Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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ROMAN CATHOLIC ARCHBISHOP OF )

WASHINGTON, a corporation sole;

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5001 Eastern Avenue

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Hyattsville, MD 20782

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THE CONSORTIUM OF CATHOLIC )

ACADEMIES OF THE ARCHDIOCESE )

OF WASHINGTON, INC.;

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5001 Eastern Avenue

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Hyattsville, MD 20782

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ARCHBISHOP CARROLL HIGH

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SCHOOL, INC.;

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4300 Harewood Road, N.E.

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Washington, DC 20017

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CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC.;

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CASE NUMBER: _ __ JUDGE: _ _ _ _ _ __

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924 G Street, N.W. Washington, DC 20001

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DATE STAMP: _ _ __

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and

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THE CATHOLIC UNIVERSITY OF

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AMERICA,

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620 Michigan Avenue, N.E.

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Washington, DC 20064

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Plaintiffs,

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v.

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)

)

)

)

)

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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 2 of 59

)

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KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

)

Department of Health and Human

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Services;

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200 Independence Avenue, S.W.

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Washington, DC 20201

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HILDA SOLIS, in her official capacity as )

Secretary of the U.S. Department of

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Labor,

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200 Constitution Avenue, N.W.

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Washington, DC 20210

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TIMOTHY GEITHNER, in his official )

capacity as Secretary of the U.S.

)

Department of the Treasury;

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1500 Pennsylvania Avenue, N.W.

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Washington, DC 20220

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U.S. DEPARTMENT OF HEALTH AND )

HUMAN SERVICES;

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200 Independence Avenue, S.W.

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Washington, DC 20201

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U.S. DEPARTMENT OF LABOR;

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200 Constitution Avenue, N.W.

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Washington, DC 20210

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and

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U.S. DEPARTMENT OF THE

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TREASURY.

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1500 Pennsylvania Avenue, N.W.

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Washington, DC 20220

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Defendants.

)

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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 3 of 59
COMPLAINT 1. This lawsuit is about one of America's most cherished freedoms: the freedom to practice one's religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are freely available in the United States, and nothing prevents the Government itself from making them more widely available. Here, however, the Government seeks to require Plaintiffs-all Catholic entities-to violate their sincerely held religious beliefs by providing, paying for, and/or facilitating access to those services. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act ("RFRA"), safeguard religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights. 2. Plaintiffs are Catholic religious entities that provide a wide range of spiritual, educational, and social services to residents in the greater Washington, D.C., community, Catholic and non-Catholic alike. For example, Plaintiff Roman Catholic Archbishop of Washington, a corporation sole (the "Archdiocese") not only provides pastoral care and spiritual guidance for nearly 600,000 Catholics, but also serves individuals throughout the D.C. area through its schools and multiple charitable programs. The Archdiocese's programs serve those who are most often overlooked in the community, including those with disabilities, those challenged by an unexpected prenatal diagnosis, those re-entering society from imprisonment, and those poor and marginalized with nowhere else to tum. Likewise, Plaintiffs Consortium of Catholic Academies of the Archdiocese of Washington, Inc. ("CCA" or the "Consortium") and Archbishop Carroll H;igh School, Inc. ("Archbishop Carroll" or "Carroll") are devoted to teaching a religiously and ethnically diverse student body consisting largely of inner-city children. And
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Plaintiff Catholic Charities of the Archdiocese of Washington, Inc. ("Catholic Charities"), the

largest nongovernmental social service provider in the region, offers a host of social services to

thousands in need throughout the District and Maryland. For those citizens in the community

who could not otherwise afford them, Catholic Charities provides free physical and mental health

care, legal assistance, immigration assistance, employment training, early childhood services,

education, counseling, emergency shelter, housing, and dental services. For its part, Plaintiff

Catholic University of America ("CUA" or the "University") offers nearly 7,000 undergraduate

and graduate students a rigorous education, while at the same time serving the larger community

through, inter alia, its research centers, intellectual offerings, and charitable outreach.

3. Plaintiffs' work is in every respect guided by and consistent with Roman Catholic

belief, including the requirement that they serve those in need, regardless of their religion. This is

perhaps best captured by words attributed to S1. Francis of Assisi: "Preach the Gospel at all times.

Use words if necessary." As Pope Benedict has more recently put it, "[L]ove for widows and

orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church]

as the ministry of the sacraments and preaching of the GospeL The Church cannot neglect the

service of charity any more than she can neglect the Sacraments and the Word." Pope Benedict

XVI, Deus Caritas Est, 22 (2006). Or as Cardinal James Hickey, former Archbishop of

Washington, once commented on the role of Catholic educators: "We do not educate our students

because they are Catholic; we educate them because we are Catholic." Thus, Catholic individuals

and organizations consistently

to create a more just community by serving any and all

neighbors in need.

4. Catholic Church teachings also uphold the firm conviction that sexual union should

be reserved to married couples who are so committed to one another that they are open to the

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creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.
5. Defendants have promulgated various rules (collectively, "the U.S. Government Mandate") that force Plaintiffs to violate their sincerely held religious beliefs. Under the U.S. Government Mandate, many Catholic and other religious organizations are required to provide health plans to their employees that include and/or facilitate coverage for abortion-inducing drugs, sterilization, and contraception, in violation of their sincerely held religious beliefs. Ignoring broader religious exemptions from other federal laws, the Government has crafted a narrow exemption to this Mandate for certain "religious employers" who can convince the Government that they satisfy four criteria:
• "The inculcation of religious values is the purpose of the organization"; • "The organization primarily employs persons who share the religious tenets of the
organization"; • "The organization serves primarily persons who share the religious tenets of the
organization"; and • "The organization is a nonprofit organization as described in section 6033(a)(1) and
section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." Thus, in order to safeguard their religious freedoms, religious employers must plead with the Government for a determination that they are sufficiently "religious."
6. Plaintiff Archdiocese of Washington does not know whether the Government will conclude that it satisfies the definition of a "religious employer" under the impermissibly vague terms of the exemption. And in order to find out, it must submit to an intrusive governmental investigation into whether, in the Government's view, the Archdiocese's "purpose" is the "inculcation of religious values"; whether it "primarily" employs "persons who share [its]
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religious tenets," even though it hires employees of all faiths; and whether it "primarily" serves such people, even though its schools, parishes, and social services are open to all.
7. The definition of "religious employer," moreover, excludes CCA, Archbishop Carroll, Catholic Charities, and CUA, even though they are "religious" organizations under any reasonable definition of the term. Consequently, to even attempt to qualify as a "religious employer," these Plaintiffs may be required to stop providing educational opportunities to nonCatholics, stop serving non-Catholics, and fire non-Catholic employees-actions that would betray their religious commitment to serving all in need without regard to religion and undermine the Church's vaunted tradition of service to others. Such a definition means that before extending services, Catholic organizations would have to stop saying, "are you hungry?" and say instead, "are you Catholic?"
8. The U.S. Government Mandate, including the exemption for certain "religious employers," is irreconcilable with the First Amendment, RFRA, and other laws. The Government has not shown any compelling need to force Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception, or for requiring Plaintiffs to submit to an intrusive governmental examination of their religious missions. The Government also has not shown that the U.S. Government Mandate is narrowly tailored to advancing any interest in increasing access to these services, as these services are already widely available and nothing prevents the Government from making them even more widely available by providing or paying for them directly through a duly-enacted law. The Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these services in violation of their sincerely held religious beliefs.
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9. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. I. PRELIMINARY MATTERS
10. Roman Catholic Archbishop of Washington, and his successors in office, in accordance with the discipline and government of the Roman Catholic Church, a corporation sole, is the legal name for Plaintiff Archdiocese of Washington. The Archdiocese is a nonprofit corporation sole, incorporated by Congress in 1948. It is considered to be a Washington, D.C., corporation; its principal place of business is in Hyattsville, Maryland. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code.
11. PlaintiffCCA is a nonprofit corporation incorporated in Washington, D.C. Its principal place of business is in Hyattsville, Maryland. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code.
12. Plaintiff Archbishop Carroll is a nonprofit corporation incorporated in Washington, D.C. Its principal place of business is in Washington, D.C. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code.
13. Plaintiff Catholic Charities is a nonprofit corporation incorporated in Washington, D.C. Its principal place of business is in Washington, D.C. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code.
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14. Plaintiff Catholic University of America is a nonprofit Washington, D.C.,

corporation with its principal place of business in Washington, D.C. It is organized exclusively

for charitable, religious, and educational purposes within the meaning of Section 501 (c)(3) of the

Internal Revenue Code.

IS. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health

and Human Services ("HHS"). She is sued in her official capacity.

16. Defendant Hilda Solis is the Secretary of the U.S. Department of Labor. She is

sued in her official capacity.

17. Defendant Timothy Geithner is the Secretary of the U.S. Department of the

Treasury. He is sued in his official capacity.

18. Defendant U.S. Department of Health and Human Services is an executive agency

of the United States within the meaning ofRFRA and the Administrative Procedure Act ("APA").

19. Defendant U.S. Department of Labor is an executive agency of the United States

within the meaning of RFRA and the APA.

20. Defendant U.S. Department of the Treasury is an executive agency of the United

States within the meaning of RFRA and the APA.

21. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702,28

U.S.c. §§ 2201, 2202, and 42 U.S.C. § 2000bb-I.

An actual, justiciable controversy currently exists between Plaintiffs and

Defendants. Absent a declaration resolving this controversy and the validity of the U.S.

Government Mandate, Plaintiffs are uncertain as to their

and duties in planning,

negotiating, and/or implementing their group health insurance plans, their hiring and retention

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programs, and their social, educational, and charitable programs and ministries, as described below.
23. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
24. This Court has subject-matter jurisdiction over this action under 28 U.S.c. §§ 1331, 1343(a)(4), and 1346(a)(2).
25. Venue is proper in this Court under 28 U.S.C. § 1391(e)(l). A. The Archdiocese
26. Plaintiff Archdiocese of Washington encompasses 140 parishes serving Washington, D.C., and Maryland's Calvert, Charles, Montgomery, Prince George's, and St. Mary's counties, including the nearly 600,000 Catholics residing therein. Originally part of the Archdiocese of Baltimore-the oldest diocese in the United States-Washington, D.C., was named a separate archdiocese by Pope Pius XII in 1939. The five neighboring Maryland counties were added shortly thereafter. The Archdiocese was incorporated by an Act of Congress in 1948, establishing a corporation sole in the name of the Archbishop. The parishes of the Archdiocese and fifty-three schools are part of the corporation sole. The charitable work of the Archdiocese is also performed through a number of separate, affiliated corporations, including (among others) CCA, Archbishop Carroll, and Catholic Charities.
27. The Archdiocese has been led since 2006 by Cardinal Donald W. Wuerl, formerly the Bishop of Pittsburgh. Cardinal Wuerl is assisted in his ministry by four auxiliary bishops and by a staff of clergymen, religious brothers and sisters, and lay people. The Archdiocese has approximately 2100 benefits-eligible employees. The Archdiocese does not know how many of its employees are Catholic.
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28. The Archdiocese itself-that is, the corporation sole--carries out a tripartite spiritual, educational, and social service mission, reflecting the several dimensions of its ministry. The spiritual ministry of the Archdiocese is conducted largely through its parishes: through the ministry of its priests, the Archdiocese ensures the regular availability of the sacraments to all Catholics living in or visiting the D.C. area. It also provides numerous other opportunities for prayer, worship, and faith formation. In addition to overseeing the sacramental life of its parishes, the Archdiocese coordinates Catholic campus ministries at six colleges and universities within its borders.
29. The Archdiocese conducts its educational mission through its schools. The first Catholic school opened in the nation's capital nearly 200 years ago, before the city had a public school system.
30. Much of the Archdiocese's educational mission is performed through fifty-three elementary schools that are part of the corporation sole. Those schools serve nearly 14,300 students and employ over 1200 teachers (including principals) and an additional number of school staff. The educational work of the Archdiocese is also carried out through the Consortium of Catholic Academies, Mary of Nazareth Roman Catholic Elementary School, Archbishop Carroll High School, and Don Bosco Cristo Rey High School, which are archdiocesan schools managed and operated by separate, affiliated corporations. Together, these schools, whether part ofthe corporation sole or incorporated separately, are referred to as "Archdiocesan schools."
31. Archdiocesan schools welcome students in all financial conditions, from all backgrounds, and of any or no faith. In order to make a Catholic education available to as many children as possible, the Archdiocese expends substantial funds in tuition assistance programs; it awarded $5 million in tuition assistance for the 2011-2012 school year. Through direct subsidies
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to parishes for students in need, the Archdiocese gives an additional $4.5 million to Catholic education on an annual basis. Forty-six percent of the students in the fifty-three elementary schools that are part of the corporation sole are minorities.
32. The Catholic educational system has demonstrated a particular dedication to teaching the underserved. For example, St. Augustine's School, located in D.C. 's U Street neighborhood, was founded by free blacks and former slaves in 1858 and began educating black students four years before public education for black children became mandatory in the District of Columbia. It is currently led by a Nigerian order of nuns and serves nearly 200 students, 100% of whom are minorities and 59% of whom are not Catholic. Schools like St. Augustine's are no less an expression and outgrowth of genuine Catholic belief because they primarily serve nonCatholics. Indeed, quite the opposite: the Archdiocese sees these schools as a vital part of its mission to offer to every student, in every place, a safe, morally sound, and academically rigorous education.
33. The schools of the Archdiocese offer a unique educational experience. As Cardinal Wuerl has said about Catholic education, "we educate people not just for exams, but for life eternal. We educate the whole person: mind, body, and spirit." To that end, the Archdiocesan schools have established priorities that make them stand out from other educational institutions. Students are taught faith-not just the basics of Christianity, but how to have a relationship with God that will remain with them after they leave their Catholic school. Service, the giving of one's time and effort to help others, is taught as both a requirement of true faith and good citizenship. Finally, high academic standards help each student reach his or her potential. Four Archdiocesan schools were among the forty-nine private schools nationwide to receive the
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U.S. Department of Education's Blue Ribbon Schools Award this year. Nationally, over 99% of students in Catholic high schools graduate.
34. The success of the Archdiocese's approach to education is demonstrated by Don Bosco Cristo Rey High School, a joint project of the Archdiocese and the Salesians of Don Bosco, which serves students from economically challenged families. All seventy seniors in the school's first graduating class last year were accepted into college. Sixty percent of those students are the first generation in their families to attend college.
35. The Archdiocese also operates seven early childhood development programs that provide an Archdiocesan-approved curriculum for preschool students ages three to four.
36. The social service work of the Archdiocese is performed largely through its parishes, which, like the fifty-three elementary schools discussed above, are also part ofthe corporation sole. The parishes that comprise the Archdiocese maintain their own charitable efforts, serving the needs of their communities with programs including parish chapters of the St. Vincent DePaul Society, adopt-a-family programs at Christmas, meals served to the homeless, and visits to nursing homes. The Archdiocese oversees all of the social service work undertaken by its parishes. Neither the Archdiocese nor its parishes keeps a tally of persons served through these outreach programs, nor do they request to know the religious affiliation of those served.
37. In summary, the Archdiocese-and the entire Catholic Church-is committed to serving anyone in need, regardless of religion.
38. In addition to serving individuals of all faiths, the Archdiocese also employs individuals of all faiths.
39. The Archdiocese does not know how many of those it hires or serves are Catholic. In order to determine those statistics, the Archdiocese would be required to ask the religious
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affiliation of all individuals that it employs or serves. That inquiry, however, would substantially burden the Archdiocese's religious exercise.
40. It is therefore unclear whether the Government will conclude that the Archdiocese qualifies as a "religious employer" under the narrow exemption from compliance with the U.S. Government Mandate.
41. Regardless of whether the Government concludes that the Archdiocese qualifies for the exemption, the Archdiocese is in every respect Roman Catholic.
42. Moreover, determining whether an organization-such as the Archdiocesequalifies for the exemption will require the Government to engage in an intrusive inquiry, based on an understanding of religion that is inconsistent with the Catholic faith, into whether, in the view of the Government, (1) the Archdiocese's "purpose" is the "inculcation of religious values," (2) whether the Archdiocese "primarily" employs "persons who share [its] religious tenets," even though it hires employees of all faiths and does not know how many Catholics it employs, and (3) whether it "primarily" serves such people, even though its schools and social services are open to all.
43. Regardless of outcome, the Archdiocese strongly objects to such an intrusive and misguided governmental investigation into its religious mission.
44. Finally, the Archdiocese operates a self-insured health plan. That is, the Archdiocese does not contract with a separate insurance company that provides health care coverage to its employees. Instead, the Archdiocese itself functions as the insurance company underwTiting its employees' medical costs. Plaintiffs CCA, Archbishop Carroll, and Catholic Charities also offer coverage through the Archdiocese's plan.
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45. Consistent with Church teachings, this plan does not cover abortion-inducing drugs, contraceptives, or sterilization. In limited circumstances, the Archdiocese's health plan administrator can override the exclusion of certain drugs commonly used as contraceptives if a physician certifies that they were prescribed with the intent of treating certain medical conditions, not with the intent to prevent pregnancy.
46. The Archdiocese's plan is administered by a third party administrator, NCAS. NCAS handles the administrative aspects of the Archdiocese's self-insured employee health plan, but NCAS bears none of the risks for benefits nor does it provide any of the funds used to pay health care providers.
47. The Archdiocese's self-insured health plan does not meet the Affordable Care Act's definition ofa "grandfathered" plan. The Archdiocese has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that it believes its plan is a grandfathered health plan within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i).
48. The plan year for the Archdiocese (and the organizations it insures) begins on January 1.
B. The Consortium of Catholic Academies 49. The Consortium of Catholic Academies was founded in order to centralize
resources, staff and teacher training, and oversight for inner-city parish elementary schools in Washington, D.C. There are currently four CCA schools-Sacred Heart, in the Mount Pleasant neighborhood of Northwest D.C.; St. Anthony, located in the Brookland neighborhood of Northeast D.C.; and St. Francis Xavier and S1. Thomas More, both located in Southeast D.C.
50. According to its bylaws, CCA's purpose is to engage in charitable, educational, and/or religious activities of every description in accordance with the teachings of the Roman
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Catholic Church, as exclusively determined by the Roman Catholic Archbishop of Washington. Specifically, it exists to provide management and support for Catholic elementary schools.
51. CCA plays a crucial role in the effort to provide inner-city children in Washington, D.C. with a safe, morally sound, and academically rigorous alternative to the District's public school system.
52. CCA welcome students in all financial conditions, from all backgrounds, and of any or no faith. Forty-one percent of CCA's 797 students live at or below the federal poverty line. CCA does not have a single non-minority student. Fifty-nine percent ofCCA's students are non-Catholic.
53. CCA employs approximately 122 teachers and staff. Like the Archdiocese, CCA employs individuals of all faiths. CCA does not know how many of its employees are Catholic.
54. CCA itself does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate.
55. CCA is an affiliated corporation of the Archdiocese. The Archdiocese directly oversees the curriculum and management of the CCA schools through its Catholic Schools Office.
56. CCA employees are offered health insurance through the Archdiocese's health plan.
C. Archbishop CarroU 57. Archbishop Carroll High School, in Northeast D.C., was at its founding in 1951
the first fully integrated high school in Washington. 58. Archbishop Carroll offers its diverse student body a rigorous college preparatory
education in a supportive learning environment. For example, it is one of a select number of high schools in the D.C. area offering the International Baccalaureate Programme; in the first year the
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Programme was offered, nearly 20% of Carroll juniors enrolled. Over 98% of Carroll graduates go on to college.
59. Consistent with its Catholic identity, Carroll teaches its students to integrate faith and life. It stresses the importance of building ajust society and provides numerous opportunities for students to participate in charitable work. Its annual Thanksgiving Food Drive, for example, is one of the largest high school food drives in the country.
60. Archbishop Carroll welcome students in all financial conditions, from all backgrounds, and of any or no faith. It has a co-ed student body of 449 students. Of these students, 99% are non-white and 77% are non-Catholic.
61. Archbishop Carroll has seventy-one employees. Like the Archdiocese, CCA employs individuals of all faiths. It does not know how many of its employees are Catholic.
62. Archbishop Carroll is an affiliated corporation of the Archdiocese. As with CCA, the Archdiocese supports and oversees the curriculum of Archbishop CarrolL
63. Archbishop Carroll itself does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate.
64. Archbishop Carroll employees are offered health insurance through the Archdiocese's health plan.
D. Catholic Charities 65. Catholic Charities, the largest non-governmental social service provider in the
region, provided services to over 100,000 people last year. Its purpose is to carry out the mandates of the Gospel and the social teaching of the Church through works of Christian charity, service, and social justice by providing competent and caring social services, special assistance to those in great need, and programs of community outreach and advocacy using the skills and talents of professional staff and volunteers. Catholic Charities pursues these goals through its
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own programs and through partnerships with parishes, community groups, and governmental agencies.
66. The seventy-seven programs run by Catholic Charities in fifty-three locations provide a panoply of services, including financial assistance, dental and medical care, pro bono legal aid, adult education, emergency shelters, care for the developmentally disabled, English as a Second Language courses, and many others.
67. For example, the Spanish Catholic Center is one of the programs operated by Catholic Charities. It is an integral part of the social service network serving the Washington, D.C. area's large and growing immigrant population, with a special outreach to Latinos. The offerings at the Spanish Catholic Center's four locations include medical and dental care, English classes, job training programs, and a food pantry. In 2011, the Center served more than 23,000 people through more than 68,000 interactions. Staff at the Spanish Catholic Center speak eight languages and are well-equipped to serve immigrants from around the world.
68. Anchor Mental Health, another of Catholic Charities' flagship programs, fights poverty by helping adults with mental illness obtain a diagnosis and treatment plan that will put them on the path to independent lives. Located in Northeast D.C., it is a full-service mental health clinic that has served more than 1500 persons of all races, religions, and ethnic backgrounds. A partner program operated by Catholic Charities, ChAMPS, or Children & Adolescent Mobile Psychiatric Service, provides help for families and children experiencing a behavioral or mental health crisis. A crisis response team is available twenty-four hours a day to respond to calls made to the ChAMPS hotline; the team will go to the child's home or school to offer assistance and begin recovery-at no cost to the child's family.
69. Catholic Charities is an affiliated corporation of the Archdiocese.
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70. Catholic Charities serves people in need without regard to their religion. It does not ask whether people whom it serves are Catholic and, therefore, it does not know whether they are Catholic.
71. On information and belief, a majority of the people served by Catholic Charities are not Catholic.
72. Catholic Charities has approximately 800 employees. Catholic Charities does not inquire about the religious commitments of its applicants for employment, and, as a result, it does not know how many of its employees are Catholic.
73. Catholic Charities itself does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate.
74. Catholic Charities employees are offered health insurance through the Archdiocese's health plan.
E. The Catholic University of America 75. Located in the heart of Washington, D.C., CUA is the national university of the
Roman Catholic Church in the United States and the only institution of higher education founded and sponsored by the bishops of this country. It was established in 1887 with the support and approval of the Holy See. The University was originally a graduate research center; it opened its doors to undergraduates in 1904. "At every level" the University is "dedicated to the advancement of learning and particularly to the development of knowledge in the light of Christian revelation, convinced that faith is consistent with reason and that theology and other religious studies themselves profit from the broader context of critical inquiry, experimentation and reflection."
76. As described in its mission statement, "The Catholic University of America is committed to being a comprehensive Catholic and American institution of higher learning,
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faithful to the Teachings of Jesus Christ as handed on by the Church. Dedicated to advancing the dialogue between faith and reason, The Catholic University of America seeks to discover and impart the Truth through excellence in teaching and research, all in service to the Church, the nation, and the world."
77. The University embraces the riches of the Catholic intellectual tradition, as reflected in Ex Corde Ecciesiae, "consecrat[ing] itself without reserve to the cause of truth." "As a Catholic university, it desires to cultivate and impart an understanding of the Christian faith within the context of all forms of human inquiry and values." At the same time, "[a]s a member of the American academic community, it accepts the standards and procedures of American institutions and seeks to achieve distinction within the academic world." To those ends, the University is composed of twelve schools, including Arts & Sciences, Engineering, Nursing, Music, and others. Three of the schools are pontifical faculties, accredited by the Holy See. Awarding undergraduate degrees in seventy-two programs, master's degrees in 103 programs, and doctoral or terminal degrees in sixty-six programs, the University pursues the highest academic achievement in every discipline.
78. As the first Catholic university in the United States founded as a graduate institution, research plays a prominent role in the University's mission. The bishops sought to establish "a place where the Church could do its thinking, an institution that would go beyond the preservation of learning and teaching to also encompass the advancement of knowledge through research." As the horne to twenty-one institutes and research centers, the University continues that tradition today.
79. Though committed to remaining a distinctly Catholic institution, the University opens its doors to students, academics, and prospective employees of all faiths and creeds. Over
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3600 students are currently enrolled in the University's undergraduate programs, and nearly

3300 are enrolled in its graduate and law programs. The school maintains a regular (full-time)

faculty of 426 members and an additional 417 temporary faculty members. CUA retains over

1147 staff members.

SO. On information and belief, a majority ofCUA's total employees are not Catholic.

S!. The University's mission to educate and serve others extends beyond the borders

ofCUA's campus. For example, the University has developed numerous faith-based charitable

programs in which its students, professional staff, and faculty participate. These programs serve

individuals regardless of faith, race, or financial condition and range from volunteer

opportunities in D.C. (where students can participate in a variety of activities, such as serving the

homeless or working as tutors) to service/missions trips abroad (where students assist the

underprivileged in communities in Central and South America). CUA also hosts a number of

educational events, lectures, and programs on its campus that are open to the public. The

University is home to the Catholic University of America Press, which publishes between thirty-

five to forty books annually in fields including theology, philosophy, literature, history, and

political theory. The University does not know how many of the individuals served by these

programs are Catholic.

S2. Faith is at the heart of all of the University's efforts. Indeed, the University's

commitment to Catholic teachings permeates campus life. Most full-time undergraduates are

housed on campus in residence halls that are predominantly (and soon be entirely) single-

sex. The "PT"",nr maintains a visitation policy that does not permit men to be overnight

in the women's residence halls and vice versa. The University's student handbook reminds

students that

committed to the teachings and moral values of the Catholic

IS

Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 21 of 59
Church," including the belief that sexual union should be "'expressed only in a monogamous heterosexual relationship of lasting fidelity in marriage. '" And the University does not make artificial contraception available to its students, faculty, or staff at its on-campus health care facility unless necessary for medical treatment unrelated to contraception.
83. CUA's Catholic educational mission is furthered by its leadership. The President of the University has always been a Catholic, and twelve of the University's fifteen Presidents have been clerics or members of a religious order. The President is elected by the University's Board of Trustees and confirmed by the Vatican Congregation for Catholic Education. The Board itself is entrusted with supervising the management of the University and determining University policy. Twenty-four of the Board's forty-eight elected members must be clerics; at least eighteen of those twenty-four must be members of the United States Conference of Catholic Bishops. The Archbishop of Washington serves as the chancellor of the University, acting as a liaison between the University and the United States Conference of Catholic Bishops, as well as between the University and the Holy See.
84. More than 90% of full-time undergraduate students receive some form of financial aid, with the Office of Student Financial aid awarding nearly $40 million in institutional grants and scholarships as well as more than $2 million in federal and state grant funds to undergraduate students in the 2010-11 school year.
85. CUA does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
86. CUA's employees are offered United Healthcare health care plans. These plans do not cover abortion-inducing drugs or sterilization. Consistent with Church teachings, CUA's
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plans cover drugs commonly used as contraceptives only when prescribed with the intent of treating a medical condition, not with the intent to prevent pregnancy.
87. CUA's plan years begin on January 1. 88. The health plans offered by CUA to its employees do not meet the Affordable Care Act's definition of a "grandfathered" plan. CUA has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that it believes its plans are grandfathered health plans within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251 T(a)(2)(i). 89. CUA does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate. 90. CUA makes available to its students a health plan provided by AETNA. Like CUA's employee plans, the plan offered to CUA students does not cover abortion-inducing drugs or sterilization. The health plan CUA offers to its students covers drugs commonly used as contraceptives only when prescribed with the intent of treating a medical condition, not with the intent to prevent pregnancy. 91. The health plan offered by CUA to its students does not meet the Affordable Care Act's definition of a "grandfathered" plan. CUA has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that it believes its plan is a grandfathered health plan within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-125IT(a)(2)(i). II. STATUTORY AND REGULATORY BACKGROUND A. Statutory Background 92. In March 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation
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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 23 of 59
Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the "Affordable Care Act" or the "Act"). The Affordable Care Act established many new requirements for "group health plan[s]," broadly defined as "employee welfare benefit plan[s]" within the meaning of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1002(1), that "provide[] medical care ... to employees or their dependents." 42 U.S.C. § 300gg-91(a)(1).
93. As relevant here, the Act requires an employer's group health plan to cover certain women's "preventive care." Specifically, it indicates that "[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for ... with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph." 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits "cost sharing requirements," the health plan must pay for the full costs of these "preventive care" services without any deductible or co-payment.
94. "[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010." Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19,2010) ("Interim Final Rules"); 42 U.S.C. § 18011. These so-called "grandfathered health plans do not have to meet the requirements" of the U.S. Governrnent Mandate. 75 Fed. Reg. at 41,731. HHS estimates that "98 million individuals will be enrolled in grandfathered group health plans in 2013." Id at 41,732.
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95. Violations of the Affordable Care Act can subject an employer and an insurer to substantial monetary penalties.
96. Under the Internal Revenue Code, certain employers who fail to offer "full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan" will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.c. § 4980H(a), (c)(1).
97. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $1 00 a day per individual. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Congo Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the "preventive care" provision of the Affordable Care Act).
98. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $1 00 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also
Congo Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the
"preventive care" provision of the Affordable Care Act). 99. ERISA may provide for additional penalties. Under ERISA, plan participants can
bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1 )(B); see also
Congo Research Serv., RL 7-5700. Similarly, the Secretary of Labor may bring an enforcement
action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.c. § 1132(b)(3); see also Congo Research Serv., RL 7-5700
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(asserting that these penalties can apply to employers and insurers who violate the "preventive

care" provision of the Affordable Care Act).

100. Several ofthe Act's provisions, along with other federal statutes, reflect a clear

congressional intent that the executive agency charged with identifying the "preventive care"

required by § 300gg-13(a)(4) should exclude all abortion-related services. The Act itself states

that "nothing in this title (or any amendment made by this title) shall be construed to require a

qualified health plan to provide coverage of [abortion] services ... as part of its essential health

benefits for any plan year." 42 U.S.C. § 18023(b)(l)(A)(i). And the Act left it to "the issuer ofa

qualified health plan," not the Government, "[to] determine whether or not the plan provides

coverage of [abortion]." ld § 18023(b)(1)(A)(ii).

101. Likewise, the Weldon Amendment, which has been included in every HHS and

Department of Labor appropriations bill since 2004, prohibits certain agencies from

discriminating against an institution based on that institution's refusal to provide abortion-related

services. Specifically, it states that "[n]one of the funds made available in this Act [to the

Department of Labor and the Department of Health and Human Services] may be made available

to a Federal agency or program ... if such agency, program, or government subjects any

institutional or individual health care entity to discrimination on the basis that the health care

entity does not provide, pay for, provide coverage of, or refer for abortions." Consolidated

Appropriations Act of2012, Pub. L. No. 112-74, div. tit V, § 507(d)(l), 125 Stat. 786, 1111

(2011).

