Faced with an employer-based health insurance system,

forceful impetus to require coverage of contraceptive

services, and religious opposition by some employers to

contraception, the government sought to accommodate

religious objections. As detailed below, the ACA’s

implementing regulations allow religious nonprofits to opt out

of including contraception in the coverage they arrange for

their employees and students. The regulations assure,

however, that the legally mandated coverage is in place to

seamlessly provide contraceptive services to women who

want them, for whom they are medically appropriate, and

who personally have no objection to using them.

The regulatory opt out works simply: A religious

organization that objects on religious grounds to including

coverage for contraception in its health plan may so inform

either the entity that issues or administers its group health

plan or the Department of Health and Human Services.

Delivery of the requisite notice extinguishes the religious

organization’s obligation to contract, arrange, pay, or refer for

any coverage that includes contraception. The regulations

then require group health plan insurers or administrators to

offer separate coverage for contraceptive services directly to

insured women who want them, and to inform beneficiaries

that the objecting employer has no role in facilitating that

coverage.

Plaintiffs, the Roman Catholic Archbishop of

Washington and nonprofits affiliated with the Catholic

Church, arrange for group health coverage for their

employees and students. Plaintiffs oppose the ACA’s

contraceptive coverage requirement on religious grounds and

do not want to provide the requisite contraceptive coverage.

6

Instead of taking advantage of the accommodation, Plaintiffs

filed suit to challenge it as a violation of their religious rights.

Plaintiffs’ principal claim arises under RFRA. Congress

enacted RFRA in response to the Supreme Court’s decision in

Employment Division v. Smith, 494 U.S. 872 (1990), that the

Free Exercise Clause of the First Amendment “does not

relieve an individual of the obligation to comply with a valid

and neutral law of general applicability.” Id. at 879 (internal

quotation marks omitted). Congress sought to reinstate as a

statutory matter the pre-Smith free exercise standard. Under

RFRA, the federal government may not “substantially

burden” a person’s religious exercise—even where the burden

results from a religiously neutral, generally applicable law

that is constitutionally valid under Smith—unless the

imposition of such a burden is the least restrictive means to

serve a compelling governmental interest.

The contraceptive coverage opt-out mechanism

substantially burdens Plaintiffs’ religious exercise, Plaintiffs

contend, by failing to extricate them from providing, paying

for, or facilitating access to contraception. In particular, they

assert that the notice they submit in requesting

accommodation is a “trigger” that activates substitute

coverage, and that the government will “hijack” their health

plans and use them as “conduits” for providing contraceptive

coverage to their employees and students. Plaintiffs dispute

that the government has any compelling interest in obliging

them to give notice of their wish to take advantage of the

accommodation. And they argue that the government has

failed to show that the notice requirement is the least

restrictive means of serving any such interest.

We conclude that the challenged regulations do not

impose a substantial burden on Plaintiffs’ religious exercise

7

under RFRA. All Plaintiffs must do to opt out is express

what they believe and seek what they want via a letter or two-

page form. That bit of paperwork is more straightforward and

minimal than many that are staples of nonprofit

organizations’ compliance with law in the modern

administrative state. Religious nonprofits that opt out are

excused from playing any role in the provision of

contraceptive services, and they remain free to condemn

contraception in the clearest terms. The ACA shifts to health

insurers and administrators the obligation to pay for and

provide contraceptive coverage for insured persons who

would otherwise lose it as a result of the religious

accommodation.

Even if, as Plaintiffs aver, we must take as dispositive

their conviction that the accommodation involves them in

providing contraception in a manner that substantially

burdens their religious exercise, we would sustain the

challenged regulations. A confluence of compelling interests

supports maintaining seamless application of contraceptive

coverage to insured individuals even as Plaintiffs are excused

from providing it. That coverage offers adults and children

the benefits of planning for healthy births and avoiding

unwanted pregnancy, and it promotes preventive care that is

as responsive to women’s health needs as it is to men’s. The

accommodation requires as little as it can from the objectors

while still serving the government’s compelling interests.

Because the regulatory opt-out mechanism is the least

restrictive means to serve compelling governmental interests,

it is fully consistent with Plaintiffs’ rights under RFRA. We

also find no merit in Plaintiffs’ additional claims under the

Constitution and the Administrative Procedure Act.

8

I. Background

A. The ACA & Accommodation

The ACA requires group health plans, including both

insured and self-insured employer-based plans, to include

minimum coverage for a variety of preventive health services

without imposing cost-sharing requirements on the covered

beneficiary.1 42 U.S.C. § 300gg-13(a); see also id. § 300gg-

91(a) (defining “group health plan”); 45 C.F.R.

§ 147.131(c)(2)(ii) (cost-sharing includes copayments,

coinsurance, and deductibles). In view of the greater

preventive health care costs borne by women, the Women’s

Health Amendment in the ACA specifically requires coverage

for women of “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).

To determine which preventive services should be

required, the Health Resources and Services Administration

(“HRSA”), a component of HHS, commissioned a study from

the independent Institute of Medicine (“IOM” or “Institute”).

The Institute is an arm of the National Academy of Sciences

established in 1970 to inform health policy with available

scientific information. In reliance on the work of the

Institute, HRSA established guidelines for women’s

1

An employer “self-insures” if it bears the financial risk of paying

its employees’ health insurance claims (as opposed to contracting

with an insurance company to provide coverage and bear the

associated financial risk). Many “self-insured” employers hire

third-party administrators (“TPAs”) to perform administrative

functions, such as developing provider networks and processing

claims. See generally Cong. Budget Office, Key Issues in

Analyzing Major Health Insurance Proposals 6 (2008).

9

preventive services that include any “[FDA] approved

contraceptive methods, sterilization procedures, and patient

education and counseling.” Health Resources & Servs.

Admin., Women’s Preventive Services Guidelines,

http://www.hrsa.gov/womensguidelines/, quoted in 77 Fed.

Reg. 8725, 8725 (Feb. 15, 2012).

The three agencies responsible for the ACA’s

implementation—the Department of Health and Human

Services, the Department of Labor, and the Department of the

Treasury (collectively, the “Departments”)—issued

regulations requiring coverage of all preventive services

contained in the HRSA guidelines, including contraceptive

services. 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). The Departments determined that

contraceptives prevent unintended pregnancies and the

negative health risks associated with such pregnancies; they

“have medical benefits for women who are contraindicated

for pregnancy,” and they offer “demonstrated preventive

health benefits . . . relating to conditions other than pregnancy

. . . .” 77 Fed. Reg. at 8,727. Inadequate coverage for women

not only fails to protect women’s health, but “places women

in the workforce at a disadvantage compared to their male co-

workers.” Id. at 8,728. Providing contraceptive coverage

within the preventive-care package, the Departments

observed, supports the equal ability of women to be “healthy

and productive members of the job force.” Id. Because of the

importance of such coverage, and because “[r]esearch . . .

shows that cost sharing can be a significant barrier to

effective contraception,” the Departments included

contraceptive coverage among the services to be provided

without cost sharing. Id.

10

Objections by religious nonprofits to the use of

contraception, and to arranging health insurance for their

employees that covers contraceptive services, prompted the

Departments to create two avenues for religious organizations

to exclude themselves from any obligation to provide such

coverage. Those avenues track a longstanding and familiar

distinction between houses of worship (e.g., temples,

mosques, or churches) and religious nonprofits (e.g., schools,

hospitals, or social service agencies with a religious mission

or affiliation). First, in order to “respect[] the unique

relationship between a house of worship and its employees in

ministerial positions,” the Departments categorically

exempted “religious employers,” defined as churches or the

exclusively religious activities of any religious order, from

the contraceptive coverage requirement.2 76 Fed. Reg.

46,621, 46,623 (Aug. 3, 2011); see 45 C.F.R. § 147.131(a).

Second, the Departments created a mechanism for nonprofit

“eligible organizations,” i.e., groups that are not houses of

worship but nonetheless present themselves as having a

religious character, to opt out of having to “contract, arrange,

pay, or refer for [contraceptive] coverage.” 78 Fed. Reg.

39,870, 39,871 (July 2, 2013). This opt-out mechanism was

designed to dissociate the objecting organizations from

contraceptive coverage while ensuring that the individuals

covered under those organizations’ health plans—people not

fairly presumed to share the organizations’ opposition to

2

An organization qualifies as a “religious employer” under the

regulations if it 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).

Those provisions, in turn, refer 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), (iii).

11

contraception or to be co-religionists—could obtain coverage

for contraceptive services directly through separate plans

from the same plan providers. See id. at 39,874. Plaintiffs

challenge this second mechanism, which the regulations refer

to as the “accommodation.”

The government designed the accommodation to avoid

encumbering Plaintiffs’ sincere religious belief that

providing, paying for, or facilitating insurance coverage for

contraceptives violates their religion, but the government

sought at the same time to preserve unhindered access to

contraceptives for insured individuals who use them. Many

religiously affiliated educational institutions, hospitals, and

social-service organizations have taken advantage of the

accommodation, and courts of appeals have uniformly

sustained it against challenges under RFRA and the

Constitution. See Mich. Catholic Conf. & Catholic Family

Servs. v. Burwell, 755 F.3d 372 (6th Cir. 2014); Univ. of

Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014) petition

for cert. filed (Oct. 3, 2014) (No. 13-3853).

B. The Plaintiff Nonprofits Offer

Health Insurance in Various Ways

Plaintiffs are eleven Catholic organizations that employ

both Catholics and non-Catholics and provide a range of

spiritual and charitable services in the Washington, D.C.

area.3 They fall into four categories that differ in ways that

affect how the accommodation applies to them, and that are

thus relevant to some aspects of our analysis.

3

Father Frank Pavone, Alveda King, and Janet Morana, employees

of Plaintiff Priests for Life, are also individually Plaintiffs in this

action. We refer to them, along with the organization, collectively

as “Priests for Life” or the “Priests for Life Plaintiffs.”

12

First, the Roman Catholic Archbishop of Washington

(the “Archdiocese”), a corporation sole, is part of the Catholic

Church. It provides pastoral care and spiritual guidance to

nearly 600,000 Catholics. It is undisputed that the

Archdiocese itself is a religious employer and thus is

categorically exempt from the requirement to include

coverage for contraceptive services for its employees in its

self-insured health plan. The Archdiocese operates a self-

insured health plan that is considered a “church plan.”

Church plans are exempt from the Employee Retirement

Income Security Act of 1974 (“ERISA”), which regulates

private, employer-sponsored benefit plans, including health

insurance plans. See 29 U.S.C. § 1002(33) (defining “church

plan”); id. at § 1003(b)(2) (exempting church plans from

ERISA); see generally id. § 1001 et seq. (governing employee

benefit plans). The ACA amended ERISA by establishing

new requirements for large group health plans and insurers,

but the church’s provision of benefits to its employees via its

church plan is exempt from ERISA, which distinguishes the

Archdiocese’s claims here from those of the other Plaintiffs.

The Archdiocese need not submit any written notice in order

to be exempt, and the employees of the Archdiocese are not

entitled to contraceptive coverage under the ACA. The

Archdiocese nonetheless participates as a Plaintiff in this case

in its role as the sponsor of the church plan that some of the

other Plaintiffs also use to provide insurance to their

employees—a role that the Archdiocese contends makes it

complicit in providing them with contraceptive coverage.

The remaining Plaintiffs are all religious nonprofits. It is

undisputed that, under the government’s regulations, each is

eligible for the accommodation, but not the exemption

extended to houses of worship.

13

Comprising the second of the four categories are the so-

called “church-plan Plaintiffs,” nonprofits affiliated with the

Archdiocese that provide educational, housing, and social

services to the community and arrange for health insurance

coverage for their employees through the Archdiocese’s self-

insured plan.4

Plaintiff Thomas Aquinas College falls under a third

category. It also self-insures. It offers its employees health

insurance coverage through an organization called the RETA

trust, which oversees an ERISA-covered plan set up by the

Catholic bishops of California and run by a third-party

administrator (“TPA”). The parties agree that the College’s

plan is not exempt from ERISA as a church plan.

In the fourth category are those Plaintiffs that provide

insurance coverage through group health insurance plans they

negotiate with private insurance companies. Catholic

University of America offers its students and employees

health insurance through two separate group insurance plans

offered by AETNA and United Healthcare. Priests for Life, a

religious nonprofit that encourages clergy to emphasize the

value and inviolability of human life, also provides its

employees with health insurance through a group insurance

plan offered by United Healthcare.

It is undisputed that Plaintiffs all sincerely believe that

life begins at conception and that contraception is contrary to

4

The church-plan Plaintiffs are the Consortium of Catholic

Academies of the Archdiocese of Washington, Archbishop Carroll

High School, Inc., Don Bosco Cristo Rey High School of the

Archdiocese of Washington, Inc., Mary of Nazareth Roman

Catholic Elementary School, Inc., Catholic Charities of the

Archdiocese of Washington, Inc., Victory Housing, Inc., and the

Catholic Information Center, Inc.

14

Catholic tenets.5 Priests for Life, for example, was founded

to spread the Gospel of Life, which “affirms and promotes the

culture of life and actively opposes and rejects the culture of

death.” Pls.’ Br. 11. Catholic doctrine prohibits

“impermissible cooperation with evil,” and thus opposes

providing access to “contraceptives, sterilization, and

abortion-inducing products,” which the Church views as

“immoral regardless of their cost.” Id. at 12. The specific

acts to which Plaintiffs object are “provid[ing], pay[ing] for,

and/or facilitat[ing] access to contraception,” any of which

they believe would violate the Catholic Church’s teachings.

Id. at 15.

In the past, in accordance with their religious beliefs,

Plaintiffs have offered health care coverage to their

employees6 that excluded coverage for “abortion-inducing

products, contraception [except when used for non-

contraceptive purposes], sterilization, or related counseling.”

Id. at 16. They structured the coverage in a variety of ways,

including through self-insured health plans and group health

plans, which they directed to exclude all contraceptive

services. Plaintiffs object to the contraceptive coverage

requirement and the accommodation’s opt-out mechanism

because, they assert, the accommodation fails adequately to

dissociate them from the provision of contraceptive coverage

and, by making them complicit with evil, substantially

burdens their religious exercise in violation of RFRA. In

5

For ease of reference, we refer to contraception, sterilization, and

related counseling services as “contraception” or “contraceptive

services.”

6

Throughout this opinion we discuss Plaintiffs’ “employees.” We

use this term to refer to all individuals covered by Plaintiffs’

insurance plans, including employees, students, and other

beneficiaries, such as covered dependents.

15

particular, they contend that the regulations, by requiring the

plans or TPAs with which they contract to provide the

coverage, effectively require Plaintiffs to facilitate it.

C. Procedural History

Plaintiffs brought two separate suits that proceeded on

parallel tracks in district court. The Priests for Life Plaintiffs

filed their complaint in August 2013 and promptly moved for

a preliminary injunction. They challenged the contraceptive

coverage requirement and the accommodation as an

unjustified substantial burden on their religious exercise in

violation of RFRA and raised a variety of constitutional

challenges under the Speech and Religion Clauses of the First

Amendment and the Equal Protection Clause of the Fifth

Amendment.

The district court considered Plaintiffs’ request for a

preliminary injunction together with the merits, granted the

government’s motion to dismiss the complaint for failure to

state a claim, and denied as moot the parties’ cross-motions

for summary judgment. Reasoning that “[t]he

accommodation specifically ensures that provision of

contraceptive services is entirely the activity of a third

party—namely the issuer—and Priests for Life plays no role

in that activity,” the court held that the Priests for Life

Plaintiffs failed to show a substantial burden on their religious

exercise. Priests for Life v. U.S. Dep’t of Health & Human

Servs., 7 F. Supp. 3d 88, 102 (D.D.C. 2013). The court also

rejected each of Priests for Life’s constitutional claims. Id. at

104-111.