102.

legislative history of the Act demonstrates a clear congressional intent to

prohibit the executive branch from

group health plans to provide abortion-related

example, the House of Representatives originally passed a bill that included an

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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 26 of 59
amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, tIlth Cong. § 265 (Nov. 7,2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, Illth Cong. (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as "budget reconciliation" that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed to adequately prohibit federal funding of abortion. In an attempt to address these concerns, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
103. The Act was, therefore, passed on the central premise that all agencies would uphold and follow "longstanding Federal laws to protect conscience" and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
B. Regulatory Background - Defining "Preventive Care" and the Narrow Exemption 104. In a span ofless than two years, Defendants promulgated the U.S. Government
Mandate, subverting the Act's clear purpose to protect the rights of conscience. The U.S. Government Mandate, moreover, was implemented contrary to the normal procedural rules governing the promulgation and implementation of rules of this magnitude.
105. In particular, on July 19,2010, Defendants issued initial interim final rules concerning § 300gg-13(a)(4)'s requirement that group health plans provide coverage for women's "preventive care." Interim Final Rules, 75 Fed. Reg. 41,726. Defendants dispensed with notice-
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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 27 of 59
and-comment rulemaking for these rules. Even though federal law had never required coverage of abortion-inducing drugs, sterilization, or contraceptives, Defendants claimed both that the APA did not apply to the relevant provisions of the Affordable Care Act and that "it would be impracticable and contrary to the public interest to delay putting the provisions in these interim final regulations in place until a full public notice and comment process was completed." ld. at 41,730.
106. The interim final rules referred to the Affordable Care Act's statutory language. They indicated that "a group health plan ... must provide coverage for all of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services: ... (iv) With respect to women, to the extent not described in paragraph (a)(l)(i) of this section, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration." Interim Final Rules, 75 Fed. Reg. at 41,759 (codified at 45 C.F.R. § 147. 130(a)(iv)).
107. The interim final rules, however, failed to identify the women's "preventive care" that Defendants planned to require employer group health plans to cover. 42 U.S.C. § 300gg13(a)(4). Instead, Defendants noted that "[t]he Department ofHHS [was] developing these guidelines and expects to issue them no later than August 1, 2011." ld. at 41,731.
108. Defendants permitted concerned entities to provide written comments about the interim final rules. See id. at 41,726. But, as Defendants have conceded, they did not comply with the notice-and-comment requirements of the APA. ld. at 41,730.
109. In response, several groups engaged in a lobbying effort to persuade Defendants to include various contraceptives and abortion-inducing drugs in the "preventive care"
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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 28 of 59
requirements for group health plans. See, e.g., Press Release, Planned Parenthood, Planned Parenthood Supports Initial White House Regulations on Preventive Care (July 14,2010), available at http://www.plannedparenthood.org/about-us/newsroomlpress-releases/plannedparenthood-supports-initial-white-house-regulations-preventive-care-highlights-need-new33140.htm. Other commenters noted that "preventive care" could not reasonably be interpreted to include such practices. These groups indicated that pregnancy was not a disease that needed to be "prevented," and that a contrary view would intrude on the sincerely held beliefs of many religiously affiliated organizations. See, e.g., Comments of U.S. Conference of Catholic Bishops, at 1-2 (Sept. 17,2010), available at http://old.usccb.org/ogc/preventive.pdf.
110. In addition to the U.S. Government Mandate that applies to group health plans for employees, on February 11,2011, HHS also announced that, if colleges or universities contract with a health insurance issuer to provide insurance to their students, the health insurance issuer must provide these "preventive care" services in the student health plans. See Student Health Insurance Coverage, 76 Fed. Reg. 7,767, 7,772 (Feb. 11,2011).
111. On August 1, 2011, HHS announced the "preventive care" services that group health plans would be required to cover. See Press Release, HHS, Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost (Aug. 1,2011), available at http://www.hhs.gov/news/pressI2011pres/08120110801b.html. Again acting without notice-andcomment rulemaking, HHS announced these guidelines through a press release rather than enactments in the Code of Federal Regulations or statements in the Federal Register.
112. The press release made clear that the guidelines were developed by a nongovernmental "independent" organization, the Institute of Medicine ("10M"). See id In developing the guidelines, 10M invited certain groups to make presentations on preventive care.
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On information and belief, no groups that oppose government-mandated coverage of contraception, abortion, and related education and counseling were among the invited presenters. Comm. on Preventive Servs. for Women, Inst. of Med., Clinical Preventive Services for Women app. Bat 217-21 (2011), available at http://www.nap.edulopenbook.php?record_id=13181& page=Rl.
113. The 10M's own report, in tum, included a dissent that suggested that the 10M's recommendations were made on an unduly short time frame dictated by political considerations, through a process that was largely subject to the preferences of the committee's composition, and without the appropriate transparency for all concerned persons. [d. app. D at 231-35.
114. In direct contradiction of the central compromise necessary for the Affordable Care Act's passage and President Obama's promise to protect religious liberty, HHS's guidelines required insurers and group health plans to cover "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." See Health Res. Servs. Admin., Women's Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ (last visited Apr. 25,2012). FDA-approved contraceptives that qualify under these guidelines include drugs that induce abortions. For example, the FDA has approved "emergency contraceptives" such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
115. A few days later, on August 3,2011, Defendants issued amendments to the interim final rules that they had enacted in July 2010. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and
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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 30 of 59
Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 2011). Defendants issued the amendments
again without notice-and-comment rulemaking on the same grounds that they had provided for
bypassing the APA with the original rules. See id at 46,624.
116. When announcing the amended regulations, Defendants ignored the view that
"preventive care" should exclude abortion-inducing drugs, sterilization, or contraceptives that do
not prevent disease. Instead, they noted only that "commenters [had] asserted that requiring
group health plans sponsored by religious employers to cover contraceptive services that their
faith deems contrary to its religious tenets would impinge upon their religious freedom." Id at
46,623.
117. Defendants then sought "to provide for a religious accommodation that
respect[ed]" only "the unique relationship between a house of worship and its employees in
ministerial positions." Id Specifically, the regulatory exemption ignores definitions ofreUgious
employers already existing in federal law and, instead, covers only those employers whose
purpose is to inculcate religious values, and who employ and serve primarily individuals of the
same religion. It provides in full:
(A) In developing the binding health plan coverage guidelines specified in this paragraph (a)(l)(iv), the Health Resources and Services Administration shall be informed by evidence and may establish exemptions from such guidelines with respect to group health plans established or maintained by religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such guidelines.
(8) For purposes ofthis subsection, a "religious employer" is an organization that meets all of the following criteria: (l) The inculcation of religious values is the purpose of the organization.
org;anlzatlon primarily -'''r''~ J persons who share the organization.
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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 31 of 59
(3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(l) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. Id. at 46,626 (codified at 45 C.F.R. § 147.l30(a)(iv)(A)-(B)). 118. The exemption excludes the health plans of all other religiously affiliated employers that view their missions as providing charitable, educational, and employment opportunities to all those who request it, regardless of their religious faith. 119. Moreover, determining whether an organization is sufficiently "religious" to qualify for the exemption, requires an unconstitutionally invasive inquiry into an organization's religious beliefs and practices. For example, the Government must determine the "religious tenets" of an organization and the individuals it employs and serves; it must determine whether the organization "primarily" employs and "primarily" serves individuals who "share" the organization's "religious tenets"; and it must determine whether "the purpose" of the organization is the "inculcation of religious values." 120. When issuing this interim final rule, Defendants did not explain why they constructed such a narrow religious exemption. Nor did Defendants explain why they refused to incorporate other "longstanding Federal laws to protect conscience" that President Obama's executive order previously had promised to respect. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010). ERISA, for example, has long excluded "church plans" from its requirements, more broadly defined to cover civil law corporations that share religious bonds with a church. See 29 U.S.C. §§ 1002(33)(C)(iv), 1003. Like\\;se, the Affordable Care Act's requirement that all individuals maintain minimum essential coverage excludes those individuals who have a religious objection to receiving benefits from public or private insurance. 26 U.S.c.
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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 32 of 59
§§ 1402(g)(1), 5000A(d)(2). Nor did Defendants consider whether they had a compelling interest to require religiously affiliated employers to include services in their health plans that were contrary to their religious beliefs, or whether Defendants could achieve their views of sound policy in a more religiously accommodating manner.
121. Suggesting that they were open to good-faith discussion, Defendants once again permitted parties to provide comments to the amended rules. Numerous organizations, including the Archdiocese of Washington, expressed the same concerns that they had before, noting that the mandated services should not be viewed as "preventive care." They also explained that the religious exemption was "narrower than any conscience clause ever enacted in federal law, and narrower than the vast majority of religious exemptions from state contraceptive mandates." Comments of U.S. Conference of Catholic Bishops at 1-2 (Aug. 31,2011), available at http://www.usccb.org/about/general-counsel/rulemakinglupload/comments-to-hhs-on-preventiveservices-20l1-08.pdf. In addition to endorsing the comments submitted by the USCCB, the Archdiocese submitted its own comments emphasizing that "[p]regnancy is not a disease, and drugs and surgeries to prevent it are not basic health care that the government should require all Americans to purchase." Comments of Archdiocese of Washington at 1 (Sept. 30,2011), available at http://www.dol.gov/ebsalpdfIl21O-AB44a-14694.pdf. The Archdiocese also emphasized its long history of serving the social, educational, and medical needs of the community.
122. Three months later, "[a]fter evaluating [the new] comments" to the interim final rules, Defendants gave their response. They did not request further discussion or make attempts at compromise. Nor did they explain the basis for their decision. Instead, Defendant SebeIius issued a short, Friday-afternoon press release, announcing, with little analysis or reasoning, that
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HHS had decided to keep the exemption unchanged, but creating a temporary enforcement safe harbor whereby "[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1,2013, to comply with the new law." See Press Release, HHS, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20,2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html. As noted by Cardinal Timothy Dolan, the release effectively gave objecting religious institutions "a year to figure out how to violate [their] consciences." Taken together, these various rules and press releases amount to a mandate that requires most religiously affiliated organizations to provide coverage for services that are directly contrary to their religious beliefs.
123. On February 10,2012, after a continuing public outcry against the U.S. Government Mandate and its exceedingly narrow conscience protections, the White House held a press conference and issued another press release about the U.S. Government Mandate. The White House announced that it had come up with a policy to "accommodate" religious objections to the U.S. Government Mandate, according to which the insurance companies of religious organizations that object to providing coverage for abortion-inducing drugs, sterilization, or contraceptives "will be required to directly offer ... contraceptive care [to plan participants] free of charge." White House, Fact Sheet: Women's Preventive Services and Religious Institutions (Feb. 10,2012), available at http://www.whitehouse.gov/the-press-office/2012/02110/fact-sheetwomen-s-preventive-services-and-religious-institutions.
124. HHS has since indicated that a similar arrangement will apply for student health plans that colleges and universities provide to students through a health insurance issuer. Student Health Insurance Coverage, 77 Fed. Reg. 16,453, 16,457 (Mar. 21, 2012).
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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 34 of 59
125. Despite objections that this "accommodation" did nothing of substance to protect the right of conscience, when asked if there would be further room for compromise, White House Chief of Staff Jacob Lew responded: "No, this is our plan." David Eldridge & Cheryl Wetzstein, White House Says Contraception Compromise Will Stand, The Washington Times, Feb. 12, 2012, http://www.washingtontimes.comlnews/2012/febIl2/white-house-birth-controlcompromise-will-standlprintl.
126. Defendants subsequently explained in the Federal Register that they "plan[ned] to initiate a rulemaking to require issuers to offer insurance without contraception coverage to [an objecting religious] employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer's plan participants (and their beneficiaries) who desire it, with no cost-sharing." Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8728 (Feb. 15,2012). The Federal Register further asserted that the rulemaking would "achieve the same goals for self-insured group health plans." Id
127. Defendants then "finalize[d], without change," the interim final rules containing the religious employer exemption, 77 Fed. Reg. at 8729, and issued guidelines regarding the previously announced "temporary enforcement safe harbor" for "non-exempted, non-profit religious organizations with religious objections to such coverage." Id at 8725; see Ctr for Consumer Info. & Ins. Oversight, Guidance on the Temporary Enforcement Safe Harbor (Feb. 10, 2012), available at http://cciio.cms.gov/resources/fileslFiles2/021020 12/2012021 0Preventive-Services-Bulletin. pdf.
128. The temporary safe harbor also applies to student health plans. 77 Fed. Reg. at 16,457.
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Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 35 of 59
129. On March 16,2012, Defendants issued an Advance Notice of Proposed Rulemaking ("ANPRM") seeking comment on various ways to structure the proposed accommodation. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). The proposed scenarios require an "independent entity" to provide coverage for the objectionable services at no cost to the participants. But private entities do not provide insurance coverage "for free." Moreover, even if these proposals were adopted, they would still require religious organizations to provide, pay for, and/or facilitate access to the objectionable services. Finally, it is also unclear whether the Government has statutory authority to implement each of the possibilities referenced in the ANPRM.
130. The ANPRM does not alter existing law. It merely states an intention to do so at some point in the future. But a promise to change the law, whether issued by the White House or in the form ofan ANPRM, does not, in fact, change the law. The U.S. Government Mandate is therefore the current, operative law. Plaintiffs have until the start of the next plan year following August 1,2013, to come into compliance with this law. III. THE U.S. GOVERNMENT MANDATE IMPOSES AN IMMEDIATE AND
SUBSTANTIAL BURDEN ON PLAINTIFFS' RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiffs' Religious Beliefs
131. Responding to the U.S. Government Mandate, Cardinal Wuerl has declared that "what is at stake here is a question of human freedom." And indeed it is. Since the founding of this country, our society and legal system have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. As noted by Thomas Jefferson, "[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority."
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132. The U.S. Government Mandate seeks to require Plaintiffs to provide, pay for, and/or facilitate access to services that are contrary to their religious beliefs. It thus severely burdens Plaintiffs' firmly held religious beliefs.
133. The U.S. Government Mandate also seeks to compel Plaintiffs to fund related "patient education and counseling for all women with reproductive capacity." It therefore compels Plaintiffs to pay for, provide, and/or facilitate speech that is contrary to their firmly held religious beliefs.
134. Although the U.S. Government Mandate contains a narrow religious exemption, in order to qualify, religious organizations must submit to an invasive governmental inquiry regarding their purpose and religious beliefs. Requiring Plaintiffs to submit to this governmentconducted religious test likewise substantially burdens their firmly held religious beliefs.
135. It is unclear how the Government defines or will interpret "the purpose" of an organization.
136. It is unclear how the Government defines or will interpret vague terms, such as "primarily," "share," and "religious tenets."
137. It is unclear how the Government will ascertain the "religious tenets" of an organization, those it employs, and those it serves.
138. It is unclear how much overlap the Government will require for religious tenets to be "share[d]."
139. Any attempt by Plaintiffs to qualify for the narrow religious employer exemption by restricting their charitable and educational mission to coreligionists would have devastating effects on the communities Plaintiffs serve.
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140. Indeed, the Government does not even provide Plaintiffs the option to attempt to avoid the U.S. Government Mandate by exiting the health care market Eliminating its employee group health plan or refusing to provide plans that cover abortion-inducing drugs, sterilization, or contraceptives would expose each Plaintiff to substantial fines. It is no "choice" to leave those employees scrambling for health insurance while subjecting Plaintiffs to significant fines for breaking the law. Yet that is what the U.S. Government Mandate requires for Plaintiffs to adhere to their religious beliefs.
141. The US. Government Mandate also inhibits Plaintiffs' ability to hire and retain employees, attract students, and solicit charitable contributions.
142. Nor would the opaque, promised "accommodation"--even ifit were law, which it is not-relieve Plaintiffs from the unconscionable position in which the U.S. Government Mandate currently puts them, for numerous reasons.
143. First, the promised "accommodation" would not alter the fact that Plaintiffs would be required to facilitate practices that run directly contrary to their beliefs. Catholic teaching does not simply require Catholic institutions to avoid directly paying for practices that are viewed as intrinsically immoral. It also requires them to avoid actions that facilitate those practices.
144. Second, any requirement that insurance companies or other independent entities provide preventive services "free of charge" is illUSOry. For-profit entities do not provide services for free. Instead, increased costs are passed through to consumers in the form of higher premiums or fees. Under the proposed accommodation, doctors will still have to be paid to prescribe the objectionable services and drug companies and pharmacists will still have to be paid for providing them. Hypothetical future savings cannot be used to pay those fees; rather, the money will necessarily be derived from increased premiums or fees.
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145. Third, the "accommodation" does not affect the narrow exemption applicable to "religious employers." To qualify for that narrow exemption, religious organizations must submit to an invasive governmental inquiry. Requiring Plaintiffs to submit to this government-conducted test to determine if Plaintiffs are sufficiently religious is inappropriate and substantially burdens their firmly held religious beliefs.
146. Finally, as noted below, the U.S. Government Mandate is burdening Plaintiffs religious beliefs right now. Plaintiffs cannot possibly wait until August 1, 2013, to determine how to respond to the U.S. Government Mandate.
147. In short, while the President claimed to have "fTou]nd a solution that works for everyone" and that ensures that "[r]eligious liberty will be protected," in reality, his promised "accommodation" does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiffs religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability 148. The U.S. Government Mandate is not a neutral law of general applicability. It
offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with certain religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
149. For example, the U.S. Government Mandate exempts all "grandfathered" plans from its requirements.
150. The Government has also crafted a religious exemption to the U.S. Government Mandate that favors certain religions over others. As noted, it applies only to plans sponsored by
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religious organizations that have, as their "purpose," the "inculcation of religious values"; that "primarily" serve individuals that share their "religious tenets"; and that "primarily" employ such individuals. 45 C.F.R. § 147.l30(a)(iv)(B).
151. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser, stating: "Wouldn't you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much."
152. Consequently, on information and belief, Plaintiffs allege that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
153. The U.S. Government Mandate is not narrowly tailored to promoting a compelling governmental interest.
154. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to provide, pay for, or facilitate access to abortion-inducing drugs, sterilizations, contraceptives, and related education and counseling. The
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Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
155. Even assuming the interest was compelling, the Government has numerous alternatives to furthering that interest other than forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services itself through other programs established by a duly enacted law. Or, at a minimum, it could create a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
156. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom-a fundamental right enshrined in the U.S. Constitution-and access to the wide variety of social and educational services that Plaintiffs provide. The Archdiocese, CCA, and Archbishop Carroll educate inner-city children whose families want an alternative to the public school system; and Catholic Charities provides a range of social services to the citizens of the District of Columbia and Maryland. Likewise, CUA operates world-class research centers while providing its students with a high-quality education in numerous fields of study. As President Obama acknowledged in his February 10th announcement, religious organizations like Plaintiffs do "more good for a community than a government program ever could." The U.S. Government Mandate, however, puts these good works in jeopardy.
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157. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate.
D. The U.S. Government Mandate's Re6gious Employer Exemption Excessively Entangles the Government in Religion and Interferes with Religious Institutions' Religious Doctrine
158. The U.S. Government Mandate's religious employer exemption further excessively entangles the Government in defining the purpose and religious tenets of each organization and its employees and beneficiaries.
159. In order to determine whether the Archdiocese--or any other religious organization-qualifies for the exemption, the Government would have to identify the organization's "religious tenets" and determine whether "the purpose" of the organization is to "inculcate" those tenets.
160. The Government would then have to conduct an inquiry into the practices and beliefs of the individuals that the organization ultimately employs and educates.
161. The Government would then have to compare and contrast those religious practices and beliefs to determine whether and how many of them are "share[d]."
162. Regardless of outcome, this inquiry is unconstitutional, and Plaintiffs strongly object to such an intrusive governmental investigation into an organization's religious mission.
163. The religious employer exemption is based on an improper Government determination that "inculcation" is the only legitimate religious purpose.
164. The Government should not base an exemption on an assessment of the "purity" or legitimacy of an institution's religious purpose.
165. By limiting that legitimate purpose to "inculcation," at the expense of other sincerely held religious purposes, the U.S. Government Mandate interferes with religious
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autonomy. Religious institutions have the right to determine their own religious purpose, including religious purposes broader than "inculcation," without Government interference and without losing their religious liberties.
166. Defining religion based on employing and serving primarily people who share the organization's religious tenets directly contradicts Plaintiffs sincerely held religious beliefs regarding their religious mission to serve all people, regardless of whether or not they share the same faith.
167. This narrow exemption may protect some religious organizations. But it does not protect the many Catholic and other religious organizations that educate students of all faiths, provide vital social services to individuals of all faiths, and employ individuals of all faiths. The U.S. Government Mandate thus discriminates against such religious organizations because of their religious commitment to educate, serve, and employ people of all faiths.
168. It is unclear whether, if an entity qualifies as a "religious employer" for purposes of the exemption, any affiliated corporation that provides coverage to its employees through the exempt entity's group health plan would also receive the benefit ofthe exemption. 77 Fed. Reg. at 16,502.
169. It is unclear whether, if the Archdiocese qualifies a "religious employer" under the exemption to the U.S. Government Mandate, any affiliated corporation that provides coverage to its employees through the Archdiocese's group health plan would therefore also receive the benefit of the exemption.
E. The U.S. Government Mandate Is Causing Present Hardship to Plaintiffs That Should
Be Remedied by a Court 170. The U.S. Government Mandate is already causing serious, ongoing hardship to Plaintiffs that merits judicial relief now.
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171. Health plans do not take shape overnight. A number of analyses, negotiations, and decisions must occur each year before Plaintiffs can offer a health benefits package to their employees. For example, an employer using an outside insurance issuer-like eUA-must work with actuaries to evaluate its funding reserves, and then negotiate with the insurer to determine the cost of the products and services it wants to offer its employees. An employer that is selfinsured-like the Archdiocese-after consulting with its actuaries, must similarly negotiate with its third-party administrator ("TPA").
172. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year at least one year before the plan year begins. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex.
173. For example, if Plaintiffs decide that the only tolerable option is to attempt to qualify as a "religious employer" under the U.S. Government Mandate, they will need to undertake a major overhaul of their corporate structures, hiring practices, and the scope of their programming. This process could take years.
174. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to government fines and penalties. Plaintiffs require time to budget for any such additional expenses.
175.The U.S. Government Mandate and its uncertain legality, moreover, undermine Plaintiffs' ability to hire and retain employees.
176. Plaintiffs therefore need judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on them.
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IV. CAUSES OF ACTION COUNT I
Substantial Burden on Religious Exercise in Violation ofRFRA
177. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint 178. RFRA prohibits the Government from substantially burdening an entity's exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest 179. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 180. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 181. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs. 182. In order to qualify for the "religious employer" exemption to the U.S. Government Mandate, Plaintiffs must submit to an intrusive government inquiry into their religious beliefs. 183. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion. 184. The Government has no compelling governmental interest to require Plaintiffs to comply with the Government Mandate. 185. Requiring Plaintiffs to comply the Government Mandate is not the least restrictive means of furthering a compelling governmental interest
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186. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
187. The Government is also requiring student health plans, including the one currently offered by CUA, to include coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling.
188. To require CUA's student health plan to include coverage for services that violate CUA's religious beliefs substantially burdens CUA's exercise of religion.
189. The Government has no compelling government interest to require CUA's student health plan to include coverage for services that violate CUA's religious beliefs.
190. Requiring CUA's student health plan to include coverage for services that violate its religious beliefs is not the least restrictive means of furthering a compelling government interest.
191. Defendants have also violated RFRA by requiring CUA's student health plan to include coverage for services that violate CUA's religious beliefs.
192. Plaintiffs have no adequate remedy at law. 193. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNTD Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 194. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 195. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity's exercise of religion. 196. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise.
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197. The U.S, Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs.
198. In order to qualify for the "religious employer" exemption to the U.s. Government Mandate, Plaintiffs must submit to an intrusive government inquiry into their religious beliefs.
199. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion.
200. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling.
201. The U.S. Government Mandate is not a neutral law of general applicability, because it discriminates against certain religious viewpoints and targets certain religious organizations for disfavored treatment. Defendants enacted the U.S. Government Mandate despite being aware of the substantial burden it would place on Plaintiffs' exercise ofreIigion.
202. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech and to freedom from excessive government entanglement with religion.
203. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
204. The Government Mandate is not narrowly tailored to further a compelling governmental interest.
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205. By enacting and threatening to enforce the V.S. Government Mandate, the Government has burdened Plaintiffs' religious exercise in violation of the Free Exercise Clause of the First Amendment.
206. The Government is also requiring student health plans, including the one currently offered by CVA, to include coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling.
207. To require CVA's student health plan to include coverage for services that violate CVA's religious beliefs substantially burdens CVA's exercise of religion.
208. The Government has no compelling government interest to require CVA's student health plan to include coverage for services that violate CVA's religious beliefs.
209. Requiring CVA's student health plan to include coverage for services that violate its religious beliefs is not the least restrictive means of furthering a compelling government interest.
210. Defendants have also violated the Free Exercise Clause of the First Amendment by requiring CVA's student health plan to include coverage for services that violate CVA's religious beliefs.
211. Plaintiffs have no adequate remedy at law. 212. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNTm Excessive Entanglement in Violation of the Free Exercise and Establishment Clauses of the First Amendment 213. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
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214. The Free Exercise Clause and the Establishment Clause of the First Amendment prohibit intrusive government inquiries into the religious beliefs of individuals and institutions, and other forms of excessive entanglement between religion and Government.
215. This prohibition on excessive entanglement protects organizations as well as individuals.
216. In order to qualify for the exemption to the U.S. Government Mandate for "religious employers," entities must submit to an invasive government investigation into an organization's religious beliefs, including whether the organization's "purpose" is the "inculcation of religious values" and whether the organization "primarily employs" and "serves primarily" individuals who share the organization's religious tenets.
217. The U.S. Government Mandate thus requires the Government to engage in invasive inquiries and judgments regarding questions of religious belief or practice.
218. The U.S. Government Mandate results in an excessive entanglement between religion and Government.
219. The U.S. Government Mandate is therefore unconstitutional and invalid. 220. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 221. Plaintiffs have no adequate remedy at law. 222. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV Religious Discrimination in Violation of the Free Exercise and Establishment Clauses of the First Amendment 223. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
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224. The Free Exercise Clause and the Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference.
225. This mandate of equal treatment protects organizations as well as individuals. 226. The U.S. Government Mandate's narrow exemption for certain "religious employers" but not others discriminates on the basis of religious views or religious status. 227. The U.S. Government Mandate's definition of religious employer likewise discriminates among different types of religious entities based on the nature of those entities' religious beliefs or practices. 228. The U.S. Government Mandate's definition of religious employer furthers no compelling governmental interest. 229. The U.S. Government Mandate's definition of religious employer is not narrowly tailored to further a compelling governmental interest. 230. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 231. Plaintiffs have no adequate remedy at law. 232. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Interference in Matters ofInternal Church Governance in Violation of the Free Exercise and Establishment Clauses ofthe First Amendment 233. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 234. The Free Exercise Clause and Establishment Clause protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.
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235. Under these Clauses, the Government may not interfere with a religious organization's internal decisions concerning the organization's religious structure, ministers, or doctrine.
236. Under these Clauses, the Government may not interfere with a religious organization's internal decision if that interference would affect the faith and mission of the organization itself.
237. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 238. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 239. Plaintiffs have abided and must continue to abide by the decision ofthe Catholic Church on these issues. 240. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views. 241. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception. 242. The U.S. Government Mandate interferes with Plaintiffs' internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs. 243. The U.S. Government Mandate's interference with Plaintiffs' internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
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244. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs' faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
245. For the same reasons, Defendants' requirement that student health plans, like the one currently offered by CUA, include coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling, also violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
246. Plaintiffs have no adequate remedy at law. 247. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Compelled Speech in Violation of the Free Speech Clause of the First Amendment 248. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 249. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 250. The First Amendment protects organizations as well as individuals against compelled speech. 251. Expenditures are a form of speech protected by the First Amendment. 252. The First Amendment protects against the use of a speaker's money to support a vie\\'Point that conflicts with the speaker's religious beliefs. 253. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that include or facilitate coverage of practices that violate their religious beliefs.
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254. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these practices.
255. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs.
256. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
257. The U.S. Government Mandate furthers no compelling governmental interest. 258. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 259. For the same reasons, Defendants' requirement that student health plans, like the one currently offered by CUA, include coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling, also violates the Free Speech Clause of the First Amendment. 260. Plaintiffs have no adequate remedy at law. 261. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Failure to Conduct Notice-and-Comment Rulemaking and Improper
Delegation in Violation of tbe APA 262. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 263. The Affordable Care Act expressly delegates to an agency within Defendant HHS, the Health Resources and Services Administration, the authority to establish guidelines concerning the "preventive care" that a group health plan and health insurance issuer must provide.
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264. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments.
265. Defendants promulgated the "preventive care" guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law.
266. Defendants, instead, delegated their responsibilities for issuing preventive care guidelines to a non-governmental entity, the 10M.
267. The 10M did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. The dissent to the 10M report noted both that the 10M conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
268. Within two weeks of the 10M issuing its guidelines, Defendant HHS issued a press release announcing that the 10M's guidelines were required under the Affordable Care Act.
269. Defendants have never explained why they failed to enact these "preventive care" guidelines through notice-and-comment rulemaking as required by the APA.
270. Defendants also failed to engage in notice-and-comment rulemaking when issuing the interim final rules and the final rule incorporating the guidelines.
271. Defendants' stated reasons for promulgating these rules without engaging in formal notice-and-comment rulemaking do not constitute "good cause." Providing public notice and an opportunity comment was not impracticable, unnecessary, or contrary to the public interest for the reasons claimed by Defendants.
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272. By enacting the "preventive care" guidelines and interim and final rules through

delegation to a non-governmental entity and without engaging in notice-and-comment

rulemaking, Defendants failed to observe a procedure required by law and thus violated

5 U.S.C. § 706(2)(0).

273. Plaintiffs have no adequate or available administrative remedy, or, in the

alternative, any effort to obtain an administrative remedy would be futile.

274. Plaintiffs have no adequate remedy at law.

275. The enactment of the U.S. Government Mandate without observance ofa

procedure required by law and its impending enforcement impose an immediate and ongoing

harm on Plaintiffs that warrants relief.

COUNTVID Arbitrary and Capricious Action in Violation of the APA

276. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.

277. The APA condemns agency action that is "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

278. The APA requires that an agency examine the relevant data and articulate an

explanation for its action that includes a rational connection between the facts found and the

policy choice made.

279. Agency action is arbitrary and capricious under the APA ifthe agency has failed

to consider an important aspect of the problem before

280. Acourt

agency action may not supply a reasoned basis that the agency

failed to offer.

281. Defendants failed to consider the

of many commenters that abortion-

inducing drugs,

or contraception could not be

as "preventive care."

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282. Defendants failed adequately to engage with voluminous comments suggesting that the scope of the religious exemption to the U.S. Government Mandate should be broadened.
283. Defendants did not articulate a reasoned basis for their action by drawing a connection between facts found and the policy decisions it made.
284. Defendants failed to provide any standards or processes for how the Administration will decide which religious institutions will be included in the religious exemption.
285. Defendants failed to consider the use of broader religious exemptions in many other federal laws and regulations.
286. Defendants' promulgation of the U.S. Government Mandate violates the APA. 287. For the same reasons, Defendants' requirement that student health plans like CUA's must include coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling, also violates the APA. 288. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 289. Plaintiffs have no adequate remedy at law. 290. Defendants are imposing an immediate and ongoing harm on the Plaintiffs that warrants relief.
COUNT IX Acting IDegaUy in Violation of the APA 291. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 292. The APA requires that all Government agency action, findings, and conclusions be "in accordance with law."
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293. The U.S. Government Mandate and its exemption are illegal and therefore in violation of the APA.
294. The Weldon Amendment states that "[n]one of the funds made available in this Act [to the Department of Labor and the Department of HeaIth and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." Consolidated Appropriations Act of2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011).
295. The Affordable Care Act states that "nothing in this title (or any amendment by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health benefits for any plan year." 42 U.S.C. § 18023(b)(1)(A)(i). It adds that "the issuer ofa qualified health plan shall determine whether or not the plan provides coverage of [abortion.]" Id. § 18023(b)(1)(A)(ii).
296. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include coverage for abortion-inducing drugs, sterilization, contraception, or related education and counseling should be required to provide such plans.
297. The U.S. Government Mandate requires employer based-health plans to provide coverage for abortion-inducing drugs, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
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298. The U.S. Government Mandate violates RFRA. 299. The U.S. Government Mandate violates the First Amendment. 300. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 301. For the same reasons, Defendants' requirement that student health plans like CUA's must include coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling, also violates RFRA and the First Amendment and, therefore, is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 302. In addition, the Affordable Care Act states that, "nothing in this title (or an amendment made by this title) shall be construed to prohibit an institution of higher education .. . from offering a student health insurance plan ...." 42 U.S.C. § 18118(c). This provision has been interpreted as prohibiting any law that has the effect of prohibiting an institution of higher education from offering a student health plan. Student Health Insurance Coverage, 76 Fed. Reg. at 7,769. The requirement that student health plans offered through a health insurance issuer include abortion-inducing drugs, sterilization, contraception, and related education and counseling, however, has the effect of prohibiting CUA from offering a student health insurance plan. Defendants' requirement that student health plans offered through a health insurance issuer include abortion-inducing drugs, sterilization, contraception, and related education and counseling, therefore, also violates 42 U.S.C. § 18118(c) and thus is not in accordance with under 5 U.S.C. § 303. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, effort to obtain an administrative remedy would be futile. 304. Plaintiffs have no adequate remedy at law.

Case 1:12-cv-00815-ABJ Document 1 Filed 05/21/12 Page 58 of 59
305. Defendants failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs' rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs' rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was
promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate; 6. Enter a declaratory judgment that Defendants' requirement that student health
plans include coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling violates Plaintiffs' rights under RFRA and the First Amendment; enter an injunction prohibiting the Defendants from enforcing that requirement against Plaintiffs; and enter an order vacating the requirement; 7. Award Plaintiffs attorneys' and expert fees under 42 U.S.C. § 1988; and 8. Award all other relief as the Court may deem just and proper.
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Respectfully submitted, this the 21 day of May, 2012.
Stephen J. Brogan D.C. Bar No. 939082 sjbrogan@jonesday.com Mary Ellen Powers D.C. Bar No. 334045 mepowers@jonesday.com Noel 1. Francisco D.C. Bar No. 464752 njfrancisco@jonesday.com Gregory M. Shumaker D.C. Bar No. 416537 gshumaker@jonesday.com Michael A. Carvin D.C. Bar No. 366784 macarvin@jonesday.com Eric S. Dreiband* esdreiband@jonesday.com
D.C. Bar No. 497285
David T. Raimer* D.C. Bar No. 994558 dtraimer@jonesday.com JONES DAY 51 Louisiana Avenue, N.W. Washington, DC 20001 (202) 879-3939
Paul M. Pohl** pmpohl@jonesday.com JONES DAY 500 Grant Street - Suite 4500 Pittsburgh, PA 15219 (412) 391-3939
Counsel for Plaintiffs
*Applicationfor Admission Pending **Motionfor Admission Pro Hac Vice Forthcoming
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 Case 1:12-cv-00815-ABJ Document 22 Filed 08/28/12 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, et al.,
Plaintiffs,
v.
KATHLEEN SEBELIUS, et al.,
Defendants. ______________________________________/

CASE NO. 1:12-CV-815-ABJ

AMICI CURIAE BRIEF IN SUPPORT OF PLAINTIFFS FILED BY THE AMERICAN CENTER FOR LAW & JUSTICE AND
SEVENTY-NINE (79) MEMBERS OF THE UNITED STATES CONGRESS

Jay Alan Sekulow** (DC Bar 496335) Jordan Sekulow** (DC Bar 991680) Stuart J. Roth** (DC Bar 475937) James M. Henderson Sr.** (DC Bar 452639)
Counsel of Record American Center for Law & Justice 201 Maryland Avenue, NE Washington, DC 20002 202-546-8890; Fax. 202-546-9309 jmhenderson@aclj-dc.org
CeCe Heil* American Center for Law & Justice 1000 Regent University Drive Virginia Beach, Virginia 23464 757-226-2489; Fax. 757-226-2836

Edward L. White III* American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 734-662-2984; Fax. 734-302-1758
Francis J. Manion* Geoffrey R. Surtees* American Center for Law & Justice 6375 New Hope Road New Hope, Kentucky 40052 502-549-7020; Fax. 502-549-5252
** Admitted to District of D.C. Bar * Not admitted to District of D.C. Bar

Case 1:12-cv-00815-ABJ Document 22 Filed 08/28/12 Page 2 of 18 TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii INTEREST OF THE AMICI CURIAE ...........................................................................................1 INTRODUCTION ...........................................................................................................................3 ARGUMENT ...................................................................................................................................6
PLAINTIFFS HAVE STANDING AND THEIR CLAIMS ARE RIPE................................6 CONCLUSION ..............................................................................................................................12 CERTIFICATE OF SERVICE ......................................................................................................13
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TABLE OF AUTHORITIES

CASES

Page(s)

* Abbott Labs. v. Gardner, 387 U.S. 136 (1967).........................................................................................................7, 10, 12

American Petroleum Inst. v. EPA, 683 F.3d 382 (D.C. Cir. 2012) ...................................................................................................12

* American Petroleum Inst. v. EPA, 906 F.2d 729 (D.C. Cir. 1990) .....................................................................................................8

* Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102 (1974).................................................................................................................7, 9

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007).....................................................................................................................1

Florida State Conf. of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008) ...................................................................................................7

* Goudy-Bachman v. U.S. Dep’t of Health & Human Servs., 764 F. Supp. 2d 684 (M.D. Pa. 2011) ..........................................................................................9

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).....................................................................................................................1

Larson v. Valente, 456 U.S. 228 (1982).....................................................................................................................8

* Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).....................................................................................................................6

* Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), aff’d by Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011) .........................................................9

McConnell v. FEC, 540 U.S. 93 (2003).....................................................................................................................10

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) .................................................................................................................1

Pleasant Grove City v. Summum, 555 U.S. 460 (2009).....................................................................................................................1

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* Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995) ................................................................................................ 10-11
Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), superseded in part by Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) .................................................................................................................1
* TMLC v. Obama, 651 F.3d 529 (6th Cir. 2011), superseded in part by Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ...............................................................................................................10
Van Orden v. Perry, 545 U.S. 677 (2005).....................................................................................................................1
Zorach v. Clauson, 343 U.S. 306 (1952).....................................................................................................................3
STATUTES AND REGULATIONS
45 C.F.R. § 147.130(a)(iv)(A)-(B)...................................................................................................8
77 Fed. Reg. 8725 (Feb. 15, 2012) ..................................................................................................8
OTHER AUTHORITIES
Catechism of the Catholic Church (2d ed. 1997) ............................................................................5
John Tracy Ellis, Documents of American Catholic History (1962) ........................................... 3-4
Letter from Sister Marie Theresa Farjon de St. Xavier to Thomas Jefferson, http://www.churchstatelaw.com/historicalmaterials/images/Sr._Marie_Therese _letter_1804.pdf ...........................................................................................................................3
Letter from Thomas Jefferson to Sister Marie Theresa Farjon de St. Xavier, http://www.churchstatelaw.com/historicalmaterials/images/ thomas_jefferson_letter_1804.pdf ...............................................................................................4
Matthew L. Harris & Thomas S. Kidd eds., The Founding Fathers & the Debate Over Religion in Revolutionary America: A History in Documents (Oxford U. Press 2012) ................................................................................................................4
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Case 1:12-cv-00815-ABJ Document 22 Filed 08/28/12 Page 5 of 18 Michael McConnell, The Origins and Historical Understanding of Free Exercise
of Religion, 103 Harvard L. Rev. 1409 (1990) ............................................................................5 RJ&L Religious Liberty Archive,
http://www.churchstatelaw.com/historicalmaterials/ 8_8_12.asp ...............................................3 Susan J. Stabile, State Attempts to Define Religion: The Ramifications of Applying
Mandatory Prescription Contraceptive Coverage Statutes to Religious Employers, 28 Harvard J. L. & Pub. Pol’y 741 (2005)...................................................................................5
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INTEREST OF THE AMICI CURIAE Amicus curiae, the American Center for Law & Justice (“ACLJ”), is an organization dedicated to defending constitutional liberties secured by law. ACLJ attorneys have argued before the Supreme Court of the United States and other federal and state courts in numerous cases involving constitutional issues. E.g., Pleasant Grove City v. Summum, 555 U.S. 460 (2009); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993). ACLJ attorneys also have participated as amicus curiae in numerous cases involving constitutional issues before the Supreme Court and lower federal courts. E.g., FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007); Van Orden v. Perry, 545 U.S. 677 (2005). The ACLJ has been active in litigation concerning the Affordable Care Act (“ACA”), the statute on which Defendant rely as authority to promulgate the regulatory mandate, at issue here, to require employers to cover sterilization, prescription contraceptives, abortion-inducing drugs, and related patient education and counseling services in their health insurance plans (“Mandate”). The ACLJ filed several amicus curiae briefs in support of various challenges to the ACA, for example, National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), and represented the plaintiffs in their challenge to the ACA in Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), superseded on other grounds by 132 S. Ct. 2566 (2012). Moreover, the ACLJ has been active in the litigation concerning the Mandate. In particular, the ACLJ represents the plaintiffs in O’Brien v. U.S. Department of Health & Human Services, Case No. 4:12-cv-476 (E.D. Mo.), which is an action brought by a for-profit business to challenge the Mandate.
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As such, the ACLJ has expertise in the issues raised here and has an interest that may be affected by the outcome of this action because any decision by this court will be persuasive authority in O’Brien.
Furthermore, this brief is filed on behalf of amici curiae, United States Representatives Jeff Landry (LA), Robert Aderholt (AL), Todd Akin (MO), Mark Amodei (NV), Michele Bachmann (MN), Spencer Bachus (AL), Lou Barletta (PA), Roscoe Bartlett (MD), Dan Benishek (MI), Gus Bilirakis (FL), Diane Black (TN), Marsha Blackburn (TN), Charles Boustany (LA), Kevin Brady (TX), Paul Broun (GA), Dan Burton (IN), Francisco “Quico” Canseco (TX), Bill Cassidy (LA), Steve Chabot (OH), Michael Conaway (TX), Chip Cravaack (MN), Jeff Duncan (SC), Renee Ellmers (NC), Stephen Fincher (TN), John Fleming (LA), Bill Flores (TX), J. Randy Forbes (VA), Jeff Fortenberry (NE), Virginia Foxx (NC), Bob Goodlatte (VA), Gregg Harper (MS), Andy Harris (MD), Vicky Hartzler (MO), Wally Herger (CA), Tim Huelskamp (KS), Bill Huizenga (MI), Bill Johnson (OH), Walter Jones (NC), Jim Jordan (OH), Mike Kelly (PA), Steve King (IA), John Kline (MN), Raul Labrador (ID), Doug Lamborn (CO), James Lankford (OK), Bob Latta (OH), Dan Lipinski (IL), Blaine Luetkemeyer (MO), Dan Lungren (CA), Don Manzullo (IL), Jeff Miller (FL), Mick Mulvaney (SC), Tim Murphy (PA), Randy Neugebauer (TX), Alan Nunnelee (MS), Pete Olson (TX), Steven Palazzo (MS), Ron Paul (TX), Steve Pearce (NM), Joe Pitts (PA), Ted Poe (TX), Mike Pompeo (KS), Ben Quayle (AZ), Reid Ribble (WI), Phil Roe (TN), Todd Rokita (IN), Ileana Ros-Lehtinen (FL), Dennis Ross (FL), Steve Scalise (LA), Bobby Schilling (IL), Jean Schmidt (OH), David Schweikert (AZ), Adrian Smith (NE), Chris Smith (NJ), Lamar Smith (TX), Glenn Thompson (PA), Tim Walberg (MI), Lynn Westmoreland (GA), and Joe Wilson (SC), who are seventy-nine (79) members of the United States House of Representatives in the One Hundred Twelfth Congress.
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These Representatives have an interest both in expressing their view that the Mandate is unconstitutional and in representing their constituents who are negatively impacted by the Mandate.
All of the amici curiae are dedicated to the founding principles of religious freedom in this country. They believe that the laws of this nation do not empower Defendants to force people of faith to violate their religious principles. The amici curiae bring a perspective to this case that should assist this court in resolving the issues before it.
INTRODUCTION The Mandate runs counter to longstanding American tradition. This Nation has a long and proud tradition of accommodating the religious beliefs and practices of all its citizens, not dividing them into “approved” and “disapproved” camps at the discretion of government functionaries. See Zorach v. Clauson, 343 U.S. 306, 313-14 (1952) (noting that government follows “the best of our traditions” when it “respects the religious nature of our people and accommodates the public service to their spiritual needs”). The Founding Fathers made it clear that both conscience rights and religious rights occupy the highest rung of civil liberty protections. For example, soon after the Louisiana Territory was acquired by the United States in 1803, the French Ursuline Sisters of New Orleans wrote to President Thomas Jefferson seeking assurances that “[t]he spirit of justice which characterizes the United States of America” would allow them to continue their spiritual and corporal works of mercy.1/ Thomas Jefferson replied that “[t]he principles of the Constitution
1/ RJ&L Religious Liberty Archive, http://www.churchstatelaw.com/historicalmaterials/ 8_8_12.asp (visited on Aug. 8, 2012); Letter from Sister Marie Theresa Farjon de St. Xavier to Thomas Jefferson, http://www.churchstatelaw.com/historicalmaterials/images/Sr._Marie_ Therese_letter_1804.pdf (visited on Aug. 8, 2012); John Tracy Ellis, Documents of American Catholic History 184-85 (1962).
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and government of the United States are a sure guarantee [that your religious institution] will be
preserved to you sacred and inviolate, and that your institution will be permitted to govern itself
according to it’s [sic] own voluntary rules, without interference from the civil authority. . . .”
Jefferson concluded his letter by assuring the sisters that their religious institution would receive “all the protection which my office can give it.”2/
Moreover, President George Washington stated in a 1789 letter to the United Baptists in
Virginia his views regarding the protections afforded religious liberties by the Constitution and
that he would fight against any efforts by the government to threaten those religious liberties:
If I could have entertained the slightest apprehension that the Constitution framed in the Convention, where I had the honor to preside, might possibly endanger the religious rights of any ecclesiastical Society, certainly I would never have placed my signature to it; and if I could now conceive that the general Government might ever be so administered as to render the liberty of conscience insecure, I beg you will be persuaded that no one would be more zealous than myself to establish effectual barriers against the horrors of spiritual tyranny, and every species of religious persecution.3/
Before these statements by Jefferson and Washington—in fact, even before the
Declaration of Independence in 1776—the Continental Congress passed a resolution in 1775
exempting individuals with pacifist religious convictions from military conscription:
As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other
2/ John Tracy Ellis, Documents of American Catholic History 185 (1962); Letter from Thomas Jefferson to Sister Marie Theresa Farjon de St. Xavier, http://www.churchstatelaw.com/historicalmaterials/images/thomas_jefferson_letter_1804.pdf (visited on Aug. 8, 2012).
3/ Matthew L. Harris & Thomas S. Kidd (editors), The Founding Fathers & the Debate Over Religion in Revolutionary America: A History in Documents 137-38 (Oxford U. Press 2012).
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services to their oppressed Country, which they can consistently with their religious principles.4/ Even when the country was in dire need of men to take up arms to fight for independence, our forefathers knew that conscience is inviolable and must be honored. They understood that to conscript men into military service against their conscience would have undermined the very cause of liberty to which they pledged their lives, property, and sacred honor. The Mandate imposes a substantial burden on individuals and organizations, including the Catholic Plaintiffs here, who firmly oppose having to subsidize, provide, and/or facilitate sterilization, contraceptives, and abortion-inducing drugs, and related patient education and counseling services, based on sincere religious beliefs. The Catholic Church’s longstanding moral opposition to sterilization, contraception, and abortion does not stem from a tangential, minor point of doctrine; it is a core principle of the Catholic Church that these activities run contrary to a fundamental religious belief.5/ Plaintiffs’ position on these issues is not something that can be carved out from their religious belief system. As one writer has described it: [T]he Church’s position on birth control is not a stand-alone item. From the Church’s standpoint, its position on birth control is part and parcel of its commitment to the sanctity of life. . . . This need to defend the right to life from beginning to end manifests itself in a cohesive body of beliefs that starts with contraception and runs through abortion, the death penalty, and assisted suicide.6/
4/ Michael McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harvard L. Rev. 1409, 1469 (1990).
5/ E.g., Catechism of the Catholic Church, Nos. 2270-75, 2370, 2399 (2nd ed. 1997). 6/ Susan J. Stabile, State Attempts to Define Religion: The Ramifications of Applying Mandatory Prescription Contraceptive Coverage Statutes to Religious Employers, 28 Harvard J. L. & Pub. Pol’y 741, 755 (2005).
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For Defendants to mandate that Catholic employers provide insurance coverage for services that are contrary to their basic religious tenets demonstrates a contempt by Defendants for what it means to be Catholic. Faithfulness to the teachings of the Church permeates every aspect of Plaintiffs’ activity. Thus, the Mandate presents all Catholic employers with a stark choice: obey Caesar, or obey Christ. The burden of such a choice is clearly “substantial” in the constitutional sense.
Plaintiffs ask to be permitted to continue their work without having to violate their sincerely held religious beliefs or their right to freedom of conscience; the Mandate currently is putting Plaintiffs in that position. Plaintiffs seek the same protection of conscience provided to other religious groups from the time of the Continental Congress.
ARGUMENT PLAINTIFFS HAVE STANDING AND THEIR CLAIMS ARE RIPE Defendants contend that Plaintiffs lack standing and that their claims are not ripe. Defendants are wrong since Plaintiffs are currently injured by the Mandate. This case should proceed to a resolution on the merits. The Supreme Court has explained that Article III standing consists of three elements: (1) an “injury in fact” that is concrete and particularized and is actual or imminent, (2) a causal connection between the injury and the complained of conduct, and (3) an injury that is “likely” to be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted). A “particularized” injury is one that “affect[s] the plaintiff in a personal and individual way,” id. at 560, n.1, while the element of “imminent” harm is “a somewhat elastic concept,” id. at 564 n.2, that “requires only that the anticipated injury occur within some fixed period of time in the future, not that it happen in the colloquial sense of soon
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or precisely within a certain number of days, weeks, or months.” Florida State Conf. of NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008).
In considering the related concept of ripeness, courts “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). Hardship to the parties is present when the law places a plaintiff in a “very real dilemma,” “has a direct effect on the [plaintiff’s] day-to-day business,” or “requires an immediate and significant change in the plaintiffs’ conduct of their affairs.” Id. at 152-53. In Blanchette v. Connecticut General Insurance Corp., 419 U.S. 102 (1974), the Supreme Court stated that, “[w]here the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect.” Id. at 143 (citations omitted).
Defendants’ argument comes down to whether Plaintiffs are experiencing an actual or imminent injury that gives Plaintiffs standing and makes their claims ripe. Defendants mainly contend that Plaintiffs are not injured because the Mandate will not impact Plaintiffs until after the safe harbor period ends,7/ and because the Mandate may be modified in the future to offer Plaintiffs and other religious organizations an accommodation that is absent from the current version of the Mandate. Defendants’ contentions, however, should be rejected because Plaintiffs are concretely injured by the Mandate now, regardless of the safe harbor period or the supposed accommodation.
The Mandate at issue is a final rule. The Mandate was first enacted in July 2010, and
7/ The safe harbor period ends on August 1, 2013, and the Mandate applies thereafter when the health plan year begins. Defendants state that the Mandate applies to Plaintiffs on January 1, 2014. (Doc. 19-1 at 13.)
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was amended in August 2011, to add a narrow exemption for certain religious employers.8/ In
February 2012, the Mandate was “adopted as the final rule without change.” 77 Fed. Reg. 8725,
8730 (Feb. 15, 2012) (emphasis added). Although Defendants contend that there may be
changes to the final rule, including a possible accommodation, that contention is meaningless for
the purposes of the pending motion to dismiss. “[A]n agency always retains the power to revise
a final rule through additional rulemaking. If the possibility of unforeseen amendments were
sufficient to render an otherwise fit challenge unripe, review could be deferred indefinitely.”
American Petroleum Inst. v. EPA, 906 F.2d 729, 739-40 (D.C. Cir. 1990). In other words, while
Defendants could eventually make a mootness argument in the event that a hypothetical statutory
or regulatory change is made at some point in the future that exempts Plaintiffs and other
individuals and organizations in a similar position from the Mandate, that hypothetical
possibility does not negate the existence of the present justiciable controversy that arises from
currently existing legal requirements.
The Mandate presents Plaintiffs with a dilemma: comply with the Mandate and violate
the tenets of their religion or not comply with the Mandate and pay significant annual penalties.
Plaintiffs have no reason to believe that their present opposition to the Mandate (an opposition
8/ To be eligible for the exemption, a religious employer must have as its purpose the inculcation of religious values, primarily employ and serve those who share the religious tenets of the organization, and be a nonprofit organization as described in sections 6033(a)(1), (3)(A)(i) or (ii) of the Internal Revenue Code. 45 C.F.R. § 147.130(a)(iv)(A)-(B). Religious employers (such as Plaintiffs) that serve the larger community without regard to religious belief, including various hospitals, charities, and schools, do not appear to fall within this description because they employ and serve people from all walks of life, including those of different religious faiths. Regardless, the exemption itself is unconstitutional because it requires government officials to determine whether a religious employer is “religious enough” to qualify, thus requiring government officials to engage in an unconstitutional intrusive inquiry into the employer’s religious purpose, beliefs, and practices; those deemed “religious enough” are exempted from the mandate; those deemed not “religious enough” are not exempted. See Larson v. Valente, 456 U.S. 228 (1982) (explaining that the government may not discriminate among religious organizations in imposing burdens).
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based on Plaintiffs’ religious beliefs) will change so drastically that they will voluntarily comply with the Mandate when the safe harbor period ends; rather, Plaintiffs will be forced, among other options, to pay annual penalties. Therefore, Plaintiffs necessarily will be compelled to adjust their financial affairs now to prepare to pay significant amounts to the government on an annual basis, and they will be unable to use that money for other purposes. (See, e.g., Doc. 1, Compl. at ¶¶ 96-99 (allegations regarding fines and penalties); ¶ 174 (alleging that “if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to government fines and penalties. Plaintiffs require time to budget for any such additional expenses.”)).
As in Blanchette, Plaintiffs’ financial decisions “to be made now or in the short future” are directly affected by whether the merits of their claims are decided now. See 419 U.S. at 144. Plaintiffs, then, are currently injured by the Mandate and their injury can be redressed by a favorable decision from this court.
The situation here is similar to what occurred in the lawsuits filed in 2010 that challenged the Affordable Care Act’s individual mandate, which requires virtually all American citizens to purchase government-approved health insurance from private companies starting on January 1, 2014. The government initially raised standing and ripeness defenses because the individual mandate would not go into effect until four years after the filing of the lawsuits and a lot could happen in that time period. Courts, however, rejected the government’s arguments because the cases presented largely legal questions (as the instant action does), and plaintiffs were experiencing actual injury by having to prepare financially for the cost of health insurance if they complied with the individual mandate, or for the cost of the annual penalties (as Plaintiffs must) if they did not comply with the individual mandate. E.g., Goudy-Bachman v. U.S. Dep’t of Health & Human Servs., 764 F. Supp. 2d 684, 690-94 (M.D. Pa. 2011) (citing additional cases);
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Mead v. Holder, 766 F. Supp. 2d 16, 23-28 (D.D.C. 2011), aff’d by Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011); accord TMLC v. Obama, 651 F.3d 529, 535-39 (6th Cir. 2011) (noting that the Supreme Court has permitted lawsuits to go forward where the complaints were filed roughly three to six years before the laws went into effect and that the D.C. Circuit has permitted a case to proceed where the law would not go into effect for thirteen years).9/
Moreover, the present case is analogous to the situation in Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995), in which the First Circuit held that plaintiff Robert Keenan’s challenge to a state accidental disability retirement scheme was ripe. Keenan was notified that a law could reduce his monthly accidental disability benefits when he turned sixty-five years old. Id. at 1006. Keenan joined a suit challenging the law despite the seven-year gap until his benefits would be reduced; as the First Circuit phrased it, he “subscrib[ed] to the adage that an ounce of prevention is sometimes worth a pound of cure.” Id.
In discussing Abbott Labs, the First Circuit noted that the hardship prong entailed an analysis of whether “‘the challenged action creates a ‘direct and immediate’ dilemma for the parties’” and whether “‘the sought-after declaration would be of practical assistance in setting the underlying controversy to rest.’” Id. at 1009-10 (citations omitted). The government argued that whether Keenan’s benefits would actually be reduced was speculative because he could die before age sixty-five, he might no longer be disabled at that age, or the state law could be amended over the next seven years. Id. at 1011. The First Circuit held that, despite these potential contingencies, Keenan’s injury was “highly probable,” id., and explained:
9/ McConnell v. FEC, 540 U.S. 93, 224-26 (2003), is distinguishable because there is a key difference between a challenge to a provision that might affect decisions that the plaintiff will make five years later (such as the decisions that Senator McConnell would make immediately before a future election) and a challenge to a provision that has a direct impact on the plaintiff’s decision-making now (such as Plaintiffs’ current financial planning in this case).
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In all events, a litigant seeking shelter behind a ripeness defense must demonstrate more than a theoretical possibility that harm may be averted. The demise of a party or the repeal of a statute will always be possible in any case of delayed enforcement, yet it is well settled that a time delay, without more, will not render a claim of statutory invalidity unripe if the application of the statute is otherwise sufficiently probable. The degree of contingency is an important barometer of ripeness in this respect.
Id. (emphasis added; citations omitted).
Additionally, the First Circuit stated that “the most immediate harm to Keenan comes in
the form of an inability prudently to arrange his fiscal affairs.” Id. at 1012 (emphasis added).
Keenan could not prepare his fiscal affairs with certainty until the resolution of whether the law,
which could reduce his monthly accidental disability benefit, was valid. The First Circuit
explained, “[w]e believe that this uncertainty and the considerations of utility that we have
mentioned coalesce to show that Keenan is suffering a sufficient present injury to satisfy the
second prong of the Abbott Labs paradigm. Id.
As in the above-mentioned cases, this court should reject Defendants’ arguments.
Plaintiffs have been, and continue to be, injured by the Mandate because they must rearrange
their fiscal affairs now to prepare to pay significant annual penalties, and their injury can be
redressed by a favorable ruling from this court. A present injury of this nature is sufficient to
establish that Plaintiffs have standing and that their claims are ripe.10/
10/ In seeking a dismissal, Defendants overemphasize the Advanced Notice of Proposed Rulemaking (“ANPRM”) as a reason why Plaintiffs lack standing and ripe claims. Just because Defendants have issued the ANPRM does not mean they will amend the Mandate by August 1, 2013, to satisfy the constitutional and statutory concerns raised by Plaintiffs. Should this court dismiss this case, as Defendants seek, there is nothing to stop Defendants from waiting until right before August 1, 2013, the end of the safe harbor period, to announce they will not amend the Mandate to address Plaintiffs’ constitutional and statutory concerns. If Plaintiffs’ action were dismissed, as Defendants want, Plaintiffs would be subjected to the Mandate on January 1, 2014, (Doc. 19-1 at 13), and would have to restart this litigation. Under Defendants’ approach, Plaintiffs would not have the benefit, as they would now if their case continues, of receiving a judicial determination of their rights either to know whether they will be subjected to the
(Text of footnote continues on following page.)
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CONCLUSION Amici curiae respectfully request that this court deny Defendants’ motion to dismiss and allow this case to proceed to a resolution on the merits of Plaintiffs’ claims. Respectfully submitted,

/s/ James M. Henderson Sr. Jay Alan Sekulow** (DC Bar 496335) Jordan Sekulow** (DC Bar 991680) Stuart J. Roth** (DC Bar 475937) James M. Henderson Sr.** (DC Bar 452639)
Counsel of Record American Center for Law & Justice 201 Maryland Avenue, NE Washington, DC 20002 202-546-8890; Fax. 202-546-9309 jmhenderson@aclj-dc.org
CeCe Heil* American Center for Law & Justice 1000 Regent University Drive Virginia Beach, Virginia 23464 757-226-2489; Fax. 757-226-2836

Edward L. White III* American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 734-662-2984; Fax. 734-302-1758
Francis J. Manion* Geoffrey R. Surtees* American Center for Law & Justice 6375 New Hope Road New Hope, Kentucky 40052 502-549-7020; Fax. 502-549-5252
** Admitted to District of D.C. Bar * Not admitted to District of D.C. Bar

Mandate and have to continue to prepare for penalties during the safe harbor period, or to know whether they will not be subjected to the Mandate and be able to use their money for other purposes. Rather, under Defendants’ approach, Plaintiffs would be in a state of limbo until about August 1, 2013, not knowing how to conduct their affairs with certainty. The hardship on Plaintiffs under Defendants’ approach would be severe and is more reason not to dismiss Plaintiffs’ case. See Abbott Labs., 387 U.S. at 152-53 (explaining that hardship is present when the law places a plaintiff in a “very real dilemma,” “has a direct effect on the [plaintiff’s] day-today business,” or “requires an immediate and significant change in the plaintiffs’ conduct of their affairs.”). The instant situation differs from that in the recent case of American Petroleum Inst. v. EPA, 683 F.3d 382 (D.C. Cir. 2012). There, the court did not dismiss the case, but held it in abeyance subject to status reports over roughly a six month period. The EPA was required, based on a settlement in a related matter, to issue a Notice of Proposed Rulemaking (not a preliminary Advanced Notice as here) that, if adopted, would significantly change the EPA’s regulation at issue. In contrast, the Mandate, as discussed supra, is the final rule by which Plaintiffs are governed. The Mandate is currently injuring Plaintiffs, requiring judicial review now, which should not be delayed based on Defendants’ promise to think more about the Mandate, which would only put Plaintiffs in the position of being injured by the Mandate but not having legal recourse to stop the injury.
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CERTIFICATE OF SERVICE

I hereby certify that on August 23, 2012, I sent the foregoing, pursuant to LCvR 5.4 and

Local Rules Supplement II.F.2, by electronic mail to the Clerk of the Court

(dcd_cmecf@dcd.uscourts.gov) and to counsel of record for Plaintiffs, Noel Francisco

(njfrancisco@jonesday.com) and to counsel of record for Defendants, Jacek Pruski

(jacek.pruski@usdoj.gov). On that same day, I also caused to be sent by U.S. Mail a true and

correct copy of the foregoing to counsel of record at the following addresses:

Noel Francisco Jones Day 51 Louisiana Ave., NW Washington, DC 20001

Jacek Pruski U.S. Department of Justice 20 Massachusetts Ave., NW Room 7107 Washington, DC 20530

/s/ James M. Henderson Sr. James M. Henderson Sr.** (DC Bar 452639)
Counsel of Record American Center for Law & Justice 201 Maryland Avenue, NE Washington, DC 20002 202-546-8890; Fax. 202-546-9309 jmhenderson@aclj-dc.org ** Admitted to District of D.C. Bar

13

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ROMAN CATHOLIC ARCHBISHOP )

OF WASHINGTON, et al.,

)

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS, Secretary, U.S. )

Department of Health and Human

)

Services, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 12-0815 (ABJ)

MEMORANDUM OPINION This is one in a long line of cases challenging regulations issued by the Department of Health and Hum an Services (“HHS”; “Department”) pursuant to provisions of the Patient Protection and Affo rdable Care A ct (“Act”), 42 U.S.C. § 300gg -13(a)(4) (2010).1 The regulations in question i mplement the require ment under the Act that group health plans and health insurance issuers offering group or i ndividual health insuranc e provide coverage for “preventative care” for women. Defendants moved to dismiss the case for lack of jurisdiction on

1 Other cases involving similar challenges include: Colorado Christian University v. Sebelius, Civil Action N o. 11-cv-03350-CMA-BNB, 2013 WL 93188 (D . Colo. J an. 7, 2013); Catholic Diocese of P eoria v. Sebelius, No. 12-1276, 2013 W L 74240 (C.D. Ill. Jan. 4, 2013); University of Notre Dame v. Sebelius, Cause No. 312CV253RLM, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012); Catholic Diocese of Biloxi, Inc. v. Sebelius, 1:12CV158-HSO-RHW, 2012 WL 6831407 (S.D. Miss. Dec. 20, 2012); Zubik v. Sebelius, No. 2:12-cv-00676, 2012 W L 5932977 (W.D. Pa. Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 W L 5879796 (M.D. Tenn. Nov. 21, 2012); Roman Archdiocese of New York v. Sebelius, No. 12 Civ. 2542(BMC), -- F. Supp. 2d --, 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012); Legatus v. Sebelius, No. 12-12061, -- F. Supp. 2d --, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012); Nebraska ex rel. Bruning v. United States Department of Health & Human Services, 877 F. Supp. 2d 777 (D. Neb. 2012).

August 6, 2012, a rguing that plaintiffs lack stan ding and that the case is not ripe for de cision. Defs.’ Mot. to Dismiss [Dkt. # 19]. On November 2, 2012, this Court stayed the case pending an anticipated ruling by the D.C. Cir cuit in the consolidated appeal of two c ases substantially similar to this one that had been dismissed by other courts in th is district on sta nding and ripeness grounds. Minute Entr y (Nov. 2, 2012), citing Wheaton Coll. v. Sebelius , Civ. Action No. 12-1169 (EHS), -- F. Supp. 2d --, 2012 WL 3637162 (D. D.C. Aug. 24, 2012); Belmont Abbey Coll. v. Sebelius , 878 F. Supp. 2d 25 (D. D.C. 2012). The D.C. Circuit has now ruled. Wheaton Coll. v. Sebeli us (“Wheaton Order”), Nos. 12-5273, 12-5291, -- F.3d --, 2012 W L 6652505 (D.C. Cir. Dec. 18. 2012). In a three-page per curiam Order, the court found that the plaintiffs had proper standing to bring their claims, but tha t the controversy was not ripe for decision. Id. The court ordered the cases to be held in abeyance subject to regular status reports. Id. at *2. Plaintiffs and defendants in this case h ave each filed a five-page brief addressing the applicability of the circuit court’s decision to this case. Upon consideration of the two briefs, as well as the motion to dismiss and the pleading s responsive to it, the Court will grant defendants’ motion to dismiss because plaintiffs’ claims are not ripe.
BACKGROUND Plaintiffs are five Catholic non-profit organizations. Compl. [Dkt. # 1] ¶ 2. According to the complaint filed in this case, pl aintiffs each provide services to residents of t he greater Washington, D.C. communit y, without regard to the residents’ religious affiliations. Id. Plaintiffs oppose the use of abortion, steriliz ation, and contraceptives on religious grounds. Id. ¶ 4. Accordingly, although all of the plaintiffs offer health insurance plans to their emplo yees, none of the plans cover those types of preventative services for women. Id. ¶¶ 44–46, 56, 64, 74, 86, 90.
2

As explained in the D.C. Circuit’s Order in Wheaton College, the government defendants issued a set of interim final rules on July 2010 under the Affo rdable Care Act, 42 U.S.C. § 300gg-13(a)(4), which required group health plans and h ealth insurance issuers to cover “preventative care and screening[s]” for women in accordance with guidelines that were to be issued by HHS at a later date, unless the issuers were grandfathered or otherwise exempt. 75 Fed. Reg. 41,726, 41,726 (July 19, 2010); see Compl. ¶¶ 106–107; see also Wheaton Order, at *1. On August 1, 2011, HHS issued guidelines requiring coverage of all “FDA approved contraceptive[s].” H RSA, Women’s Preventative Services: Required Health Plan Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines/ (last visited Jan. 24, 2013). A later Amended Interim Final Rule issued by HHS authorized an exemption for certain religious organizations with religious objections to c ontraception. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). In February 2012, the government adopted in final regulations the definition of religious employer contained in the amended interim final rules, but it also created a t emporary enforcement safe harbor for plans sponsor ed by certain non-profit o rganizations with religious objections to contr aceptive coverage that do not qualify for the religious employer exemption. 77 Fed. Reg. 8725, 8727 (Feb. 15, 2012). The safe harbor will be in effect until the first plan year that b egins on or a fter August 1, 2013. HHS, Guidance on the T emporary Enforcement Safe Harbor, at 3 (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf. The supplemental infor mation published in the Federal Register accompanying the final regulations stated that during the effective period of the safe harbor, HHS planned to develop and propose changes to the f inal regulations “that would meet two goals – providing contraceptive coverage without cost-sharing to individua ls who want it and accomm odating non-exempted
3

non-profit organizations’ religious objections to covering contraceptive services[.]” Id. There is no dispute that all of the plaintiffs in this c ase are covered by the s afe harbor, if not b y the religious employer exemption. See Compl. ¶ 130. Since the plan years for all plaintiffs begin on January 1, Compl. ¶¶ 48, 87, they will be protected by the safe harbor until January 1, 2014.
Plaintiffs filed a nine-co unt complaint in this Court on Ma y 21, 2012, challenging the requirement that the y provide coverage for abortion, sterilization, and co ntraceptive services.2 Defendants moved to dismiss the case on ripeness and standing grounds.
STANDARD OF REVIEW The plaintiff b ears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibly Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with examination of our jurisdiction.”). Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutor y requirement . . . no ac tion of the parties can confer subject-matter jurisdiction upon a feder al court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Com pagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
2 One of plaintiffs’ claims challenges the governmental investigation that is involved in determining whether entities are “religious employers,” citing some uncertainty over whether plaintiff Archdiocese of W ashington falls under the ex emption. Compl. ¶¶ 6, 213–222. This uncertainty does not c hange the Court’s analysis, since no pa rty will be required to ma ke this determination until after the expiration of the safe harbor.
4

In evaluating a motion to dismiss under Rule 12(b)(1), the Court m ust “treat th e complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines , Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F .2d 605, 608 (D.C. Cir. 1979) (citations omitted). Nevertheless, the Court need not accept inf erences drawn by the plaintiff if those inferences are uns upported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). When considering a motion to dismiss for la ck of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.” Hohri v. United States , 782 F .2d 227, 241 (D.C. Cir. 1986), vacated on other grounds , 482 U.S. 64 (1987). Rather, a court “may consider such materials outside the pl eadings as it de ems appropriate to re solve the question of whether it ha s jurisdiction to he ar the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), c iting Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1 993); see also Jerome Stevens Pharms. , Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
ANALYSIS I. Ripeness
Prudential ripeness is a two prong inquiry: first, courts consider “the ‘fitness of the issues for judicial de cision,’” and second, the y consider “the ex tent to which withholding a de cision will cause ‘hardship to the parties.’” Am. Petroleum Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012), quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).
In Wheaton College, the D.C. Circuit found th at the cas es were not f it for decision because of the likelihood that the g overnment would chang e the c ontraceptive coverage
5

requirement as it a pplied to the plaintiffs before it would ever enforc e the requirem ent against them. It found that the government’s safe harbor provision constituted a commitment b y the government not to enforce the contraception coverage requirement until t he first plan year that begins on o r after August 1, 2013. Wheaton Order at *1–2. 3 As to its de termination that the contraception coverage requirement as ena cted would never be enforced against the plaintiffs, the court cited representations made by the government at oral ar gument that “it would never enforce 45 C.F.R. § 147.130(a)(1)(iv) in its current form against the appellants or those similarly situated as regards contraceptive services” and that “there will . . . be a different rule for entities like the appellees,” which the court construed as a “binding commitment.” Id. It also pointed to language from an Adv ance Notice of Propos ed Rulemaking (“ANPRM”), which discuss es alternatives to the contraception coverage requirement for ce rtain self-certifying organizations, that the government “intend[s] to propose.” Id.
This Court finds no reason why the Circuit Court’s decision should not apply equally to the facts of this case. Plaintiffs do not dispute that they are just the type of “similarly situated” entities to which the government referred in their representations to the circuit court. Moreover, the government’s supplemental brief in this cas e clarifies that “the regulations will never be enforced in their present form against entities like the plaintiffs in those cases or plaintiffs here and that defendants will f inalize amendments to the regulations in a n effort to a ccommodate religious organizations with relig ious objections to contrac eptive coverage before the rolling expiration of the safe h arbor begins in Au gust 2013.” Defs. ’ Supp. Br. Addressing the D.C. Circuit’s Order in Wheaton College v. Sebelius (“Defs.’ Supp. Br.”) [Dkt. # 38] at 4. Just as the
3 As here, the plan years of the pl aintiffs in those cases begin January 2014. Wheaton Order at 2.
6

Circuit Court did in Wheaton College, this Court “take[s] the government at its wor d and will hold it to it.” Wheaton Order, at *2, citing EPA v. Brown, 431 U.S. 99 (1977).
Plaintiffs instead rel y on the second prong of the prudential ripeness inquir y: the hardship to the parties. They argue that they have established hardship that exceeds what was demonstrated in Wheaton College and Belmont Abbey College and that the hardship independently justifies the conclusion that this case is ripe for revie w. This argument is unconvincing. Plaintiffs have, at most, demonstrated that they will suffer some hardship durin g the period of regulatory uncertainty before the final regulations are issued because they must begin planning for the possibility that they will be forced to change their health insurance plans in advance of the date that the insurance plans take effect. Pls.’ Mem. Regarding the D.C. Circuit’s Decision in Wheaton College (“Pls.’ Supp. Br.”) [Dkt. # 37] at 2–5. The plaintiffs in both Wheaton College and Belmont Abbey College made similar arguments. See Wheaton Coll., 2012 WL 3637162, at *8; Belmont Abbey Coll., 878 F. Supp. 2d at 37–38. Although the D.C. Circuit did not ex pressly address those arguments in its Or der, it is clear that they were unavailing to the court. See Wheaton Order at *1–2; see also Am. Petroleum Inst., 683 F.3d at 389, quoting Pub. Citizen Health Research Grp., 740 F .2d at 21, 31 (D.C. Cir. 1984 ) (“Considerations of hardship that might result from delaying review ‘will rarely overcome the finality and fitness problems inherent in attempts to review tentative positions.’”).
The final question be fore the Court is whet her the ripeness defect requires dismissal of the case or wh ether the Court should hold the case in abeyance pending the issuance of the ne w regulations that the government has promised. Although the Circuit Court decided to hold the Wheaton College and Belmont Abbey College appeals in abeyance, nothing in the Order suggests that this Cour t is r equired to do the same. See Colo. Christian Univ., 2013 W L 93188, at *8
7

(“Although the D.C. Circuit held the cases befor e it in abeyance, as opposed to dismissing them, it offered no compelling reason for doing so, no r is any such reason apparent to the Court.”). Courts in this circuit regularly dismiss cases for the absence of a ripe case or controversy. See, e.g., In re Aiken Cnty., 645 F.3d 428, 434–36, 438 (D.C. Cir. 2011) (dismissing claims that were not ripe for judicial review); Maalouf v. Wiemann, No. 1:08-cv-02177-RJL, 2010 WL 4156654, at *1 (D.C. Cir. May 17, 2010) (affirming district court’s dismissal of the case because it was not ripe for j udicial review); AstraZeneca Pharm. L P v. FDA , 850 F . Supp. 2d 230, 250 (D.D.C. 2012) (dismissing case “without prejudice to [ the plaintiff’s] right to commence a new and different action if and when its claim ever ripens into a justiciable case or controversy”). If after the new regulations are issued, plaintiffs are still not satisfied, any challenges that they choose to bring will be substantially different from the challenges in the current complaint. And in the unlikely event that the government does not keep its word, plaintiffs can bring a new challenge to the regulations along with a motion f or emergency relief, if necessary.4 Accordingly, the Court will decline to hold this case in abeyance and will instead dismiss the case. This would not bar plaintiffs from filing a new and different action in the future. See Colo. Christian Univ., 2013 WL 93188, at *8, citing 15 James WM. Moore et al., Moore’s Federal Practice § 108.81 (3d ed. 2011) (dismissing a similar challenge to the contraception coverage requirement, in adherence with “the customary practice of dismissing an unripe case in its entirety”).
II. Standing In its Wheaton Order, the D.C. Circuit reiterated that standing is assessed at the time of
filing, and it held that the plaintiffs “clearly had standing when these suits were filed.” Wheaton Order at *1. The government insists that this case can be disting uished from Wheaton College
4 The Court notes that it has construed the government’s representations as a binding commitment and it would not look favorably upon the government’s failure to comply.
8

and Belmont Abbey College because the plaintiff s here we re undisputedly covered by the sa fe harbor provision at the time the complaint wa s filed. Defs.’ Supp. Br. at 3–4. While this argument has some force, it a ppears that the Circuit Court’s holding in Wheaton College was predicated simply on the fact that the contraceptive coverage requirement existed at the time the cases were filed, without regard to the defendants’ intent to enforce it. Wheaton Order at *1. In fact, the Order does not even mention the safe harbor from enforcement until after the discussion of standing, when it rea ches the ripeness analysis. Id. But since this C ourt has alread y found that the case is not ripe f or decision, and it will dismiss the case on that jurisdictional g round, it need not decide whether plaintiffs have prop er standing. See Moms Against Mercury v. F DA, 483 F.3d 824, 826 (D.C. Cir. 2007), citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (“Where both standing and subject matter jurisdiction are at issue, however, a court may inquire into either and, finding it lacking, dismiss the matter without reaching the other.”)
CONCLUSION For the above-stated reasons, the Court will dismiss this action.