The remaining Plaintiffs—the Archdiocese, Thomas

Aquinas College, Catholic University of America, and the

church-plan Plaintiffs (referred to collectively as the “RCAW

16

Plaintiffs”)—filed their complaint and moved for a

preliminary injunction in September 2013, challenging the

accommodation under RFRA and the First Amendment. The

RCAW Plaintiffs further claimed that the government’s

implementation of the regulations violates the APA, including

by adopting an erroneous interpretation of the “religious

employer” categorical exemption that precludes the church-

plan Plaintiffs from qualifying for it. They also claimed in

supplemental briefing that the interim final rule was invalidly

promulgated without notice and comment.7 The RCAW case

was assigned to a different district judge who also

consolidated proceedings on the preliminary injunction and

the merits, but who granted in part and denied in part the

parties’ cross-motions for summary judgment.

The court rejected Catholic University’s RFRA claim

and granted that of Thomas Aquinas College. Roman

Catholic Archbishop of Wash. v. Sebelius (RCAW), No. 13-

1441, 2013 WL 6729515, at *15-24 (D.D.C. Dec. 20, 2013).

The court held that the accommodation did not impose a

substantial burden on Catholic University’s religious exercise

because “the accommodation effectively severs an

organization that offers its employees or students an insured

group health plan from participation in the provision of the

contraceptive coverage.” Id. at *15. The court determined

that Thomas Aquinas College was entitled to summary

judgment on its RFRA claim, however, because, as the court

understood the regulations, “a series of duties and

obligations” constituting a substantial burden could fall on the

self-insured College if, after the College opted out, its current

TPA were to decline to serve as the plan administrator for

7

The RCAW Plaintiffs abandoned on appeal their other APA

claims.

17

purposes of the contraceptive coverage requirement.8 Id. at

*24. The court granted the government’s cross-motion for

summary judgment on the other constitutional and APA

claims.9

All Plaintiffs appealed and sought injunctions pending

appeal, while the government cross-appealed the rulings in

favor of the RCAW Plaintiffs. We consolidated the appeals

and granted an injunction pending appeal.

II. Standard of Review

Whether claims are decided on a motion to dismiss or for

summary judgment, we review the district courts’

determinations de novo. Rudder v. Williams, 666 F.3d 790,

794 (D.C. Cir. 2012); Potter v. District of Columbia, 558 F.3d

542, 547 (D.C. Cir. 2009). A motion to dismiss for failure to

state a claim should be granted if the complaint does not

8

The court also granted summary judgment to both Thomas

Aquinas College and the church-plan Plaintiffs on their challenge

to the so-called “non-interference” regulation, which prevented a

self-insured organization from seeking to “influence” a TPA. The

court concluded that the regulation imposed an unconstitutional

content-based limitation that “directly burdens, chills, and inhibits”

Plaintiffs’ free speech. RCAW, 2013 WL 6729515, at *37-38. That

regulation has since been rescinded, 79 Fed. Reg. 51,092, 51,095

(Aug. 27, 2014), rendering that claim moot.

9

The district court believed that, because the Archdiocese is

exempt from the contraceptive coverage requirement, it was “not

joined in” the RFRA claim, RCAW, 2013 WL 6729515, at *8, and

that the church-plan Plaintiffs lacked standing to bring such a

claim, id. at *24-27. The court also concluded that some Plaintiffs

lacked standing to raise some of the other claims alleged in the

complaint. See, e.g., id. at *43-44, 47. To the extent necessary to

establish this Court’s subject matter jurisdiction, we address

standing below.

18

contain “sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

Summary judgment is appropriate only if “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986).

III. Standing

The RCAW district court concluded that the church-plan

Plaintiffs lack standing to challenge the accommodation.

2013 WL 6729515, at *26. The government does not press

that issue on appeal, but we have an independent obligation to

confirm our jurisdiction. See Ams. for Safe Access v. DEA,

706 F.3d 438, 442 (D.C. Cir. 2013). “[I]n determining

whether plaintiffs have standing, we must assume that on the

merits they would be successful in their claims.” Muir v.

Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir.

2008) (internal alterations and quotation marks omitted).

Plaintiffs contend that they are injured by the challenged

regulations because they are forced to choose among options,

each of which, they argue, would require them to violate their

sincerely held religious beliefs: They may either directly

provide contraceptive coverage to their employees, or pay

onerous penalties for failing to include contraceptive

coverage in their plans. The government has offered them a

third option in the form of the accommodation: exclude

contraceptive coverage from their plans. They object to that,

too, however, because if they exclude contraceptive coverage

19

from their plans, the regulations require someone else to

provide it in a way that they contend amounts to their

facilitation of the objected-to coverage. Plaintiffs further

claim that they are faced with those impossible choices as a

result of the ACA regulations, and that a ruling from this

Court invalidating those regulations would redress their

injury. As a general matter, the government does not contest

that Plaintiffs’ claimed injury is legally cognizable and

concrete.

In successfully challenging the church-plan Plaintiffs’

standing in district court, the government argued that it lacks

authority to impose on those particular Plaintiffs the harm of

which they complain and that they thus cannot allege

sufficient injury to support standing. Specifically, the

government contended that it could not require a TPA—the

firm the Archdiocese hired to administer its plan and process

its claims—to provide contraceptive coverage to the church-

plan Plaintiffs’ employees.10 In those circumstances, the

government contended, a legal victory in this case would

change nothing.

10

That is because church plans (such as the Archdiocese’s) are

exempt from ERISA, 29 U.S.C. § 1003(b)(2), and ERISA is the

only vehicle through which the government may enforce a TPA’s

obligation to provide contraception coverage under the

accommodation. See 29 C.F.R. § 2510.3-16(b). The government

claimed that, in light of its lack of a governmental enforcement

mechanism, the Archdiocese’s TPA could not be expected to

provide the requisite coverage to the church-plan Plaintiffs’

employees. As a result of that regulatory loophole, the district

court held that the church-plan Plaintiffs are not injured by either

the contraceptive coverage requirement or the requirement that they

complete the self-certification as a condition of opting out.

20

Whether or not the obligation is enforceable, however, it

is undisputed that, if the church-plan Plaintiffs want a

religious accommodation, they are legally required to request

it through the opt-out process. Like all the other Plaintiffs,

the church-plan Plaintiffs allege that their religious beliefs

forbid them from availing themselves of the accommodation

because doing so would render them complicit in a scheme

aimed at providing contraceptive coverage. They thus

contend that the burden on their religious exercise is the same

as the burden on any Plaintiff whose TPA or insurer provides

coverage according to the regulations. Their burdens are

equally concrete, even though the asserted burden on the

other Plaintiffs is backed by a threat of enforcement against a

potentially recalcitrant TPA, whereas the church-plan

Plaintiffs’ asserted burden is not. Because the regulations

require the church-plan Plaintiffs to take an action that they

contend substantially burdens their religious exercise, they,

like the other Plaintiffs, have alleged a sufficiently concrete

injury.11 See In re Navy Chaplaincy, 697 F.3d 1171, 1176-77

(D.C. Cir. 2012) (holding that “policies and procedures” that

plaintiff claimed produced future injury on the basis of

religious belief were sufficient to confer standing).

The Archdiocese presents a distinct standing question

because it is completely exempt from the challenged

11

Two of the church-plan Plaintiffs, Catholic Information Center

and Don Bosco, have fewer than 50 employees and therefore are

not subject to the ACA’s requirement that employers provide their

employees with health insurance. See 26 U.S.C. § 4980H(a),

(c)(2). We need not address whether that affects their standing,

however, because the presence of other Plaintiffs with standing is

sufficient to satisfy Article III. See, e.g., Rumsfeld v. Forum for

Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)

(“[T]he presence of one party with standing is sufficient to satisfy

Article III’s case-or-controversy requirement.”).

21

regulation. It contends that it has a RFRA claim because it

sponsors the self-insured plan in which the church-plan

Plaintiffs participate. It argues that, despite its own

exemption, it faces an impossible choice of either sponsoring

a plan that will provide the employees of the church-plan

Plaintiffs with access to contraceptive services, or no longer

extending its plan to those entities, leaving them exposed to

penalties if they do not contract with another provider that

will provide the coverage. The first option, in its view,

substantially burdens its sincerely held religious beliefs in

violation of RFRA, and the second option allows the

government to interfere with what it casts as its internal

operations, in violation of the Religion Clauses of the First

Amendment. Our holding that the church-plan Plaintiffs have

standing also supports the Archdiocese’s claim of redressable

injury adequate to support its standing to sue.12

IV. RFRA Claim

The claim that lies at the heart of this case is Plaintiffs’

RFRA challenge to the accommodation. RFRA provides that

the federal government may not “substantially burden” a

person’s religious exercise, even if the burden results from a

rule that applies generally to religious and non-religious

persons alike, unless the burden “(1) is in furtherance of a

compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling governmental

interest.” 42 U.S.C. § 2000bb-1. In other words, if the law’s

requirements do not amount to a substantial burden under

RFRA, that is the end of the matter. Where a law does

12

Because the Archdiocese’s RFRA claim derives from its

sponsorship of a plan that also insures employees of the church-

plan Plaintiffs, the Archdiocese’s claim rises and falls with that of

the church-plan Plaintiffs and so is not separately analyzed below.

22

impose a substantial burden, Congress has instructed that “we

must return to ‘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).’” Kaemmerling v. Lappin, 553

F.3d 669, 677 (D.C. Cir. 2008) (quoting 42 U.S.C.

§ 2000bb(b)(1)). Congress directly referenced and

incorporated the legal standards the Supreme Court used in its

pre-Smith line of cases in RFRA. Constitutional free exercise

cases that predate Smith accordingly remain instructive when

determining RFRA’s requirements. See id. at 678-80.

We pause at the outset to make some general

observations about the contours of Plaintiffs’ claims. First,

Plaintiffs’ case is significantly different from the recent,

successful Supreme Court challenge brought by for-profit,

closely-held corporations in Burwell v. Hobby Lobby Stores,

Inc., 134 S. Ct. 2751 (2014). There, the Court concluded that,

in the absence of any accommodation, the contraceptive

coverage requirement imposed a substantial burden on the

religious exercise of for-profit corporations because those

plaintiffs were required either to provide health insurance

coverage that included contraceptive benefits in violation of

their religious beliefs, or to pay substantial fines. Id. at 2775-

76. A critical difference here is that the regulations already

give Plaintiffs the third choice that the for-profit corporate

plaintiffs in Hobby Lobby sought: They can avoid both

providing the contraceptive coverage and the penalties

associated with non-compliance by opting out of the

contraceptive coverage requirement altogether.

Plaintiffs contend that, even with the choice to opt out,

the regulations leave them with the same “Hobson’s choice”

as the for-profit corporations in Hobby Lobby. In their view,

availing themselves of the accommodation requires them to

violate their sincerely held religious beliefs just as surely as

23

would providing contraceptive coverage to their employees.

But the opt out already available to Plaintiffs is precisely the

alternative the Supreme Court considered in Hobby Lobby

and assumed would not impinge on the for-profit

corporations’ religious beliefs even as it fully served the

government’s interest.13 Id. at 2782.

This case also differs from Hobby Lobby in another

crucial respect: In holding that Hobby Lobby must be

accommodated, the Supreme Court repeatedly underscored

that the effect on women’s contraceptive coverage of

extending the accommodation to the complaining businesses

“would be precisely zero.” Id. at 2760; see also id. at 2781

n.37 (“Our decision in these cases need not result in any

detrimental effect on any third party.”); id. at 2782 (extending

accommodation to Hobby Lobby would “protect the asserted

needs of women as effectively” as not doing so). Justice

Kennedy in his concurrence emphasized the same point, that

extending the accommodation to for-profit corporations

“equally furthers the Government’s interest but does not

13

Plaintiffs also have a fourth option under the ACA: ceasing to

offer health insurance as an employment benefit, and instead

paying the shared responsibility assessment and leaving the

employees to obtain subsidized health care coverage on a health

insurance exchange. See 26 U.S.C. § 4980H. That is permitted by

the Act and regulations and might well be less expensive to

employers than contributing to employee health benefits. Plaintiffs,

however, contend that declining to arrange health insurance

benefits for their employees also would injure them because it

would be inconsistent with their religious mission and would deny

them the recruitment and retention benefits of providing tax-

advantaged health care coverage to their employees. See Oral Arg.

Tr. at 19:5-15; see also Pls.’ R. Br. 21 n.9; see generally Hobby

Lobby, 134 S. Ct. at 2776-77 & n. 32. The government has not

pressed the point here.

24

impinge on the plaintiffs’ religious beliefs.” Id. at 2786. The

relief Plaintiffs seek here, in contrast, would hinder women’s

access to contraception. It would either deny the

contraceptive coverage altogether or, at a minimum, make the

coverage no longer seamless from the beneficiaries’

perspective, instead requiring them to take additional steps to

obtain contraceptive coverage elsewhere.

Second, Plaintiffs’ claim is extraordinary and potentially

far reaching: Plaintiffs argue that a religious accommodation,

designed to permit them to free themselves entirely from the

contraceptive coverage requirement, itself imposes a

substantial burden. As the Seventh Circuit put the point,

“[w]hat makes this case and others like it involving the

contraception exemption paradoxical and virtually

unprecedented is that the beneficiaries of the religious

exemption are claiming that the exemption process itself

imposes a substantial burden on their religious faiths.” Notre

Dame, 743 F.3d at 557. As the Notre Dame court noted, it is

analogous to a religious conscientious objector to a military

draft claiming that the act of identifying himself as such on

his Selective Service card constitutes a substantial burden

because that identification would then “trigger” the draft of a

fellow selective service registrant in his place and thereby

implicate the objector in facilitating war. Id. at 556.

Religious objectors do not suffer substantial burdens

under RFRA where the only harm to them is that they

sincerely feel aggrieved by their inability to prevent what

other people would do to fulfill regulatory objectives after

they opt out. Cf. id. at 556. They have no RFRA right to be

free from the unease, or even anguish, of knowing that third

parties are legally privileged or obligated to act in ways their

religion abhors. See generally Lyng v. Nw. Indian Cemetery

Protective Ass’n, 485 U.S. 439, 449 (1988) (distinguishing

25

between right to avoid being “coerced . . . into violating their

religious beliefs” and the lack of right to pursue “spiritual

fulfillment according to their own religious beliefs”).

“Government simply could not operate if it were required to

satisfy every citizen’s religious needs and desires.” Id. at

453.

We now turn to the substance of Plaintiffs’ RFRA

claims. We first consider their contention that the

accommodation imposes a substantial burden on their

religious exercise that is cognizable under RFRA. We then

analyze the government’s claim that any such burden is

justified under RFRA because it could not be made any

lighter and still serve the government’s compelling interests.

A. The Accommodation Does Not

Substantially Burden Plaintiffs’ Religious Exercise

In our cosmopolitan nation with its people of diverse

convictions, freedom of religious exercise is protected yet not

absolute. That is true under the heightened standard Congress

enacted in RFRA as well as the constitutional baseline set by

the Free Exercise Clause. The limitations that prove

determinative here are that only “substantial” burdens on

religious exercise require accommodation, and that an

adherent may not use a religious objection to dictate the

conduct of the government or of third parties. This Court

explained in Kaemmerling that “[a] substantial burden exists

when government action puts ‘substantial pressure on an

adherent to modify his behavior and to violate his beliefs.’”