DATE: January 25, 2013

AMY BERMAN JACKSON United States District Judge

9

 
 Case 1:12-cv-00815-ABJ Document 43 Filed 06/21/13 Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 13-5091

September Term, 2012

1:12-cv-00815-ABJ

Filed On: June 21, 2013

Roman Catholic Archbishop of Washington, et al.,

Appellants

v.

Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, et al.,

Appellees

BEFORE: Tatel, Brown, and Griffith, Circuit Judges
O R D E R
Upon consideration of the motion for summary reversal, the opposition thereto, and the reply, it is
ORDERED that the motion be denied. Appellants do not challenge the district court’s determination that their claims are not ripe for decision, for the reasons stated in this court’s order of December 18, 2012, in Wheaton College v. Sebelius, 703 F.3d 551 (D.C. Cir.). This appeal is limited to the question whether the district court erred in its Memorandum Opinion and Order filed January 25, 2013, by dismissing appellants’ case on ripeness grounds rather than holding it in abeyance. Appellants have not demonstrated that the decision to dismiss the case should be summarily reversed based on the order governing appellate proceedings in Wheaton. It is
FURTHER ORDERED, on the court’s own motion, that this appeal be held in abeyance pending further order of the court. The parties are directed to file motions to govern further proceedings within 30 days of this court’s final disposition of Wheaton, Nos. 12-5273, et al.
Per Curiam

 
 Case 1:12-cv-00815-ABJ Document 44 Filed 10/31/13 Page 1 of 1

~nitca ~fates C!Iourt of J\ppcals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 13-5091
Roman Catholic Archbishop of Washington, et al.,

September Term, 2013
1 : 12-cv-00815-ABJ Filed On: September 6, 2013

Appellants

v.
Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, et al.,

ISSUED:
BY:
AftJ "'iiir

Appellees

BEFORE: Tatel, Griffith, and Kavanaugh, Circuit Judges
ORDER
Upon consideration of appellants' motion for preliminary injunction, the response thereto, and the reply, it is
ORDERED that the appeal with respect to the challenge to the old regulations be dismissed as moot. It is
FURTHER ORDERED that the motion for preliminary injunction challenging the new regulations be denied, as such relief should be sought in the first instance in the district court.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en bane. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Timothy A. Ralls Deputy Clerk

 
 Case 1:13-cv-01441-ABJ Document 48 Filed 12/20/13 Page 1 of 94

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ROMAN CATHOLIC ARCHBISHOP )

OF WASHINGTON, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, Secretary, U.S. )

Department of Health and Human

)

Services, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 13-1441 (ABJ)

MEMORANDUM OPINION This case concerns the requirements imposed on certain employers under the Affordable Care Act to offer healthcare plans to their employees that provide cost-free coverage for contraceptive services. Plaintiffs the Roman Catholic Archbishop of Washington (“the Archdiocese”), the Consortium of Catholic Academies of the Archdiocese of Washington, Inc., 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., the Catholic Information Center, Inc., Catholic University of America, and Thomas Aquinas College have filed this case against defendants Kathleen Sebelius, the Secretary of Health and Human Services; Thomas Perez, the Secretary of Labor; Jacob Lew, the Secretary of the Treasury; the U.S. Department of Health and Human Services; the U.S. Department of Labor; and the U.S. Department of the Treasury. In their complaint, plaintiffs allege that the contraceptive mandate violates the Religious Freedom Restoration Act (“RFRA”) as applied to them, as well as the Free Exercise Clause, the

Case 1:13-cv-01441-ABJ Document 48 Filed 12/20/13 Page 2 of 94
Free Speech Clause, and the Establishment Clause of the First Amendment to the U.S. Constitution. Compl. ¶¶ 237–312 [Dkt. # 1]. They also assert that defendants violated the Administrative Procedure Act and advanced an erroneous interpretation of the religious employer exemption to the mandate when they adopted the contraceptive mandate in its final form. Id. ¶¶ 313–39.
Plaintiffs filed a motion for preliminary injunction in light of the impending January 1, 2014 contraceptive mandate enforcement date. Pls.’ Mot. for Prelim. Inj. [Dkt. # 6]. Pursuant to Federal Rule of Civil Procedure 65(a)(2), this Court consolidated the motion with the merits on September 26, 2013. Defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to dismiss plaintiffs’ Establishment Clause count under Federal Rule of Civil Procedure 12(b)(1). Defs.’ Mot. to Dismiss or, in the alt., for Summ. J. (“Defs.’ Mot.”) [Dkt. # 26]; Defs.’ Mem. in Supp. of Mot. to Dismiss or, in the alt., for Summ. J. (“Defs.’ Mem.”) [Dkt. # 26-1]. They also moved, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. Defs.’ Mot. at 1; Defs.’ Mem. at 9. Plaintiffs then filed a cross-motion for summary judgment. Pls.’ Opp. & Cross-Mot. for Summ. J. (“Pls.’ Opp. & Cross-Mot.”) [Dkt. # 27-1]. The case has been fully briefed, and the Court held oral argument on November 22, 2013.
For the reasons stated below, the Court will grant defendants’ motion for summary judgment with respect to Catholic University’s RFRA claim in Count I, and all of the plaintiffs’ Free Exercise claims in Count II, compelled speech claims in Count III, denominational preference claims in Count V, internal church governance claims in Count VI, and APA contrary
2

Case 1:13-cv-01441-ABJ Document 48 Filed 12/20/13 Page 3 of 94
to law claims in Count VII.1 The Court will also grant defendants’ motion to dismiss the RFRA claims in Count I that are advanced by those plaintiffs who are covered under the Archdiocese’s healthcare plan, and all of the plaintiffs’ Establishment Clause challenges to the IRS factors in Count V and APA erroneous interpretation claims in Count VIII for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Finally, the Court will grant Thomas Aquinas College’s cross-motion for summary judgment on its RFRA claim in Count I, and all of the plaintiffs’ cross-motions for summary judgment on their Free Speech claims asserted in Count IV.
Plaintiffs allege that the contraceptive mandate burdens their religious exercise because it requires them “to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs.” Compl. ¶ 241. This is practically identical to the claim that the Archdiocese and four of the other plaintiffs advanced in the suit they filed in this Court in May of 2012. See Roman Catholic Archbishop of Washington v. Sebelius, No. 12-0815, Compl. ¶ 181 [Dkt. # 1] (“The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs.”). Plaintiffs’ religious beliefs remain the same, but in the interim, the law has changed. Defendants have created an accommodation for the specific purpose of alleviating the burden that the mandate imposes on religious organizations that are not entirely exempt. And in the case of all but one of the plaintiffs – the self-insured Thomas Aquinas College – the Court finds that the law no longer
1 Although defendants’ motion is styled as a motion to dismiss, or in the alternative, for summary judgment, the Court will decide those claims for which it has jurisdiction under the summary judgment standard because plaintiffs have alleged enough facts to satisfy Iqbal’s and Twombly’s pleading requirements. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
3

Case 1:13-cv-01441-ABJ Document 48 Filed 12/20/13 Page 4 of 94
requires plaintiffs to provide, pay for, or facilitate access to contraception. Thus, it does not require plaintiffs to “modify [their] behavior and to violate [their] beliefs,” as the Supreme Court defined an unacceptable burden more than thirty years ago in Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 718 (1981), or to “meaningfully approve and endorse the inclusion of contraceptive coverage” in their plans, as the D.C. Circuit described the burden in the context of the mandate without the accommodation just last month. Gilardi v. U.S. Dep’t of Health & Human Servs., 733 F.3d 1208, 1217 (2013).
Religious organizations like Catholic University – that offer health insurance to their employees through an insured group plan – may avail themselves of the accommodation simply by memorializing their objection to the mandate in writing. The insurer is obligated under the rules to exclude the coverage from the University’s plan and to provide and pay for the coverage itself, and therefore, as the Court explains in detail below, Catholic University has no grounds for a RFRA claim. Plaintiffs contend that the act of self-certifying – an act that consists of nothing more than plaintiffs’ reiteration of their already public objection to participation in the requirements of the mandate – is a substantial burden on the exercise of their religion in and of itself. But that argument so blurs the demarcation between what RFRA prohibits – that is, governmental pressure to modify one’s own behavior in a way that would violate one’s own beliefs – and what would be an impermissible effort to require others to conduct their affairs in conformance with plaintiffs’ beliefs, that it obscures the distinction entirely. RFRA was enacted to shield religious adherents from governmental interference with their own religious exercise and to protect them from being required to perform odious acts themselves. Plaintiffs articulate this distinction clearly: “Plaintiffs simply invoke RFRA to vindicate the principle that the Government may not force them, in their own conduct, to take actions that violate their religious
4

Case 1:13-cv-01441-ABJ Document 48 Filed 12/20/13 Page 5 of 94
conscience.” Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. (“Pls.’ Mot.”) at 20 [Dkt # 6-1]. Since the rules that apply in the insured group plan context do not involve that compulsion, they survive the RFRA challenge. RFRA is not a mechanism to advance a generalized objection to a governmental policy choice, even if it is one sincerely based upon religion.
But Thomas Aquinas College is covered by the set of regulations directed towards religious organizations that are self-insured, and unlike all of the other plaintiffs with self-insured plans, Thomas Aquinas College does not offer its employees coverage through a plan offered by the church, which cannot be compelled to comply with the mandate. In the case of a self-insured entity like Thomas Aquinas, the newly enacted regulations fall short of the mark. Since the accommodation imposes a duty upon the religious organization to contract with a willing thirdparty administrator that will arrange for the payments for contraceptives, they compel the organization to take affirmative steps – to do something – that is in conflict with the tenets of its faith. And therefore, defendants are enjoined from enforcing the mandate against Thomas Aquinas College.
RFRA involves the application of a more lenient standard than the one that applies under the First Amendment, though, and all of the plaintiffs have failed to establish any violation of the Free Exercise Clause. The contraceptive coverage law is neutral and generally applicable to all employers, and it does not target religion. Nothing about the regulatory scheme violates the Establishment Clause either. The fact that the Archdiocese, a church, is completely exempt, while the educational and charitable organizations must seek relief through the accommodation does not constitute unlawful discrimination among denominations, and it does not entangle the government in religious affairs.
5