553 F.3d at 678 (quoting Thomas v. Review Bd., 450 U.S.

707, 718 (1981)). A burden does not rise to the level of being

substantial when it places “[a]n inconsequential or de minimis

burden” on an adherent’s religious exercise. Id. (citing

Levitan v. Ashcroft, 281 F.3d 1313, 1320-21 (D.C. Cir.

26

2002)). An asserted burden is also not an actionable

substantial burden when it falls on a third party, not the

religious adherent. See, e.g., Bowen v. Roy, 476 U.S. 693,

699 (1986).

Plaintiffs’ objection rests on their religious belief that

“they may not provide, pay for, and/or facilitate access to

contraception, sterilization, abortion, or related counseling in

a manner that violates the teachings of the Catholic Church.”

Pls.’ Br. 15. But the regulations do not compel them to do

any of those things. Instead, the accommodation provides

Plaintiffs a simple, one-step form for opting out and washing

their hands of any involvement in providing insurance

coverage for contraceptive services.

1. The Court Must Evaluate Assertions of Substantial

Burden

The sincerity of Plaintiffs’ religious commitment is not at

issue in this litigation. Plaintiffs are correct that they—and

not this Court—determine what religious observance their

faith commands. There is no dispute about the sincerity of

Plaintiffs’ belief that providing, paying for, or facilitating

access to contraceptive services would be contrary to their

faith.

Accepting the sincerity of Plaintiffs’ beliefs, however,

does not relieve this Court of its responsibility to evaluate the

substantiality of any burden on Plaintiffs’ religious exercise,

and to distinguish Plaintiffs’ duties from obligations imposed,

not on them, but on insurers and TPAs. Whether a law

substantially burdens religious exercise under RFRA is a

question of law for courts to decide, not a question of fact.

See Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011)

(stating that judicial inquiry into the substantiality of the

27

burden “prevent[s] RFRA claims from being reduced into

questions of fact, proven by the credibility of the claimant”);

Kaemmerling, 553 F.3d at 679 (“[a]ccepting as true the

factual allegations that Kaemmerling’s beliefs are sincere and

of a religious nature—but not the legal conclusion, cast as a

factual allegation, that his religious exercise is substantially

burdened”). “[A]lthough we acknowledge that the [plaintiffs]

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 [plaintiffs’] exercise of

religion.” Mich. Catholic Conf., 755 F.3d at 385; see also

Notre Dame, 743 F.3d at 558 (“Notre Dame may consider the

[self-certification] process a substantial burden, but

substantiality—like compelling governmental interest—is for

the court to decide.”).

Our own decision in Kaemmerling requires that we

determine whether a burden asserted by Plaintiffs qualifies as

“substantial” under RFRA. In Kaemmerling, a federal

prisoner sought to enjoin the Bureau of Prisons under RFRA

from collecting a sample of his blood, claiming a religious

objection to “DNA sampling, collection and storage with no

clear limitations of use.” 553 F.3d at 678. We observed that

“Kaemmerling’s objection to ‘DNA sampling and

collection’” was not “an objection to the [Bureau] collecting

any bodily specimen that contains DNA material . . . , but

rather an objection to the government extracting DNA

information from the specimen.” Id. at 679. We did not

simply accept Kaemmerling’s characterization of his burden

as “substantial,” but instead independently evaluated the

nature of the claimed burden on his religious beliefs. See id.

at 678-79. The plaintiff failed to “allege facts sufficient to

state a substantial burden on his religious exercise because he

[could not] identify any ‘exercise’ which is the subject of the

28

burden to which he objects.” Id. at 679. The court

acknowledged that “the government’s activities with his fluid

or tissue sample after the [Bureau] takes it may offend

Kaemmerling’s religious beliefs,” but it rejected the

substantial burden contention because “Kaemmerling alleges

no religious observance that the DNA Act impedes, [n]or acts

in violation of his religious beliefs that it pressures him to

perform.” Id.

In Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir.

2001), this Court similarly rejected the plaintiffs’ formulation

of the substantial-burden test as forbidding the government’s

general application of religiously neutral law where it would

impose any burden on religiously motivated conduct because

doing so would “read out of RFRA the condition that only

substantial burdens on the exercise of religion trigger the

compelling interest requirement.” As RFRA sponsor Senator

Orrin Hatch explained, the Act “does not require the

Government to justify every action that has some effect on

religious exercise. Only action that places a substantial

burden on the exercise of religion must meet the compelling

State interest . . . .” 139 Cong. Rec. 26,180 (1993) (statement

of Sen. Hatch).

Under free exercise precedents that RFRA codified, the

Supreme Court distinguished between substantial burdens on

religious exercise, which are actionable, and burdens that are

not. Burdens that are only slight, negligible, or de minimis

are not substantial. And burdens that fall only on third parties

not before the court do not substantially burden plaintiffs.

See, e.g., Bowen, 476 U.S. at 699 (“The Free Exercise Clause

simply cannot be understood to require the Government to

conduct its own internal affairs in ways that comport with the

religious beliefs of particular citizens.”); Lyng, 485 U.S. at

447 (finding it undisputed that the government’s action “will

29

have severe adverse effects on the practice of [plaintiffs’]

religion,” but disagreeing that such burden was “heavy

enough” to subject that action to strict scrutiny).

In Bowen, a Native American plaintiff brought a free

exercise challenge to a statute requiring the state to use his

daughter’s social security number to process welfare benefits

requests. 476 U.S. at 695-96. Roy, the father, believed that

the government’s use of the social security number of his

daughter, Little Bird of the Snow, would serve to “‘rob the

spirit’ of his daughter and prevent her from attaining greater

spiritual power.” Id. at 696. The Court rejected Roy’s claim

on the basis that, rather than complaining about a restriction

on his own conduct, Roy sought to “dictate the conduct of the

Government’s internal procedures.” Id. at 700. Roy’s claim

failed because, even though it seriously offended Roy’s

religious sensibilities, “[t]he Federal Government’s use of a

Social Security number for Little Bird of the Snow d[id] not

itself in any degree impair Roy’s freedom to believe, express,

and exercise his religion.” Id. at 700-01 (internal quotation

marks omitted).

Building on the analysis in Bowen, the Supreme Court

refused to apply strict scrutiny to the government’s land use

decision in Lyng. 485 U.S. at 450. There, members of Indian

tribes claimed that the federal government violated their right

to free exercise by permitting timber harvesting and

construction on land they used for religious purposes. Id. at

441-42. The Court stated that its free exercise jurisprudence

“does not and cannot imply that incidental effects of

government programs, which may make it more difficult to

practice certain religions but which have no tendency to

coerce individuals into acting contrary to their religious

beliefs, require government to bring forward a compelling

justification for its otherwise lawful actions.” Id. at 450-51.

30

According to Plaintiffs, this Court is bound to accept

their understanding of the obligations the regulations

impose—including their view of the existence and

substantiality of any burden on their own religious exercise—

because to do otherwise would be tantamount to questioning

the sincerity of their beliefs. Indeed, under Plaintiffs’ view,

we must accept a RFRA claimant’s understanding of what the

challenged law requires her to do (or to refrain from doing),

even if that subjective understanding is at odds with what the

law actually requires.14 Plaintiffs’ approach collapses the

distinction between sincerely held belief and substantial

burden. We must give effect to each term in the governing

statute, however, including the requirement that only

“substantial” burdens on religious exercise trigger strict

14

Plaintiffs elaborated their position in their responses to a

hypothetical posed during oral argument. We posited a situation in

which an adherent, similar to the plaintiff in Thomas, objected to

working in a factory on the grounds that the tools he was

manufacturing were being used to support a war effort that his

sincere religious beliefs prohibited him from supporting. See

Thomas, 450 U.S. at 710 (after being transferred to a department

that “fabricated turrets for military tanks, . . . [Thomas] quit,

asserting that he could not work on weapons without violating the

principles of his religion”). Unlike the facts in Thomas, however,

in our hypothetical, the adherent was not manufacturing tools used

for war, but rather farm equipment that had no relationship

whatsoever to any military effort. Counsel for both the Priests for

Life Plaintiffs and the RCAW Plaintiffs conceded that, under their

view, if the religious objection was to war machinery, not farm

tools, a plaintiff who misperceived the facts underlying his

challenge would be entitled nonetheless to a determination that

requiring him to continue working in a farm tools factory imposed

a substantial burden on his religious observance merely because he

sincerely believed that it did. Oral Arg. Tr. at 9:3-11:16; 22:16-

23:24.

31

scrutiny. We cannot accept Plaintiffs’ proposal to prevent the

court from evaluating the substantiality of the asserted

burden.

2. The Accommodation Frees Eligible Organizations

from the Contraceptive Coverage Requirement

A review of the regulatory accommodation shows that

the opt-out mechanism imposes a de minimis requirement on

any eligible organization: The organization must send a

single sheet of paper honestly communicating its eligibility

and sincere religious objection in order to be excused from

the contraceptive coverage requirement. Once an eligible

organization has taken the simple step of objecting, all action

taken to pay for or provide its employees with contraceptive

services is taken by a third party.

Specifically, the regulations require that, to be eligible

for the accommodation, an organization must certify that it

has a sincere religious objection to arranging contraceptive

coverage.15 See 45 C.F.R. § 147.131(b); 29 C.F.R.

§ 2590.715-2713A(a). The organization opts out under the

regulations by affirming that it meets those eligibility criteria

via a “self-certification” form sent to its group health plan

issuer or TPA, or a letter to the Secretary of HHS (the

“alternative notice”). 45 C.F.R. § 147.131(c)(1); 29 C.F.R.

§ 2590.715-2713A(b)(1)(ii); see also 79 Fed. Reg. 51,092,

15

The Supreme Court, in Hobby Lobby, 134 S. Ct. at 2782,

characterized the accommodation HHS designed for eligible

organizations as a less restrictive means of serving the

government’s interest in the contraceptive coverage requirement

that should be made available to the closely-held, for-profit

religious corporate plaintiffs in that case. The government

accordingly is extending the accommodation to such companies.

See 79 Fed. Reg. at 51,094.

32

51,094-95 (Aug. 27, 2014). An alternative notice to HHS

must identify the forms of contraceptive services to which the

employer objects, and specify, among other things, the name

of the plan, the plan type, and the contact information for the

plan issuer or TPA.16 45 C.F.R. § 147.131(c)(1)(ii); 29

C.F.R. § 2590.715-2713A(b)(1)(ii)(B). Once an eligible

organization avails itself of the accommodation, that

organization has discharged its legal obligations under the

challenged regulations. See 45 C.F.R. § 147.131(c)(1), (e)(2);

29 C.F.R. § 2590.715-2713A(b)(1); 79 Fed. Reg. at 51,094-

95.

The accommodation here works in the way such

mechanisms ordinarily do: the objector completes the written

equivalent of raising a hand in response to the government’s

query as to which religious organizations want to opt out.

Once the eligible organization expresses its desire to have no

involvement in the practice to which it objects, the

government ensures that a separation is effectuated and

arranges for other entities to step in and fill the gap as

required to serve the legislatively mandated regime.

Specifically, the regulations:

 require that the group health plan insurer expressly

exclude contraceptive coverage from the eligible

16

Initially, an eligible organization could only avail itself of the

accommodation by completing the self-certification form. The

Supreme Court issued an interim order in Wheaton College v.

Burwell, 134 S. Ct. 2806 (2014), however, permitting an eligible

organization to notify the Secretary of HHS in writing of its

objection instead of sending the self-certification directly to the

insurer or TPA. Id. at 2807. The Departments accordingly issued

interim final regulations to authorize opting out using that

alternative notice. 79 Fed. Reg. at 51,094-95.

33

organization’s group health plan,17 45 C.F.R.

§ 147.131(c)(2)(i)(A);

 fully divorce the eligible organization from

payments for contraceptive coverage, see 45

C.F.R. § 147.131(c)(2); 29 C.F.R. § 2590.715-

2713A(b)(2)(i);

 require that the insurer or TPA notify the

beneficiaries in separate mailings that it will be

providing separate contraceptive coverage, 45

C.F.R. § 147.131(d); 29 C.F.R. § 2590.715-

2713A(d);

 require that the insurer or TPA specify to the

beneficiaries in those separate mailings that their

employer is in no way “administer[ing] or

fund[ing]” the contraceptive coverage. (The

regulations include model language for such

notice, suggesting that the insurer or TPA specify

to employees that “your employer will not

contract, arrange, pay, or refer for contraceptive

coverage.”) 45 C.F.R. § 147.131(d); 29 C.F.R.

§ 2590.715-2713A(d); and

 demand separate mailings and accounting on the

part of the insurer or TPA, keeping contraceptive

coverage separate for all purposes from the

eligible organization’s plan that exclude it, 45

17

There is no analogous requirement for TPAs because it is the

self-insured employer that controls the scope of coverage provided

under its plan. Once it has opted out, a self-insured employer has

satisfied its legal obligation under the contraceptive-coverage

regulations. 29 C.F.R. § 2590.715-2713A(b)(1).

34

C.F.R. § 147.131(c)(2)(ii), (d); 29 C.F.R.

§ 2590.715-2713A(b)(2), (d).

The regulations leave eligible organizations free to

express to their employees their opposition to contraceptive

coverage. In sum, both opt-out mechanisms let eligible

organizations extricate themselves fully from the burden of

providing contraceptive coverage to employees, pay nothing

toward such coverage, and have the providers tell the

employees that their employers play no role and in no way

should be seen to endorse the coverage.

Plaintiffs’ opposition to the consequences of the ACA’s

Women’s Health Amendment, even with the accommodation,

amounts to an objection to the regulations’ requirement that

third parties provide to Plaintiffs’ beneficiaries products and

services that Plaintiffs believe are sinful. What Plaintiffs

object to here are “the government’s independent actions in

mandating contraceptive coverage, not to any action that the

government has required [Plaintiffs] themselves to take.”

Notre Dame, 743 F.3d at 559 (quoting Order at 3, Priests for

Life v. U.S. Dep’t of Health & Human Servs., No. 13-5368

(Dec. 31, 2013) (Tatel, J., statement) (hereinafter “Emergency

Injunctions Order”)). But RFRA does not grant Plaintiffs a

religious veto against plan providers’ compliance with those

regulations, nor the right to enlist the government to

effectuate such a religious veto against legally required

conduct of third parties. See, e.g., Lyng, 485 U.S. at 452;

Bowen, 476 U.S. at 699-700; Kaemmerling, 553 F.3d at 679;

see also Mich. Catholic Conf., 755 F.3d at 388-89; Notre

Dame, 743 F.3d at 552.

Plaintiffs seek to distinguish Kaemmerling and Bowen on

the ground that, unlike the plaintiffs in those cases, they

object to what the regulations require of them. But the only

35

action the regulations require of Plaintiffs—completion of the

self-certification or alternative notice—imposes a de minimis

administrative obligation.18 To the extent that their objection

is to the role of that action in the broader regulatory scheme—

a scheme that permits or requires independent coverage

providers to take actions to which Plaintiffs object—their

challenge is governed by Kaemmerling and Bowen. As in

Bowen, even though Plaintiffs’ “religious views may not

accept this distinction between individual and governmental

conduct,” the Constitution does “recognize such a

distinction.” 476 U.S. at 701 n.6. So, too, does RFRA. And

just as the plaintiffs in Bowen and Kaemmerling could not

successfully challenge what the government chose to do with

their social security numbers or DNA specimens,

respectively, Plaintiffs have no RFRA claim against the

government’s arrangements with others to provide coverage

to women left partially uninsured as a result of Plaintiffs’ opt

out. RFRA does not treat the government requiring third

parties to provide contraceptive coverage in the face of an

employer’s religious disapproval as tantamount to the

government requiring the employer itself to sponsor such

coverage. See Mich. Catholic Conf., 755 F.3d at 388-89;

Notre Dame, 743 F.3d at 554-55; id. at 559 (quoting

Emergency Injunctions Order at 3 (Tatel, J., statement)).