Case 1:13-cv-01441-ABJ Document 48 Filed 12/20/13 Page 6 of 94
With one important exception, the law also passes muster under the Free Speech Clause of the First Amendment. The fact that counseling is included within the set of services to be offered, and the requirement that a religious organization certify its objection to providing contraceptive services to be eligible for the accommodation do not violate the Constitution. But defendants cannot lawfully prohibit a self-insured religious organization from seeking to influence – directly or indirectly – a third-party administrator’s decision on whether to remain in a contractual relationship with a plan. That is a content-based restriction on expression that is not justified by the government’s proffered interest.
Finally, the Court finds that defendants did not violate the Administrative Procedure Act, that the accommodation and the exemption do not lead to unlawful interference with internal church governance, and that there is no plaintiff that can allege an injury arising out of the challenged interpretation of how the accommodation is to be applied.
BACKGROUND I. Statutory and Regulatory Background
A. The Affordable Care Act In March 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L.
No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010), which together make up the Affordable Care Act (“ACA”). 78 Fed. Reg. 39870-01, 39870 (July 2, 2013). The ACA made changes to the existing Public Health Service Act and incorporated those changes into the Employee Retirement Income Security Act (“ERISA”) and the Internal Revenue Code. Id.
Two changes made by the ACA are pertinent to this case. The first change is the requirement that employers with more than fifty full-time employees must provide their
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employees with a health insurance plan that complies with the ACA’s minimum essential coverage requirements. 26 U.S.C. § 4980H (2012); see also 42 U.S.C. § 300gg-13 (2012). Failure to comply with this provision – often referred to as the “employer mandate” – results in substantial penalties. See 26 U.S.C. § 4980H.
The second pertinent change relates to the “essential minimum coverage” that must be offered by an employer’s plan. The ACA provides that all insurance plans must cover “preventive care,” and specifically, that they “shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . (1) evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force,” and “(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” an agency within the U.S. Department of Health and Human Services (“HHS”). 42 U.S.C. § 300gg-13(a)(1), (4).
B. The Contraceptive Mandate Pursuant to its delegated authority under ACA section 300gg-13(a)(4), HHS requested
that the Institute of Medicine (“IOM”) – an organization established by the National Academy of Sciences and funded by Congress – provide recommendations to HHS regarding “what preventive services are necessary for women’s health and well-being and should be considered in the development of comprehensive guidelines for preventive services of women.” Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps (“IOM Report”) iv, 2, AR 289, 300. After convening a sixteen-member committee, IOM proposed numerous recommendations regarding what preventive services should be covered and how HHS could continue to keep the list up-to-date. See generally id. The recommendation most relevant to this case was IOM’s
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suggestion that the definition of “preventive health services” include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity” (collectively, “contraceptive services”), which includes diaphragms, oral contraceptive pills, emergency contraceptives, and intrauterine devices. Id. at 10, 105, AR 308, 403. After reviewing IOM’s recommendations, defendants ultimately adopted the suggestion that the preventive services for which coverage would be required be defined to include all Food and Drug and Administration (“FDA”) approved contraceptive services. 78 Fed. Reg. at 39870. That regulation is commonly referred to as “the contraceptive mandate.”
In promulgating the initial contraceptive mandate, defendants recognized the potential religious implications and authorized the creation of a religious employer exemption to the contraceptive mandate’s requirements. 45 C.F.R. § 147.131(a) (2013); see also 78 Fed. Reg. at 39871, 39896. An organization that satisfies the definition of a religious employer derived from the Internal Revenue Code is wholly exempt from the requirement to cover contraceptive services.2 45 C.F.R. § 147.131(a); 78 Fed. Reg. at 39871, 39896. All other employers, including religious organizations that did not meet the definition of a religious employer, were required to
2 The religious employer exemption originally defined “religious employer” as one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization described in section 6033(a)(1) and (a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.
78 Fed. Reg. at 39871. The definition has since been altered to state that “a ‘religious employer’ is 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 39896.
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comply with the requirements of the contraceptive mandate if they provided a health insurance plan to their employees, regardless of whether they provided the plan voluntarily or because they were subject to the employer mandate.
Religious organizations that did not qualify for the exemption voiced their strong objection to the coverage requirements. In response to their concerns, HHS, the Department of Labor, and the Department of the Treasury (collectively, “the Departments”) “issued guidance establishing a temporary safe harbor from enforcement of the contraceptive coverage requirement by the Departments for group health plans established or maintained by certain nonprofit organizations with religious objections to contraceptive coverage.” 78 Fed. Reg. at 39871. During that safe harbor, the Departments published an advance notice of proposed rulemaking that solicited comments on how to achieve the goal of ensuring “more women broad access to recommended preventive services, including contraceptive services, without cost sharing, while simultaneously protecting certain additional nonprofit religious organizations with religious objections to contraceptive coverage.” Id. At the end of the comment period, the Departments published proposed regulations at 78 Fed. Reg. 8456 that created what has come to be known as “the accommodation.” 78 Fed. Reg. 8456, 8462 (Feb. 6, 2013); see also 29 C.F.R. § 2590.715–2713A (2013). On July 2, 2013, the Departments adopted the final version of that accommodation, which is available to all “eligible organizations.” See 78 Fed. Reg. at 39870-01, 39874; see also 29 C.F.R. § 2590.715–2713A.
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An organization is considered an “eligible organization” for purposes of the accommodation if it satisfies all of the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 2590.715-2713(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the
Secretary, that it satisfies the criteria in paragraphs (a)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (b) or (c) of this section applies. 29 C.F.R. § 2590.715-2713A(a)(1)–(4). The accommodation then specifies two sets of means by which the employees of an eligible organization will obtain coverage for contraceptive services based upon whether the organization offers health insurance to its employees through a self-insured health plan or a group insured health plan. See id. § 2590.715–2713A(b)–(c). In the group insured context, an eligible organization satisfies its obligations under the contraceptive mandate by providing its insurance issuer (“insurer”) with a self-certification form. Id. § 2590.715–2713A(c)(1). At that point, the statutory duty to provide the organization’s employees with cost-free contraceptive services coverage automatically shifts to the insurer. Id. § 2590.715–2713A(c)(2); see also 78 Fed. Reg. at 39876. The insurer cannot decline to provide that coverage on the self-certifying organization’s behalf, and the insurer must expressly exclude contraceptive services coverage from the self-certifying organization’s plan. 29 C.F.R. § 2590.715–2713A(c)(2)(i); see also 78 Fed. Reg. at 39876. Furthermore, the insurer is expressly prohibited from passing on the costs of covering contraceptive services to either the
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self-certifying organization or that organization’s employees. 29 C.F.R. § 2590.715– 2713A(c)(2)(ii); see also 78 Fed. Reg. at 39876.
If an eligible organization is self-insured, the organization that objects to providing contraceptive coverage on religious grounds must provide its “third party administrator that will process claims for any contraceptive services required to be covered . . . with a copy of the selfcertification described in paragraph (a)(4) of this section.” 29 C.F.R. § 2590.715– 2713A(b)(1)(ii). If the third-party administrator agrees to remain in its contractual relationship with the organization or its plan, the self-certifying organization has met its obligation under the contraceptive mandate. Id. § 2590.715–2713A(b)(1); see also 78 Fed. Reg. at 39879. It is the third-party administrator that must then provide or arrange payments for contraceptive services without “imposing a premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization.” 29 C.F.R. § 2590.715–2713A(b)(2)(i)–(ii).3
The third-party administrator becomes a “plan administrator” under ERISA for purposes of providing the contraceptive coverage, see id. § 2510.3–16(b), and it provides the coverage through the eligible organization’s self-insured plan. See id. § 2590.715–2713A(b).
But a third-party administrator is permitted to decline to assume responsibility for providing contraceptive services coverage on behalf of a self-certifying organization by cancelling its contract with the eligible organization and declining to serve as that organization’s
3 The “costs of providing or arranging such payments . . . may be reimbursed through an adjustment to the Federally-facilitated Exchange user fee.” 29 C.F.R. § 2590.715-2713A(b)(4).
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third-party administrator. Id. § 2590.715–2713A(b)(2); see also 78 Fed. Reg. at 39879.4 If the contract is cancelled, the self-certifying organization must either provide the self-certification form to its newly hired third-party administrator, see 29 C.F.R. § 2590.715–2713A(b), or notify the government that it will no longer use a third-party administrator and await further instruction on how it may comply with the contraceptive mandate’s requirements. 78 Fed. Reg. at 39880– 81.5
Regardless of whether a self-certifying organization utilizes an insurer or a third-party administrator, the accommodation requires that notice of the availability of separate payments for contraceptive services be provided to plan participants and beneficiaries contemporaneous with, “but separate from, any application materials distributed in connection with enrollment (or re-enrollment) in [the organization’s] group health coverage.” 29 C.F.R. § 2590.715-2713A(d). The accommodation relieves a self-certifying religious organization of any responsibility to provide or pay for contraceptive services coverage itself. II. Procedural and Factual Background
Plaintiffs in this case consist of the Archdiocese, several charitable organizations that are affiliated with the Catholic Church – Catholic Academies, Archbishop Carroll, Don Bosco, Mary of Nazareth, Catholic Charities, Victory Housing, and the Catholic Information Center – and two Catholic institutions of higher education: Catholic University of America and Thomas Aquinas
4 While the preamble to the regulations expresses defendants’ intention to implement the regulations on an employer-by-employer, and not a plan-by-plan basis, the regulations themselves do not clearly address how this will operate in practice in the situation where an employer offers its employees coverage under the auspices of a self-insured plan established by another entity that has identified and entered into a contract with the third-party administrator. 5 At this time, defendants have not specified the procedures that will govern a self-insured eligible organization that does not use a third-party administrator because defendants have not received any information to indicate that any such organization exists. See 78 Fed. Reg. at 39880–81.
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College. Compl. ¶¶ 2, 16–25, 59, 66, 74, 83, 90, 98, 107. They challenge the contraceptive mandate under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., several provisions of the First Amendment to the U.S. Constitution, and the Administrative Procedure Act, 5 U.S.C. § 501 et seq., and they argue that the accommodation does not remedy those violations. Compl. ¶¶ 237–339. Pending before this Court are defendants’ motion to dismiss, or in the alternative, for summary judgment and plaintiffs’ cross-motion for summary judgment. For purposes of deciding this case, the Court will adopt the following undisputed material facts.
The Archdiocese employs approximately 1,825 full-time employees, Supplemental Aff. of the Archdiocese (“Supp. Aff. Archdiocese”), Ex. A to Pls.’ Reply ¶ 4 [Dkt. # 33-1], and operates a self-insured health plan that is “recognized under the Employee Retirement Income Security Act as a ‘church plan.’” Pls.’ Statement of Material Facts (“Pls.’ SOF”), Ex. 2 to Pls.’ Opp. & Cross-Mot. ¶ 2 [Dkt. # 27-2]. The plan is currently administered by a third-party administrator, National Capital Administrative Services, Inc. Id. Although separately incorporated, Catholic Academies, Archbishop Carroll, Don Bosco, Mary of Nazareth, Catholic Charities, Victory Housing, and the Catholic Information Center are affiliated with the Archdiocese, and they offer their employees health insurance coverage through the Archdiocese’s self-insured health plan. Id. ¶ 5.
Catholic Academies, Archbishop Carroll, Mary of Nazareth, Catholic Charities, and Victory Housing all employ over fifty full-time employees. Supplemental Aff. of CCA (“Supp. Aff. CCA”), Ex. B to Pls.’ Reply ¶ 4 [Dkt. # 33-2]; Supplemental Aff. of ACHS (“Supp. Aff. ACHS”), Ex. C to Pls.’ Reply ¶ 4 [Dkt. # 33-3]; Supplemental Aff. of Mary of Nazareth (“Supp. Aff. Mary of Nazareth”), Ex. E to Pls.’ Reply ¶ 4 [Dkt. # 33-5]; Supplemental Aff. of Catholic Charities (“Supp. Aff. Catholic Charities”), Ex. F to Pls.’ Reply ¶ 4 [Dkt. # 33-6]; Supplemental
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Aff. of Victory Housing (“Supp. Aff. Victory Housing”), Ex. G to Pls.’ Reply ¶ 4 [Dkt. # 33-7]. Don Bosco and the Catholic Information Center employ less than fifty full-time employees. Supplemental Aff. of Don Bosco (“Supp. Aff. Don Bosco”), Ex. D to Pls.’ Reply ¶ 4 [Dkt. # 334]; Supplemental Aff. of the CIC (“Supp. Aff. CIC”), Ex. H to Pls.’ Reply ¶ 4 [Dkt. # 33-8].
The remaining two plaintiffs – Catholic University and Thomas Aquinas – also employ over fifty full-time employees. Supplemental Aff. of CUA (“Supp. Aff. CUA”), Ex. I to Pls.’ Reply ¶ 5 [Dkt. # 33-9]; Supplemental Aff. of TAC (“Supp. Aff. TAC”), Ex. J to Pls.’ Reply ¶ 5 [Dkt. # 33-10]. Catholic University participates in a group insured plan by offering its students a health insurance plan through AETNA and its employees a health insurance plan through United Healthcare. Pls.’ SOF ¶¶ 29, 31. Thomas Aquinas is self-insured; it offers its employees a health insurance plan through the RETA trust, a self-insurance trust set up by the Catholic bishops of California, and the trust is administered by a third-party administrator, Benefit Allocation Systems. Id. ¶ 36. The College’s self-insured plan is not a church plan under ERISA. Supp. Aff. TAC ¶ 6.
None of the plaintiffs’ health insurance plans qualify for the grandfathered plan exception to the ACA. Pls.’ SOF ¶¶ 3, 33, 38. The Archdiocese has identified itself to be covered by the religious employer exemption, Aff. of Archdiocese, Ex. A to Pls.’ Mot. ¶ 18 [Dkt. # 6-2], but the remaining plaintiffs have stated that they do not qualify for that exemption. Pls.’ SOF ¶¶ 9, 12, 15, 18, 21, 24, 27, 34, 39. They are, however, eligible for the accommodation to the contraceptive mandate. Compl. ¶ 10.
“Plaintiffs are all religious entities that are part of, and/or adhere to the teachings and philosophies of, the Roman Catholic Church.” Pls.’ SOF ¶ 40. Consequently, they all subscribe to the Roman Catholic belief that it is immoral to engage in conduct that artificially interferes
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with conception or terminates an existing pregnancy, which includes, but is not limited to, abortion, sterilization, emergency contraception, and other contraceptive products. Id. ¶¶ 41, 45– 46. It is a tenet of plaintiffs’ faith that they not only refrain from using contraception themselves, but that they may not morally assist another in accessing those services. Id. ¶ 48. As a result, plaintiffs have “historically excluded coverage for abortion, contraceptives (except when used for non-contraceptive purposes), sterilization, and related education and counseling” from their health insurance plans, id. ¶ 6; see also Aff. of CUA, Ex. I to Pls.’ Mot. ¶ 15 [Dkt. # 6-10]; Aff. of TAC, Ex. J to Pls.’ Mot. ¶ 13 [Dkt. # 6-11], and they contend that compliance with the contraceptive mandate, even as it has been modified, would violate their religious belief.
STANDARD OF REVIEW I. Federal Rule of Civil Procedure 12(b)(1)
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subjectmatter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
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“To state a case or controversy under Article III, a plaintiff must establish standing.” Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011); see also Lujan, 504 U.S. at 560. Standing is a necessary predicate to any exercise of federal jurisdiction, and if it is lacking, then the dispute is not a proper case or controversy under Article III, and federal courts have no subject-matter jurisdiction to decide the case. Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C. Cir. 2012). To establish constitutional standing, a plaintiff must demonstrate: (1) that he has suffered an “injury in fact”; (2) that the injury is “fairly traceable” to the challenged action of the defendant; and (3) that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560–61 (internal quotation marks omitted); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000). Failure to demonstrate even one of the three requirements will defeat subject-matter jurisdiction. See Lujan, 504 U.S. at 561.
When considering a motion to dismiss for lack of jurisdiction for standing, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). II. Federal Rule of Civil Procedure 56
Summary judgment is appropriate “if the movant shows that 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.
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56(a). The party seeking summary judgment bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).
To defeat summary judgment, the nonmoving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a nongenuine, nonmaterial factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact is only “material” if it is capable of affecting the outcome of the litigation. Id. at 248; see also Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
ANALYSIS I. Plaintiffs’ Religious Freedom Restoration Act claims.
The central claim in this case is Count I: plaintiffs’ claim that the contraceptive mandate violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., because it “requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs.” Compl. ¶ 241. It is undisputed that the Church itself – the
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Archdiocese – is completely exempt from the requirement, and therefore, it is not joined in Count I. It is also part of the background of this case that defendants delayed implementation of the mandate for a year and engaged in a rulemaking process in an effort to address the objections raised by other religious organizations and to alleviate the burden that they identified. Thus, the question presented in this case is whether the accommodation promulgated in July 2013 achieves that aim or whether the mandate, as it has now been modified, imposes a substantial burden on plaintiffs’ free exercise of religion.
RFRA provides that the government shall not “substantially burden a person’s exercise of religion” unless it can demonstrate that application of the burden to the person: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)–(b).6 The prohibition applies even if the burden results from a rule of general applicability. Id. § 2000bb1(a). To successfully mount a RFRA challenge and subject government action to strict scrutiny, a plaintiff must meet the initial burden of establishing that the government has substantially burdened his religious exercise. Henderson v. Stanton, 76 F. Supp. 2d 10, 14 (D.D.C. 1999). Only if that predicate has been established will the onus then shift to the government to show that the law or regulation is the least restrictive means to further a compelling interest. 42 U.S.C. §§ 2000bb-1(b), 2000bb-2(3).
Plaintiffs have averred that it is a central tenet of their faith that life begins at the moment of conception, and that their religion therefore requires that “they may not provide, pay for, and/or facilitate access to” contraceptive services. Pls.’ Mot. at 19; see also Pls.’ SOF ¶¶ 42–43;
6 Although the Supreme Court found RFRA unconstitutional as applied to the states, City of Boerne v. Flores, 521 U.S. 507, 533–34 (1997), the statute still applies to the federal government, Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 166 (D.C. Cir. 2003); Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001).
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Aff. of CCA, Ex. B to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-3]; Aff. of ACHS, Ex. C to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-4]; Aff. of Don Bosco, Ex. D to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-5]; Aff. of Mary of Nazareth, Ex. E to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-6]; Aff. of Catholic Charities, Ex. F to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-7]; Aff. of Victory Housing, Ex. G to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-8]; Aff. of CIC, Ex. H to Pls.’ Mot. ¶¶ 7–8 [Dkt. # 6-9]; Aff. of CUA ¶¶ 13–14; Aff. of TAC ¶¶ 11–12. The government does not contest the sincerity of these beliefs. See Defs.’ Combined Mem. in Opp. to Pls.’ Cross-Mot. for Summ. J. & Reply in Supp. of Defs.’ Mot. to Dismiss, or in the alt., for Summ. J. (“Defs.’ Opp. & Reply”) at 4, 7–20 [Dkt. # 31]; see also Defs.’ Resp. to Pls.’ SOF ¶ 43 [Dkt. # 31-1]. The Court finds that plaintiffs’ religion forbids them from facilitating access to contraceptive services, and that finding of fact serves as the basis for the RFRA analysis.
Plaintiffs contend that the contraceptive mandate imposes a burden on their sincere religious belief because it requires that plaintiffs provide a health insurance plan that includes coverage for contraceptive services and counseling and thereby renders them unable to offer a health insurance plan consistent with their religious beliefs. Pls.’ Mot. at 21–24. They argue that the accommodation does not alleviate that burden because, as they put it, they must file a selfcertification form that “inexorably leads to provision of the very coverage to which they object,” and offer a health insurance plan through which their “employees would receive access to the mandated payments [for contraceptive services] only by virtue of their participation in [that] health plan.” Id. at 20. Also, they complain that, in some circumstances, they must “locate and identify a third party willing to provide the very services they deem objectionable, and . . . enter into a contract with that party that will result in the provision or procurement of those services ‘for free.’” Id. All of these burdens, plaintiffs state, are substantial, because failure to comply with the requirement of the contraceptive mandate – either by providing the coverage or by self-
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certifying under the accommodation – results in significant monetary penalties. Id. at 22–24; see also 26 U.S.C. § 4980H.
Defendants maintain that the accommodation has eliminated the objectionable impact of the mandate and that any remaining burden on plaintiffs’ religious exercise is at most de minimis or too attenuated to be substantial and to trigger strict scrutiny under RFRA. Defs.’ Mem. at 11– 20. They also argue that all the plaintiffs except Catholic University and Thomas Aquinas lack standing to bring a RFRA challenge. Defs.’ Opp. & Reply at 5–7. But if the Court determines that any one plaintiff is substantially burdened by the contraceptive mandate and that it must therefore go on to apply strict scrutiny to the regulatory scheme, defendants concede that the D.C. Circuit’s recent holding that the contraceptive mandate does not satisfy strict scrutiny controls this case and is binding on this Court.7 See Gilardi v. U.S. Dep’t of Health & Human Servs., 733 F.3d 1208, 1219–24 (D.C. Cir. 2013); Defs.’ Opp. & Reply at 17; Mot. Hr’g Tr. 34. As a result, the RFRA analysis here is limited to the question of whether the contraceptive mandate places a substantial burden on plaintiffs’ asserted religious exercise.
Congress enacted RFRA in response to the decision in Employment Division, Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990), in which the Supreme Court narrowed what had been its previous delineation of the scope of the protection afforded to religion by the Free Exercise Clause. See Holy Land Found., 333 F.3d at 166. In Smith, the Court permitted a law that was neutral towards religion to stand, notwithstanding its impact on a particular plaintiff’s religious exercise. 494 U.S. at 890. Thereafter, as Congress expressly stated in the findings and declaration of purpose section of the statute, RFRA was enacted “to
7 Defendants did, however, note objection to the Circuit’s decision in Gilardi, thereby preserving the issue for appeal. See Defs.’ Opp. & Reply at 17; Mot. Hr’g Tr. 34.
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restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(1); see also Holy Land Found., 333 F.3d at 166–67. Thus, if the question to resolve is whether plaintiffs have met their burden to establish that the challenged regulations impose a substantial burden on their religious exercise, Sherbert and Yoder must be the starting point of the analysis. See Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 120 (D.D.C. 2012) (“Accordingly, courts look to pre-Smith free exercise jurisprudence in assessing RFRA claims.”); see also Vill. of Bensenville v. FAA, 457 F.3d 52, 62 (D.C. Cir. 2006).
In Sherbert, a member of the Seventh-Day Adventist Church was fired by her employer for her refusal to work on Saturday, the day on which she observed the Sabbath. 374 U.S. at 399. She was subsequently found to be ineligible for state unemployment benefits on the grounds that she had failed, without good cause, to accept employment that had been offered. Id. at 400–01. To resolve her constitutional challenge to the state’s decision, the Supreme Court first addressed the question of whether the disqualification imposed a burden on the employee’s free exercise of her religion. Id. at 403. The Court likened the situation to a fine imposed on the employee for her Saturday worship and stated:
[I]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. Here not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Id. at 404 (citations omitted).
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Yoder involved members of the Old Order Amish religion and a member of the Conservative Amish Mennonite Church who declined to send their children to public school after eighth grade and were convicted of violating the state’s compulsory attendance laws. 406 U.S. at 207–08. In that case, the Court observed that:
[T]he unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents’ entire mode of life support the claim that enforcement of the State’s requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents’ religious beliefs. Id. at 219. The state did not challenge those findings, but it advanced the position that the state’s interest in universal compulsory education was so great that the laws should be enforced notwithstanding the undisputed religious consequences. Id. Thus, the bulk of the opinion is only relevant to the second prong of the RFRA analysis, but the Court did state, in language that appears in plaintiffs’ pleadings: “The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218. The Supreme Court took up the denial of unemployment benefits again in Thomas. 450 U.S. at 707. Thomas terminated his employment at a foundry and machinery company when he was transferred from a department that fabricated steel for a range of industrial uses to a department that produced turrets for military tanks. Id. at 710. At that time, there were no longer any units at the company that were not involved in the manufacture of armaments, and Thomas, a Jehovah’s Witness, maintained that participation in the production of weapons for war violated his religious beliefs. Id. at 710–11. When the employer declined to lay him off, he quit
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and was subsequently denied unemployment benefits by the state on the grounds that his
departure was not based on good cause. Id. at 710–12.
As in Sherbert, the state argued that its public welfare legislation did not directly
command the employee to violate his conscience, but the Court noted that “the employee was put
to a choice between fidelity to religious belief or cessation of work” and therefore “the coercive
impact on Thomas is indistinguishable from Sherbert.” Id. at 717. The Court then restated the
principle that had been set out in Sherbert:
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
Id. at 717–18.
In sum, all of the key Supreme Court cases involve individuals who were compelled,
under the threat of either punishment or the denial of a benefit, to act: to personally do the very
thing that violated their religious beliefs. That means that the issue in this case is whether
plaintiffs are being required to “modify their behavior” or perform acts that contravene the tenets
of their faith.
Plaintiffs laid out their position in their motion for preliminary injunction:
Under the original version of the Mandate, a non-exempt religious organization’s decision to offer a group health plan resulted in the provision of coverage for [contraceptive services]. Under the Final Rule, a non-exempt religious organization’s decision to offer a group health plan still results in the provision of coverage . . . . In both scenarios, Plaintiffs’ actions trigger the provision of “free” contraceptive coverage to their employees in a manner contrary to their beliefs. The provision of the objectionable products and services are directly tied to Plaintiffs’ insurance policies . . . .
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Pls.’ Mot. at 10. But plaintiffs have not cited the Court to any binding Supreme Court or Circuit precedent that would call for the invalidation of a law based upon its consequences, that is, when plaintiffs are not being required to pay for or “provide” the services themselves, but rather, the result of compliance with the regulatory steps would be “the provision of” the objectionable services by a third party to another third party.
Indeed, the precedent in this Circuit points to the opposite conclusion. In Kaemmerling v. Lappin, the D.C. Circuit explained that a plaintiff cannot satisfy his burden under RFRA if the government regulation requires a third party, and not the plaintiff, to act in a way that violates the plaintiff’s religious beliefs. 553 F.3d 669, 679 (D.C. Cir. 2008). In that case, the plaintiff challenged the DNA Act, which directs the Federal Bureau of Prisons (“BOP”) to collect tissue or fluid samples from individuals in custody who have been convicted of certain offenses. Id. at 673. The BOP then delivers the samples to the FBI for the extraction and analysis of the DNA they contain and the creation of a unique profile for each offender, which is stored in an FBI database. Id. Kaemmerling, an Evangelical Christian, moved to enjoin the application of the Act to him because he objected to the distillation and retention of his DNA – “a foundational aspect . . . of God’s creative work” – on religious grounds. Id. at 674, 678. The court emphasized that the plaintiff did not object to the government’s collection of any of the bodily specimens that contained his DNA – not to the gathering of his hair or skin particles or even the drawing of his blood; rather, plaintiff was only opposed to the government’s extraction of the DNA from the sample once it was obtained. Id. at 679. Under those circumstances, the court found that the complaint failed to allege a substantial burden that would be cognizable under RFRA:
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Kaemmerling’s objection to the DNA Act centers on the government’s act of extracting and analyzing his DNA . . . without suggesting that the Act imposes any restriction on what Kaemmerling can believe or do. Like the parents in Bowen, Kaemmerling’s opposition to government collection and storage of his DNA profile does not contend that any act of the government pressures him to change his behavior and violate his religion, but only seeks to require the government to conduct its affairs in conformance with his religion.
Id. at 680; see also Bowen v. Roy, 476 U.S. 693, 699–700 (1986) (explaining that free exercise of
religion does not require “the Government itself to behave in ways that the individual believes
will further his or her spiritual development or that of his or her family”).
The D.C. Circuit emphasized this principle at several points in the Kaemmerling opinion:
The government’s extraction . . . of Kaemmerling’s DNA information does not call for Kaemmerling to modify his religious behavior in any way – it involves no action or forbearance on his part, nor does it otherwise interfere with any religious act in which he engages. Although the government’s activities with his fluid or tissue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his religious exercise because they do not “pressure [him] to modify his behavior and to violate his beliefs.”
Id. at 679 (second alteration in original) (emphases added), quoting Thomas, 450 U.S. at 718.
And the court made it clear that its application of RFRA derived directly from the Supreme
Court precedent that Congress had incorporated into the statute:
Religious exercise necessarily involves an action or practice, as in Sherbert, where the denial of unemployment benefits impeded the observance of the plaintiff’s religion by pressuring her to work on Saturday . . . , or in Yoder, where the compulsory education law compelled the Amish to perform acts undeniably at odds with fundamental tenets of their religious beliefs. Kaemmerling, in contrast . . . suggests no way in which these governmental acts pressure him to modify his own behavior in any way that would violate his beliefs.
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Id. at 679 (alteration, citations, and internal quotation marks omitted).8
It is against this legal backdrop that the Court must analyze plaintiffs’ RFRA claim.
Have defendants put pressure on plaintiffs to modify their behavior and violate their beliefs? Or
does the accommodation alleviate the pressure on them as it was intended to do? Plaintiffs
cannot rest their claims on the fact that their employees will still receive access to contraceptives
under the accommodation; they must point to conduct that they are obliged to undertake that, in
and of itself, violates their religious beliefs.
The Court acknowledges and respects the sincerity of plaintiffs’ expression of their
religious beliefs, and it emphasizes that its ruling is not predicated in any way upon a failure to
accept plaintiffs’ articulation of what their faith commands. The Court has no intention of
substituting its judgment for that of the affiants on the existence or nature or importance of this
aspect of their religion, and nothing in this opinion should be read as an indication of any
divergence of opinion on those topics. See Gilardi, 733 F.3d at 1216 (“We begin with the
peculiar step of explaining what is not at issue. This case is not about the sincerity of the
8 The D.C. Circuit has also found a burden to be inconsequential or de minimis on other grounds, such as where the government regulation merely prohibits one of a multitude of methods of exercising religion. Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011); Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001); see also Mead v. Holder, 766 F. Supp. 2d 16 (D.C. Cir. 2011). In Henderson and Mahoney, the plaintiffs challenged regulations that prevented individuals from selling t-shirts on the National Mall and regulations that prohibited “chalking” the sidewalk in front of the White House, respectively. 642 F.3d at 1115; 253 F.3d at 13–14. Both sets of plaintiffs argued that these regulations – otherwise neutral to religion – violated RFRA because they prevented plaintiffs from following the religious requirement that they spread the gospel. Mahoney, 642 F.3d at 1120; Henderson, 253 F.3d at 15. The D.C. Circuit ruled that neither regulation imposed a substantial burden because the regulations were, at most, “a restriction on one of a multitude of means” by which plaintiffs could exercise their religion and other alternative means were still available. Henderson, 253 F.3d at 17; see also Mahoney, 642 F.3d at 1121. But the court also specifically noted that neither case posed a situation where “the regulation force[d the plaintiffs] to engage in conduct that their religion forbid” or prevented “them from engaging in conduct their religion require[d].” Henderson, 253 F.3d at 16; see also Mahoney, 642 F.3d at 1121.
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[plaintiffs]’ religious beliefs, nor does it concern the theology behind Catholic precepts on contraception. The former is unchallenged, while the latter is unchallengeable.”).
The Court also recognizes that it is not within its province to assess the centrality of the particular religious tenet involved to plaintiffs’ faith or to calibrate where the challenged conduct might fall on a spectrum of objectionable practices: whether it would offend plaintiffs’ religious sensibilities or “gravely endanger if not destroy” the exercise of their religious beliefs as in Yoder. See Kaemmerling, 553 F.3d at 678 (“Because the burdened practice need not be compelled by the adherent’s religion to merit statutory protection, we focus not on the centrality of the particular activity to the adherent’s religion but rather on whether the adherent’s sincere religious exercise is substantially burdened.”).
In sum, the Court is not qualified or authorized to state what Catholicism does or does not prohibit, and it accepts plaintiffs’ expressions of their principles on its face. At the same time, there is nothing about RFRA or First Amendment jurisprudence that requires the Court to accept plaintiffs’ characterization of the regulatory scheme on its face. Put differently, although the Court is bound to accept the statements in plaintiffs’ affidavits that their religious teachings go beyond a ban on the personal use of contraceptives and that “facilitating access” to contraceptive services and products is also inconsistent with Catholicism, the Court may determine whether compliance with the contraceptive mandate and accommodation actually constitutes compelled “facilitation.” Interpreting a regulatory scheme is a secular task that is well within the Court’s domain. The D.C. Circuit specifically recognized this point in Kaemmerling, when it noted that there is a critical distinction between a plaintiff’s unassailable factual recitation of what his religion entails and the court’s ultimate finding on whether his religious exercise has been substantially burdened: “Accepting as true the factual allegations that Kaemmerling’s beliefs are
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sincere and of a religious nature – but not the legal conclusion, cast as a factual allegation, that his religious exercise is substantially burdened – we conclude that Kaemmerling does not allege facts sufficient to state a substantial burden . . . .” 553 F.3d at 679.
Plaintiffs’ pleadings contain many legal conclusions advanced as facts, and therefore, to resolve the RFRA claims, it is necessary to hone in more closely on the details of the regulations themselves rather than the parties’ characterizations of them. Because those regulations affect different plaintiffs differently based upon the type of insurance plan they offer, it is also necessary to take up certain plaintiffs’ claims separately. Catholic University covers its employees under a group health plan, which falls under section 2590.715–2713A(c), and Catholic Academies, Archbishop Carroll, Don Bosco, Mary of Nazareth, Catholic Charities, Victory Housing, Catholic Information Center, and Thomas Aquinas cover their employees through self-insured plans, which are addressed in section 2590.715–2713A(b). Seven of those plaintiffs offer insurance through the exempt Archdiocese’s self-insured health plan, and only one plaintiff, Thomas Aquinas, offers its employees a health plan through a self-insured entity that is not exempt from the mandate itself. The different situations produce different outcomes.
A. The contraceptive mandate does not impose a substantial burden on Catholic University of America’s religious exercise.
Of the ten plaintiffs in this case, Catholic University is the only plaintiff that offers its students and employees the option to participate in a group health plan through insurers, specifically AETNA and United Healthcare. Pls.’ SOF ¶¶ 29–32. The regulations contain a specific set of rules that deal with organizations insured under a group plan, and in light of the accommodation available in that instance, the contraceptive mandate as modified does not impose a substantial burden on the University’s religious belief. See Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 13-1261 (D.D.C. Dec. 19, 2013).
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Catholic University has established that its sincerely held religious belief prohibits it from providing or facilitating access to contraceptive services coverage. Aff. of CUA ¶¶ 14–15. The affidavit of Frank Persico explains that Catholicism “teaches that life begins at the moment of conception, that sexual union should be reserved to committed marital relationships in which the husband and wife are open to the transmission of life, and, therefore, that artificial interference with life and conception are immoral.” Id. ¶ 13. As a result, “[o]ffering a health insurance policy that provides coverage for or facilitates access to abortion-inducing products, contraceptives, sterilization, and related education and counseling is thus inconsistent with the core moral and religious beliefs of the University.” Id. ¶ 14. In their joint pleadings, plaintiffs have explained that, although Catholicism does not require them to prevent their employees or students from gaining access to contraceptive services coverage, it does require that they not participate in the provision of that coverage. See Pls.’ Reply in Supp. of its Cross-Mot. for Summ. J. (“Pls.’ Reply”) at 4 [Dkt. # 33] (“If the Government believes all women must be provided with free abortion-inducing products, sterilization, and contraceptives, Plaintiffs ask only that the Government not force them to participate in that effort.”). The Court finds that, since 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, it relieves Catholic University of any burden cognizable under RFRA. See Priests for Life, No. 131261.
Under the terms of the new regulations, a religious organization is eligible for the accommodation once it certifies that: it is a nonprofit entity, it holds itself out as a religious organization, and it opposes providing coverage for some or all of the contraceptive services required to be covered under the mandate. 29 C.F.R. § 2590.715–2713A(a). A group health
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plan established or maintained by an eligible religious organization complies with the requirement to provide contraceptive coverage “if the eligible organization or group health plan furnishes a copy of the self-certification . . . to each issuer that would otherwise provide such coverage in connection with the group health plan.” Id. § 2590.715–2713A(c)(1). At that point, “[a] group health insurance issuer that receives a copy of the self-certification . . . with respect to a group health plan established or maintained by an eligible organization in connection with which the issuer would otherwise provide contraceptive coverage . . . must –
(A) Expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan; and
(B) Provide separate payments for any contraceptive services required to be covered . . . for plan participants and beneficiaries.”
Id. § 2590.715–2713A(c)(2)(i). What does this mean? Catholic University must identify itself as an organization with
religious objections by completing a form that states, as it has repeatedly averred in this litigation, that it objects to the provision of contraceptive services on religious grounds. Then, either the University or its health plan must furnish its insurance issuers – Aetna and United Healthcare – with a copy of the self-certification. That is the extent of what is required from the religious organization. The insurance issuers are obligated under the ACA to provide contraceptive coverage under section 2590.715–2713A(c)(2), and once they receive the selfcertification, they must expressly exclude the contraceptive coverage from the healthcare coverage that is being provided in connection with Catholic University’s plan and pay for the
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coverage themselves.9 Id. So, the health insurance plan that the ACA employer mandate
requires the University to provide will not cover contraceptive services. The University has
stated in its affidavit that offering a health insurance policy that provides coverage for
contraceptive services would be inconsistent with its religious beliefs, but it is no longer required
to do so. Under the terms of the accommodation, Catholic University’s group health plan that
does not include contraceptive services coverage will be in full compliance with the ACA once the University self-certifies that it objects to the provision of that coverage.10
Plaintiffs, including Catholic University, maintain that the obligation to self-certify to
avail themselves of the accommodation is a burden on religion in and of itself because the act of
completing the form “facilitates” or “authorizes” the provision of contraceptive coverage to their
students or employees. Pls.’ Mot. at 20 (“In other words, the government has effectively made
‘no’ mean ‘yes,’ transforming the very act of objecting to the mandated coverage into the
authorization to provide such coverage.”). But this conclusory characterization of the regulatory
scheme is not immune from probing by the Court merely because it has been incorporated into
each of the plaintiffs’ sworn affidavits. See, e.g., Aff. of CUA ¶ 17 (“[P]erversely, it is CUA’s
self-certification of its religious objection that authorizes provision of the mandated coverage.”).
9 The statement in Catholic University’s affidavit that, under the accommodation, the University “bears the burden of locating and identifying an insurance company willing to provide the very services it deems objectionable,” Aff. of CUA ¶ 17, is not consistent with the regulations, and therefore, it is not a circumstance that can be found to be a burden on the school’s religious exercise. Also, because the accommodation explicitly requires the insurer to engage in separate accounting to ensure that none of Catholic University’s premiums are used to pay for contraceptive services, 29 C.F.R. § 2590.715–2713A(c)(2)(ii), the Court is not persuaded by the University’s argument that the “cost-neutrality” of providing contraceptive services somehow results in its premiums being used to pay for contraceptive services. See Pls.’ Mot. at 21 n.15.
10 For the same reasons, the contraceptive mandate does not place Catholic University in a position where it will give rise to “scandal by acting in a way inconsistent with Church teachings.” Aff. of CUA ¶ 19.
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That is not a matter of religious doctrine, and when plaintiffs insist on referring to the selfcertification as a “permission slip” in their papers, see, e.g., Pls.’ Reply at 3, they make it plain that this aspect of their case turns largely upon semantics and not theology.11
For one thing, the “authority” to provide contraceptive services to the women who work or study at the institution is not Catholic University’s to bestow. Access to contraceptives is guaranteed by the Constitution. Griswold v. Connecticut, 381 U.S. 479 (1965). As plaintiffs acknowledged in their pleadings, they have “no legal right to prevent individuals from procuring the objectionable products and services from the Government or anywhere else.” Pls.’ Mot. at 20. And cost-free access to contraceptive services – to women who are covered by a health plan anywhere – has already been guaranteed by the ACA and the implementing regulations. 42 U.S.C. § 300gg-13; 29 C.F.R. § 2590.715–2713. In the insured group plan context, the “authority” for the insurers to provide that coverage – or more aptly described, their “obligation” to do so – is imposed by the regulatory scheme, and it exists whether Catholic University takes any steps to ensure compliance with the mandate or not. See 29 C.F.R. § 2590.715–2713A(c) (listing the obligation of an insurer of a self-certifying organization to provide contraceptive services coverage in mandatory terms). Through its self-certification, the religious organization
11 Indeed, in Priests for Life v. U.S. Dep’t of Health & Human Services, the Catholic plaintiffs conceded that the self-certification was not a burden of their exercise of religion, in and of itself. No. 13-1261, slip op. at 26–27.
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declares its intention to step out of the process. That cannot be accurately characterized as an act that “facilitates” the employees’ access to the services.12
Similarly, the University cannot support the legal finding that its religious exercise is burdened with its assertion that contraceptive services “coverage will be made available to CUA’s employees only for so long as they remain on the University’s plan.” Aff. of CUA ¶ 17. The use of the passive voice – “coverage will be made available” – conveys an objection to the consequences of the self-certification, not to the action of certifying itself. Moreover, that factual assertion is belied by the fact that the insurance mandate will follow the school’s employees wherever they go, and that all insurance plans are required to provide preventive services – as HRSA has defined them – under the ACA.
Plaintiffs’ fundamental complaint is that “[s]hould they choose to certify their objection to the mandated coverage, that action inexorably leads to provision of the very coverage to which they object.” Pls.’ Mot. at 20. But the law requiring Kaemmerling to submit to the taking of blood or tissue samples also led “inexorably” to a result to which he objected, and the D.C. Circuit determined that was not enough to satisfy RFRA. Plaintiffs seek to distinguish Kaemmerling by highlighting the Circuit Court’s observation that Kaemmerling did not object to submitting to the actual collection of the samples. They say, in essence, maybe Kaemmerling did not object to the first step that led to the objectionable consequences, but we do. But, in fact,
12 Catholic University also argues that it is burdened because, under the contraceptive mandate, it “will be forced to further facilitate access to the mandated coverage by . . . identifying its benefits-eligible employees for the insurance company.” Aff. of CUA ¶ 17. In other words, the University states that it still must facilitate access to contraceptive services coverage even if those services are completely separated from its plan because it must provide the insurer with the names of those individuals who are eligible for contraceptive services payments. But the University does not point to any regulation that imposes this duty, and the insurance issuer will have independent records of which employees enrolled for healthcare coverage.
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Kaemmerling filed his complaint and motion for preliminary injunction to stop the first step from happening: to enjoin the Bureau of Prisons from collecting the sample. See Compl. Kaemmerling v. Lappin, No. 06-1389 [Dkt. # 1]. He did not simply sue to bar the FBI from extracting and preserving his DNA. Like Kaemmerling, the reason that plaintiffs object to the self-certification is that they object to what happens after someone else receives it. The Court is aware that plaintiffs predicate that objection on moral grounds. But if RFRA is applied to reach a religious objection to “bearing witness” to an immoral act by others, in the absence of any requirement that the objector modify his own behavior, then the law is no longer a shield, but it is a sword, and it becomes a tool to deny the equally compelling rights of thousands of other people. Nothing in RFRA jurisprudence to date takes the law that far.
Like the statute that was challenged in Kaemmerling, the regulations here do not “impose any restrictions on what [Catholic University] can believe or do,” and it does not impose pressure on the University “to modify [its] behavior and to violate [its] beliefs.” 553 F.3d at 679–80. Through the self-certification, the eligible organization raises its hand and says “I object” to participating in the provision of contraceptive services itself, and through the accommodation, the government accedes to its request and assigns the obligation to someone else. RFRA does not reach the results.
This conclusion is entirely consistent with the D.C. Circuit’s recent ruling in Gilardi. In that case, the Court found that the Catholic owners of a for-profit corporation “are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties.” 733 F.3d at 1217; see also Tyndale House, 904 F. Supp. 2d at 122. But the Gilardis are secular employers who do not qualify for the accommodation and are therefore required to provide and pay for the contraceptive coverage
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themselves. And a close reading of the Gilardi opinion reveals that the case is distinguishable on
those grounds.13
In order to determine whether the accommodation alleviates the burden that was
recognized in Gilardi, one must first distill from the opinion what the court found that burden to
be. The court began by reciting the rule that Kaemmerling derived from the Supreme Court’s
opinion in Thomas: “[a] ‘substantial burden’ is ‘substantial pressure on an adherent to modify
his behavior and to violate his beliefs.’” Id. at 1216, quoting Kaemmerling, 553 F.3d at 678.
The court then responded to an argument that the government is not advancing in this case: that
the alleged burden was too remote or attenuated to trigger RFRA because it would only arise at
the point when an employee purchased contraceptives or used contraceptive services. Id. at
1217. The court took issue with that position:
The burden on religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan. In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties.
13 In Tyndale House, the plaintiffs were secular employers that did not qualify for the accommodation and were therefore required to provide and pay for contraceptive services. In concluding that the contraceptive mandate burdened the plaintiffs’ religious exercise, the court emphasized the direct responsibility imposed on the employer to provide the objectionable coverage and the specific financial obligation imposed on the plaintiffs to pay for the contraceptives. The court found it significant that Tyndale acted as its own insurer and that “Tyndale itself directly pays for the health care services used by its plan participants.” 904 F. Supp. 2d at 123.
For similar reasons, plaintiffs’ many citations to Hobby Lobby, which is not controlling on this Court in any event, do not help resolve this case. Hobby Lobby is a self-insured, forprofit employer that does not qualify for the accommodation, and the plaintiffs there objected to “participating in, providing access to, paying for, training others to engage in, or otherwise supporting” the use of certain emergency and intrauterine contraceptives they consider to be a form of abortion. See 723 F.3d 1114, 1121 (10th Cir. 2013) (en banc), cert. granted No. 13-354, 2013 WL 5297798 (Nov. 26, 2013).
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Id. This passage suggests that the Circuit Court would find a substantial burden if the regulations, as revised, imposed obligations on Catholic University to take affirmative steps to include the objectionable products and services as part of its plans. That is not the case for an employer that offers a group insured plan in any event.14 But the court’s statement more directly addresses the question of when the burden attaches, not what it consists of. It was later in the opinion that the court more specifically described the burden that had been imposed upon the Gilardis that warranted relief under RFRA:
The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans, over whatever objections they may have. Such an endorsement – procured exclusively by regulatory ukase – is a “compel[led] affirmation of a repugnant belief.” That, standing alone, is a cognizable burden on free exercise. Id. at 1217–18. Finally, the court found that the burden was substantial because the government commands employer compliance with financial penalties, thereby giving the Gilardis a “Hobson’s choice:” comply with the mandate and participate in what they believe to be a grave moral wrong, or abide by the tenets of their faith and pay devastating penalties. Id. at 1218. Here, plaintiffs seize upon the Hobson’s choice language and the Circuit Court’s observation that if the risk of a $14 million fine “is not ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs,’ we fail to see how the standard could be met.” Id. But the question to be resolved here is not whether an acknowledged burden has been rendered
14 The accommodation requires insurance issuers to “[e]xpressly exclude contraceptive coverage” from the group health plan. 29 C.F.R. § 2590.715–2713A(c)(2)(i)(A). So even if the D.C. Circuit meant to define the RFRA burden with its shopping cart metaphor, the accommodation differentiates Catholic University from the Gilardis because the University is not required to “fill the basket of goods and services that constitute a healthcare plan” with contraceptive services coverage. See Gilardi, 733 F.3d at 1217.
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substantial by the threat of financial consequences for noncompliance but whether the compelled conduct imposes a meaningful burden on plaintiff’s religious exercise at all.
Unlike the Gilardis, the plaintiff nonprofit religious organizations in this case become eligible for the accommodation as soon as they state that they oppose providing coverage on the basis of their religious beliefs. 29 C.F.R. § 2590.715–2713A(a). This is exactly the opposite of the “compelled affirmation of a repugnant belief” that was at the heart of Gilardi, and it is a distinction that cannot be ignored. Furthermore, the accommodation explicitly provides that, “[w]ith respect to payments for contraceptive services, the [insurer] may not impose . . . any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization.” Id. § 2590.715–2713A(c)(2)(ii). This relief, which was not available to the Gilardis, cuts off any obligation of the self-certifying organization to pay for the contraceptive services of its employees or students. Id. So the case is not governed by Gilardi, and it is distinguishable from the decision in this District in Tyndale House.15
Plaintiffs seem to recognize what the law prohibits, and they put it succinctly in their own pleading: “Plaintiffs’ only request has been that they not themselves be made the vehicle by which the mandated coverage is delivered.” Pls.’ Reply at 4. Under the terms of the accommodation, Catholic University has in fact been relieved of any obligation to itself be the vehicle by which the coverage is delivered. The Court finds that the University has not met its burden under RFRA to establish a substantial burden on its exercise of religion and thereby
15 The Court’s conclusion can also be squared with Geneva College v. Sebelius, 941 F. Supp. 2d 672 (W.D. Pa. 2013), which addressed the contraceptive mandate before the accommodation was promulgated and relied heavily on the fact that the plaintiffs in that case had to arrange and pay for a health insurance plan that included the contraceptive services coverage.
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trigger the application of strict scrutiny.16 Defendants are therefore entitled to summary judgment on Catholic University’s RFRA claim.17
B. The accommodation falls short of relieving the burden on Thomas Aquinas College’s religious exercise.
Thomas Aquinas College is a Catholic institution that adheres to the same religious
beliefs as Catholic University: that interfering with conception is immoral, and that it is equally
wrong to take actions that would facilitate the use of contraceptives by others. Aff. of TAC
¶¶ 12–14. Unlike Catholic University, the College provides benefits on a self-insured basis, and
it offers its employees health insurance through the RETA Trust, “which is a self-insurance trust
set up by the Catholic bishops of California for the purpose of providing medical coverage consistent with Catholic moral teaching.”18 Id. ¶ 8. The self-insurance trust is administered by a
third-party administrator, Benefit Allocation System, id., and the parties have informed the Court
16 Additionally, for the reasons stated below in footnote 24, the contraceptive mandate does not impose a burden on Catholic University’s religious exercise even though it requires that the University’s student health insurance plan include coverage for contraceptive services. Not only does the accommodation effectively eliminate any potential facilitation on Catholic University’s part, but the fact that the ACA does not mandate the University to provide a student health insurance plan removes the government compulsion necessary to find a RFRA burden. See infra note 24.
17 The Court is not basing its holding on the government’s argument that the fact that the plaintiffs provide their employees with a salary that might ultimately be used to purchase contraceptive services means that the mandate does not impose its own religious burden. If plaintiffs voice religious objections to providing, paying for, and facilitating contraceptive themselves, but they do not object to paying a salary that could potentially be used for the purchase of contraceptives by the employees, it is not for the Court “to say that the line [plaintiffs] drew was an unreasonable one. Courts should not undertake to dissect religious beliefs . . . .” Thomas, 450 U.S. at 715.
18 Thomas Aquinas College’s RFRA claim refers only to its employee healthcare plan. It has not asked the Court to address whether the contraceptive mandate imposes a RFRA burden on the school by requiring that any student health insurance plan include contraceptive services coverage.
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that, notwithstanding the bishops’ involvement, the plan does not constitute a church-sponsored plan under ERISA. Supp. Aff. of TAC ¶ 6.
Under the regulations, a self-insured organization that wishes to avail itself of the accommodation must also certify its eligibility as a religious, nonprofit entity that opposes providing coverage for contraceptive services under 29 C.F.R. § 2590.715–2713A(a)(4). Under section 2590.715-2713A(b), a health plan established or maintained by an eligible organization that provides benefits on a self-insured basis then complies with the mandate to provide contraceptive coverage if:
(i) The eligible organization or its plan contracts with one or more third party administrators.
(ii) The eligible organization provides each third party administrator . . . with a copy of the self-certification . . . , which shall include notice that –
(A) The eligible organization will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and
(B) Obligations of the third party administrator are set forth in [the applicable regulations].
(iii) The eligible organization must not, directly or indirectly, seek to interfere with a third party administrator’s arrangements to provide or arrange separate payments for contraceptive services . . . and must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangements.
29 C.F.R. § 2590.715-2713A(b)(1). If a third-party administrator receives a copy of the selfcertification and agrees to enter into or remain in a contractual relationship with the eligible organization or its plan to provide administrative services, then it is bound to provide or arrange for separate payments for the contraceptive services. Id. § 2590.715-2713A(b)(2). The thirdparty administrator may provide for the payments itself, or it may arrange for an insurance issuer or another entity to do so, but in no event may any cost-sharing, premium, or fee be imposed,
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directly or indirectly, on the religious organization or its plan. Id. § 2590.715-2713A(b)(2)(i)– (ii).
So while this section of the regulations is also designed to accomplish the goal of relieving the religious organization of the burden of providing contraceptive coverage, by transferring that obligation to a substitute and shielding the organization from absorbing the cost in any way, there are several differences between what happens in the case of a self-insured entity and in the insured group health plan scenario. First, neither the ACA nor the accommodation itself imposes a mandatory obligation on the third-party administrator to accept responsibility to provide contraceptive services coverage on behalf of the self-certifying organization. One of the steps required for plan compliance is that the organization or its plan contract with a third-party administrator, and under the terms of the accommodation, the thirdparty administrator’s obligation to provide contraceptive coverage arises only if it receives a copy of the self-certification “and agrees to enter into or remain in a contractual relationship with the eligible organization or its plan to provide administrative services for the plan.” See id. § 2590.715–2713A(b)(2) (emphases added). As a result, if a third-party administrator declines to assume the responsibility to provide coverage for contraceptive services on behalf of the selfcertifying religious organization, the third-party administrator can no longer serve in that capacity for the organization’s plan, and the organization must either shop around to find a new third-party administrator that will assume responsibility for the coverage or proceed without a
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third-party administrator and await instructions from the government on how it can otherwise satisfy its obligations. See id.; see also 78 Fed. Reg. at 39880–81.19
Second, the accommodation operates differently in the self-insured context than in the insurer context because, should the third-party administrator agree to assume responsibility for the contraceptive services coverage, the regulations provide that the self-certification form itself “shall be an instrument under which the plan is operated [and] shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered.” 29 C.F.R. § 2510.3–16(b); see also id. § 2590.715–2713A(b)(1)(ii)(B). In other words, it is “plan administrators” who have the obligation under ERISA to carry out the contraceptive mandate, and unlike health insurance issuers in the insured plan context, the third-party administrator would not have this obligation unless it was conferred on it by law in some way. A religious organization’s self-certification provides that the organization will not be acting as the plan administrator for purposes of compliance with the contraceptive mandate, and it directs the third-party administrator to the rules that will govern its responsibilities. Id. § 2590.715–2713A(b)(ii).20
Finally, in the insurance context, the regulations expressly require insurers to carve out contraceptive services coverage from the self-insured organization’s plan. The third-party
19 The regulations do not spell this out explicitly, but both parties agree that this is what they will entail. The Court has questions about how this set of provisions will operate in practice in a situation such as the one presented by Thomas Aquinas College, where the third-party administrator may be in a contractual relationship with the plan but not with the eligible organization, and the plan and plan administrator may have religious objections of their own, but the Court has come to its conclusion based on the fact that this obligation to secure a compliant third-party administrator is by all accounts a critical feature of the accommodation for selfinsured plans. 20 In this case, the College does not serve as the ERISA plan administrator in any event. See Pl. TAC’s Dec. 17, 2013 Resp. to Order of the Ct. [Dkt. # 42].
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administrator will be separately arranging for and paying for the coverage, but under the auspices of the plan. As counsel for the government stated at the hearing, “[i]n the self-insured case, technically, the contraceptive coverage is part of the plan, [even though] the responsibility to make the payments . . . is entirely the [third-party administrator’s].” Mot. Hr’g Tr. 18.
In evaluating Thomas Aquinas College’s RFRA claim, then, the question becomes whether any of these differences are meaningful for purposes of the burden analysis.
In the Court’s view, the obligation to take affirmative steps to identify and contract with a willing third-party administrator if the existing third-party administrator declines forces the religious organization to do something to accomplish an end that is inimical to its beliefs. This involves the organization in facilitating access to contraceptive services, which the College has averred it cannot do, and it entails the critical element of modifying one’s behavior. Therefore, the College has met its burden to identify a burden on religious exercise imposed by the regulations governing self-insured plans.
The Court is less persuaded that the mere fact that the arrangements and payments for the contraceptive coverage arise under the auspices of the organization’s healthcare plan is enough to constitute a burden, even if the exclusion of the coverage from an insured group plan makes the government’s case stronger in that situation. A court could conclude that, since one of the founders and a Vice President of the College has averred that “[p]roviding health insurance coverage that includes coverage for [contraceptive services] is . . . inconsistent with the core moral and religious beliefs of the College,” Aff. of TAC ¶ 12, and a court is bound by law to accept a litigant’s sincere statement of his religious beliefs, the Court must base a finding that there is a burden on those grounds. But the fact that the payments are to be made as part of the plan, as opposed to a separate plan, is a technicality driven by the intricacies of ERISA and the
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insurance industry and the recognition that the third-party administrator can only advance “payments” and not issue a “policy.” Nothing about those details changes the fact that any actions the third-party administrator takes with respect to contraceptive coverage must be completely independent from the eligible organization. The payments are totally separate from and cannot be imposed upon the religious organization, and the third-party administrator can even arrange for an entirely separate insurance issuer to provide the payments. So the argument that the problem arises because the coverage is still being offered under the auspices of the religious organization’s plan is difficult to distinguish from the argument the Court has already rejected: that the organization is burdened based upon objectionable consequences, and the Court will not predicate its decision in the College’s favor on those grounds.
With respect to the self-certification, an argument can be made there is something qualitatively different about the act of self-certifying in the context of a self-insured entity that is different from the group plan scenario. That cuts both ways. On the one hand, the self-insured organization’s certification contains additional language that explicitly cuts itself out of the process: it provides that the organization will not be the plan administrator for purposes of the delivery of the coverage. 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A).
But on the other hand, the regulations provide that an eligible organization’s selfcertification “shall be an instrument under which the plan is operated” and “shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered.” Id. § 2510.3–16. Defendants explain the practical significance of that regulatory provision:
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[W]hen a [third-party administrator] receives a copy of the selfcertification from an eligible employer that sponsors a self-insured group health plan, that [third-party administrator] becomes an ERISA Section 3(16) plan administrator and claims administrator for the purpose of providing the separate payments for contraceptive services. Thus, the contraceptive coverage requirements can be enforced against such [thirdparty administrators] through defendant Department of Labor’s ERISA enforcement authority. Defs.’ Opp. & Reply at 6 (citations omitted). One could argue, then, that when Thomas Aquinas College files its self-certification, it will be taking more of an affirmative step to help secure women’s access to contraceptive services than Catholic University will be, and therefore, the Court should find that it is acting in a manner that is inconsistent with its religious beliefs. The Court sees the differences in the nature of the self-certification to be, again, primarily a problem of consequences. What the religious organization is being asked to do is the same: to express its religious objection. That action eliminates any obligation to provide or pay for contraceptive services, and then it is the regulations that operate to assign the obligation to someone else and to give the self-certification its legal import. In other words, defendants have done it, not the College. While the contraceptive coverage may still be under the broad roof of one health plan that is being offered, the government has assigned a new plan administrator the job of offering entirely separate shelter for that purpose under its own umbrella. So unless the religious organization has been forced to run around with the umbrella and find the person to hold it, hasn’t the accommodation succeeded in granting plaintiffs’ “only request . . . that they not themselves be made the vehicle by which the mandated coverage is delivered?” See Pls.’ Reply at 4 (first emphasis added). It is helpful to remember that, despite plaintiffs’ reliance on Gilardi, the Gilardi court was not concerned with results. It did not hold that the Gilardi’s rights were violated because their employees would receive access to contraception by virtue of their participation in the
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Gilardis’ plan or even because contraceptive services would be included in the plan. That question was not presented. What animated the court was its observation that the mandate – without the accommodation – “demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans.” Gilardi, 733 F.3d at 1217–18 (emphasis added). If the third-party administrator accepts the obligation, and there is no obligation placed upon the religious organization to secure another, these circumstances have also been eliminated by the accommodation in the self-insured context. Once again, there is no compelled affirmation of a repugnant belief.
But the operative word in that sentence is “if.” If the third-party administrator declines to serve, a series of duties and obligations will fall to the religious organization. If the third-party administrator stays in the contractual relationship but fails to carry out its obligations, then the College’s self-certification may be the tool which gives the government its ERISA enforcement authority. Looking at section 2590.715-2713A(b) as a whole, the Court finds that Thomas Aquinas has met its burden to show that the mandate, even as revised by the accommodation, imposes a burden on its religious exercise. Since that burden comes upon pain of substantial financial penalties, see 26 U.S.C. § 4980H, the Court must find it to be substantial. Gilardi, 733 F.3d at 1218.
Once the Court determines that the regulations impose a substantial burden on plaintiff’s religious exercise, it must go on to decide whether the application of the burden is in furtherance of a compelling interest and whether it is the least restrictive means of furthering that interest. Defendants have conceded that the Gilardi decision requires the Court to find that contraceptive
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mandate does not survive strict scrutiny,21 thus the Court concludes that Thomas Aquinas College is entitled to summary judgment on its RFRA claim.
C. The remaining plaintiffs do not have standing to raise a RFRA claim. The rest of the plaintiffs – Catholic Academies, Archbishop Carroll, Don Bosco, Mary of
Nazareth, Catholic Charities, Victory Housing, and the Catholic Information Center (collectively, the “church plan plaintiffs”) – provide their employees with health insurance through the Archdiocese’s self-insured health plan. Pls.’ SOF ¶ 5. The government contends that, therefore, they do not have standing to bring a RFRA challenge to the contraceptive mandate, and it has raised a significant jurisdictional concern. While this Court, like the court in the Eastern District of New York, is troubled by defendants’ delay in appreciating the implications of their own regulations, see Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12-2542, 2013 U.S. Dist. LEXIS 176432 (E.D.N.Y. Dec. 13, 2013), that circumstance does not alter the fact that they are correct.
The government’s authority to enforce a third-party administrator’s obligation to provide contraceptive services coverage on behalf of a self-certifying organization under the accommodation is derived from ERISA. It is ERISA that accords the government authority to penalize any third-party administrator that undertakes to pay for the coverage by remaining in its contractual relationship with the self-certifying organization but then fails to make the necessary
21 Gilardi addressed the burden imposed by the mandate itself on an employer that could not avail itself of the accommodation, and the Court found that the interests identified by the government were not sufficiently compelling, but even if they were, the mandate was not narrowly tailored to achieve those goals. 733 F.3d at 1219–24. For all of the reasons set out in this section of the opinion, the Court is not certain that the application of strict scrutiny would lead to the same conclusion in the context of weighing the acts required of a religious organization under the accommodation against the government’s interests, and it believes that the less restrictive means test would not be governed by the analysis in Gilardi since that Court was not assessing the provisions in the accommodation.
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payments or arrangements. See 29 C.F.R. § 2510.3–16(b); Mot. Hr’g Tr. 31. Thus, ERISA is essential to the accommodation’s regulatory scheme. It is well-settled, though, that church plans – such as the plan maintained by the Archdiocese – are explicitly exempt from the requirements of ERISA. 29 U.S.C. § 1003(b)(2) (2012). The government therefore has no authority to enforce the third-party administrator obligations under the accommodation against the administrator of a church plan. Defs.’ Opp. & Reply at 5–7.
Based on this regulatory framework, defendants argue that the church plan plaintiffs do not have standing. The church plan plaintiffs are self-insured under the Archdiocese’s plan, that plan constitutes a church plan under ERISA, and the government lacks authority to require the Archdiocese’s third-party administrator to provide contraceptive services coverage on behalf of the church plan plaintiffs, even if they furnish their self-certifications. As a result, defendants argue, the church plan plaintiffs have not alleged an actionable injury: they may object to facilitating access to contraceptive services, but the facts indicate that they will not actually be facilitating access to contraceptive services by offering a health insurance plan or by selfcertifying under the accommodation because, once they self-certify, there is no imminent risk that their third-party administrator will provide the objectionable coverage, and the government cannot force it to do so. Id. The Court agrees.
To satisfy the injury-in-fact requirement of standing, a plaintiff must suffer an invasion of a legally protected interest that is both (a) concrete and particularized and (b) actual or imminent. Lujan, 504 U.S. at 560. An injury that is merely conjectural or hypothetical does not suffice. Id. Here, the church plan plaintiffs allege the same burden under RFRA as Catholic University and Thomas Aquinas College: that requiring them to facilitate access to contraceptive services violates their sincerely held religious belief. In other words, as they cast their RFRA claim,
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plaintiffs’ claimed injury arises when the provision of contraceptive coverage has been facilitated by their actions and their beliefs have thereby been violated. Although the church plan plaintiffs are self-insured, and they are under the same obligation as Thomas Aquinas to self-certify and to transmit the form to the third-party administrator, that conduct does not give rise to a concrete, actual or imminent, cognizable injury in fact when it is performed by the church plan plaintiffs because there is no reason to believe that anything will happen after that.
For example, the church plan plaintiffs have not shown that they are injured by the requirement in the ACA that they provide a health insurance plan that includes access to contraceptive services because there is no indication in the record that the coverage under their plan – the Archdiocese plan – is going to change. See Pls.’ Submission in Resp. to Order at 12– 13 [Dkt. # 39].22 In response to specific questions from the Court on this topic, the government has unequivocally stated that the church plan plaintiffs will be in full compliance with the mandate if they provide the self-certification to the third-party administrator of their plan under
22 Plaintiffs argue that the accommodation itself is mandatory on its face and that, for purposes of standing, the Court should assume that its third-party administrator will comply “with its legal obligations as stated in the federal regulations” regardless of whether ERISA applies. Pls.’ Submission in Resp. to Order at 12. Although there are some contexts in which the “possibility that third parties may violate the law is too speculative to defeat standing,” Tel. & Data Sys., Inc. v. FCC, 19 F.3d 42, 48 (D.C. Cir. 1994), this is not one of those situations. The government has conceded that, under the accommodation, a church plan third-party administrator has no legal obligation to provide contraceptive services and may remain in its contractual relationship with the church plan plaintiffs even if it declines to provide that coverage. Given the representations contained in the Archdiocese’s affidavit concerning the manner in which it intends to operate its plan, it is reasonable to infer that the Archdiocese’s third-party administrator will decline to assume additional responsibilities to provide coverage or to actually provide that coverage when it has been told by the enforcing agency that it has no legal duty to do so.
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section 2590.715–2713A(b)(1)(ii) and abide by the provisions of section 2590.715–
2713A(b)(1)(iii).23 Defs.’ Resp. to Ct. Order at 1–3 [Dkt. # 40].
QUESTION BY THE COURT: If the church plan “plaintiffs submit the self-certification to the third-party administrator of the church plan pursuant to section [2590.715–2713A(b)(1)(ii)], would those plaintiffs then be in full compliance with the regulatory regime provided that they do not violate section [2590.715–2713A(b)(1)(iii)]?”
DEFENDANTS: “Assuming that they do not violate section [2590.715– 2713A(b)(1)(iii)], and that they maintain the self-certification form and make it available for examination upon request, then the self-certifying non-Archdiocese plaintiffs who cover their employees under the church plan . . . would be in full compliance with the regulatory regime.”
Id. at 1 (citation omitted).
Moreover, the self-certification alone is not enough to enable the church plan plaintiffs’
employees to obtain payments for the contraceptive services: the third-party administrator must
assume that responsibility. In the context of the Archdiocese plan, there is no reason to believe
that is an actual, imminent possibility. See Aff. of Archdiocese ¶ 15 (“Consistent with Catholic
teaching, the Archdiocese has historically excluded coverage for abortion [and] contraceptives
(except when used for non-contraceptive purposes) . . . .”). And the government has made it
clear that plaintiffs will not be obliged to shop for another one. See Defs.’ Resp. to Ct. Order at 3
23 29 C.F.R. § 2590.715–2713A(b)(1) provides that a group health plan “established or maintained by” an eligible organization that provides benefits on a self-insured basis complies with the contraceptive mandate if the eligible religious organization “or its plan” contracts with a third-party administrator, and the eligible organization provides the self-certification to the thirdparty administrator. The church plan plaintiffs question whether they are obligated to do anything under this provision because they have not “established or maintained” the plan – it is the Archdiocese’s plan. Joint Submission in Resp. to Order at 1–2, 5 [Dkt. # 36]. Based on the authority cited by plaintiffs on this point, the Court concludes that the church plan plaintiffs have “established or maintained” the Archdiocese plan for purposes of this section. See Anderson v. UNUM Provident Corp., 369 F.3d 1257, 1265 (11th Cir. 2004); Peckham v. Gem State Mut. of Utah, 964 F.2d 1043, 1049 (10th Cir. 1992). If the Court and the government are incorrect about that and the church plan plaintiffs have not “established or maintained” the plan that they expressly aver they offer to their employees, then they clearly would not have standing to bring an action challenging this provision.
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(“If the non-Archdiocese plaintiffs submit the self-certification to the [third-party administrator (“TPA”)] of the Archdiocese’s self-insured church plan, and the TPA does not agree to provide or arrange for payment for contraceptive services, then the non-Archdiocese plaintiffs are not required to identify another TPA to perform that function.”). Instead, in the context of the church plan, ERISA enforcement is lacking, and the government can neither require the thirdparty administrator of a church plan to end its contractual relationship for failing to assume responsibility for contraceptive services coverage nor penalize the third-party administrator that assumes the responsibility if it fails to actually provide that coverage.
Finally, there is no concern in this context that, by requiring the church plan plaintiffs to file a self-certification form, the government is compelling those plaintiffs to transform their contractual relationship with their third-party administrator or to provide the instrument that will serve as the legal authority to enforce the third-party administrator’s obligations under the accommodation. A church plan is not subject to ERISA, 29 U.S.C. § 1003(b)(2); therefore, a third-party administrator of a church plan cannot be transformed into an ERISA plan administrator just because the self-certification is filed. The church plan plaintiffs have not alleged an injury in fact that will flow from filing the self-certification form because that form has no effect other than to relieve their burden to provide contraceptive services coverage. Therefore, the church plan plaintiffs lack standing to bring the RFRA claim in Count I.
But even if one were to conclude that the church plan plaintiffs have standing to press their RFRA claim because they are still obligated to complete the self-certification form, they have not met their burden to establish that there is a RFRA burden on their religious exercise. Since the regulatory obligation to provide a health insurance plan and to self-certify a religious objection does not compel the church plan plaintiffs to provide contraceptive coverage or to
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facilitate the delivery of that coverage contrary to their principles, the Court concludes that
neither the contraceptive mandate nor the accommodation places a burden on the church plan plaintiffs’ religious exercise.24
The Court will grant defendants’ motion to dismiss the church plan plaintiffs’ RFRA
claims for lack of standing.
II. Defendants are entitled to summary judgment on the Free Exercise Clause claim in Count II.25
The Free Exercise Clause of the U.S. Constitution provides that “Congress shall make no
law . . . prohibiting the free exercise” of religion. U.S. Const. amend. I. The Supreme Court has
made clear that this constitutional right “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
24 There are additional grounds why, even if the Court found that the church plan plaintiffs sufficiently alleged an injury to satisfy standing, Catholic Information Center and Don Bosco do not have a successful RFRA claim. Unlike the other plaintiffs, Catholic Information Center and Don Bosco have less than fifty employees and are not subject to the employer mandate. Supp. Aff. CIC ¶ 4; Supp. Aff. Don Bosco ¶ 4. So, they provide health insurance to their employees on a voluntary basis. Although employers who provide health insurance voluntarily must still comply with the contraceptive mandate and face penalties for failure to do so, see 42 U.S.C. § 300gg-13(a); Mot. Hr’g Tr. 36, plaintiffs simply are not in the same position as those subject to the employer mandate because they can choose to not provide health insurance in order to exercise their religious belief of not facilitating access to contraceptive services. Any potential penalty resulting from that decision – such as difficulty recruiting employees without offering a health insurance plan – is the product of the conditions of the marketplace and is not imposed by the government. It therefore cannot be said that Catholic Information Center and Don Bosco suffer a cognizable RFRA burden because they are not in a position where the government is placing pressure on them to violate their religious beliefs in order to avoid a government imposed penalty.
25 In this section, “plaintiffs” refers only to Catholic University and Thomas Aquinas because the remaining plaintiffs do not have standing to argue that the contraceptive mandate violates the Free Exercise Clause. See supra section I.C.
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(or prescribes) conduct that his religion prescribes (or proscribes).”26 Smith, 494 U.S. at 879 (internal quotation marks omitted); see also Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 594– 95 (1940) (“The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”). The Court must apply strict scrutiny only when a law is either not neutral or not generally applicable. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993). When assessing whether a law is neutral and generally applicable, the two inquiries tend to overlap and “failure to satisfy one requirement is a likely indication that the other has not been satisfied.” Id. at 531.
Here, plaintiffs argue that the contraceptive mandate violates the Free Exercise Clause because it is neither neutral towards religion nor generally applicable because it is subject to numerous exceptions. Compl. ¶¶ 252–68; see also Pls.’ Mot. at 29–32. The Court disagrees.
A. The contraceptive mandate is neutral. A law is not neutral if it targets religious beliefs because of their religious nature or “if
the object of a law is to infringe upon or restrict practices because of their religious motivation.” Lukumi, 508 U.S. at 533. A discriminatory object may be present on the face of the challenged provision when the text “refers to a religious practice without a secular meaning discernable from the language or context.” Id. For example, Lukumi involved a city ordinance that prohibited animal sacrifice and the Supreme Court noted that the use of words such as “sacrifice” or “ritual” – which are religious in origin – might suggest that the city’s ordinance is discriminatory on its face. Id. at 533–34. A discriminatory object may also exist where the
26 It was this articulation of the Constitution’s religious protection that prompted Congress to bring religion back into the equation with RFRA. See Holy Land Found., 333 F.3d at 166–67. RFRA is statutory, however, and therefore has no bearing on the claims asserted under the Free Exercise Clause.
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challenged provision, in operation, targets religious practice in general, or certain religions’ practices specifically, for unfavorable treatment. Id. at 534 (noting that the Free Exercise Clause also “‘forbids subtle departures from neutrality’ and ‘covert suppression of particular religious beliefs’”).
Here, plaintiffs do not argue that the text of the contraceptive mandate is facially discriminatory, and the Court finds nothing in the language of the contraceptive mandate that would suggest that it is not neutral towards religion. See id. at 531. Instead, plaintiffs assert that the law is not neutral because “the Mandate was part of a conscious political strategy to marginalize and delegitimize Plaintiffs’ religious views on contraception by holding them up for ridicule on the national stage.” Pls.’ Mot. at 31. None of plaintiffs’ arguments relate to the actual effects of the contraceptive mandate or suggest that, as applied, the contraceptive mandate only burdens – and thus targets – religion. Because a lack of neutrality towards religion must be evident in the practical effects of the challenged provision – not just in what a party claims was in the minds of those who influenced or promulgated it – and because the contraceptive mandate does not operate to single out religion in general, or any religions specifically, for unfavorable treatment, it is neutral for purposes of the First Amendment.
Indeed, the availability of a religious employer exemption that completely exempts the Catholic Church from the requirements of the contraceptive mandate cuts against the conclusion that the contraceptive mandate was specifically designed to oppress those of the Catholic faith as plaintiffs suggest. See id. The Church employs over 2,100 individuals in the District of Columbia alone. See Aff. of Archdiocese ¶ 8.
Moreover, the contraceptive mandate applies equally to religious and nonreligious employers. It does not operate, as the Supreme Court put it in Lukumi, so “that almost the only
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conduct subject to [the ordinances was] the religious exercise” of a specific church. 508 U.S. at 535. All employers that offer a healthcare plan – whether they do so voluntarily or by virtue of the ACA, and whether they are religious or nonreligious – must include cost-free coverage of a range of preventive services, including contraceptive services, in their plans.27 This makes the law neutral. See Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (noting that the point system FCC used to award noncommercial education broadcast licenses was neutral because “the rule on its face appear[ed] also to disadvantage nonreligious centralized broadcasting networks” and therefore did not place a burden “on religious organizations ‘but almost no others’”).
The fact that many nonreligious employers may have provided coverage for contraceptive services prior to the contraceptive mandate does not change the analysis. The contraceptive mandate imposes a new burden on employers who already provide contraceptive services coverage – they must now provide contraceptive services coverage for free – and it eliminates the right of those employers to change their mind. Because the practical effect of the contraceptive mandate is to treat religious and nonreligious employers the same, that weighs in favor of finding the provision to be neutral towards religion.
27 That some employers may be exempt from this requirement because they qualify for the “grandfathered-plan exemption” does not change the conclusion that the contraceptive mandate imposes an equal burden on religious and nonreligious employers. Not only is the grandfathered-plan exemption of temporary duration and therefore only allows qualifying plans to avoid compliance with the contraceptive mandate for a limited time, the grandfathered-plan exemption is available to both religious and nonreligious employers equally. It therefore does not operate to impermissibly target religion for unfavorable treatment. See Am. Family Ass’n, 365 F.3d at 1171 (noting that any discrimination against decentralized organizations in the FCC’s point system was felt by both religious and nonreligious employers and any “differential impact . . . on . . . religion [was] neither . . . severe and targeted nor so unrelated to the FCC’s legitimate regulatory interests as to be a religious gerrymander”).
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The finding of neutrality is also supported by the fact that the mandate’s requirements are closely related to its stated goals.28 See Lukumi, 508 U.S. at 538. The final rules state that the purpose of the contraceptive mandate is to facilitate access to cost-free contraceptive services, which defendants have determined will help to improve the health of women and newborn children, decrease healthcare coverage cost disparities among women and men, and foster great equality for women in the workplace. 78 Fed. Reg. at 39872–73, 39887. Whether or not one agrees that access to cost-free contraceptive services will actually produce those desired outcomes, the contraceptive mandate’s requirements are aimed at promoting those asserted interests and are not so unrelated as to arouse suspicion. Cf. Lukumi, 508 U.S. at 538–39 (expressing concern that ordinances banning animal sacrifice prohibited more religious conduct than was necessary to prevent improper disposal of animal remains or to prevent animal cruelty). Thus, the contraceptive mandate is neutral in its practical effect, and it is related to its specified, neutral regulatory interests.
Plaintiffs point to statements by defendant Sebelius and by a key supporter of California’s contraception statute, and they allege that there was a pro-choice bias on the part of the IOM committee. See Pls.’ Mot. at 31–32. But those circumstances do not necessarily reflect
28 Although the D.C. Circuit found that the government’s interests in public health and equal access to healthcare for women are not compelling interests and that the contraceptive mandate is not narrowly tailored to achieve those interests, Gilardi, 733 F.3d at 1219–24, those interests may still serve as evidence of neutrality in this case because the Court is concerned not with whether the contraceptive mandate survives strict scrutiny, but with whether the stated goals are so unrelated to the regulatory mechanism as to raise suspicions that an otherwise neutral regulation has more sinister purposes. For the reasons provided in this section, the Court is convinced the contraceptive mandate has no ill intent toward religion or the Catholic Church.
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hostility towards Catholicism.29 And even though – if it can be shown to exist – the subjective intent of the drafters may create an inference that the object of a law is not neutral towards religion, Lukumi, 508 U.S. at 533, that inference is weakened when the law does not operate in a nonneutral way.30 See id. at 558 (Scalia, J., concurring) (“The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted . . . .”); United States v. O’Brien, 391 U.S. 367, 383 (1968) (“It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”); see also id. at 384 (“What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.”); City of Renton v. Playtime Theatres,
29 The statutory scheme itself suggests that Congress may have contemplated that HRSA’s guidelines would include contraceptive services coverage. HRSA’s statutory authority is derived from 42 U.S.C. § 300gg-13(a), which calls for coverage for preventive services, but then specifically directs HRSA to enumerate recommended preventive services for women. 42 U.S.C. § 300gg-13(a)(4). Paragraph (1) of that section requires coverage of “evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force.” Id. § 300gg-13(a)(1). Because many womenonly preventive services, such as breast cancer screening, breastfeeding counseling, and cervical cancer screening, already fall within paragraph (1), see USPSTF A and B Recommendations, U.S. Preventive Services Task Force, http://www.uspreventiveservicestaskforce.org/ uspstf/uspsabrecs.htm (last visited December 3, 2013), one could conclude that Congress had other women-only preventive services – such as contraceptive services – in mind. This further reduces the likelihood that the regulation was specifically designed to target adherents of the Catholic faith. 30 Defendant Sebelius’s use of sarcasm on the one occasion cited was, at most, insensitive, and the statement of the California legislator who played no role in the adoption of the rule does not bear on this case at all.
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Inc., 475 U.S. 41, 47 (1986) (applying the same principle in the regulatory context). The Court therefore finds that the contraceptive mandate is neutral towards religion.31
B. The contraceptive mandate is generally applicable. Plaintiffs argue that the contraceptive mandate is not generally applicable because there
are exemptions to its requirements, Pls.’ Mot. at 30, and they quote the sentence in Lukumi, which states: “[I]n circumstances in which individualized exemptions from a general requirement are available, the government may not refuse to extend that system to cases of religious hardship without compelling reason.” 508 U.S. at 537, quoting Smith, 494 U.S. at 884 (internal quotation marks omitted). But the requirement of general applicability is not the same thing as requiring a regulation to be universally applicable. See Gillette v. United States., 401 U.S. 437 (1971).
First of all, the quoted language is taken from the Supreme Court’s neutrality discussion in Lukumi. Although inquiries into a regulation’s neutrality and general applicability tend to overlap, Lukumi, 508 U.S. at 531, the observation appears to recognize that the application of statutory or regulatory discretion to exempt all secular objectors, leaving the rule to be enforced against a religious group only, would undermine its neutrality. Id. at 537 (explaining that the government exercised its discretion to determine which animal killings were necessary and therefore exempt in a way that “devalue[d] religious reasons for killing by judging them to be of lesser import than nonreligious reasons”).
31 Despite plaintiffs’ arguments to the contrary, the contraceptive mandate does not single out Catholicism for unfavorable treatment while leaving all other religions unaffected. It is undisputed that the exemption is available to the Catholic Church, and that the availability of the exemption for the religious-affiliated organizations turns on the nature of those organizations and not the church with which they are affiliated.
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But here, none of the exemptions to the contraceptive mandate are individualized, and
none of the exemptions require the government to exercise its discretion in a way that would
allow it to “devalue[] religious reasons for [not providing contraceptive services coverage] by
judging them to be of lesser import than nonreligious reasons.” See id. All of the exemptions
are available regardless of an employer’s religious leanings, and an employer’s ability to qualify
for an exemption is not based on any subjective determination by the government. See Am.
Family Ass’n, 365 F.3d at 1171 (“Even setting aside that nonreligious organizations also face
burdens from the rule, the burden the point system foists on religious organizations is relatively
modest” because “[t]here is nothing inherently related to religion in the point system’s criteria”).
Indeed, the availability of both the religious employer exemption and the accommodation for
nonprofit religious organizations demonstrates that the government is not devaluing religious concerns, but rather, it is making efforts to accommodate them.32
The Court in Lukumi acknowledged that it did “not define with precision the standard
used to evaluate whether a prohibition is of general application,” but it indicated that the inquiry
32 The Third Circuit’s decision in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999) – even if it were binding on this Court – does not compel a contrary conclusion. In that case, the court addressed whether a police department’s decision to deny a religious exemption to its no beard policy violated the Free Exercise Clause and determined that the policy was subject to heightened scrutiny because it was not generally applicable. Id. at 365. But, the court did not simply look at the police department’s beard policy, spot a secular exemption, and automatically decide that heightened scrutiny applied. Instead, the existence of a nonreligious exemption for medical reasons gave the court pause because the nonreligious exemption would undermine the stated goal of having uniform police uniforms to the same extent as if the department allowed a religious exemption to that policy. Id. at 366. Consequently, providing an exemption for medical reasons but not for religious reasons aroused suspicion that the government was making “a value judgment in favor of secular motivations, but not religious motivations.” Id. However, the court was not troubled by the existence of an exemption for undercover police officers because undercover officers are not held out as police to the public, which means that their appearance did not undermine uniformity in police appearance. Id. Here, the only permanent exemption to the contraceptive mandate is an exemption that respects religion.
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should focus on whether the challenged provision is so underinclusive that it raises suspicions as to whether it was actually designed to promote the proffered government interests. 508 U.S. at 543.
Here, the cited exceptions do not give rise to that sort of underinclusiveness. The grandfathered-plan exemption and the small employer exemption are not specific exemptions to the contraceptive mandate; instead, they are general exemptions to mandate that employers comply with all of the ACA’s new essential minimum coverage requirements. These exemptions to the employer mandate do not tend to show that the government has created so many specific exemptions to the contraceptive rules to counteract their efficacy in promoting public health and women’s equality.33 Similarly, the one-year safe harbor delaying enforcement of the contraceptive mandate is irrelevant when considering whether the contraceptive mandate is underinclusive. The safe harbor was temporary and it will expire next month, thereby eliminating any potential underinclusiveness caused by that “exemption.”
The only specific exemption to the contraceptive mandate – and therefore the only potential source of underinclusiveness – is the religious employer exemption established by 45 C.F.R. § 147.131(a). The existence of a religious employer exemption, however, does not give rise to the kind of underinclusiveness that concerned the Supreme Court. See Lukumi, 508 U.S. at 543 (finding underinclusiveness where the ordinances “fail[ed] to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does”). It is true that the definition of religious employer includes some religious organizations and not others, but the purpose of the narrow definition was to narrow the group of employees
33 Moreover, to the extent that these exemptions are relevant to the general applicability inquiry, they do not cut against a finding of general applicability because the grandfathered plan exemption is of limited duration and the small employers exemption does not exempt a small employer who voluntarily chooses to provide health insurance from the contraceptive mandate.
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who would be carved out of the law. See 78 Fed. Reg. at 39874 (explaining that defendants adopted a narrow definition of religious employer because it allowed them to respect religious objections to contraceptive services “in a way that [did] not undermine the governmental interests furthered by the contraceptive coverage requirement” because “[h]ouses of worship and their integrated auxiliaries . . . are more likely than other employers to employ people of the same faith who share the same objection [to contraceptive services], and who would therefore be less likely than other people to use contraceptive services”). In other words, the religious employer exemption was drafted narrowly in order to prevent the contraceptive mandate from being underinclusive.
The Court finds, then, that the contraceptive mandate is generally applicable because none of its exemptions create the type of individualized value assessment or underinclusiveness that warrants a contrary finding. Since the contraceptive mandate is both neutral and generally applicable, strict scrutiny is not triggered, and defendants are entitled to summary judgment on Count II, plaintiffs’ Free Exercise Clause claim.34
34 In their motion for preliminary injunction, plaintiffs cite Smith and briefly discuss the language in that case that has been used to create a sort of hybrid theory of constitutional rights that would trigger the application of heightened scrutiny. Pls.’ Mot. at 32. It is not clear, however, from plaintiffs’ motion – or its subsequent motions that do not mention the hybrid theory – whether plaintiffs intend to assert a separate claim under the hybrid rights theory. To the extent that this was their intention, the Court finds that a hybrid rights claim must also fail. In the D.C. Circuit, the hybrid rights theory may only trigger strict scrutiny where at least one of the two asserted constitutional claims is viable. Henderson, 253 F.3d at 19 (noting that at least one claim must be viable because the laws of mathematics teach us that “zero plus zero equals zero”). As explained throughout this opinion, plaintiffs’ only viable constitutional claim is a narrow count that does not go to the contraceptive mandate, but only challenges the ban on attempts to influence a third-party administrator. See infra section IV. As this claim is extremely narrow and does not overlap with plaintiffs’ other constitutional claims, the Court declines to use the hybrid theory to trigger strict scrutiny in this case.
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III. Defendants are entitled to summary judgment on plaintiffs’ compelled speech claims in Count III.35 The First Amendment Free Speech Clause provides that “Congress shall make no
law . . . abridging the freedom of speech.” U.S. Const. amend. I. It protects not only “the right to speak freely,” but also “the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). It therefore offers protection to parties subject to government compelled speech, permitting them in certain situations to remain silent. See, e.g., Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR”), 547 U.S. 47 (2006); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974).
Here, plaintiffs claim that the contraceptive mandate unconstitutionally compels them to speak in two ways: first, plaintiffs assert that the contraceptive mandate violates the First Amendment because it compels them to provide, pay for, and facilitate access to counseling in favor of the use of contraceptive services, which they do not support. Compl. ¶¶ 269–83; see also Pls.’ Mot. at 33. Second, plaintiffs assert that the accommodation, in conjunction with the contraceptive mandate, compels them to engage in speech – the self-certification form – that simultaneously results in the provision of contraceptive services to which they object while depriving them of the freedom to speak on the issue of abortion and contraception on their own terms. Id. Although at bottom both claims deal with the constitutionality of compelled speech, they differ enough to warrant separate treatment because the former addresses the government’s ability to compel a party to support third-party speech whereas the latter alleges an imposition on these plaintiffs. Neither aspect of the regulations offends the First Amendment.
35 The Archdiocese is completely exempt from the contraceptive mandate and therefore cannot assert a compelled speech claim.
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A. Providing access to counseling about contraceptive services through plaintiffs’ healthcare plan does not violate plaintiffs’ free speech rights.36
Plaintiffs assert that the contraceptive mandate violates their free speech rights because it
compels them to provide, pay for,37 and facilitate access to counseling that encourages,
promotes, or facilitates the use of contraceptive services. Compl. ¶ 275; see also Pls.’ Mot. at 33.
More specifically, they complain that, by compelling them to provide a health insurance plan that
covers third-party counseling on the topic of contraceptive services, the contraceptive mandate
forces plaintiffs to facilitate third-party speech in “favor of such practices” and therefore violates
plaintiffs’ free speech rights by forcing them to “speak” in a manner inconsistent with their
beliefs. Pls.’ Mot. at 33 (emphasis in original).
The Court notes at the outset that the definition of preventive services incorporated into
the mandate includes “patient education and counseling for all women with reproductive
36 To the extent that Catholic University asserts this argument as part of its compelled speech claim, the argument fails because the contraceptive mandate does not require the University to offer a health plan that includes contraceptive services coverage. See 29 C.F.R. § 2590.715–2713A(c)(2)(i)(A). Similarly, the facts do not support the argument that the church plan plaintiffs are compelled to provide access to counseling about contraceptive services because there is no indication that the coverage will be provided to their employees. See supra section I.C. The only remaining plaintiff is Thomas Aquinas.
37 Throughout their briefs, plaintiffs imply that the contraceptive mandate requires them to pay for their employees’ contraceptive services. That characterization is inaccurate in light of the accommodation, for which all plaintiffs admittedly qualify. Compl. ¶ 10. Under the accommodation, eligible organizations – including plaintiffs – are not required to pay for contraceptive services. 29 C.F.R. § 2590.715–2713A(b)(1)(ii)(A), (b)(2), (c)(2). Moreover, the regulations explicitly prohibit insurers or third-party administrators from passing the cost of those services through to the employer. Id. § 2590.715–2713A(b)(2), (c)(2); 78 Fed. Reg. at 39877, 39879. The regulations provide for separate accounting of the money used to pay for contraceptive services in order to ensure that plaintiffs’ fear that their other insurance premiums would suspiciously increase does not come to fruition. 29 C.F.R. § 2590.715–2713A(d); 78 Fed. Reg. at 39877, 39879. Thus, there can be no argument that the contraceptive mandate and the accommodation violate plaintiffs’ free speech rights by requiring them to subsidize third-party speech that has a content to which they object.
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capacity,” and not advocacy “in favor of” anything, so plaintiffs’ characterization is not entirely accurate. See Women’s Preventive Services Guidelines, HRSA, http://www.hrsa.gov/ womensguidelines/ (last visited Dec. 12, 2013). But assuming that, in some circumstances, information and counseling about contraception could also include advice, encouragement, or instructions, the Court will consider this claim on its merits. Since plaintiffs are not obliged to personally deliver the counseling,38 their claim is best understood as an objection to forced accommodation of third-party speech.
The government violates the First Amendment when it compels “one speaker to host or accommodate another speaker’s message.” FAIR, 547 U.S. at 63 (“Our compelled-speech cases are not limited to the situation in which an individual must personally speak the government’s message.”); see also Pacific Gas & Elec. Co v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 20–21 (1986) (plurality opinion); Tornillo, 418 U.S. at 258. This is so because such governmental compulsion would deprive the compelled speaker of “the autonomy to choose the content of his own message.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 573 (1995) (“[O]ne who chooses to speak may also decide ‘what not to say.’”).
In Rumsfeld v. FAIR, the Supreme Court concluded that a law requiring law schools to provide military recruiters with equal access to their students by “hosting” the recruiters did not violate the schools’ free speech rights. 547 U.S. at 61–68. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., however, the Supreme Court reached the opposite
38 This is not a case where plaintiffs are being asked to personally convey a third-party or government message. See Pacific Gas, 475 U.S. at 20–21; Tornillo, 418 U.S. at 258. They are not disseminating counseling regarding the use of contraceptive services by handing out or posting pre-made materials, and they are not engaging in the counseling themselves. In fact, the regulations take pains to ensure that plaintiffs are in no way involved in the dissemination of material regarding the coverage of contraceptive services. 29 C.F.R. § 2590.715–2713A(d); 78 Fed. Reg. at 39876, 39880. Consequently, cases like Pacific Gas and Tornillo are distinguishable and do not govern this case.
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conclusion, finding that a Massachusetts law that, in effect, “require[d] private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey,” violated the parade organizers’ First Amendment free speech rights. 515 U.S. at 559.
In each case, the Court called for the same initial showing: (1) that the objecting party itself was engaged in speech and (2) that accommodating the third-party speech would alter the message of the objecting party’s speech. FAIR, 547 U.S. at 63; Hurley, 515 U.S. at 576–77; see also PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980). Without satisfying this essential element, the Court suggested that there could be no compelled accommodation claim: “The compelled-speech violation in each of our prior cases . . . resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate.” FAIR, 547 U.S. at 63.
The second factor considered by the Court in FAIR and Hurley was whether there was a risk that the third party’s objectionable speech might be attributed to the objecting host speaker. FAIR, 547 U.S. at 65; Hurley, 515 U.S. at 575; see also Turner Broad., 512 U.S. at 655; PruneYard, 447 U.S. at 87. And the third factor considered by the Court was whether, as applied, the provision compelling a host speaker to accommodate the other’s speech had any legitimate, nonspeech related purpose. Hurley, 515 U.S. at 578.
Here, there is no evidence that the contraceptive mandate unconstitutionally requires plaintiffs to accommodate objectionable third-party speech. Plaintiffs are not engaging in speech
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or inherently expressive conduct when they provide their employees with health insurance.39 See
FAIR, 547 U.S. at 64 (noting that “accommodating the military’s message [did] not affect the
law schools’ speech, because the schools are not speaking when they host interviews and
recruiting receptions”). So plaintiffs’ compelled-accommodation claim is missing the first
essential element: plaintiffs’ own speech is not being used as the vehicle through which a third-
party’s speech is communicated. See FAIR, 547 U.S. at 63; Hurley, 515 U.S. at 576; PruneYard,
447 U.S. at 87; see also Hurley, 515 U.S. at 568, 572 (noting that “parades are . . . a form of
expression, not just motion,” and that “every participating unit [in the parade] affects the
message conveyed by the private organizers”). Therefore, the compelled-accommodation claim
in Count III fails.
Moreover, even if plaintiffs were engaging in speech that could be altered by the
availability of counseling for women about contraceptive services, any compelled
accommodation of that counseling is not constitutionally problematic. First, it is unlikely that
any objectionable third-party counseling would be attributed to plaintiffs simply because access
to that counseling was obtained through an employer-provided health insurance plan. The
Catholic Church is widely known to oppose the use of contraceptive services, and as plaintiffs
assert, their faith is central to everything they do. See Aff. of CCA ¶¶ 7, 14; Aff. of ACHS ¶¶ 7,
39 The conduct compelled by the employer mandate and contraceptive mandate is the provision of health insurance to eligible employees that contains coverage for contraceptive services. Although the First Amendment’s protections extend to inherently expressive conduct, see, e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989), providing health insurance is not inherently expressive and is therefore not First Amendment speech. No insurance provider intends “to convey a particularized message” by providing insurance, and there is virtually no likelihood “that the message would be understood [as communicating a particular stance] by those who viewed it.” Id.; see also FAIR, 547 U.S. at 64 (finding no third-party speech accommodation problem because “a law school’s decision to allow recruiters on campus is not inherently expressive” and instead is made to facilitate recruitment and “assist their students in obtaining jobs,” not express a point of view). Consequently, this case does not involve speech or inherently expressive conduct.
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14; Aff. of Don Bosco ¶¶ 7, 14; Aff. of Mary of Nazareth ¶¶ 7, 14; Aff. of Catholic Charities
¶¶ 7, 14; Aff. of ACHS ¶¶ 7, 14; Aff. of Victory Housing ¶¶ 7, 14; Aff. of CIC ¶¶ 7, 14; Aff. of
CUA ¶ 13; Aff. of TAC ¶ 11. Second, the contraceptive mandate has a legitimate, nonspeech-
related purpose of providing women with access to preventive services to improve the health of
women and newborn children, and it is devoid of any purpose to target speech. Plaintiffs remain
completely free to espouse their beliefs against the use of contraception as well as to encourage their employees not to utilize those services.40 So plaintiffs’ free speech claim is also missing
the other hallmarks of unconstitutional accommodation claims. The Court therefore concludes
that any requirement placed on plaintiffs to accommodate the speech of third-party healthcare
professionals does not interfere with plaintiffs’ speech and therefore does not violate plaintiffs’ First Amendment rights.41
B. The self-certification form does not violate plaintiffs’ free speech rights.
Plaintiffs also argue that requiring them to file a self-certification form in order to invoke
the protections of the accommodation amounts to compelled speech in violation of their free
40 Plaintiffs argue that the freedom to express their beliefs outside the regulatory scheme does not alleviate the compelled speech problem in this case. Pls.’ Opp. & Cross-Mot. at 36. Although this Court recognizes that the freedom to express views in another context will not prevent all compelled speech from being constitutionally suspect, the Supreme Court has recognized that it is a factor that can be considered in determining whether there is a Free Speech Clause violation. FAIR, 547 U.S. at 65 (finding no free speech violation because the law schools remained free to say what they wished about the military’s objectionable policies); PruneYard, 447 U.S. at 87 (noting that the mall owners remained free to express their own ideas).
41 This conclusion is not weakened by plaintiffs’ argument that requiring them to accommodate the speech of third-party counselors regarding the use of contraception violates their free speech rights because it forces them to “affirm in one breath that which they deny in the next.” Pls.’ Opp. & Cross-Mot. at 36, quoting Pacific Gas, 475 U.S. at 15–16. Plaintiffs are not affirming anything: offering health insurance that includes coverage for contraceptive services counseling is not speech. Moreover, under the terms of the accommodation, neither Catholic University, the Archdiocese, nor any of the church plan plaintiffs would be providing these services as part of their plans. To the extent that they are referring to the self-certification form, the Court addresses that argument below.
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speech rights. Compl. ¶ 276; Pls.’ Mot. at 33. First, they state that the self-certification requirement forces them “to engage in speech that triggers the provision of products and services to which they object,” Pls.’ Opp. & Cross-Mot. at 37, and second, “it deprives them of the freedom to speak on the issue of abortion and contraception on their own terms, at a time and place of their own choosing, outside of the confines of the Government’s regulatory scheme.” Pls.’ Mot. at 33–34. Neither argument, however, supports plaintiffs’ claim that the accommodation’s self-certification requirement violates the Free Speech Clause.
1. Requiring plaintiffs to file a self-certification form that ultimately results in the provision of contraceptive services coverage does not violate plaintiffs’ free speech rights.42
Plaintiffs point to the consequences of the self-certification form and argue that requiring them to file the form is compelled speech because it makes their speech the “trigger” for the provision of contraceptive services. Id. at 33. To support this consequence-based argument, they direct this Court’s attention to the Supreme Court’s decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011). See Pls.’ Opp. & Cross-Mot. at 37. Plaintiffs’ reliance on Bennett is misplaced.
In Bennett, the Supreme Court addressed the constitutionality of an Arizona law that gave publicly financed political candidates matching funds for every dollar donated to, or spent on behalf of, a privately funded candidate. 131 S. Ct. at 2813. The Court concluded that “the matching funds provision ‘impose[d] an unprecedented penalty on any candidate who robustly exercise[d] [his] First Amendment right[s]’” by creating a situation where, simply by engaging in
42 To the extent that the church plan plaintiffs assert this argument as part of their compelled speech claim, the argument fails because there is no indication that filing the selfcertification form will result in the provision of contraceptive services coverage to the church plan plaintiffs’ employees. See supra section I.C. As a result, “plaintiffs” in this subsection refers only to Catholic University and Thomas Aquinas College.
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free speech, the privately funded candidate guaranteed that his or her opponent would receive a cash subsidy from the state of Arizona. Id. at 2818, quoting Davis v. FEC, 554 U.S. 724, 739 (2008) (second and third alterations in original). In other words, the Court determined that the law created a “trigger effect” by which a privately funded candidate’s speech was penalized, thus resulting in a chilling effect on that political speech. Id. at 2824. Consequently, the Court determined that strict scrutiny should apply even though the challenged law did not fit into the typical compelled speech or subsidized speech fact pattern. Id.
The contraceptive mandate, the accommodation, and the self-certification form do not create a similar penalty in this case. In Bennett, the publicly funded candidate was only entitled to matching funds if the privately funded candidate expressed himself by expending his own funds, so the privately funded candidate’s speech was the actual trigger for payment, and the Court’s concern was that his speech would therefore be inhibited. Id. at 2821. Here, the selfcertification form is not the actual trigger for coverage of contraceptive services, and there is no speech of the plaintiffs that is being chilled. Instead, the source of the contraceptive services coverage is the ACA itself, which mandates that all health insurance plans that are not exempt must include cost-free coverage for women’s preventive services. See 42 U.S.C. § 300gg13(a)(4). This statutory right to contraceptive services coverage exists and attaches prior to and independent of any speech by an employer; any speech associated with the self-certification form is merely designed to relieve the religious employer of any obligation to fund the services itself
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and to transfer the burden of providing the coverage.43 Since there is nothing about the consequences of filing the self-certification form that chills or inhibits plaintiffs’ speech, the situation in this case is a far cry from the one in Bennett.
2. Compelling plaintiffs to state their religious objections to the provision of contraceptive services coverage does not violate plaintiffs’ free speech rights.
In addition to their consequences-based argument, plaintiffs assert that the selfcertification form is unconstitutionally compelled speech “because it deprives them of the freedom to speak on the issue of abortion and contraception on their own terms, at a time and place of their own choosing, outside of the confines of the Government’s regulatory scheme.” Pls.’ Mot. at 33–34. In other words, plaintiffs argue that the self-certification form is speech, that it is compelled because they must file the form in order to receive the benefits of the accommodation, and that it violates their free speech rights because they should be able to decide when to speak and when to stay silent. Although it is well-settled that the Free Speech Clause protects the freedom to speak as well as the freedom to remain silent, Barnette, 319 U.S. at 633– 34; see also Wooley, 430 U.S. at 714, the Court concludes that the self-certification form requirement does not violate plaintiffs’ rights.
Under the regulations, the self-certification form must include the following information: (1) that the self-certifying organization “opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious
43 It makes no difference to this Court’s analysis that plaintiffs may block access to contraceptive services coverage by not filing the self-certification form – and therefore not engaging in speech – and by agreeing instead to pay the applicable penalties. Once again, the underlying statutory right to coverage for contraceptive services remains in existence despite plaintiffs’ choice of whether to “speak;” regardless of whether the self-certification form is filed, plaintiffs’ employees are entitled to cost-free contraceptive services coverage and plaintiff will either have to provide that coverage, pay penalties, or file the self-certification form. Consequently, this is simply not a case where some expressive act by plaintiffs is the absolute and only trigger for consequences that are inimical to their interests as in Bennett.
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objections;” (2) that the organization “is organized and operates as a nonprofit;” and (3) that the organization “holds itself out as a religious organization.” 29 C.F.R. § 2590.715–2713A(a). Plaintiffs do not object to the content of these statements; instead, as discussed above, they object that the consequence of these statements is the provision of coverage for contraceptive services by others. Pls.’ Mot. at 9; see also Compl. ¶ 276 (“The U.S. Government Mandate would compel Plaintiffs to issue a certification of their beliefs that, in turn, would result in the provision of objectionable products and services to Plaintiffs’ employees.”).
Since it is undisputed that, to the extent the form transmits any content at all, it accurately reflects plaintiffs’ beliefs, the First Amendment is not implicated. The Supreme Court has explicitly stated that a compelled speech claim involves a situation where “an individual is obliged personally to express a message he disagrees with, imposed by the government.” Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005) (emphasis added); see also FAIR, 547 U.S. at 62; Turner Broad., 512 U.S. at 641. And a review of other compelled speech precedent further demonstrates that the free speech clause has been historically invoked to protect against compelling an individual from speaking or endorsing a message with which the speaker disagrees. See, e.g., Wooley, 430 U.S. at 715 (finding a free speech violation where a state law compelled an individual to display a license plate motto that articulated an “ideological point of view [the plaintiff found] unacceptable”); Barnette, 319 U.S. at 634 (“To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”).
The self-certification does not require plaintiffs to say anything with which they disagree; instead, it merely asks them to assert that they have a religious objection to the provision of
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contraceptive services – a statement that is entirely consistent with their beliefs. See 29 C.F.R. § 2590.715–2713A(a). The self-certification form does not contain a government-preferred message, and it does not force plaintiffs to serve as a mouthpiece to spread adherence to the government’s ideological goals.44 See Johanns, 544 U.S. at 557. The self-certification form is simply part of a regulatory scheme that requires plaintiffs to state their objections on the record in order to be exempted from the regulations. See FAIR, 547 U.S. at 62 (finding that the Solomon Amendment did not raise free speech concerns because any compelled speech was merely incidental to the regulation of conduct). Viewed in this context, the self-certification form is no different than requiring conscientious objectors to state their objections to war in order to be excused from the draft or requiring nonprofit organizations to fill out a form to apply for section 501(c)(3) tax-exempt status. Therefore, the Court concludes that requiring plaintiffs to file the self-certification form does not violate their free speech rights, and defendants are entitled to summary judgment on Count III. IV. Plaintiffs are entitled to summary judgment on their claim that the accommodation
places an unconstitutional restriction on their free speech rights in Count IV.45 Plaintiffs also argue that defendants violated their free speech rights by enacting what plaintiffs hyperbolically refer to as a “gag order” as part of the accommodation. Compl. ¶¶ 284– 88. The challenged provision applies only to organizations that are self-insured and use third-
44 Evergreen Ass’n v. City of New York and Centro Tepeyac v. Montgomery County are distinguishable on that ground because the regulations in those cases required the plaintiffs to present a government-preferred message. 801 F. Supp. 2d 197, 201 (S.D.N.Y. 2011); 779 F. Supp. 2d 456, 458–59 (D. Md. 2011), aff’d in part, rev’d in part, 683 F.3d 591 (4th Cir. 2012). 45 Catholic University does not have standing to challenge this provision because it offers health insurance through a group health plan maintained by an insurer. See Aff. of CUA ¶¶ 8, 10. The Archdiocese also does not have standing to bring this claim because it is entirely exempt from the contraceptive mandate. See Aff. of Archdiocese ¶ 18.
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party administrators, and it provides that, once an organization self-certifies under the accommodation, it “must not, directly or indirectly, seek to interfere with a third-party administrator’s arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangements.”46 29 C.F.R. § 2590.715– 2713A(b)(1)(iii).
Plaintiffs do not challenge the constitutionality of the first half of the provision, which prohibits the eligible organization from interfering with a third-party administrator’s provision of the contraceptive services coverage. But they are concerned with the broad scope of the second part of the provision, which provides that a religious organization may not “directly or indirectly” influence the third-party administrator’s decision as to whether it will agree to remain in a contractual relationship with the organization and assume the responsibility to provide the coverage. The Court finds that the regulation imposes a content-based limit on the religious
46 There is no complementary provision for organizations participating in group health insurance plans because an insurer has an automatic obligation to provide coverage upon receipt of a self-certification form, unlike a third-party administrator who may ultimately decide to not enter into, or remain in, a contractual relationship with a self-certifying organization. Compare 29 C.F.R. § 2590.715–2713A(b)(2), with id. § 2590.7152713A(c)(2).
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organizations involved that directly burdens, chills, and inhibits their free speech.47 See Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989) (noting that the “principal inquiry in
determining content neutrality . . . is whether the government has adopted a regulation of speech
because of [agreement or] disagreement with the message it conveys”). This type of restriction
on speech is “‘presumptively invalid’ and subject to strict scrutiny.” Ysursa v. Pocatello Educ.
Ass’n, 555 U.S. 353, 358 (2009), quoting Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 188
(2007); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
To satisfy strict scrutiny, a law or regulation must further a compelling interest, and it
must be narrowly tailored to achieve that interest. Bennett, 131 S. Ct. at 2817; FEC v. Wis. Right
to Life, 551 U.S. 449, 464 (2007). The Court may not consider any potential interest that may
support the challenged provision; instead, the Court’s strict scrutiny analysis is limited to the
interests proffered by the government. See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 786
(1978) (noting that “the burden is on the government to show the existence of [a compelling]
interest”).
Here, defendants argue that the speech restriction is meant to prevent a self-certifying
organization from using its economic power to coerce a third-party administrator into declining
47 Although on its face the regulation does not limit its prohibition only to speech seeking to dissuade the third-party administrator from providing coverage for contraceptive services, viewed in the regulatory context, there is no question that this is a content-based restriction. The restriction on speech only arises after an eligible organization self-certifies that it objects to the provision of contraceptive services and effectively shifts the burden of providing those services – or at least creates a decision as to whether the third-party administrator will accept the burden to provide those services – onto the third-party administrator. See 29 C.F.R. § 2590.715– 2713A(b)(1)(iii). As a result, the only organizations subject to the restriction on speech are those organizations that have already specifically stated that they object to the provision of contraceptive services. Thus, any argument that the restriction – at bottom – equally applies to speech that seeks to influence third-party administrators to cover contraceptive services, and not just speech that seeks to discourage that coverage, is frivolous. A party who self-certifies that it objects for religious reasons to providing coverage for contraceptive services simply will not turn around and try to encourage a third-party administrator to provide that coverage.
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to assume responsibility for providing contraceptive services coverage to the organization’s employees. Defs.’ Mem. at 36. This interest against economic coercion was deemed compelling in NLRB v. Gissel Packing Co., 395 U.S. 575, 618–19 (1969). But the provision does not survive strict scrutiny because it does not simply ban threats or coercion, and it is not narrowly tailored or the least restrictive means to achieve the government’s interest.
The ban contained in the provision – that self-certifying organizations “must not, directly or indirectly, seek to influence the third party administrator’s decision” – is broader than it needs to be to serve the proffered interest: it restricts not only economic coercion but also any attempt to calmly discuss the moral implications of providing contraception with a third-party administrator. A rule that prohibits more expression than is needed to advance the government’s goal is not narrowly tailored.48
The Court therefore finds that the portion of 29 C.F.R. § 2590.715–2713A(b)(1)(iii) that provides that an eligible organization “must not, directly or indirectly, seek to influence the thirdparty administrator’s decision to make . . . arrangements” for contraceptive services coverage violates the Free Speech Clause since it is not narrowly tailored to achieve the government’s asserted compelling interest. Plaintiffs are entitled to summary judgment on Count IV.
48 Moreover, it is not clear whether the interest against economic coercion is actually compelling in this context. Under the current regulatory framework, a self-certifying organization has no incentive to threaten to cut ties with a third-party administrator because, if the pressure is successful, the organization simply becomes obliged to find another third-party administrator to provide that coverage, or it must operate its self-insured plan on its own. Mot. Hr’g Tr. 13–14. It is also not clear that the challenged speech restriction is related to the stated interest in preventing economic coercion because, if the third-party administrator decides on its own – free from coercion – that it does not want to assume the responsibility of providing contraceptive coverage, the regulations provide that the third-party administrator must terminate its contractual relationship with the self-certifying organization. See 29 C.F.R. § 2590.715– 2713A(b)(2). In other words, the economic consequence for the third-party administrator is the same whether the religious organization has applied pressure or not.
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V. Plaintiffs’ First Amendment Establishment Clause claims asserted in Count V fail.49 The First Amendment Establishment Clause states that “Congress shall make no law
respecting an establishment of religion.” U.S. Const. amend. I. Plaintiffs claim that this clause has been violated in two ways: (1) the religious employer exemption creates an impermissible denominational preference; and (2) the religious employer exemption results in excessive entanglement between the government and the Catholic Church. Compl. ¶¶ 289–96; see also Pls.’ Mot. at 35–38.
A. The religious employer exemption does not amount to denominational discrimination.
Plaintiffs claim that the religious employer exemption violates the Establishment Clause because it creates a preference for one type of religious organization over another. Compl. ¶ 293. They argue that, when the regulations define “religious employer” to include only houses of worship, they disfavor all other types of religious organizations, such as charities or schools. Citing Larson v. Valente, 456 U.S. 228 (1982), plaintiffs argue that this preferential treatment is subject to strict scrutiny. Pls.’ Mot. at 35–36.
Under Larson, the reviewing court must first determine “whether the law facially differentiates among religions.” Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 695 (1989). If the answer is yes, then the law is subject to strict scrutiny. Id. If the answer is no, the reviewing court must apply Larson’s second step, which requires the court to evaluate the challenged law under the three-prong test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). The Court finds that the religious employer exemption does not facially discriminate among
49 In this section, “plaintiffs” refers only to Catholic University and Thomas Aquinas College. The Archdiocese qualifies for the religious employer exemption and the church plan plaintiffs are, in essence, completely exempt as well. See supra section I.C.
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religions, so strict scrutiny does not apply. In addition, the regulation satisfies the three-prong
Lemon test.
1. The religious employer exemption is not subject to strict scrutiny because it does not facially discriminate among religions.
A law facially discriminates among religions when it treats similarly situated religious
organizations differently, resulting in benefits to some religious denominations but not to others.
See Larson, 456 U.S. at 246 & n.23; Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1256 (10th
Cir. 2008). The law need not explicitly state a preference for one religion over the other; facial
discrimination exists so long as the law treats similarly situated religious organizations
differently.50 Larson, 456 U.S. at 246 n.23.
For example, in Larson, the Supreme Court held that a law that subjected only those
religious organizations that received over fifty percent of their charitable donations from
nonmembers to disclosure requirements facially discriminated among religions. Id. at 246–47.
The Court explained that, unlike cases where a statute had merely a “‘disparate impact’ upon
50 Actual discrimination among religions is necessary to find facial discrimination; disparate impact alone is not enough. For example, in Hernandez v. Commissioner of Internal Revenue, the Supreme Court held that section 170 of the Internal Revenue Code of 1954 (“IRC”), 26 U.S.C. § 170, was not facially discriminatory despite its disparate treatment of religious activities. 490 U.S. at 695–96. The plaintiffs in that case challenged the constitutionality of section 170, which creates a tax deduction for charitable contributions, on the grounds that it violated the Establishment Clause because the IRS’s decision to define charitable contribution as a contribution or gift, but not a transfer for consideration, meant that members of the Church of Scientology could not deduct the “fixed donations” they paid in order to receive services known as “auditing” or “training.” Id. at 685. These fixed donations made up the bulk of the Church’s revenue. Id. Although the definition of charitable contributions had a disproportionate effect on the members of the Church of Scientology, the Court found that section 170 did not facially discriminate among religions because the line drawn “between deductible and nondeductible payments to statutorily qualified organizations [did] not differentiate among sects.” Id. at 695. In other words, section 170 did not facially discriminate because the disparate treatment resulting from the statute arose from the way the IRS defined charitable contributions and not from the IRS explicitly deciding which religious organizations would benefit from the deductions and which would not. Id.
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different religious organizations,” the statute at issue in Larson made “explicit and deliberate distinctions between different religious organizations” because “the provision effectively distinguishe[d] between ‘well-established churches’ that have ‘achieved strong but not total financial support from their members,’ on the one hand, and ‘churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members,’ on the other hand.” Id. at 246 n.23, quoting Valente v. Larson, 637 F.2d 562, 566 (8th Cir. 1981). Different treatment of the same type of religious organization – in Larson, houses of worship – amounted to facial discrimination among religious denominations and therefore resulted in the discrimination that was subject to strict scrutiny. Id. at 246–47.
Similarly, in Colorado Christian University v. Weaver, the Tenth Circuit found that Colorado’s scholarship program facially discriminated among religions. 534 F.3d at 1256. Under the scholarship program, institutions of higher education – including many religious schools – were entitled to receive scholarship money for qualifying students. Id. at 1250. But the statute exempted from the definition of institution of higher education “any college that [was] ‘pervasively sectarian’ as a matter of state law.” Id. As a result, certain religious schools – such as a Catholic school and a Methodist school – were eligible to receive scholarship money while other schools – such as a nondenominational school and a Buddhist school – were not eligible. Id. at 1258. The court concluded that the law facially discriminated among religions because it provided aid to some sectarian schools while excluding others as “pervasively sectarian.” Id. at 1256. In other words, the statute facially discriminated among religions when it explicitly treated religious schools of different denominations differently.
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Here, plaintiffs argue that the religious employer exemption amounts to denominational discrimination for two reasons. First, they object that the religious employer exemption treats religious organizations differently based on how they are structured or organized: Catholic houses of worship are exempt whereas Catholic educational and charitable organizations are not. Pls.’ Mot. at 36; Pls.’ Opp. & Cross-Mot. at 38–39. Second, they make the claim that the religious employer exemption unfairly discriminates against Catholics in particular because, unlike “denominations that exercise religion principally through ‘churches, synagogues, mosques, and other houses of worship, and religious orders,’” Catholics like plaintiffs “also exercise their religion through schools, health care facilities, charitable organizations, and other ministries.” Pls.’ Reply at 21 (emphasis in original); see also Pls.’ Mot. at 36.
Plaintiffs’ first argument – that the Establishment Clause prohibits distinctions among different types of organizations affiliated with the same faith – finds no support in Establishment Clause case law. In Larson, the Supreme Court repeatedly spoke in terms of denominational discrimination or discrimination among religions, not structural discrimination:
x “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” 456 U.S. at 244 (emphasis added).
x “[N]o State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’” Id. at 246 (emphases added) (citation omitted).
x “This principle of denominational neutrality has been restated on many occasions.” Id. (emphasis added).
x “[T]he government must be neutral when it comes to competition between sects.” Id. (emphasis added) (citation omitted).
x “The First Amendment mandates governmental neutrality between religion and religion.” Id. (emphases added) (citation omitted).
x “[W]hen we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality.” Id. (emphasis added). 78