Plaintiffs nonetheless insist that, even with the

accommodation, the regulations substantially burden their

religious exercise by continuing to require that they play a

18

Plaintiffs object that characterizing the accommodation as simply

filling out a form ignores the meanings that Plaintiffs attach to the

form. But the meaning Plaintiffs attach to the form derives from

their contention that their completion of the form causes third

parties to take action. The error of that contention is discussed

more fully infra Section IV.A.2.a.

36

role in the facilitation of contraceptive use. In particular, they

contend that: (1) “signing and submitting the self-

certification” or alternative notice “triggers” or

“impermissibly facilitates delivery of the objectionable

coverage” to the beneficiaries of their health plans; (2) the

regulations require “contracting with third parties authorized

or obligated to provide the mandated coverage;” and (3) the

regulations require “maintaining health plans that will serve

as conduits for the delivery of the mandated coverage.” Pls.’

Br. 12, 18; Pls.’ Supp’l Br. 1. Additionally, self-insured

Plaintiffs contend that their self-certification expressly and

impermissibly authorizes their TPAs to provide contraceptive

coverage.

Each of those separate, but related, arguments fails for

fundamentally the same reason: Notwithstanding Plaintiffs’

contrary contentions, the regulations provide an opt-out

mechanism that shifts to third parties the obligation to provide

contraceptive coverage to which health insurance

beneficiaries are entitled, and that fastidiously relieves

Plaintiffs of any obligation to contract, arrange, pay, or refer

for access to contraception in any way that might constitute a

substantial burden on their religious exercise under RFRA.

a. Plaintiffs’ Opt-Out Does Not Trigger

Contraceptive Coverage

Plaintiffs claim that the requirement that they submit the

self-certification to their plan issuers or TPAs, or submit the

alternative notice to the government, makes them “authorize”

or “trigger” the provision of the contraceptive coverage they

find religiously abhorrent. They characterize the self-

certification and alternative notice as “permission slips” for

their plan issuers and TPAs to provide contraceptive coverage

to Plaintiffs’ employees. Pointing to the regulatory

37

requirements of an insurer or TPA after an eligible

organization has availed itself of the accommodation,

Plaintiffs argue that it is their own act of self-certifying or

completing the alternative notice that “confers . . . both the

authority and obligation” on the insurance companies and

TPAs to provide the objected-to coverage to Plaintiffs’

employees. Pls.’ Br. 9.

Plaintiffs’ “permission slip” argument misstates how the

regulations operate. As the Sixth and Seventh Circuits have

also concluded, the insurers’ or TPAs’ obligation to provide

contraceptive coverage originates from the ACA and its

attendant regulations, not from Plaintiffs’ self-certification or

alternative notice. See Mich. Catholic Conf., 755 F.3d at 387;

Notre Dame, 743 F.3d at 554. The regulations require that “a

group health plan, or a health insurance issuer offering group

or individual health insurance coverage, must provide

coverage” for a variety of types of preventive care, including

the coverage to which Plaintiffs object. 45 C.F.R.

§ 147.130(a)(1). That obligation exists apart from any action

that Plaintiffs take. “‘Because Congress has imposed an

independent obligation on insurers to provide contraceptive

coverage to [an eligible organization’s] employees, those

employees will receive contraceptive coverage from their

insurers even if [objectors] self-certify—but not because

[objectors] self-certify.’” Notre Dame, 743 F.3d at 559

(quoting Emergency Injunctions Order at 3 (Tatel, J.,

statement)).

Indeed, contrary to Plaintiffs’ characterization, what the

self-certification or alternative notice actually triggers is a

series of steps designed to ensure that eligible organizations

such as Plaintiffs do not contract, arrange, pay, or refer for

access to contraceptive services. The regulations fully relieve

Plaintiffs from the obligation to provide or pay for

38

contraceptive coverage, and instead obligate a third party to

provide that coverage separately.

The illogic of Plaintiffs’ “trigger” argument is

highlighted by the conscientious objector scenario recounted

above. The implication of Plaintiffs’ position is that the

Selective Service could deny a religious conscientious

objector’s RFRA claim against calling up the next draftee

only if the government’s decision to do so survived strict

scrutiny. That strikes us as “a fantastic suggestion.” Notre

Dame, 743 F.3d at 556. There, as here, the feature that

defeats Plaintiffs’ argument is plain: It was the government’s

selective service draft quota, not the conscientious objector

exercising his accommodation right, that determined whether

a replacement would be called. So, too, it is the ACA that

requires that plan issuers and TPAs fill the resulting gaps, not

the opt-out notice. In neither case is the objecting party

substantially burdened by, and thus entitled to

accommodation from, the sequelae of opting out. Accurately

understood, the opt-out mechanism imposes on Plaintiffs only

the de minimis administrative burden associated with

completing the self-certification form or the alternative

notice. See id. As long as Plaintiffs complete either notice,

the regulations excuse them from any further involvement in

providing contraceptive coverage. As discussed above, the

beneficiaries receive contraceptive coverage not because

Plaintiffs have completed the self-certification or alternative

notice, but because the ACA imposes an independent

obligation on insurers and TPAs to provide this coverage.

b. Plaintiffs’ Contracts with Providers Do Not

Authorize or Facilitate Contraceptive Coverage

Plaintiffs further contend that the regulations

substantially burden their religious exercise by requiring

39

contraceptive coverage to be provided for their employees

and students by the same entities with which Plaintiffs have

contracted to provide non-contraceptive health coverage.

Once Plaintiffs opt out of the contraceptive coverage

requirement, however, contraceptive services are not provided

to women because of Plaintiffs’ contracts with insurance

companies; they are provided because federal law requires

insurers and TPAs to provide insurance beneficiaries with

coverage for contraception. Plaintiffs’ contracts do not in any

way authorize or condone the insurers’ or TPAs’ provision of

the coverage. The separate interactions between non-

objecting insurance companies and beneficiaries do not

substantially burden Plaintiffs’ religious exercise, just as

third-party actions in other religious-exercise cases have been

held not to burden plaintiffs. See, e.g., Bowen, 476 U.S. at

699-700; Kaemmerling, 553 F.3d at 679; see also Notre

Dame, 743 F.3d at 552. We do not understand Plaintiffs to

contend that RFRA privileges them generally to require that

the extra-contractual rights and legal obligations of

individuals and entities with whom they contract conform to

Plaintiffs’ religious beliefs, nor could they.

c. Plaintiffs’ Plans Are Not Conduits for

Contraceptive Coverage

Plaintiffs also argue that the regulations substantially

burden their religious exercise by permitting their insurance

plans to be used as conduits through which their employees

receive contraception. Plaintiffs identify a number of acts—

such as paying premiums and offering enrollment

paperwork—that they contend they must take that ensure that

the contraceptive “pipeline” remains open. None of those

acts, however, requires Plaintiffs to contract, arrange, pay, or

refer for access to contraception. Once Plaintiffs take

advantage of the accommodation, they are dissociated from

40

the provision of contraceptive services. The premiums and

enrollment paperwork support the provision of health care

coverage to which Plaintiffs have no objection—and nothing

more.

Plaintiffs contend that their plans remain a conduit for

the provision of contraceptives because they are required to

pay premiums or fees to entities in charge of the plans that

provide contraceptive benefits. The regulations, however,

expressly prevent insurers and TPAs from directly or

indirectly charging Plaintiffs for the cost of contraceptive

coverage and obligate third parties to pay for the

contraceptive services. 45 C.F.R. § 147.131(c)(2)(ii); 29

C.F.R. § 2590.715-2713A(b)(2). Therefore, although

Plaintiffs are required to pay premiums and fees to their group

health plan issuers or TPAs, those entities are legally

prohibited from using Plaintiffs’ payments to fund

contraceptive services.

Plaintiffs further contend that their plans are used as

conduits because, they assert, they must provide their

beneficiaries with enrollment paperwork to enable them to

participate in a plan that provides coverage for contraceptives,

and they must send, or tell their beneficiaries where to send,

the enrollment paperwork. Under the regulations, however,

the employer has no such obligation. The insurer or TPA is

entirely responsible for any paperwork related to

contraceptive coverage. The insurer or TPA must provide

beneficiaries with notice of the availability of contraceptive

coverage, the notice must be separate from any materials

distributed in connection with the individual’s enrollment in

the employer’s plan, and the notice must make clear that the

employer is not playing any role in the contraceptive

coverage. 45 C.F.R. § 147.131(d); 29 C.F.R. § 2590.715-

2713A(d).

41

Plaintiffs also argue that their plans serve as conduits

because they must identify their health plan beneficiaries to

their insurers or TPAs. No regulation related to the

accommodation imposes any such duty on Plaintiffs. See

Mich. Catholic Conf., 755 F.3d at 389. Plaintiffs will have

necessarily provided their plans or TPAs with the names of

employees enrolling in their health care plan so that those

individuals may be provided with health care coverage. To

the extent that Plaintiffs object to the actions the insurers or

TPAs will take after receiving those names, Plaintiffs are

objecting to an independent obligation imposed on a third

party by the government. As discussed above, RFRA does

not protect parties from obligations imposed on third parties

by outside sources. In short, none of the actions that

Plaintiffs identify is actually required of them under the

regulations, and none of those actions makes their plans

conduits for contraceptive coverage.19

d. Regulations Specific to the Self-Insured Plaintiffs

Do Not Create a Substantial Burden

Finally, the self-insured Plaintiffs object to the regulatory

provisions that apply particularly to self-insured

organizations. They object that their self-certification forms

are what designate their TPAs as the plan administrators for

contraceptive benefits under section 3(16) of ERISA and also

19

On a related note, Plaintiffs contend that they must refrain from

canceling their contract with a third party authorized to provide

coverage for contraceptive services and from attempting to

influence a third party’s decision to provide the coverage for

contraception. The government denied that the regulations would

require Plaintiffs to refrain from taking either of those actions.

Gov. Br. 33-34; Oral. Arg. Tr. at 46:15-48:1. In any event, as

discussed infra note 28, the regulations have been revised to

remove the provision that Plaintiffs alleged so constrained them.

42

serve as instruments under which the health plans are

operated. See 29 C.F.R. § 2510.3-16(b). They argue that the

regulations thus put them in the position of facilitating the

provision of contraceptives by authorizing the TPAs to take

actions they previously could not have taken.

That argument miscasts the regulations, which do not

require the self-insured Plaintiffs to name their TPAs as

ERISA plan fiduciaries. Plaintiffs submit forms to

communicate their decisions to opt out, not to authorize TPAs

to do anything on their behalf. The regulatory treatment of

the form as sufficient under ERISA does not change the

reality that the objected-to services are made available

because of the regulations, not because Plaintiffs complete a

self-certification. 29 C.F.R. § 2510.3-16(b); see Notre Dame,

743 F.3d at 554-55; 78 Fed. Reg. at 39,880.

The self-insured Plaintiffs raise a parallel objection to the

alternative process established by the revised regulations.

Under the revised regulations, once the government receives

an alternative notice from an eligible organization, the

government sends the TPA a notification that will “designate

the relevant [TPA] as plan administrator under section 3(16)

of ERISA for those contraceptive benefits that the [TPA]

would otherwise manage.” 79 Fed. Reg. at 51,095; see also

29 C.F.R. § 2510.3-16(b). The regulations make the

government’s notification to the TPA “an instrument under

which the plan is operated.” 29 C.F.R. § 2510.3-16(b).

The self-insured Plaintiffs contend that the revised

regulations thereby violate ERISA because the government

lacks authority to name a plan administrator or amend

Plaintiffs’ plan instruments. Plaintiffs do not contend,

however, that the government lacks authority to author a plan

instrument or designate a particular writing as a plan

43

instrument, and it is this authority the regulations deploy.

Once the government receives the alternative notice, it directs

the TPA to cover contraceptive services and, treating its own

direction as the new plan instrument, the government names

the TPA as the plan administrator of contraceptive coverage.

ERISA expressly permits a plan instrument to name a plan

administrator. 29 U.S.C. § 1002(16)(A)(i) (defining

“administrator” as “the person specifically so designated by

the terms of the instrument under which the plan is

operated”).20 By naming the plan administrator in the plan

instrument, the government complies with ERISA. The

government’s approach does not, contrary to Plaintiffs’

contention, amend or alter Plaintiffs’ own plan instruments;

the government directs only the contraceptive coverage.

The self-insured Plaintiffs also contend that they are

required to facilitate access to contraceptive coverage

because, if their existing TPAs decline to assume the

responsibility to provide contraceptive coverage, the

regulations obligate Plaintiffs to take affirmative steps to

identify and contract with new TPAs. The district court

granted summary judgment for Plaintiff Thomas Aquinas

College on this ground. RCAW, 2013 WL 6729515, at *24.

Upon de novo review, we reject Thomas Aquinas’s argument

as premature. Thomas Aquinas has not made any showing

that its TPA has any intention of refusing to provide

contraceptive coverage to its employees.21 Moreover, the

20

ERISA also states that “in the case of a plan for which an

administrator is not designated and a plan sponsor cannot be

identified,” the administrator is “such other person as the Secretary

[of Labor] may by regulation prescribe.” 29 U.S.C.

§ 1002(16)(A)(iii).

21

See 29 C.F.R. § 2590.715-2713A(b)(2) (“If a [TPA] receives a

copy of the self-certification . . . and agrees to enter into or remain

44

government has clarified that, if an eligible organization’s

existing TPA were to decline to assume responsibility for

providing contraceptive coverage, the regulations do not

require the eligible organization to identify and contract with

a new one. See 78 Fed. Reg. at 39,880-81. We believe that

clarification requires us to vacate the district court’s grant of

summary judgment for Thomas Aquinas.

* * *

In sum, RFRA grants Plaintiffs a right to be free of any

unjustified substantial governmental burden on their religious

exercise. The regulatory requirement that they use a sheet of

paper to signal their wish to opt out is not a burden that any

precedent allows us to characterize as substantial. It is as a

result of the ACA, and not because of any actions Plaintiffs

must take, that Plaintiffs’ employees are entitled to

contraceptive coverage provided by third parties and that their

insurers or TPA must provide it; RFRA does not entitle

Plaintiffs to control their employees’ relationships with other

entities willing to provide health insurance coverage to which

the employees are legally entitled. A religious adherent’s

distaste for what the law requires of a third party is not, in

itself, a substantial burden; that is true even if the third party’s

conduct towards others offends the religious adherent’s

sincere religious sensibilities. The regulations go to great

lengths to separate Plaintiffs from the provision of

contraceptive coverage. Plaintiffs have failed to demonstrate

a substantial burden on their religious exercise that would

in a contractual relationship with the eligible organization or its

plan to provide administrative services for the plan, the [TPA] shall

provide or arrange payments for contraceptive services . . .”

(emphasis added)); 78 Fed. Reg. at 39,880.

45

subject the contraceptive coverage requirement to strict

judicial scrutiny.

B. The Accommodation Survives Strict Scrutiny

When the parties filed their initial briefs on appeal, the

government conceded that this Court’s decision in Gilardi v.