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x “The fifty percent rule of § 309.515, subd. 1(b), clearly grants denominational preferences of the sort consistently and firmly deprecated in our precedents.” Id. (emphasis added).
The Court’s focus on denominational discrimination or discrimination among religions derives directly from the history and purpose of the Establishment Clause. See Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 668 (1970) (noting that, “for the men who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity” that resulted in the establishment of one state church and the suppression of all others). So plaintiffs have failed to state a violation of the Establishment Clause on these grounds.51
The Court also rejects plaintiffs’ second argument that the religious employer exemption amounts to denominational discrimination because it accords special treatment to religions that primarily exercise their faith through houses of worship, while discriminating against religions – such as Catholicism – that also practice their religion through charitable and educational efforts. Putting aside the fact that plaintiffs offer no evidence to support their uninformed suggestion that there is something unique about Catholics because good deeds and teaching others are intrinsic to their faith, plaintiffs’ claim fails because it is essentially their first argument dressed in new clothes: that the religious employer exemption discriminates against those plaintiffs that are organized as charities and not as houses of worship. Even if it is true that Catholicism is one of the religions that exercises its faith through charitable and educational works, that fact does not
51 The Tenth Circuit’s decision in Weaver is entirely consistent with this Court’s decision because, at bottom, the issue present in that case was that Colorado’s scholarship statute took a similar type of religious organization – in that case, religious schools – and treated them differently based on whether they were merely sectarian or “pervasively sectarian.” 534 F.3d at 1250. Here, all religious charities are ineligible for the religious employer exemption.
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transform what might be an effect on Catholicism and those other religions into discrimination among religions.
Since the religious employer exemption is available to religious employers of all denominations, including the Archdiocese, it does not facially discriminate among religions, and strict scrutiny does not apply to plaintiffs’ denominational discrimination claim. Instead, the Court must analyze the claim under the Lemon three-prong test. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987), quoting Larson, 456 U.S. at 252 (“[L]aws ‘affording a uniform benefit to all religions’ should be analyzed under Lemon,” and “where a statute is neutral on its face and motivated by a permissible purpose of limiting governmental interference with the exercise of religion, [there is] no justification for applying strict scrutiny to a statute that passes the Lemon test.”).
2. The religious employer exemption is valid under Lemon. In Lemon v. Kurtzman, the Supreme Court created a three-prong Establishment Clause test based on factors that it “gleaned from [its prior] cases.” 403 U.S. at 612. The first prong provides that “the statute must have a secular legislative purpose.” Id. The second prong requires that the statute’s “principal or primary effect must be one that neither advances nor inhibits religion.” Id. And the third prong states that “the statute must not foster ‘an excessive government entanglement with religion.’” Id. at 613, quoting Walz, 397 U.S. at 674. The religious employer exemption to the contraceptive mandate satisfies each prong. The religious employer exemption has a secular legislative purpose even though it explicitly refers to religion. “Lemon’s ‘purpose’ requirement aims at preventing the relevant governmental decisionmaker . . . from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.” Amos, 483 U.S. at 335. It does not
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require a law’s purpose “be unrelated to religion,” id., or “that the government show a callous indifference to religious groups.” Zorach v. Clauson, 343 U.S. 306, 314 (1952). Instead, “it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to . . . carry out their religious missions.” Amos, 483 U.S. at 329, 335 (finding that section 702 of the Civil Rights Act of 1964, which “exempts religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion,” had a secular purpose under Lemon’s first prong).
Here, the religious employer exemption is meant to alleviate the burden imposed on religious employers so that they may “carry out their religious mission.” As discussed above, there is no indication that defendants created the religious employer exemption in an effort to disfavor any particular religion; the religious employer exemption is available to all houses of worship, religious sects, and integrated auxiliaries that qualify under the tax code regardless of their religious denomination. See 26 U.S.C. § 6033(a)(3)(A)(i), (iii); 45 C.F.R. § 147.131(a). Thus, the religious employer exemption satisfies Lemon’s first prong. See Hernandez, 490 U.S. at 696 (finding that section 170 of the IRC had a secular purpose because it was not “born of animus to religion in general or Scientology in particular”).
It also satisfies Lemon’s second prong. “For a law to have forbidden ‘effects’ under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence,” not simply that the law puts religious organizations in a position where they are now better able to advance their own purposes. Amos, 483 U.S. at 336–37 (finding that, although religious employers were better able to promote their religion if they could discriminate based on religion with respect to their employees, the law’s primary effect neither advanced nor inhibited religion because the government took no action to do so). Additionally, “a statute
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primarily having a secular effect does not violate the Establishment Clause merely because it ‘happens to coincide or harmonize with the tenets of some or all religions.’” Hernandez, 490 U.S. at 696, quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961).
Here, the religious employer exemption has a principal or primary effect that neither advances nor inhibits religion. Although it relieves certain religious employers of the obligation to provide their employees with access to coverage for contraceptive services, and thus arguably aids their ability to advance a religious purpose, it is the religious employer that actually invokes the exemption and takes the steps towards fulfilling its religious goal. See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 10 (1993) (allowing a State to provide a sign language interpreter to a deaf student attending a Catholic school because, even though the interpreter aided religious instruction, the fact that the IDEA made an interpreter available to all students regardless of what school they attend meant that the interpreter’s presence in a sectarian school was the “result of the private decision of individual parents” and could not “be attributed to state decisionmaking”). Moreover, the limited scope of the religious employer exemption and the government’s implementation of an accommodation that will enable employees of many religious organizations to obtain coverage for contraceptive services demonstrate that the government has not taken steps to promote religious views.
Finally, the religious employer exemption satisfies Lemon’s third prong because it does not result in unlawful entanglement. “Interaction between church and state is inevitable;” therefore an “[e]ntanglement must be excessive before it runs afoul of the Establishment Clause.” Agostini v. Felton, 521 U.S. 203, 233 (1997). Here, the exemption does not entail any sort of continuing or invasive relationship between the government and a religious employer, such as where the government investigates a party’s religious belief to determine if it is
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“sufficiently religious.” Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1342–43 (D.C. Cir. 2002). Eligibility for the religious employer exemption is based solely on the organizational structure of a party and is determined through reliance on IRC section 6033(a)(3)(A)(i) or (iii). See 45 C.F.R. § 147.131(a).
The religious employer exemption also does not create an ongoing or problematic relationship between church and state because, once an employer qualifies for the exemption, the matter is finished, and there is no need for any monitoring of that organization. Cf. Agostini, 521 U.S. at 233–34 (finding that, despite the ongoing relationship between church and state, there was no excessive entanglement problem with Title I’s provision of funds to inner-city private schools); Hernandez, 490 U.S. at 696–97 (explaining that “routine regulatory interaction which involves no inquiries into religious doctrine, no delegation of state power to a religious body, and no detailed monitoring . . . between secular and religious bodies, does not of itself violate the nonentanglement command”) (citations and internal quotation marks omitted). So there is no basis to find that the religious employer exemption fosters excessive entanglement between the government and religion, and defendants are therefore entitled to summary judgment on plaintiffs’ denominational discrimination claim in Count V.
B. Plaintiffs do not have standing to argue that the IRS’s fourteen-factor test violates the Establishment Clause.
Plaintiffs claim that the religious employer exemption violates the Establishment Clause because it defines a “religious employer” by reference to section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code, which the Internal Revenue Service (“IRS”) sometimes implements through reference to a nonexhaustive list of fourteen factors when determining whether the applicant organization is a house of worship or other qualifying organization. Pls.’ Mot. at 37–38; Pls.’ Opp. & Cross-Mot. at 39–41. According to plaintiffs, it
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is the probing nature of the fourteen-factor test that fosters excessive entanglement between the government and religious employers. Pls.’ Mot. at 37–38; Pls.’ Opp. & Cross-Mot. at 39–41. Defendants respond that, to the extent that plaintiffs’ Establishment Clause claim rests on the constitutionality of a nonbinding, nonexhaustive list of factors found in the Internal Revenue Manual that has not yet been applied to any plaintiff in this case, it is not ripe and must be dismissed. Defs.’ Mem. at 39–40.
The Court agrees that plaintiffs’ Establishment Clause challenge to the definition of religious employer is not justiciable at this time, either for lack of ripeness or lack of the cognizable injury necessary to give rise to standing. As discussed above, the injury prong of standing requires plaintiffs to establish that they have a concrete and personalized injury that is either actual or imminent. Lujan, 504 U.S. at 560. Here, plaintiffs’ excessive entanglement claim rests on the notion that application of the fourteen-factor test could involve an invasive inquiry into their religious beliefs, giving rise to a constitutional injury. Pls.’ Mot. at 37–38; Pls.’ Opp. & Cross-Mot. at 39–41. But plaintiffs have not actually suffered that injury, and there is no imminent risk that they will. As defendants note, all plaintiffs in this case have matter-offactly self-identified as being eligible or not eligible for the religious employer exemption.52 Aff. of Archdiocese ¶ 18; Aff. of CCA ¶ 6; Aff. of ACHS ¶ 6; Aff. of Don Bosco ¶ 6; Aff. of
52 The Court also finds it telling that plaintiffs have not previously challenged the fourteenfactor test as it underlies 26 U.S.C. § 6033, which excuses certain nonprofit religious employers from the requirement to file a tax return. At the motions hearing, plaintiffs claimed that there has been no such challenge in the past because the consequences of not being eligible under section 6033(a)(1)(A)(i), (iii) were not as severe as they are when that section is used to determine whether an organization is exempt from the contraceptive mandate. See Mot. Hr’g Tr. 89–91. Although that may be true from plaintiffs’ point of view, it has no bearing on plaintiffs’ excessive entanglement claim because, if the fourteen factors are unconstitutionally intrusive, they would be unconstitutionally intrusive regardless of whether the result was being exempt from a tax filing or being exempt from the contraceptive mandate.
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Mary of Nazareth ¶ 6; Aff. of Catholic Charities ¶ 6; Aff. of Victory Housing ¶ 6; Aff. of CIC ¶ 6; Aff. of CUA ¶ 6; Aff. of TAC ¶ 6. The government does not dispute any of those assertions.
Plaintiffs point out that the government or an individual may someday bring an action challenging their self-identification in which the fourteen-factor test might be applied. But this is a highly speculative proposition. Plaintiffs would have to change their minds and claim that they qualify for the religious employer exemption; the government or a private party would have to disagree; and the government or the court would have to choose to apply the fourteen-factor test to resolve the dispute, instead of relying upon case law interpreting the statute or the plain language of the statute itself.
Plaintiffs have presented no grounds to believe that this chain of events would unfold. First, it is difficult to imagine that plaintiffs do not already know whether or not they are an organization listed in section 6033(a)(1)(A)(i), (iii) because they need to know this information to determine whether they are required to file a tax return despite their tax exempt status. Second, it is easily determined, and all plaintiffs in this case readily admit, that they are charitable organizations, not houses of worship, and that they are separately incorporated from the Roman Catholic Church, see supra section V.A., so it is unlikely that the government or any court would need to invoke the fourteen-factor test or expend any effort whatsoever examining their religious beliefs. Third, plaintiffs have already self-identified as qualifying or not qualifying, and the only plaintiff that has self-identified as qualifying for the religious employer exemption at this point is the Archdiocese, which is undisputedly a church within the plain meaning of the exemption. See Aff. of Archdiocese ¶ 18. Since plaintiffs have not suffered an injury-in-fact and this claim is not ripe, they lack standing to bring their excessive entanglement
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challenge to the fourteen-factor test.53 The Court will therefore dismiss the excessive entanglement challenge in Count V. VI. Defendants are entitled to summary judgment on plaintiffs’ Internal Church
Governance claim in Count VI. Plaintiffs argue that the contraceptive mandate violates both the Free Exercise Clause and the Establishment Clause of the First Amendment because it interferes with the internal governance of the Roman Catholic Church and its religious affiliates. Compl. ¶¶ 297–312; see also Pls.’ Mot. at 38–40. It is true that the Supreme Court has recognized that the religion clauses of the First Amendment provide special protection to a religious organization’s right to internally govern itself without interference from the government, see, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012), but the operation of the exemption and the accommodation does not violate that principle. Plaintiffs claim that the religious employer exemption to the mandate essentially divides the Catholic Church into two parts – a religious wing that is eligible for the exemption and a charitable and educational wing that is not. They say that this limits the Church’s ability to supervise its religious affiliates to ensure that they are complying with its teachings, but they are referring to just one particular aspect of that relationship: the fact that a number of plaintiffs insure their employees through the Archdiocese’s self-insured health plan. Pls.’ Mot. at 39–40. Specifically, plaintiffs voice the concern that the contraceptive mandate disrupts this internal insurance arrangement by putting the Archdiocese in a position where it must choose between continuing to sponsor its affiliates’ plans, which must include contraceptive services coverage, or dropping those affiliates from the plan, subjecting the affiliates to fines unless they contract for
53 Because plaintiffs cannot satisfy the injury-in-fact requirement, there is no need for the Court to address the causation and redressability prongs of standing. See Lujan, 504 U.S. at 560–61.
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the objectionable coverage on their own. But that is not how the regulations operate, and the Archdiocese is not in a position where it must make that decision. So, assuming that this count even alleges an injury-in-fact, defendants are entitled to summary judgment on Count VI.
The government has assured the Court that it has no power to require the third-party administrator of the Archdiocese’s plan to provide contraceptive services on behalf of the church plan plaintiffs, and there is no indication that the Archdiocese’s third-party administrator will assume that responsibility voluntarily. As defendants stated in response to the Court’s questions on this issue:
The third party administrator (TPA) of the Archdiocese’s self-insured church plan is not bound to provide or arrange for payments under section [2590.715–2713A(b)(2)]. As explained in defendants’ earlier briefing, the government’s authority to require TPAs to make such payments derives from ERISA, and church plans are specifically excluded from regulation under ERISA. Self-certification remains a requirement that the nonArchdiocese plaintiffs must satisfy if they wish to be considered “eligible organization[s]” and thereby comply with the regulations, but the regulations do not require a self-insured church plan or any [third-party administrator] of the plan to make payments for contraceptive services for plan participants and beneficiaries. Defs.’ Resp. to Ct. Order at 2–3 (second alternation in original) (citations omitted); see also supra section I.C. The government also concedes that, regardless of whether or not the Archdiocese’s third-party administrator provides the coverage, the church plan plaintiffs “are not required to identify another [third-party administrator] to perform that function,” and the Archdiocese’s third-party administrator may still remain in its position:
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QUESTION BY THE COURT: If the church plan plaintiffs “submit the self-certification to the third-party administrator of the Archdiocese plan, and the third-party administrator does not agree to provide or arrange for payment for contraceptive services for [those] plaintiffs’ employees, may that third-party administrator remain in its contractual relationship with the Archdiocese as the administrator of the church plan? Are the selfcertifying organizations permitted to continue to provide coverage to their employees through that plan? May the third-party administrator continue to serve as the third-party administrator for the self-certifying organization?”
DEFENDANTS: “Yes to all.”
Defs.’ Resp. to Ct. Order at 3. Thus, the regulations do not interfere with the Archdiocese’s
management of its plan according to the tenets of its faith or its decision to invite its affiliates to
offer health insurance through the same plan.
VII. Defendants are entitled to summary judgment on plaintiffs’ APA contrary to law claim in Count VII.54
Plaintiffs argue that the contraceptive mandate violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.55 Compl. ¶¶ 313–26; see also Pls.’ Mot. at 40–41. They direct
this Court’s attention to the Weldon Amendment and the ACA’s 42 U.S.C. § 18118(c), and
argue that the contraceptive mandate is contrary to those laws because it includes coverage for
emergency contraceptives, which – according to plaintiffs – are a form of abortion. Pls.’ Mot. at
40. The burden is on plaintiffs to show that the law they challenge is not in accordance with the
law, Abington Crest Nursing & Rehab. Ctr. v. Sebelius, 575 F.3d 717, 722 (D.C. Cir. 2009); City
of Olmsted Falls v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002), and plaintiffs have not met that
burden in this case.
54 “Plaintiffs” refers only to Catholic University and Thomas Aquinas College. The Archdiocese is completely exempt and it is entirely speculative that the church plan plaintiffs’ employees will actually receive coverage for the objected-to contraceptive services.
55 The APA directs that this Court “hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law.” 5 U.S.C. § 706(2)(A).
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A. The contraceptive mandate is consistent with the Weldon Amendment. The Weldon Amendment is an appropriations rider that restricts a government agency’s
funding if that agency “subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111. Plaintiffs argue that the contraceptive mandate discriminates against plaintiffs based on their refusal to cover emergency contraceptives, such as “Plan B” or “ella,” which they contend induce abortions. Pls.’ Mot. at 40. Defendants argue, based on the FDA’s long-standing view, that emergency contraceptives act as contraceptives, not abortions, and they are therefore not within the prohibition of the Weldon Amendment. Defs.’ Mem. at 42–44. So, the parties’ dispute on this issue boils down to whether the word “abortion,” used but not defined by the Weldon Amendment, includes emergency contraceptives.
But the Court does not need to wade into this blend of science and theology and decide whether emergency contraceptives are “abortion-inducing” products or simply contraceptives in order to find that the mandate is consistent with the Weldon Amendment. Although both parties agree that plaintiffs are among the healthcare entities to which the Weldon Amendment refers, there is no indication that the contraceptive mandate discriminates against them because they do not provide, pay for, provide coverage of, or refer for abortions. It is undisputed that the Archdiocese is completely exempt from the contraceptive services coverage requirement and that all other plaintiffs are eligible for the accommodation. Aff. of Archdiocese ¶ 18; Compl. ¶ 10. Once an eligible organization seeks the accommodation, it no longer has any responsibility to “provide, pay for, provide coverage of, or refer” for any contraceptive services, let alone emergency contraceptives. 29 C.F.R. § 2590.715-2713A(a), (b), (c). That responsibility shifts to
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a willing third-party administrator or group insurer, and any penalty the eligible organization faces for failing to provide for the required services evaporates. Id. With the elimination of the penalty for failing to provide coverage for contraceptive services, the accommodation eliminates any potential discrimination against plaintiffs for exercising their religious views and makes it irrelevant whether the word “abortion,” as used in the Weldon Amendment, includes emergency contraceptives or not. Plaintiffs therefore fail to meet their burden to show that the contraceptive mandate – as applied to them – is contrary to law.
B. The contraceptive mandate is not contrary to 42 U.S.C. § 18118(c). Plaintiffs also argue that the contraceptive mandate is contrary to section 18118(c) of the
ACA, which states that no provision in title 42 “shall be construed to prohibit an institution of higher education . . . from offering a student health insurance plan.” 42 U.S.C. § 18118(c); see also Compl. ¶ 323; Pls.’ Mot. at 40. Plaintiffs contend that the contraceptive mandate contravenes this provision because it effectively prohibits Catholic University from offering a student health insurance plan since the University’s religious beliefs prohibit it from facilitating access to contraceptive services coverage through that healthcare plan.56 Compl. ¶ 323; see also Pls.’ Mot. at 40–41. The Court disagrees.
First, plaintiffs make no attempt to meet their burden to establish that the contraceptive mandate is contrary to section 18118(c). In their motion for a preliminary injunction, they summarily state that the contraceptive mandate “has the effect of prohibiting CUA from offering a student health-insurance plan, since such plan would have to provide access to coverage to which CUA objects based on its sincerely-held religious beliefs,” Pls.’ Mot. at 41, and they briefly repeat that notion in their reply brief. Pls.’ Reply at 23. They do not mention section
56 It is only Catholic University, then, that has standing to press this claim. 90