U.S. Department of Health & Human Services, 733 F.3d 1208

(D.C. Cir. 2013), vacated, 134 S. Ct. 2902 (2014), controlled

the compelling-interest inquiry here. Gov. Br. 44. In Gilardi,

we held at the preliminary injunction stage that, while a

closely-held, for-profit business corporation was not a

“person” whose religious exercise was protected by RFRA,

its individual owners had RFRA rights that were injured by

application of the contraceptive coverage requirement to their

firm. 733 F.3d at 1214-19. Lack of a regulatory

accommodation applicable to such religious objectors

constituted a substantial burden, and the government failed to

establish a compelling interest that justified it. Id. at 1219-22.

While this appeal was pending, the Supreme Court

vacated Gilardi in view of its decision in Hobby Lobby. 134

S. Ct. 2902 (2014). The Court also, in Wheaton College v.

Burwell, 134 S.Ct. 2806 (2014), preliminarily enjoined the

requirement that a party seeking to opt out use the self-

certification form as specified in the regulations. The plaintiff

in that case already had notified the government of its

eligibility and desire for exemption without using that form,

and the Court required HHS to accept that as adequate notice.

Because the Court’s decisions and a new Interim Final Rule

responding to the Wheaton College order (see 79 Fed. Reg. at

46

51,092) unsettled the governing law, we requested

supplemental briefing.22

We directed the parties to brief the implications for this

appeal of the intervening legal developments. We

specifically requested briefing on the substantial-burden and

strict-scrutiny issues, and received such briefing from both

parties.

Hobby Lobby’s analysis is instructive, even though the

substantial-burden and least-restrictive-means questions

posed by the lack of any accommodation available to the

plaintiffs in Hobby Lobby are very different from those

presented here, where the government has provided an

accommodation. As discussed above, we conclude that the

accommodation does not impose a substantial burden on

Plaintiffs in this case. See Mich. Catholic Conf., 755 F.3d at

390; Notre Dame, 743 F.3d at 554-559. To the extent that the

Supreme Court’s recent order in Wheaton College might be

read to signal a different conclusion, analysis of the strict

scrutiny question is also called for. The Hobby Lobby Court’s

discussion of the weightiness of the government’s interests is

in substantial tension with Gilardi’s approach to the strict

scrutiny analysis. We thus proceed in light of the intervening

decisions to analyze whether the accommodation is the least

restrictive means to serve a compelling governmental interest.

The challenged regulations seek to ensure timely and

effective access to contraception for all women who want it

and for whom it is medically appropriate. The government

contends that the regulations are amply supported because

they arise at the intersection of overlapping governmental

interests, each of which is compelling: public health, and

22

See supra notes 15 & 16.

47

women’s well-being. The government claims an interest in

independently assuring seamless contraceptive coverage,

regardless of whether the insured woman receives her other

health insurance coverage through her (or her family

member’s) employment at a religious nonprofit that objects to

providing it.

The Supreme Court’s characterizations of the

government’s asserted compelling interest and the narrow

tailoring of the accommodation were dicta in Hobby Lobby.

The accommodation was not challenged there; it was only

adverted to as a potential remedy for the non-accommodated

plaintiffs in that case. As next discussed, however, the

Court’s characterizations are consistent with our conclusions

that (1) the contraceptive coverage requirement—and,

specifically, its guarantee for employees whose employers

partake of the accommodation—is supported by compelling

governmental interests, and (2) it imposes no unnecessary

constraints on Plaintiffs’ religious exercise.

1. The Government Has Demonstrated Compelling

Interests That Support Seamless Provision of

Contraceptive Coverage

In promulgating the challenged regulations, the

government asserted an interest in supporting women’s

unhindered, cost-free access to contraceptive services. See 78

Fed. Reg. at 39,887-88. The Supreme Court in Hobby Lobby

assumed, without deciding, that the governmental interest in

“guaranteeing cost-free access” to contraception was

“compelling.” Hobby Lobby, 134 S. Ct. at 2780. Five

members of the Court separately signed onto opinions that

appear to be more affirmative. Justice Kennedy, concurring,

found it “important to confirm” that the “premise of the

Court’s opinion is its assumption that the HHS regulation

48

here at issue furthers a legitimate and compelling interest in

the health of female employees.” Id. at 2786. He noted that

the government “makes the case” that the contraceptive

coverage requirement “serves the Government’s compelling

interest in providing insurance coverage that is necessary to

protect the health of female employees, coverage that is

significantly more costly than for a male employee.” Id. at

2785-86. Justice Ginsburg, writing for four dissenting

justices, recounted the government’s evidence establishing

the importance of contraception to a range of women’s health

needs, and concluded that contraceptive coverage under the

ACA “furthers compelling interests in public health and

women’s well being.” Id. at 2799-2800.

There is no simple formula for identifying which

governmental interests rank as compelling, but certain

touchstones aid our analysis. Interests in public health,

safety, and welfare—and the viability of public programs that

guard those interests—may qualify as compelling, as may

legislative measures to protect and promote women’s well

being and remedy the extent to which health insurance has not

served women’s specific health needs as fully as those of

men.

The government’s asserted compelling interest here, writ

large, is in a sustainable system of taxes and subsidies under

the ACA to advance public health. That interest is as strong

as those asserted in cases such as United States v. Lee, 455

U.S. 252, 258 (1982), and Hernandez v. Comm’r of Internal

Revenue, 490 U.S. 680, 699-700 (1989), recognizing

governmental interests in broad participation in public tax and

benefits systems as sufficiently compelling to outweigh

countervailing claims that they unjustifiably burdened

religious exercise.

49

In Lee, the Supreme Court held that the government’s

interest in a nationwide social security system was

sufficiently weighty to require that an Amish employer pay

unemployment and social security taxes, even though the

Court acknowledged that doing so would burden the Amish

employer’s religious beliefs. 455 U.S. at 258. The Court

observed that the social security system “serves the public

interest by providing a comprehensive insurance system with

a variety of benefits available to all participants, with costs

shared by employers and employees.” Id. The system would

not have been viable unless broad participation was required,

and the Court held that the governmental interest “in assuring

mandatory and continuous participation in and contribution to

the social security system” sufficed to justify the

acknowledged burden on the employer’s religious exercise.

Id. at 258-59.

So, too, in Hernandez, the Court rejected a claim that

denial of certain tax deductions violated the plaintiffs’

religious exercise because “even a substantial burden [on the

exercise of religion] would be justified by the broad public

interest in maintaining a sound tax system.” 490 U.S. at 699-

700 (internal quotation marks omitted). The government

concluded that the success of the ACA’s effort to expand

access to health care, improve outcomes, and control costs

similarly depends on widespread use of preventive care,

which the Act encourages by requiring that particular

preventive measures be provided free of cost. See 78 Fed.

Reg. at 39,872.

The Supreme Court’s recognition of compelling

governmental interests in the physical health and safety of the

public, albeit in factually very different contexts, further

supports the gravity of the government’s interest in the

contraceptive coverage requirement. See, e.g., Prince v.

50

Massachusetts, 321 U.S. 158, 165-67 (1944); Jacobson v.

Massachusetts, 197 U.S. 11, 25 (1905). The Court in Prince

sustained child labor laws against a free exercise challenge

based on the government’s paramount interest in protecting

the health and welfare of children. 321 U.S. at 165-71. In

Jacobson, a mandatory, mass vaccination program withstood

a constitutional liberty challenge because it served the

government’s interest in “the public health and the public

safety.” 197 U.S. at 25-26. Those cases support the strength

of health interests behind the contraceptive coverage

regulations, which include interests in avoiding health risks to

women and children from unplanned pregnancies. Indeed,

these very same interests—pediatric care and

immunizations—are protected by companion provisions to

the Women’s Health Amendment in the ACA. See 42 U.S.C.

§ 300gg-13(a)(2), (3). Under Plaintiffs’ argument, and

contrary to Prince and Jacobson, those interests could fall to

the same type of religious challenge as is leveled here by

organizations that sincerely object to the types of care they

cover.

The Supreme Court has recognized the interest in

eliminating discrimination against women as sufficiently

compelling to justify incursions on rights to expressive

association. See Bd. of Dirs. of Rotary Int’l v. Rotary Club of

Duarte, 481 U.S. 537, 549 (1987); see also Roberts v. U.S.

Jaycees, 468 U.S. 609, 625-26 (1984) (recognizing

compelling interest in creating “rights of public access” to

private goods and services in order to promote women’s equal

enjoyment of leadership skills, business contacts, and

employment promotions). Those cases lend gravitas to the

government’s interest in the contraceptive coverage

requirement as an effort to eradicate lingering effects of sex

discrimination. See generally Nev. Dep’t of Human Res. v.

Hibbs, 538 U.S. 721 (2003).

51

The Supreme Court majority in Hobby Lobby

characterized the government’s interests in “promoting public

health and gender equality” as “broadly framed” and noted

that RFRA “contemplates a more focused inquiry.” 134 S.

Ct. at 2779 (internal quotation marks omitted). The

government has pathmarked the more focused inquiry by

explaining how those larger interests inform and are

specifically implicated in its decision to support women’s

unhindered access to contraceptive coverage. We do not take

the government to suggest that its interests in “public health”

and “gender equality” necessarily render compelling every

subsidiary governmental action that advances them. Each of

those interests, however, specifically undergirds the

government’s decision here to provide seamless coverage of

contraceptive services for women who want them and whose

doctors prescribe them.

As we explain below, compelling interests converge to

support the government’s decision, reflected in the challenged

regulations, to provide cost-free contraceptive coverage and

to remove administrative and logistical obstacles to accessing

contraceptive care. Those compelling governmental interests

suffice to support requiring eligible organizations to ask for

an accommodation if they want to take advantage of one, so

that the government can protect its interests by ensuring that

the resulting coverage gaps are filled.

a. Improving Public Health Through Contraceptive

Coverage

The ACA is an ambitious effort to reform the health care

system in the United States. It is designed to expand access

to comprehensive insurance coverage as a means of

controlling spiraling health care costs while improving health.

See Cong. Budget Office, Key Issues in Analyzing Major

52

Health Insurance Proposals 1 (2008) (“CBO Report”); see

also Remarks by the President at the Annual Conference of

the American Medical Association (June 15, 2009),

http://www.whitehouse.gov/the-press-office/remarks-

president-annual-conference-american-medical-association.

The United States in recent years spent far more on health

care than did many other developed nations. At the same

time, the quality of care Americans received was lower and

our population was no healthier than people in countries that

spent less. CBO Report at 1.

Congress understood that improved health at affordable

cost cannot be attained without increased reliance on

preventive care. Most people underestimate the importance

of prevention and are easily hindered from undertaking

preventive steps because the costs and effort of preventive

health care are immediate while benefits typically are

uncertain and deferred. Many adverse health conditions and

an enormous amount of costly care can be avoided if people

better understand risky behavior, plan more carefully, and

take measures to reduce their risks, exposures, and errors.

Inst. of Med., Clinical Preventive Services for Women:

Closing the Gaps 16-17 (2011) (“IOM Report”).23 Providing

preventive care—including patient education, screenings,

preventive medications and devices, and early treatment—can

be less costly than treating advanced diseases and conditions.

See id.; Chronic Diseases and Health Promotion, Centers for

Disease Control and Prevention,

http://www.cdc.gov/chronicdisease/overview/ (last visited

Nov. 5, 2014); see also CBO Report at 136-38. Yet, before

enactment of the ACA, only a small portion of health care

23

As noted above, the government directed the HRSA, in

consultation with IOM, to develop guidelines for women’s

preventive care services. This report was part of that effort.

53

spending went to prevention. See Centers for Disease Control

and Prevention, The Power of Prevention (2009), available at

http://www.cdc.gov/chronicdisease/pdf/2009-power-of-

prevention.pdf.

Congress and the Executive Branch determined that

serving the government’s compelling public health interests

depends on overcoming the human behavioral tendencies of

denial and delay documented in the legislative and regulatory

record. People tend to eschew preventive care when they

have to pay for it, make even minor efforts to learn about and

enroll in new programs, keep multiple appointments, or

follow new routines. Because “[i]ndividuals are more likely

to use preventive services if they do not have to satisfy cost-

sharing requirements,” 78 Fed. Reg. at 39,872, the ACA

requires group or individual health plans to include coverage

for a variety of preventive health services without cost

sharing. 42 U.S.C. § 300gg-13(a). “Studies have . . . shown

that even moderate copayments for preventive services” can

“deter patients from receiving those services.” IOM Report at

19.

The government further determined that the imperative

of providing broad access to preventive care applies with full

force to women’s health. Congress was informed during

debates on the ACA that “too many women are delaying or

skipping preventive care because of the costs of copays and

limited access. In fact, more than half of women delay or

avoid preventive care because of its costs.” 155 Cong. Rec.

28,843 (2009) (statement of Sen. Gillibrand); see also 155

Cong. Rec. 28,842-43 (2009) (statement of Sen. Mikulski).

In light of this reality, Senator Mikulski proposed the

Women’s Health Amendment, which expanded the list of

preventive health services the ACA required that insurers

cover without cost sharing to include preventive health care

54

and screenings for women. 155 Cong. Rec. 28,800-02 (2009)

(codified at 42 U.S.C. § 300gg-13(a)(4)). Congress in the

ACA directed the HRSA to develop the list of covered

preventive services. The HRSA commissioned the IOM to

identify preventive health services with strong scientific

evidence of health benefits. The IOM’s report recommended

preventive services it deemed necessary for women’s health

and well-being. HRSA accepted IOM’s findings and

recommendations, and the Departments relied on them when

crafting both the exemption and the accommodation.

The HRSA and IOM concluded that, given women’s

reproductive health needs, preventive health services for

women should include contraceptive coverage. IOM Report

at 109-10; see also 77 Fed. Reg. at 8,725. The government

recognized that the cost of reproductive health care, including

contraceptives, is significant, and it falls disproportionately

on women. 78 Fed. Reg. at 39,873, 39,887. The vast

majority of women who have sex with men use

contraceptives at least some of the time. See IOM Report at

103. Most contraceptives used by women, and the forms that

are most effective and fully reversible, are available only with

a prescription and in some cases must be administered by a

medical professional. See id. at 105; Kimberly Daniels, et al.,

Contraceptive Methods Women Have Ever Used: United

States, 1982-2010, 62 Nat’l Health Stat. Rep. 1 (2013),

available at http://www.cdc.gov/nchs/data/nhsr/nhsr062.pdf

(hereinafter “Daniels”). Those forms—including birth

control pills, injectable methods, contraceptive patches, and

intrauterine devices (“IUD”)—have been used at one time or

another by 88 percent of women who have had sexual

intercourse. Daniels at 1.

The Institute of Medicine observed that high costs

regularly cause women to forego contraception completely or

55

to choose less effective methods: “Even small increments in

cost sharing have been shown to reduce the use of preventive

services . . . . The elimination of cost sharing for

contraception therefore could greatly increase its use,

including the use of the more effective and longer-acting

methods, especially among poor and low-income women

most at risk for unintended pregnancy.” IOM Report at 109;

see also 78 Fed. Reg. at 39,873. Prescription methods of

contraception have lower failure rates than non-prescription

methods such as condoms, IOM Report at 105, but can be

quite expensive. The cost of an IUD, one of the most

convenient and effective forms of reversible contraception, is

nearly a month’s full-time pay for workers earning the

minimum wage, and its cost makes it less likely that women

will use it. Hobby Lobby, 134 S. Ct. at 2800 (Ginsburg, J.,

dissenting).