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18118(c) in their combined opposition and cross-motion for summary judgment, see Pls.’ Opp. & Cross-Mot. at 43–44, so the Court could consider that claim to be waived.
In any event, the contraceptive mandate does not “prohibit” Catholic University from covering its students or “force” it to provide a student healthcare plan that includes coverage for contraceptive services: the accommodation effectively severs the tie between the University’s healthcare plan and the provision of that coverage once the self-certification form is filed. See supra section I.A.
Moreover – even if the provision of contraceptive services was not completely severed from Catholic University’s student health insurance plan – the Court would still conclude that the contraceptive mandate is consistent with section 18118(c). As defendants explain – and plaintiffs fail to refute – section 18118(c) was promulgated in order to render certain requirements of the Public Health Services Act and the ACA inapplicable to student health insurance programs, such as provisions that would allow students to remain indefinitely on the school’s healthcare plan (even after graduation) and provisions that would allow nonstudents to enroll, because application of those requirements to student health insurance plans would make the provision of that plan economically unfeasible. Defs.’ Mem. at 43–44. By contrast, the contraceptive mandate, as modified by the accommodation, does not have the direct effect of making it impossible for an organization of higher education to provide a student health insurance plan. With this argument left uncontested, the Court finds that the contraceptive mandate is consistent with 42 U.S.C. § 18118(c). Defendants are therefore entitled to summary judgment on Count VII.
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VIII. Plaintiffs do not have standing to bring the APA erroneous interpretation claim in Count VIII.57 Plaintiffs contend that defendants violated the APA when they erroneously interpreted
the religious employer exemption to apply on an employer-by-employer basis, rather than a planby-plan basis. Compl. ¶¶ 327–39; see also Pls.’ Mot. at 41–43. They challenge the statement in the preamble to the new accommodation regulations that states: “[t]he final regulations continue to provide that the availability of the exemption or an accommodation be determined on an employer-by-employer basis, which the Departments continue to believe best balances the interests of religious employers and eligible organizations and those of employees and their dependents.” 78 Fed. Reg. at 39886.
Plaintiffs claim they are injured by this interpretation because, if the exemption applied on a plan-by-plan basis, all of the church plan plaintiffs would be exempt along with the Archdiocese that sponsors their plan, and they would not be required to engage in actions that they claim would facilitate access to contraceptive services in violation of their religious beliefs. See Pls.’ Mot. at 41–43. But, as the Court explained above, given the manner that the accommodation operates, the church plan plaintiffs are not required to perform any acts that would facilitate access to those services. Once the church plan plaintiffs certify their opposition to contraceptive coverage to the Archdiocese’s third-party administrator, their plans will be in compliance with the mandate. Defs.’ Resp. to Ct. Order at 3. There will be no obligation placed on the third-party administrator that can be enforced under ERISA, and the church plan plaintiffs
57 In this section, “plaintiffs” refers only to the church plan plaintiffs. Catholic University and Thomas Aquinas College do not have standing to challenge the government’s interpretation of the religious employer exemption as applying on an employer-by-employer basis because they do not participate in a multi-employer health plan and therefore are not injured by that interpretation. The Archdiocese also does not have standing to bring this claim because it is exempt under the contraceptive mandate.
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will not have to contract with another. Id. As a result, the church plan plaintiffs attain relief from the contraceptive mandate via the accommodation, and they have not shown that they are injured by defendants’ interpretation of the religious employer exemption. Without a cognizable injury that is fairly traceable to defendants’ conduct, the church plan plaintiffs lack standing to bring their APA claim. Lujan, 504 U.S. at 560–61. The Court will therefore dismiss Count VIII.58
CONCLUSION For the reasons stated above, the Court will grant defendants’ motion for summary judgment with respect to Catholic University’s RFRA claim in Count I, and all of the plaintiffs’ Free Exercise claims in Count II, compelled speech claims in Count III, denominational preference claims in Count V, internal church governance claims in Count VI, and APA contrary to law claims in Count VII, and the Court will therefore deny plaintiffs’ cross-motion for summary judgment with respect to those counts. The Court will grant defendants’ motion to dismiss the church plan plaintiffs’ RFRA claims in Count I, and all of the plaintiffs’ Establishment Clause challenges to the IRS factors in Count V and APA erroneous interpretation claims in Count VIII for lack of jurisdiction. Plaintiffs’ cross-motion for summary judgment on those counts is therefore moot. Finally, the Court will grant Thomas Aquinas College’s crossmotion for summary judgment on its RFRA claim in Count I and all of the plaintiffs’ cross-
58 The Court also notes that, in this claim, plaintiffs are taking issue with a statement of agency policy or intent that is contained in the preamble to the accommodation regulations, but not a regulation itself, and plaintiffs have not identified any situation in which the interpretation has actually been applied or enforced to any of their detriment. While the government has explained what it meant to accomplish by reading its regulations in this matter, it is unclear to the Court how this will operate in practice, particularly since the obligation to offer employees a healthcare insurance plan (the “employer mandate”) is imposed on employers, but the obligation to include coverage for contraceptive services (the “contraceptive mandate”) is imposed by law on the plans.
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motions for summary judgment on their Free Speech claims asserted in Count IV, and it will therefore deny defendants’ motion for summary judgment with respect to those counts. A separate order will issue.