Thus the government decided to require contraceptive

coverage without cost sharing because appropriate and

consistent use of contraceptives furthers women and

children’s health in a variety of ways. Enabling couples to

control the timing and spacing of pregnancies improves

women’s health outcomes. Short intervals between

pregnancies increase maternal mortality and pregnancy-

related complications. IOM Report at 103-04. Even a normal

and healthy pregnancy is a demanding physical process for a

woman. Pregnancy increases risks of health complications,

such as anemia, gestational diabetes, hypertension,

hyperemesis gravidarum, and even death. See generally 78

Fed. Reg. at 39,872, 39,887 (stressing the importance of

covering preventive care to respond to women’s unique health

needs); Pregnancy Complications, Centers for Disease

Control and Prevention,

http://www.cdc.gov/reproductivehealth/maternalinfanthealth/

pregcomplications.htm (last visited Nov. 5, 2014); Pregnancy

56

Related Deaths, Centers for Disease Control and Prevention,

http://www.cdc.gov/reproductivehealth/MaternalInfantHealth/

Pregnancy-relatedMortality.htm (last visited Nov. 5, 2014).

A core reason the government sought under the ACA to

expand access to contraception is that use of contraceptives

reduces unintended pregnancies. According to the Institute of

Medicine, in 2001, “49 percent of all pregnancies in the

United States were unintended.” IOM Report at 102. There

is “an 85 percent chance of an unintended pregnancy within

12 months among couples using no method of contraception.”

Id. at 105. Unintended pregnancies elevate health risks for

women and children and impose other costs on society.

Women whose pregnancies are unintended are more likely to

experience depression, anxiety, or domestic violence during

those pregnancies. IOM Report at 103; see also Korte v.

Sebelius, 735 F.3d 654, 725 (7th Cir. 2013) (Rovner, J.,

dissenting). “In 2001, 42 percent of U.S. unintended

pregnancies ended in abortion.” IOM Report at 102.

Reducing the frequency of unintended pregnancies would

reduce the frequency of abortions. 78 Fed. Reg. at 39,872;

see also IOM Report at 105. Supporting access to

contraception empowers women to avoid the physical

burdens and risks of pregnancy unless and until they decide to

undertake them.

The government further relied on the ways that

contraceptive use can promote and improve women’s health

apart from their procreative health needs. Women

contraindicated for pregnancy, such as those with certain

heart conditions, hypertension, diabetes, Marfan Syndrome,

or lupus, face health hazards from pregnancy that can be life

threatening. See 78 Fed. Reg. at 39,872; IOM Report at 103-

04; Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J.,

concurring), id. at 2799 (Ginsburg, J., dissenting). Women

57

with those conditions have especially critical needs to time

their pregnancies appropriately, such as by waiting until their

conditions are under control. Doctors also recommend that

women taking certain medications that pose risk to maternal

and fetal health avoid getting pregnant. Hormones

manufactured and sold as contraception are also used to treat,

manage, or prevent other diseases, such as “certain cancers,

menstrual disorders, and pelvic pain.” Hobby Lobby, 134 S.

Ct. at 2799 (Ginsburg, J., dissenting); see also 78 Fed. Reg.

39,872; IOM Report at 107.

The Institute of Medicine reported that, for similar

reasons, contraceptive use also promotes the health of infants

and children. Children who are born as the result of

unintended pregnancy suffer increased health risks on

average, including preterm birth and low birth weight and

associated complications. IOM Report at 103. Women who

do not immediately know they are pregnant, or are ambivalent

about bearing children, are more likely to delay prenatal care

or engage in behaviors that pose pregnancy related risks. 78

Fed. Reg. at 39,872; IOM Report at 103. Short intervals

between pregnancies also can have serious health

consequences for infants, such as low birth weight,

prematurity, and small-for-gestational age. 78 Fed. Reg. at

38,872; IOM Report at 103. Women in hazardous jobs or

precarious or dangerous living situations may need to delay

pregnancy in order to reduce the health risks for a child.

Permitting women to control the timing and spacing of their

pregnancies improves the health and welfare of women,

children, and infants.

58

b. Assuring Women Equal Benefit of Preventive Care

By Requiring Coverage of Their Distinctive Health

Needs

The government also relied on evidence that advancing

women’s well being by meeting their health needs as fully as

those of men was a compelling reason for a contraceptive

coverage requirement. In enacting and implementing the

ACA, the government sought to provide coverage that offers

equal benefit for men and women. 78 Fed. Reg. at 39,887.

Before the ACA, insurance coverage for a female employee

was “significantly more costly than for a male employee.”

Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J., concurring).

Women paid more for the same health insurance coverage

available to men and “in general women of childbearing age

spen[t] 68 percent more in out-of-pocket health care costs

than men.” 155 Cong. Rec. 28,843 (2009) (statement of Sen.

Gillibrand); see 78 Fed. Reg. at 39,887.

The government recognized that women pay more for the

same health benefits in part because services more important

or specific to women have not been adequately covered by

health insurance. See 155 Cong. Rec. 28,843 (2009)

(statement of Sen. Gillibrand). Contraception is a key

element of preventive care for many women, yet the methods

that are most reliable and are under a woman’s control require

prescriptions and are disproportionately more expensive than

non-prescription forms of contraception. See IOM Report at

105, 108. Condoms, which are inexpensive and widely

available over the counter, require men’s cooperation and are

substantially less effective in pregnancy prevention than

prescription methods. See id. at 105. When Congress added

the Women’s Health Amendment to the ACA, which requires

group health plans to include preventive health care services

for women without cost sharing, it did so precisely to end “the

59

punitive practices of the private insurance companies in their

gender discrimination.” 155 Cong. Rec. 28,842 (daily ed.

Dec. 1, 2009) (statement of Sen. Mikulski). The government

concluded that a preventive care package that failed to cover

contraception would not give women access, equal to that

enjoyed by men, to the full range of health care services

recommended for their specific needs. See 78 Fed. Reg. at

39,887.

For most women, whether and under what circumstances

to bear a child is the most important economic decision of

their lives. An unintended pregnancy is virtually certain to

impose substantial, unplanned-for expenses and time

demands on any family, and those demands fall

disproportionately on women. As the Supreme Court has

recognized “[t]he ability of women to participate equally in

the economic and social life of the Nation has been facilitated

by their ability to control their reproductive lives.” Planned

Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 856 (1992);

78 Fed. Reg. at 39,873 (“[A]ccess to contraception improves

the social and economic status of women.”). Congress noted

when enacting the Pregnancy Discrimination Act, Pub. L. No.

95-555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000e et seq.),

and Family and Medical Leave Act, Pub. L. No. 103-3, 107

Stat. 6 (codified at 29 U.S.C. § 2601 et seq.), a woman’s

ability to get pregnant has led to pervasive discrimination in

the workplace.24

24

See Hibbs, 538 U.S. at 736 (“‘Historically, denial or curtailment

of women’s employment opportunities has been traceable directly

to the pervasive presumption that women are mothers first, and

workers second. This prevailing ideology about women’s roles has

in turn justified discrimination against women when they are

mothers or mothers-to-be.’” (quoting The Parental and Medical

60

The government has amply substantiated its compelling

interests in the accommodation. The government has

overlapping and mutually reinforcing compelling interests in

promoting public health and gender equality. The

contraceptive coverage requirement specifically advances

those interests. It was adopted to promote women’s equal

access to health care appropriate to their needs, which in turn

serves women’s health, the health of children, and women’s

equal enjoyment of their right to personal autonomy without

unwanted pregnancy. We hold that the accommodation is

supported by the government’s compelling interest in

providing women full and equal benefits of preventive health

coverage, including contraception and other health services of

particular relevance to women.

2. The Regulations Use the Least Restrictive

Means to Ensure Contraceptive Coverage

While Accommodating Religious Exercise

In addition to calling on us to inquire whether the

challenged contraceptive coverage requirement serves a

compelling interest, RFRA demands that we guard against

unnecessary impositions on religious exercise by carefully

examining the particular way the government has gone about

serving that interest. The Departments designed the

challenged accommodation for eligible organizations fully

cognizant of RFRA’s mandate. See 78 Fed. Reg. at 39,886-

Leave Act of 1986: Joint Hearing before the Subcommittee on

Labor–Management Relations and the Subcommittee on Labor

Standards of the House Committee on Education and Labor, 99th

Cong., 2d Sess., 100 (1986)); see also S. Rep. No. 95-331, at 3

(1977) (“A failure to address discrimination based on pregnancy, in

fringe benefits or in any other employment practice, would prevent

the elimination of sex discrimination in employment.”).

61

88. As already described, the accommodation excuses

eligible organizations from the contraceptive coverage

requirement, severs them from any involvement in the

separate contraceptive coverage to which the employees are

entitled, and specifies that employees must be notified that the

objecting organizations have no involvement in providing

their contraceptive coverage.

Adverting to this accommodation in Hobby Lobby, the

Supreme Court stressed that it alleviates the burden on the

plaintiffs of having to provide contraceptive coverage and

“serves HHS’s stated interests equally well.” Hobby Lobby,

134 S. Ct. at 2782. The Court described the accommodation

as “an alternative that achieves all of the Government’s aims

while providing greater respect for religious liberty.” Id. at

2759; see id. at 2786 (Kennedy, J., concurring) (the

“accommodation equally furthers the Government’s interest

but does not impinge on the plaintiff’s religious beliefs”). In

fact, the Court explained that the effect of the accommodation

on women “would be precisely zero.” Id. at 2760.

In determining whether the government has used the

least restrictive means, the Supreme Court has instructed that

we focus on the context of the religious objectors, and

consider whether and how the government’s compelling

interest is harmed by “‘granting specific exemptions to

particular religious claimants.’” Hobby Lobby, 134 S. Ct. at

2779 (quoting Gonzales v. O Centro Espírita Beneficiente

Uniao Do Vegetal, 546 U.S. 418, 431 (2006)). We must

“look to the marginal interest in enforcing” the regulation to

which the plaintiffs object. Id. (citing O Centro, 546 U.S. at

431).

The government’s compelling interests in the

contraceptive coverage requirement are met with the least

62

imposition on religious exercise by allowing eligible

organizations to opt out, but requiring them to identify

themselves when they do. Only if the eligible organizations

communicate that they are dropping contraceptive coverage

from the health insurance they have arranged for their

employees will the government be able to ensure that the

resultant gaps in employees’ coverage are otherwise filled.

The government contends that its interests would be impaired

if eligible organizations were entitled to exempt themselves

from the contraceptive coverage requirement without

notifying either HHS, or their insurers or TPAs.

The government has an interest in the uniformity of the

health care system the ACA put in place, under which all

eligible citizens receive the same minimum level of coverage.

Like the Social Security system at issue in Lee, the ACA

“serves the public interest by providing a comprehensive

insurance system with a variety of benefits available to all

participants.” 455 U.S. at 258. Contraceptive coverage must

be effective if it is to serve the government’s compelling

interests, and the Departments were justified in concluding

that, to be effective, the coverage must be provided to all

women who want it, on the same terms as other preventive

care. Providing contraceptive services seamlessly together

with other health services, without cost sharing or additional

administrative or logistical burdens and within a system

familiar to women, is necessary to serve the government’s

interest in effective access. Imposing even minor added steps

would dissuade women from obtaining contraceptives and

defeat the compelling interests in enhancing access to such

coverage. See 78 Fed. Reg. at 39,888.

The evidence shows that contraceptive use is highly

vulnerable to even seemingly minor obstacles. Plaintiffs

suggest that the government could offer tax deductions or

63

credits for the purchase of contraceptive services, expand

eligibility for existing federal programs that provide free

contraception, allow women to submit receipts to the federal

government for reimbursement, or provide incentives for

pharmaceutical companies to provide contraceptives free of

charge to women. Pls.’ R. Br. 22. Those alternatives would

substantially impair the government’s interest. Plaintiffs’

proposed alternatives each would add steps—requiring

women to identify different providers or reimbursement

sources, enroll in additional and unfamiliar programs, pay out

of pocket and wait for reimbursement, or file for tax credits

(assuming their income made them eligible)—or pose other

financial, logistical, informational, and administrative

burdens. See 78 Fed. Reg. at 39,888. Even assuming that any

alternative program had or would develop the capacity to deal

with an enormous additional constituency, it would not serve

the government’s compelling interest with anywhere near the

efficacy of the challenged accommodation and would instead

deter women from accessing contraception. See id.

Plaintiffs also dispute the government’s compelling

interest in applying the contraceptive coverage requirement to

them on the ground that there is “no evidence” showing that

Plaintiffs’ employees lack access to or want contraception.

Pls.’ Supp’l Br. 16-17. The data upon which the government

relies support its conclusion that women generally benefit

from access to contraceptive coverage, and are unlikely to use

such coverage when it is costly or complicated to obtain. See

78 Fed. Reg. at 39,887-88. There is no reason to believe that

the health needs of Plaintiffs’ employees or spouses and other

covered beneficiaries in their families are materially different

from those of other women. Religious nonprofits like the

Plaintiff organizations employ millions of Americans—

including individuals who do not share their beliefs. As the

government recognized, “[e]mployers that do not primarily

64

employ employees who share the religious tenets of the

organization are more likely to employ individuals who have

no religious objection to the use of contraceptive services and

therefore are more likely to use contraceptives.” 77 Fed. Reg.

at 8,728. The evidence justifying the contraceptive coverage

requirement equally supports its application to Plaintiffs.

Accommodating religious entities need not come at the

cost of the compelling interests the government program

serves. When the interests of religious adherents collide with

an individual’s access to a government program supported by

a compelling interest, RFRA calls on the government to

reconcile the competing interests. In so doing, however,

RFRA does not permit religious exercise to “unduly restrict

other persons, such as employees, in protecting their own

interests, interests the law deems compelling.” Hobby Lobby,

134 S. Ct. at 2786-87 (Kennedy, J., concurring); see also id.

at 2781 n.37 (“It is certainly true that in applying RFRA

‘courts must take adequate account of the burdens a requested

accommodation may impose on nonbeneficiaries.’”). The opt

out offered to religious adherents allows the government to

further its compelling interests with the least restriction on

religious exercise. Under the accommodation, eligible

organizations are relieved of the obligation to include

contraceptive coverage in their health care plans, but “women

would still be entitled to all FDA-approved contraceptives

without cost sharing.” Id. at 2760. Allowing eligible

organizations to exempt themselves completely from the

contraceptive coverage requirement, without so much as

notifying their plan or HHS that they have done so, would

undermine the government’s interest in the breadth of the

scheme established in the ACA.

The government’s interest in a comprehensive, broadly

available system is not undercut by the other exemptions in

65

the ACA, such as the exemptions for religious employers,

small employers, and grandfathered plans. The government

can have an interest in the uniform application of a law, even

if that law allows some exceptions. See, e.g., Lee, 455 U.S. at

261. In any event, the exemptions to the ACA are limited and

the rationales that support them do not extend to exempting

Plaintiffs. Currently, only religious employers’ plans and

grandfathered health plans (employer health plans that existed

prior to March 23, 2010, and that have not made particular

changes after that date) are not required to include coverage

for preventive services. 42 U.S.C. § 18011(a), (e). Religious

employers are exempt from the contraceptive coverage

provision because the government reasonably assumed that if

the church opposed contraception, the church’s employees

would, too. See 77 Fed. Reg. at 8,728. The exception for

grandfathered plans sought to limit disruption by enabling

individuals temporarily to maintain their health care coverage

as it existed prior to enactment of the ACA. That exception is

a transitional measure and will be eliminated as employers

make changes to their health care plans. See 45 C.F.R. §

147.140(g) (a health plan ceases to be a grandfathered plan

when it eliminates benefits, increases cost-sharing

requirements, or changes its employer-contribution terms).

According to HHS estimates, 66 percent of small-employer

plans and 45 percent of large-employer plans were expected

to lose their grandfathered status by the end of 2013.25 75

25

According to a 2013 study conducted by Kaiser Health News, the

grandfathering is already quickly phasing down. Thirty-six percent

of individuals who receive health care coverage through their

employer in 2013 were enrolled in a grandfathered health plan, as

compared to 48 percent in 2012 and 56 percent in 2011. Employer

Health Benefits: 2013 Annual Survey, Kaiser Family Foundation

and Health Research & Educational Trust, at 221, available at

66

Fed. Reg. 34,538, 34,552 (June 17, 2010). The exemption for

small employers (those with fewer than 50 employees) is not

an exemption from the contraceptive coverage requirement,

but from the requirement to provide any health insurance to

their employees. 26 U.S.C. § 4980H(c)(2). Employees who

do not get insurance through their jobs because they work for

exempt small employers are eligible to purchase it through

the exchanges, where all listed plans are required to cover

contraceptive services without cost sharing. None of the three

exemptions is analogous to what the Plaintiffs here seek.

* * *

The accommodation is the least restrictive method of

ensuring that women continue to receive contraceptive

coverage in a seamless manner while simultaneously

relieving the eligible organizations of any obligation to

provide such coverage. Because the government has used the

least restrictive means possible to further its compelling

interest, RFRA does not excuse Plaintiffs from their duty

under the ACA either to provide the required contraceptive

coverage or avail themselves of the offered accommodation to

opt out of that requirement. The accommodation meets the

twin aims of respecting religious freedom and ensuring that

women continue to receive contraceptive coverage without

administrative, financial, or logistical burdens. The

regulations thus respond appropriately to RFRA’s explicit

demand for “sensible balances between religious liberty and

competing prior governmental interests.” 42 U.S.C.

§ 2000bb(a)(5).

http://kaiserhealthnews.files.wordpress.com/2013/11/8465-

employer-health-benefits-20131.pdf.

67

V. Constitutional Claims

Plaintiffs raise several constitutional challenges to the

regulations. We address each in turn, concluding that the

regulations do not violate any of the constitutional provisions

identified by Plaintiffs.

A. Free Exercise of Religion

Plaintiffs claim that the contraceptive coverage

requirement violates the Free Exercise Clause of the First

Amendment because it categorically exempts houses of

worship from the contraceptive coverage requirement and

temporarily relieves grandfathered plans from the requirement

to cover any preventive services without cost sharing, while

not similarly exempting Plaintiffs. The Free Exercise Clause

embodies a “fundamental nonpersecution principle.” Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 523 (1993). But it “does not relieve an individual of the

obligation to comply with a valid and neutral law of general

applicability on the ground that the law proscribes (or

prescribes) conduct that his religion prescribes (or

proscribes).” Smith, 494 U.S. at 879 (internal quotation

marks omitted). A Free Exercise Clause challenge, in

contrast to a claim under RFRA, receives strict scrutiny only

if the challenged law is either not neutral or not generally

applicable. See Lukumi Babalu, 508 U.S. at 531. We have

held that the regulations comply with RFRA; they readily

satisfy the less stringent free exercise standard.

“Neutrality and general applicability are interrelated,”

but distinct. Id. A law is not neutral if it facially “refers to a

religious practice without a secular meaning discernable from

the language or context,” or if “the object of a law is to

infringe upon or restrict practices because of their religious

68

motivation.” Id. at 533. A law is not generally applicable if,

“in a selective manner,” it “impose[s] burdens only on

conduct motivated by religious belief.” Id. at 543.

Plaintiffs do not contend that the challenged

contraceptive coverage requirement is religiously non-neutral

on its face, nor that it was enacted for an anti-religious

purpose, but that the exemptions provided to houses of

worship and grandfathered plans render the contraceptive

coverage requirement non-neutral and not generally

applicable. Those exemptions, however, do not impugn the

contraceptive coverage requirement’s neutrality and

generality: it is both, in the relevant sense of not selectively

targeting religious conduct, whether facially or intentionally,

and broadly applying across religious and nonreligious groups

alike. See Mich. Catholic Conf., 755 F.3d at 394; RCAW,

2013 WL 6729515, at *27-31; Priests for Life, 7 F. Supp. 3d

at 105-07.

The contraceptive coverage requirement is a religiously

neutral part of a national effort to expand health coverage and

make it more efficient and effective. The ACA’s limited or

temporary exemptions do not amount to the kind of pattern of

exemptions from a facially neutral law that demonstrate that

the law was motivated by a discriminatory purpose. See

supra Section IV.B.2. The Florida prohibition on animal

killing invalidated in Lukumi Babalu, by contrast, responded

to the opening of a Santeria church, which practiced religious

animal-sacrifice rituals. 508 U.S. at 524. The ordinance

elaborated a putatively general prohibition on animal killings

with specific disapproval of killing for “sacrifice” as part of

“any type of ritual,” while exempting as “necessary” killings

for sport hunting, slaughtering animals to eat them,

eradication of pests, and euthanasia—killings that were “no

more necessary or humane” than the forbidden Santeria

69

sacrifices. Id. at 536-37. That exemption for so many non-

religious types of animal killing helped to make clear that

“suppression of the central element of the Santeria worship

service was the object of the ordinances.” Id. at 534. The

exemptions in the ACA do not single out any religion and are

wholly consistent with the law’s neutral purpose. Indeed, the

existence of an exemption for religious employers

substantially undermines contentions that government is

hostile toward such employers’ religion.26

The contraceptive coverage requirement also does not

target religious organizations, but applies across the board.

The exemptions do not render the law so under-inclusive as to

belie the government’s interest in protecting public health and

promoting women’s well-being or to suggest that disfavoring

Catholic or other pro-life employers was its objective. See

RCAW, 2013 WL 6729515, at *30. For example, the

Supreme Court has held that, despite statutory exemptions for

self-employed Amish employers, the social security system

was “uniformly applicable to all.” United States v. Lee, 455

U.S. 252, 260-61 (1982); see also id. at 262 (Stevens, J.,

concurring in the judgment) (describing the challenged law as

“a valid tax law that is entirely neutral in its general

application”). As the Sixth Circuit recently explained:

“General applicability does not mean absolute universality.”

26

See, e.g., RCAW, 2013 WL 6729515, at *28 (availability of the

religious employer exemption “cuts against the conclusion that the

contraceptive mandate was specifically designed to oppress those

of the Catholic faith as plaintiffs suggest”); Catholic Diocese of

Nashville v. Sebelius, No. 3:13-01303, 2013 WL 6834375, at *6

(M.D. Tenn. Dec. 26, 2013) (noting that exemption for religious

employers and accommodation for eligible organizations

“evidences an intent, not to burden Plaintiffs’ religious beliefs, but

to recognize and respect them”).

70

Mich. Catholic Conf., 755 F.3d at 394 (internal quotation

marks omitted).

Plaintiffs contend that the ACA’s exemptions make it

under-inclusive in a way that suggests that the government

believes that “secular motivations [for providing an

exemption] are more important than religious motivations,”

Pls.’ Br. 50 (internal quotation marks omitted), evidencing

that the government “devalues religious reasons,” Pls.’ R. Br.

25 (internal quotation marks omitted). But, for the same

reasons the exemptions do not undermine the government’s

interest in a uniform system, see supra Section IV.B.2, the

exemptions do not demonstrate the government’s hostility

toward religious concerns.

Because the contraceptive coverage requirement is a

neutral law of general applicability, Plaintiffs’ free exercise

claim fails.

B. Expressive Association

The Priests for Life Plaintiffs argue that the contraceptive

coverage requirement violates their First Amendment rights

to expressive association, which protects the “right to

associate for the purpose of speaking.” See Rumsfeld v.

Forum for Academic & Institutional Rights, Inc. (FAIR), 547

U.S. 47, 68 (2006). The regulations infringe that right, the

Priests for Life Plaintiffs contend, by requiring them to

promote the government’s immoral objective of expanding

access to contraceptives, which undermines the organization’s

“very reason for its existence.” Pls.’ Br. 51. The Priests for

Life Plaintiffs base their expressive association claim, like

their RFRA claim, on a misreading of what the regulations

require of them, suggesting that the regulations require them

71

to disclose the identities of their employees and plan

beneficiaries. See, e.g., Pls.’ Br. 52-53. They do not.

A law may violate the First Amendment right to

expressive association where it directly interferes with an

expressive association’s membership decisions or where it

indirectly affects the group’s composition by making

membership less attractive. FAIR, 547 U.S. at 69. In FAIR,

the Supreme Court held that a law requiring law schools

receiving federal funds to give military recruiters access to

the schools’ facilities equal to the access it afforded other

recruiting employers did not violate the objecting schools’

rights to associate. Id. at 69-70. The law schools’ non-

discrimination policies prohibited discrimination based on

sexual orientation, and, because the United States Military

refused at that time to hire any openly gay or lesbian

applicants, the law schools were strongly opposed to hosting

military recruiters and actively facilitating their access to the

schools’ students. The Court rejected that claim, holding that

the military recruiters’ presence on campus “does not violate

a law school’s right to associate, regardless of how repugnant

the law school considers the recruiter’s message.” Id. at 70.

The Court acknowledged that the plaintiffs there had to

“‘associate’ with military recruiters in the sense that they

interact with them,” but held that, because the recruiters were

as an institutional matter outsiders who would “come onto

campus for the limited purpose of trying to hire students,”

they did not impinge on the schools’ expressive association.

Id. at 69.

The same is true here: the Priests for Life Plaintiffs

object to interacting with coverage providers that must make

contraceptive coverage available, but such interaction does

not make those providers part of the organization’s expressive

association or otherwise impair its ability to express its

72

message. Just as the students and faculty in FAIR remained

“free to associate to voice their disapproval of” the military’s

policy against gays or lesbians serving openly in the military,

id. at 69-70, Priests for Life’s members and employees

remain free to associate with each other to promote their

religious views on contraception and other matters, and to

voice their disapproval of health-care products and services

that they believe to be immoral. “Nothing in the[] final

regulations prohibits an eligible organization from expressing

its opposition to the use of contraceptives.” 78 Fed. Reg. at

39,880 n.41. Accordingly, the Priests for Life Plaintiffs’

expressive association claim fails.

C. Compelled Speech

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., 133 S. Ct. 2321, 2327 (2013) (internal

quotation marks omitted); see Knox v. Serv. Emps. Int’l

Union, Local 1000, 132 S. Ct. 2277, 2282 (2012) (“The

government may not . . . compel the endorsement of ideas that

it approves.”). Plaintiffs contend that the regulations

impermissibly compel their speech in three ways.

First, Plaintiffs claim that the regulations require them to

authorize and facilitate health care coverage for counseling

that encourages and promotes contraception, in violation of

their right against compelled speech. Plaintiffs appear to

contend that the regulations commandeer them to echo or

facilitate the words of medical professionals who might

communicate to insured women the availability and potential

appropriateness of various contraceptive methods. But the

regulations do not require Plaintiffs to communicate any pro-

contraceptive-coverage message, nor to authorize or facilitate

73

counseling in favor of contraception. See supra Section

IV.A.2; Mich. Catholic Conf., 755 F.3d at 391. They leave

Plaintiffs free to voice their opposition to contraception.

Plaintiffs’ reliance on Arizona Free Enterprise Club’s

Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011), is

misplaced. Arizona Free Enterprise Club concerned a state

campaign finance law under which candidates for state office

who accepted public funding could receive additional state

funds in the event that privately financed candidates and

independent expenditure groups exceeded spending limits.

See id. at 2813. Under Arizona’s law, the volume of political

expenditures by or in support of a privately financed

candidate triggered funding to his or her opponent. See id. at

2818-19. Plaintiffs’ completion of the self-certification form

has no similar triggering role, and there is no interest or effect

here to level competing voices, which was a significant aspect

of the constitutional infirmity of Arizona’s campaign finance

law. See id. at 2825. Furthermore, contrary to Plaintiffs’

argument, nothing in Arizona Free Enterprise Club suggests

that the prohibition on compelling a party to “help

disseminate hostile views” the party opposes, id. at 2821 n.8

(internal quotation marks omitted), applies to laws that

require a party to engage in non-expressive behavior, such as

the provision of health insurance.

Second, Plaintiffs argue that completing the self-

certification form requires them to express a particular view,

namely, that they oppose providing their plan participants

with coverage for contraceptive services, and that it deprives

them of the freedom to speak on this issue on their own

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terms.27 The self-certification form and alternative notice are

the methods through which Plaintiffs can opt out of the

requirement to provide their employees with health insurance

coverage for contraceptive services. The filing of the form,

though it may include “elements of speech,” is “a far cry from

the compelled speech” that the Supreme Court previously has

found to be unconstitutional. FAIR, 547 U.S. at 61-62 (citing

W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), and

Wooley v. Maynard, 430 U.S. 705, 717 (1977)). Just as the

compelled speech that the law schools identified in FAIR was

“plainly incidental to the Solomon Amendment’s regulation

of conduct,” id. at 62, any speech required by the self-

certification or alternative notice is similarly incidental to the

accommodation’s regulation of conduct. Compelling an

organization to send a form to a third party to claim eligibility

for an exemption “is simply not the same as forcing a student

to pledge allegiance, or forcing a Jehovah’s Witness to

display the motto ‘Live Free or Die,’ and it trivializes the

freedom protected in Barnette and Wooley to suggest that it

is.” Id. Requiring Plaintiffs to give notice that they wish to

opt out of the contraceptive coverage requirement no more

compels their speech in violation of the First Amendment

than does demanding that a conscientious objector self-

identify as such.

The regulations do nothing to deprive Plaintiffs 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.” Pls.’ Br. at 55. Completing the self-certification

form does not limit what Plaintiffs may say about

contraception—or any other topic—nor does it limit where,

27

Plaintiffs’ briefing contends only that their speech is

impermissibly compelled by the self-certification form, and does

not address their compelled speech claim to the alternative notice.

75

when, or how they may say it. See Mich. Catholic Conf., 755

F.3d at 392. Indeed, unlike the law schools in FAIR that had

to host military recruiters and thus might have mistakenly

been viewed as endorsing the military’s discriminatory

recruitment approach, the opt out here is designed to ensure

that Plaintiffs do not have to express, in words or symbolic

backing, any support for contraception. Cf. FAIR, 547 U.S. at

64-65 (government is limited in its “ability to force one

speaker to host or accommodate another speaker’s message”

where accommodating that message interferes with the

plaintiff’s desired message).

Finally, Plaintiffs object to the regulations because they

require that Plaintiffs’ plan participants receive notice of the

availability of payments for contraceptive services. Thus,

according to Plaintiffs, the regulations coerce them to provide

access to their plan participants and either create the

appearance that Plaintiffs agree with the notification or call

on them to respond to the notice to inform participants of

Plaintiffs’ objections to contraception.

But the regulations actually require quite the contrary:

the plan issuer or TPA must send a message explicitly

distancing the employer from the offered contraceptive

coverage, and do so in a completely separate mailing from

any communication regarding the employer-sponsored plan.

45 C.F.R. § 147.131(d) (insured group health plans); 29

C.F.R. § 2590.715-2713A(d) (self-insured plans). The

regulations, therefore, take care to inform plan participants

that the coverage for contraceptives is not paid for,

76

administered by, or connected to Plaintiffs. That is a long

way from unconstitutionally compelling Plaintiffs to speak.28

D. Establishment of Religion

Plaintiffs advance two Establishment Clause claims.

They first contend that the regulations impermissibly

discriminate between types of religious institutions by making

a general distinction, familiar in tax law, between churches

and other houses of worship (which are automatically

exempt), and nonprofit organizations that may have a

religious character or affiliation, such as universities and

hospitals (which may use the accommodation to opt out). 26

U.S.C. § 6033(a)(3)(A)(i), (iii) (exempting “churches, their

integrated auxiliaries, and conventions or associations of

churches,” and “the exclusively religious activities of any

28

The RCAW Plaintiffs challenged the regulations’ “non-

interference” provision as an unconstitutional speech restriction,

but as that provision has been rescinded, their challenge is moot.

The provision originally barred self-insured employers from

“directly or indirectly, seek[ing] to influence the [TPA’s] decision”

to provide or arrange separate payments for contraceptive services.

79 Fed. Reg. at 51,095. The government interpreted that bar as

applicable only to the use of bribery, threats, or coercion to

dissuade or hinder a TPA from fulfilling its legal obligation to

provide contraceptive coverage. Id. The government has now

rescinded the non-interference provision in its entirety. Id.

Plaintiffs maintain that they still challenge the non-interference

provision “to the extent the Government contends it continues to be

unlawful to ‘say to the[ir] TPA, if you don’t stop making the

payments for contraceptives, we’re going to fire you.’” Pls.’

Supp’l Br. 27 n.12 (internal brackets omitted). As the government

asserted at oral argument, however, even when the non-interference

provision was in effect, Plaintiffs were free to fire their insurers or

TPAs as they wished. Oral. Arg. Tr. at 46:15-48:1.

77

religious order” from an annual return filing requirement).

Second, they contend that the regulations entail excessive

entanglement between the government and religious

institutions. Specifically, to the extent that the regulations

seek to be more nuanced and context specific, looking at

specific attributes of each organization in an effort accurately

to distinguish among them, Plaintiffs contend the government

impermissibly interferes with internal church governance.

The regulations draw a long-recognized and permissible

distinction between houses of worship and religious

nonprofits. The Seventh Circuit, in rejecting a similar

challenge to the contraceptive coverage regulations, noted

that “religious employers, defined as in the cited regulation,

have long enjoyed advantages (notably tax advantages) over

other entities, without these advantages being thought to

violate the establishment clause.” Notre Dame, 743 F.3d at

560 (internal citation omitted). The churches gained the

categorical exemption on the assumption that the relatively

small numbers of employees who are employed by a church

will, if their church’s mission opposes contraception, be

ministers or clerics likely to share that view, or at least have

knowingly joined a pervasively sectarian institution that

expects them to. 77 Fed. Reg. at 8,728. The categorical

exemption was not extended to the broader group of religious

nonprofits, however, because religiously affiliated hospitals,

universities and social service agencies employ a wide range

of people of diverse faiths and are thus “more likely to

employ individuals who have no religious objection to the use

of contraceptive services and therefore are more likely to use

contraceptives.” Id. Limiting the exemption, but making the

opt out available, limits the burdens that flow from

organizations “subject[ing] their employees to the religious

views of the employer.” Id.

78

Plaintiffs equate the familiar regulatory distinction

between houses of worship and religiously affiliated

organizations, based on organizational form and purpose,

with constitutionally impermissible distinctions based on

denomination. They quote Larson v. Valente, 456 U.S. 228,

231-32, 246 n.23 (1982) and Colorado Christian University v.

Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008), for the notion

that the Establishment Clause forbids distinguishing between

“types of institutions” as surely as between “sects or

denominations.” Pls.’ Br. 57-58 (internal quotation marks

omitted). Both of the cases Plaintiffs rely on, however, were

concerned with lines drawn based on denomination, rather

than organizational form or purpose.29 In Larson, the

Supreme Court invalidated a state law that imposed special

registration requirements on churches that received a majority

of their donations from non-members because it facially

discriminated against religious denominations that were

newer or chose to rely on public solicitation rather than

financial support from members. 456 U.S. at 246-48. The

distinction invalidated in Colorado Christian authorized

public scholarships for students at Methodist and Roman

Catholic universities while refusing them to students

attending non-denominational evangelical Protestant or

Buddhist universities. See 534 F.3d at 1258. The Colorado

Christian court contrasted that denominational discrimination

with the permissible exclusion “of all devotional theology

majors equally.” Id. at 1256 (citing Locke v. Davey, 540 U.S.

712, 715-16 (2004)). This Court in University of Great Falls

v. NLRB, 278 F.3d 1335, 1343 (D.C. Cir. 2002), similarly

29

Indeed, the Plaintiffs’ argument would call into question the tax

advantages that have long been available to houses of worship, but

not other types of religious organizations. Those tax advantages

have not been thought to violate the Establishment Clause. See

Notre Dame, 743 F.3d at 560.

79

invalidated a regulatory line that effectively asked whether

certain schools were “sufficiently religious” to be exempt

from NLRB jurisdiction, administration of which line had

drawn the government into questioning whether the university

“was legitimately ‘Catholic.’” Id. University of Great Falls

favors a test relying on more objective factors about the

institution’s structure and activities. Id. The regulations at

issue here draw distinctions based on organizational form and

purpose, and not religious belief or denomination, in keeping

with Larson, Colorado Christian, and University of Great

Falls. See also Mich. Catholic Conf., 755 F.3d at 395; Notre

Dame, 743 F.3d at 560.

Additionally, Plaintiffs assert that the regulations violate

the Establishment Clause because they believe they call on

the government impermissibly to “‘troll[] through a person’s

or institution’s religious beliefs.’” Pls.’ Br. 60 (quoting

Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality

opinion)). 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); see also 78 Fed. Reg. at 8,461 (stating that the

exemption is restricted primarily to “churches, synagogues,

mosques, and other houses of worship, and religious orders”).

The IRS has developed a non-exhaustive, non-binding list of

fourteen factors to consider when determining whether an

entity is in fact a religious employer. See Am. Guidance

Found., Inc. v. United States, 490 F. Supp. 304, 306 n.2

(D.D.C. 1980); Found. of Human Understanding v. United

States, 88 Fed. Cl. 203, 220 (2009).

Plaintiffs contend that, in order to determine whether an

entity is in fact a religious employer, the government asks

intrusive questions about its religious beliefs in violation of

80

the Establishment Clause. They complain that the IRS factors

“favor some types of religious groups over others” and that

“they do so on the basis of intrusive judgments regarding

beliefs, practices, and organizational structures.” Pls.’ Br. at

61. It is undisputed in this case that the Archdiocese is a

religious employer, and no other Plaintiff contends that it was

improperly denied religious-employer treatment. As a result,

Plaintiffs do not challenge a determination that has been made

using those factors, nor can they argue that the factors were

impermissibly applied to them. Therefore, we agree with the

district court that this challenge is not ripe for review.

RCAW, 2013 WL 6729515 at *43-44.

E. Internal Church Governance

Relying on Hosanna-Tabor Evangelical Lutheran

Church & School v. EEOC, 132 S. Ct. 694 (2012), the RCAW

Plaintiffs allege that the regulations violate the Religion

Clauses of the First Amendment by impermissibly interfering

with matters of internal church governance. They claim that

the regulations “artificially split[]” the Catholic Church in

two—into the Archdiocese (an exempt religious employer)

and its related nonprofit organizations—and prevent the

Archdiocese from “ensur[ing] that these organizations offer

health plans consistent with Catholic beliefs.” Pls.’ Br. at 63-

64. Neither Hosanna-Tabor, nor any other precedent

interpreting either of the Constitution’s Religion Clauses,

supports this novel claim.

The ACA’s regulations do not address religious

governance at all. The regulations’ separate treatment of

functions that Plaintiffs might prefer to group together does

not interfere with how the Plaintiffs govern themselves

internally. Plaintiffs invoke Hosanna-Tabor, but that case

does not stand for Plaintiffs’ proposition that the First

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Amendment precludes application of a law simply because it

may affect different types of religious institution differently.

In Hosanna-Tabor, the Supreme Court recognized a

“ministerial exception, grounded in the First Amendment, that

precludes application of [Title VII and other employment

discrimination laws] to claims concerning the employment

relationship between a religious institution and its ministers.”

132 S. Ct. at 705 (internal quotation marks omitted); see id. at

710. The Court expressly limited its holding to “an

employment discrimination suit brought on behalf of a

minister, challenging her church’s decision to fire her.” Id.

The language from Hosanna-Tabor that plaintiffs invoke,

used there in the context of disapproving judicial review of

ministers’ discrimination claims because it would interfere

“with an internal church decision that affects the faith and

mission of the church itself,” id. at 707, does not apply here.

Unlike in that case, nothing about the regulation challenged

here would “depriv[e] the church of control over the selection

of those who [would] personify its beliefs”—the Church’s

own ministers. Id. at 706. The Court’s reasoning in

Hosanna-Tabor does not extend beyond ecclesiastical

employment matters to regulations that may affect a church’s

decision about its health care plan. Accordingly, the church-

governance claim must fail.

F. Equal Protection

The Priests for Life Plaintiffs argue that the regulations

violate equal protection as guaranteed by the Fifth

Amendment, by discriminating on the basis of religion and

impinging on their fundamental rights. This claim is largely

duplicative of Plaintiffs’ Establishment Clause challenge and

fails for similar reasons. The Priests for Life Plaintiffs cite no

case in support of their contention that alleged discrimination

82

between types of religious organizations within a

denomination gives rise to an equal protection claim.

Additionally, as the district court observed, the Priests for

Life Plaintiffs’ fundamental rights claim is identical to their

other First Amendment claims. Priests for Life, 7 F. Supp. 3d

at 110. Because we have rejected those claims, we apply

rational basis scrutiny to the regulations. See Locke v. Davey,

540 U.S. 712, 720 n.3 (2004) (applying rational-basis scrutiny

to an Equal Protection Clause claim alleging discrimination

based on religion where the plaintiffs’ Free Exercise Clause

challenge failed). Because, as discussed supra Section IV.B,

the regulations survive strict scrutiny, they necessarily survive

this more limited form of review.

VI. Administrative Procedure Act

The RCAW Plaintiffs contend that the government

violated the Administrative Procedure Act by erroneously

interpreting the exemption to apply on an employer-by-

employer basis, rather than a plan-by-plan basis. The

regulations state that the HRSA “may establish an exemption

from [the regulations] 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).

With respect to “multiple employer plans”—plans established

or maintained by an exempt religious employer as well as

non-exempt organizations—the Departments concluded that

“the availability of the exemption or an accommodation [will]

be determined on an employer-by-employer basis.” 78 Fed.

Reg. at 39,886. This means that “each employer [is] required

to independently meet the definition of religious employer or

83

eligible organization in order to avail itself of the exemption

or an accommodation.” Id.

An agency’s interpretation of its own regulation is

entitled to substantial deference. Auer v. Robbins, 519 U.S.

452, 461 (1997). The RCAW Plaintiffs contend that such

deference is not appropriate here, however, for two reasons.

First, they argue that, contrary to the government’s

contention, the regulation unambiguously states that the

exemption applies on a plan-by-plan basis. See Christensen

v. Harris Cnty., 529 U.S. 576, 588 (2000) (“Auer deference is

warranted only when the language of the regulation is

ambiguous.”). The regulation, however, is silent as to

whether the exemption will apply on an employer-by-

employer basis or a plan-by-plan basis. It uses the phrase

“group health plan,” because the contraceptive-coverage

requirement applies to group health plans (as opposed to

employers), not because the regulatory unit for purposes of

the exemption is the plan rather than the employer. Because

the regulation does not speak to that issue, we reject the

RCAW Plaintiffs’ claim that the Departments’ interpretation is

not entitled to deference.

Second, the RCAW Plaintiffs assert that deference to the

Departments’ interpretation is not warranted because it

conflicts with a prior interpretation put forth by the

government. See Christopher v. SmithKline Beecham Corp.,

132 S. Ct. 2156, 2166 (2012) (“[D]eference is likewise

unwarranted when there is reason to suspect that the agency’s

interpretation ‘does not reflect the agency’s fair and

considered judgment on the matter in question.’ This might

occur when the agency’s interpretation conflicts with a prior

interpretation . . . .” (internal citations omitted)). But the

Departments have not changed their position. When they

issued the Notice of Proposed Rulemaking regarding

84

“Coverage of Certain Preventive Services Under the

Affordable Care Act,” the Departments made clear that they

intended the exemption to apply on an employer-by-employer

basis. See 78 Fed. Reg. at 8,467. (“The Departments propose

to make the accommodation or the religious employer

exemption available on an employer-by-employer basis. That

is, each employer would have to independently meet the

definition of eligible organization or religious employer in

order to take advantage of the accommodation or the religious

employer exemption with respect to its employees and their

covered dependents.”). The language on which the RCAW

Plaintiffs rely to demonstrate that the Departments have

changed their position does not support their argument. See

77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012). All they point

to is a hypothetical that specifies that an exempt religious

school is categorically exempt from the contraceptive

coverage requirement, whether it establishes and maintains its

own plan or offers its employees coverage through a plan

established by the exempt religious diocese with which it is

affiliated. See id. Thus, contrary to the RCAW Plaintiffs’

contention, the Departments’ interpretation that the

exemption applies on an employer-by-employer basis does

not conflict with its earlier interpretation of the regulation,

and is entitled to Auer deference.

Finally, in their supplemental brief, Plaintiffs contend

that the government lacked the “good cause” required to

promulgate the interim final rule without notice and

comment. See 5 U.S.C. § 553(b)(3)(B) (authorizing

promulgation of interim final rules without notice and

comment when the agency finds on the record “that notice

and public procedure thereon are impracticable, unnecessary,

or contrary to the public interest.”). Several reasons support

HHS’s decision not to engage in notice and comment here.

First, the agency made a good cause finding in the rule it

85

issued. See 79 Fed. Reg. at 51,095-96. Second, the

regulations the interim final rule modifies were recently

enacted pursuant to notice and comment rulemaking, and

presented virtually identical issues; moreover, HHS will

expose its interim rule to notice and comment before its

permanent implementation. See 5 U.S.C. § 553(b)(3)(B)

(good cause exists when “notice and public procedure . . . are

. . . unnecessary”). Third, the modifications made in the

interim final regulations are minor, meant only to “augment

current regulations in light of the Supreme Court’s interim

order in connection with an application for an injunction in

Wheaton College.” 79 Fed. Reg. at 51,092; see also Tenn.

Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir.

1992) (“We have . . . indicated that the less expansive the

interim rule, the less the need for public comment.”). The

government reasonably interpreted the Supreme Court’s order

in Wheaton College as obligating it to take action to further

alleviate any burden on the religious liberty of objecting

religious organizations. See 79 Fed. Reg. at 51,095-96; see

also Am. Fed’n of Gov’t Emp., AFL-CIO v. Block, 655 F.2d

1153, 1155-57 (D.C. Cir. 1981) (validating promulgation of

interim rule without notice and comment because, inter alia,

it would comply with a court order). As the agency

explained, delay in implementation of the rule would interfere

with the prompt availability of contraceptive coverage and

delay the implementation of the alternative opt-out for

religious objectors. See 5 U.S.C. § 553(b)(3)(B) (good cause

exists when “notice and public procedure . . . are . . . contrary

to the public interest”).

* * *

In sum, we reject all of Plaintiffs’ challenges to the

regulations. Accordingly, we affirm the district court’s

opinion in Priests for Life in its entirety. As to the RCAW

86

decision, we vacate the district court’s grant of summary

judgment for Thomas Aquinas and its holding as to the

unconstitutionality of the non-interference provision, and

affirm the remainder of the decision.

So ordered.