DATE: December 20, 2013

AMY BERMAN JACKSON United States District Judge

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 Case 1:13-cv-01441-ABJ Document 52 Filed 12/23/13 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ROMAN CATHOLIC ARCHBISHOP )

OF WASHINGTON, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, Secretary, U.S. )

Department of Health and Human

)

Services, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 13-1441 (ABJ)

MEMORANDUM OPINION AND ORDER Plaintiffs the Roman Catholic Archbishop of Washington (“the Archdiocese”), the Consortium of Catholic Academies of the Archdiocese of Washington, Inc., 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., the Catholic Information Center, Inc., Catholic University of America, and Thomas Aquinas College brought this action against defendants Kathleen Sebelius, the Secretary of Health and Human Services; Thomas Perez, the Secretary of Labor; Jacob Lew, the Secretary of the Treasury; the U.S. Department of Health and Human Services; the U.S. Department of Labor; and the U.S. Department of the Treasury. They allege that the contraceptive mandate, even as it has been modified through the accommodation, violates the Religious Freedom Restoration Act (“RFRA”) as applied to them and the Free Exercise Clause, the Free Speech Clause, and the Establishment Clause of the First Amendment to the U.S. Constitution. They also allege that defendants violated the Administrative Procedure

Case 1:13-cv-01441-ABJ Document 52 Filed 12/23/13 Page 2 of 6
Act and advanced an erroneous interpretation of the religious employer exemption to the mandate when they adopted the contraceptive mandate in its final form. On December 20, 2013, this Court issued its final appealable Order [Dkt. # 47], granting summary judgment in favor of defendants on plaintiff Catholic University’s RFRA claim in Count I, and all of the plaintiffs’ Free Exercise claims in Count II, compelled speech claims in Count III, denominational preference claims in Count V, internal church governance claims in Count VI, and APA contrary to law claims in Count VII. The Court dismissed the RFRA claims in Count I advanced by the seven plaintiffs who are covered under the Archdiocese’s healthcare plan, and all of the plaintiffs’ Establishment Clause challenges to the IRS factors in Count V and APA erroneous interpretation claims in Count VIII for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Finally, the Court granted plaintiff Thomas Aquinas College’s cross-motion for summary judgment on its RFRA claim in Count I, and all of the plaintiffs’ cross-motions for summary judgment on their Free Speech claims asserted in Count IV.
Plaintiffs have appealed the part of the Order that grants defendants’ motions for summary judgment and motions to dismiss, and they now move this Court to enjoin defendants from implementing or enforcing the contraceptive mandate and accommodation against them pursuant to Federal Rule of Civil Procedure 62(c). Pls.’ Mot. for Inj. Pending Appeal (“Pls.’ Mot.”) [Dkt. # 49]. The motion is filed on behalf of “plaintiffs” collectively, even though the opinion makes clear differentiations among them based upon the nature of their health insurance plans and the regulations that apply to each.1
1 For example, the Court entered summary judgment in favor of plaintiff Thomas Aquinas College on its RFRA claim, so the Court assumes that the use of the word “plaintiffs” in the motion for an injunction pending appeal is not meant to include the College.
2

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An injunction pending appeal is an extraordinary remedy. Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 978 (D.C. Cir. 1985). It is “an intrusion into the ordinary process of administration and judicial review . . . and accordingly is not a matter of right, even if irreparable injury might otherwise result to the appellant.” Nken v. Holder, 556 U.S. 418, 427 (2009) (internal quotation marks and citation omitted). Instead, an injunction is an exercise of judicial discretion, and whether to grant it depends upon the specific circumstances of the case. Id. at 433. The moving party bears the burden of justifying why the court should grant this extraordinary remedy. Id. at 433–34.
A court must consider four factors in reviewing the motion: (1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.2 Id. at 434. The first two factors are the most critical. Id. The moving party must make a strong showing on at least one of them and some showing on the other. Baker v. Socialist People’s Libyan Arab Jamahirya, 810 F. Supp. 2d 90, 97 (D.D.C. 2011), citing Cuomo, 772 F.2d at 974. So, the movant’s failure to make any showing of irreparable harm is grounds for refusing to grant a stay, even if the other three factors merit relief. Nken, 556 U.S. at 434 (“[S]imply showing some possibility of irreparable injury . . . fails to satisfy the second factor.”) (internal quotation marks and citations omitted); see also Winter v. Natural Res. Def. Counsel, Inc., 555 U.S. 7, 22 (2008) (rejecting the premise that “when a
2 Cuomo and Nken actually concerned motions for stays pending appeal, rather than injunctions pending appeal. However courts apply the same test for a stay or injunction pending appeal, which “substantial[ly] overlap[s]” with, but is not the same as, the test for a preliminary injunction. Nken, 556 U.S. at 434; Al-Anazi v. Bush, 370 F. Supp. 2d 188, 193 n.5 (D.D.C. 2005).
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plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a ‘possibility’ of irreparable harm”).
Plaintiffs fail to meet their burden to establish that they are entitled to an injunction pending appeal. First, the Court notes that it dismissed the claims brought by seven of the plaintiffs – Catholic Academies, Archbishop Carroll, Don Bosco, Mary of Nazareth, Catholic Charities, Victory Housing, and the Catholic Information Center (collectively, the “church plan plaintiffs”) – for lack of jurisdiction because their asserted injury was so speculative that it defeated standing. In the absence of jurisdiction over their claims, the Court lacks the power to enter an injunction pending appeal on behalf of the church plan plaintiffs. The lack of injury also undermines any claim of irreparable harm.3
Second, the Court rejects Catholic University’s argument that it is entitled to an injunction pending appeal in this case. While the University did have standing to press its RFRA claim, and the Court recognizes the sensitivity of the issues it raised, its motion for an injunction pending appeal does not proffer any new information to support a finding that the University is likely to succeed on the merits of its claim. Instead, Catholic University states: “For all the reasons advanced in Plaintiffs prior filings and argument before the Court on November 22, 2013, (1) Plaintiffs are likely to succeed on the merits of their Religious Freedom Restoration Act claim.” Pls.’ Mot. at 1. That is not sufficient to satisfy the burden to show that an injunction pending
3 Even if the Court has jurisdiction to enter an injunction pending appeal on behalf of the church plan plaintiffs, the injunction is not warranted. Since the church plan plaintiffs offer their employees coverage under the Archdiocese’s plan, which is managed in conformity with Catholic principles, and since the government has informed the Court that it has no authority to enforce the contraceptive mandate against the plan’s third-party administrator, it is highly speculative and not at all likely that the church plan plaintiffs’ self-certification would actually lead to the provision of contraceptive services to its employees. So they cannot demonstrate that there is a substantial likelihood that they will succeed on the merits or that they would be irreparably injured if they are required to comply with the mandate prior to resolution of this appeal.
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appeal is warranted. See Ellsworth Assocs., Inc. v. United States, 917 F. Supp. 841, 847 (D.D.C. 1996) (noting that the movant did not “allege any change in circumstances or novel argument that leads the Court to conclude that they bear a substantial chance of success on appeal”); Abrams v. Comm’ns Workers of Am., 702 F. Supp. 920, 925 (D.D.C. 1988) (denying a motion for an injunction pending appeal where the movant merely restated grounds for relief that were previously rejected), aff’d, 884 F.2d 628 (D.C. Cir. 1989).
Moreover, there is no indication that Catholic University will be irreparably injured absent an injunction. Plaintiffs argue that an injunction is necessary because, without one, “irreparable harm . . . will befall Plaintiffs in only ten days if they are forced to choose between taking actions that violate their religious beliefs or paying onerous penalties.” Pls.’ Mot. at 2. That statement is not accurate with respect to the only plaintiff left standing: Catholic University. Compliance with the contraceptive mandate must occur “by the beginning of the next plan year on or after January 1, 2014.” Compl. ¶ 227. Catholic University’s next plan year begins on August 14 for its students and December 1 for its employees; this means that the University has almost eight months to litigate its appeal before it will be required to take any action that complies with the contraceptive mandate. Thus, the University fails to show that it will be irreparably injured absent an injunction pending appeal in this case. Given plaintiffs’ failure to meet the first two elements, an injunction is not warranted. See Wis. Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985) (“We believe that analysis of the second factor disposes of these motions and, therefore, address only whether the petitioners have demonstrated that in the absence of a stay, they will suffer irreparable harm.”); see also Nken, 556 U.S. at 434 (“The first two factors of the traditional standard are most critical.”).
5

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 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 13-5368
Priests For Life, et al., Appellants
v. United States Department of Health and Human Services, et al.,
Appellees

September Term, 2013
1:13-cv-01441-ABJ 1:13-cv-01261-EGS
Filed On: January 23, 2014 [1476407]

------------------------------
Consolidated with 13-5371, 14-5021
O R D E R
It is ORDERED, on the court's own motion, that these cases be consolidated as cross-appeals.
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Amy Yacisin Deputy Clerk

 
 USCA Case #13-5368 Document #1522271

Filed: 11/14/2014 Page 1 of 86

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/crossappellees 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.

USCA Case #13-5368 Document #1522271

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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

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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

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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.

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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.

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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

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under RFRA. All Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or twopage 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.

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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. § 300gg91(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).

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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. § 54.98152713(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 coworkers.” 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.

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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).

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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.”

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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 selfinsured 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.

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Comprising the second of the four categories are the socalled “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 selfinsured 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.

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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 noncontraceptive 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.

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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

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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 churchplan 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. 131441, 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.

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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.

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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, 32223 (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

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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 churchplan 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.

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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.”).

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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 churchplan Plaintiffs, the Archdiocese’s claim rises and falls with that of the church-plan Plaintiffs and so is not separately analyzed below.

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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 277576. 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

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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 taxadvantaged 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.

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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

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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.

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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

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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

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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

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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.

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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; 22:1623:24.

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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.

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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 51,09495.
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.

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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. § 2590.7152713A(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. § 2590.7152713A(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).

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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

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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.

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role in the facilitation of contraceptive use. In particular, they contend that: (1) “signing and submitting the selfcertification” 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 selfcertification and alternative notice as “permission slips” for their plan issuers and TPAs to provide contraceptive coverage to Plaintiffs’ employees. Pointing to the regulatory

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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

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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

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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 nonobjecting 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

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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. § 2590.7152713A(d).

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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.

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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

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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

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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.

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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 selfcertification 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

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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.

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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

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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.

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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 699700 (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.

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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).

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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

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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/remarkspresident-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.

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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-ofprevention.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 costsharing 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

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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

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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

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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 10304; Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J., concurring), id. at 2799 (Ginsburg, J., dissenting). Women

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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.

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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

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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

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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.”).

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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

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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

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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

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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

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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

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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/2013/11/8465employer-health-benefits-20131.pdf.

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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

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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

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sacrifices. Id. at 536-37. That exemption for so many nonreligious 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”).

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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

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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’ nondiscrimination 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

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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 procontraceptive-coverage message, nor to authorize or facilitate

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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 selfcertification 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 selfcertification 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 selfidentify 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.

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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,

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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’ “noninterference” 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.

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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.

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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.

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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

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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 6364. 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 churchgovernance 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

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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-byemployer 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

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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-byemployer 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

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“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

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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

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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.

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed: May 20, 2015 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)
On Petition for Rehearing En Banc
BEFORE: GARLAND, Chief Judge; HENDERSON, ROGERS, TATEL, BROWN**,GRIFFITH, KAVANAUGH**, SRINIVASAN*, MILLETT*, PILLARD, AND WILKINS, Circuit Judges.

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O R D E R
Appellants/cross-appellees’ joint petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Scott H. Atchue Deputy Clerk
* Circuit Judges Srinivasan and Millett did not participate in this matter.
** Circuit Judges Brown and Kavanaugh would grant the petition.
A statement by Circuit Judge Pillard, joined by Circuit Judges Rogers and Wilkins, concurring in the denial of rehearing en banc, is attached.
A statement by Circuit Judge Brown, joined by Circuit Judge Henderson, dissenting from the denial of rehearing en banc, is attached.
A statement by Circuit Judge Kavanaugh, dissenting from the denial of rehearing en banc, is attached.

PILLARD, Circuit Judge, joined by ROGERS and WILKINS, Circuit Judges, concurring in the denial of rehearing en banc: A majority of the court has voted to deny the petition for rehearing en banc in this case. In two thoughtful opinions, Judge Kavanaugh, and Judge Brown joined by Judge Henderson, dissent from that denial. The panel’s opinion speaks at length to the issues they take up. The panel members write further only to underscore why our court’s approach accords with the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
The dissenters and we agree that the Religious Freedom Restoration Act provides robust protection for religious liberty—without regard to whether others might view an adherent’s beliefs or practices as irrational, trivial, or wrong. Nothing in our opinion should be seen to detract from that vital guarantee. Where we part ways is that the dissenters perceive in Hobby Lobby a potentially sweeping, new RFRA prerogative for religious adherents to make substantial-burden claims based on sincere but erroneous assertions about how federal law works. They believe we ignored that prerogative here. The dissenters read more into the Supreme Court’s decision than it supports. Hobby Lobby embraced adherents’ claim about the religious meaning of the undisputed operation of a federal regulation; this case involves a claim that courts must credit religious adherents’ incorrect assertions about how a different federal regulation operates. Because Hobby Lobby did not address that distinct issue, we see no conflict.
The Court in Hobby Lobby invalidated the requirement that closely-held, for-profit businesses with religious objections to contraception nonetheless must buy healthinsurance coverage for their employees that pays for contraception, or else face taxes or penalties. 134 S. Ct. at 2759. No opt out was available to those businesses. The parties in Hobby Lobby did not dispute what the law required, nor its practical effects: All agreed that the Affordable Care

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Act regulations mandated that employer-sponsored health plans include contraception, and that as a result plaintiffs’ employees got access to contraception paid for, in part, by their employers. See id. at 2762. What the parties in Hobby Lobby contested were the moral and religious implications of the businesses’ conceded role. The plaintiff business owners believed that “providing the coverage demanded . . . is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Id. at 2778. The government disagreed, contending that employees’ intervening choices whether to use contraception broke the chain of moral culpability, and hence the law did not substantially burden the businesses’ religious exercise. Id. at 2777-78.
In rejecting the government’s position in Hobby Lobby, the Supreme Court emphasized that courts may not secondguess religious beliefs about the wrongfulness of facilitating another person’s immoral act. Id. at 2778. RFRA forbids courts from “provid[ing] a binding national answer to . . . religious and philosophical question[s]” or “tell[ing] the plaintiffs that their beliefs are flawed.” Id.; see also id. at 2779 (“[I]t is not for us to say that [plaintiffs’] religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function in this context is to determine’ whether the line drawn reflects ‘an honest conviction.’” (alteration marks omitted) (quoting Thomas v. Review Bd., 450 U.S. 707, 716 (1981))). The context makes clear that the Court’s discussion of facilitation simply restates the basic tenet of the religious freedom cases that judges may not question the correctness of a plaintiff’s religious beliefs.
That reasoning is inapplicable here. The dispute between the government and the Plaintiffs in this case, unlike in Hobby Lobby, is not about religious implications of acknowledged—

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but perhaps attenuated—support for contraceptive use; the parties disagree here about how the law functions, and therefore whether there is any causal connection at all between employers’ opt-out notice and employees’ access to contraception. Plaintiffs challenge the accommodation, not available in Hobby Lobby, based on their assertion that what causes their employees to receive contraceptive coverage is their compliance with the accommodation’s precondition that they give notice of their sincere religious objections to such coverage. As Plaintiffs characterize it, their act of excusing themselves from legal liability for not providing contraceptive coverage is what made such coverage available to employees, and hence violated their Catholic faith.
We held that Plaintiffs miscast the accommodation. The regulation allows Plaintiffs to continue to do just what they did before the ACA: notify their insurers of their sincere religious objection to contraception, and arrange for contraception to be excluded from the health insurance coverage they provide.1 As before, insurers may sell plans
1 Judge Kavanaugh is perplexed as to why, if not for an impermissible reason, the government requires any form at all. Kavanaugh Dissent at 12-13 & n.5. The form is far from “meaningless,” id., because it acts as “the written equivalent of raising a hand in response to the government’s query as to which religious organizations want to opt out,” and extricates those objectors in a manner consistent with the contraceptive coverage requirement. Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 250 (D.C. Cir. 2014). Only once an insurer becomes aware of the employer’s religious objection can it take the steps needed to effectuate the opt out, such as: exclude contraceptive coverage from the employer’s group health plan, prevent the employer’s payment from funding contraception, notify the beneficiaries that the employer plays no role in administering or

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that exclude contraception to their religious-nonprofit customers. The difference is that now the ACA and its regulations require that contraceptive coverage be provided to all insured women. In the case of women who get their insurance coverage through an accommodated employer, the law requires insurers to offer the women contraception under a separate plan—completely segregated from the objecting employer’s plan and its payments.
The judges who urge us to rehear the case say that Hobby Lobby leaves no room for us to question Plaintiffs’ characterization of how the challenged regulations operate, including their assertions that the regulations force Plaintiffs to facilitate the provision of contraception. As they read it, Hobby Lobby forbids a court deciding a claim under RFRA to assess whether a plaintiff’s belief about what a law requires him to do is correct. See, e.g., Kavanaugh Dissent at 8-11; Brown Dissent at 10-12. Both dissents argue that Hobby Lobby’s discussion of facilitation requires us simply to accept
funding contraceptive coverage, and arrange for separate mailings and accounting. Id. (citing regulatory provisions). Judge Kavanaugh would hold that including the insurer’s identity in the form is unnecessarily restrictive of religious exercise because, extending our metaphor, he says it requires the objecting employer “both to raise its hand and to point to its insurer.” Kavanaugh Dissent at 24 n.11. But it is more apt to say that, if the employer opts to raise its hand where the insurer cannot see it (i.e. via the alternative notice delivered to the government rather than the insurer, see 45 C.F.R. § 147.131(c)(1); 29 C.F.R. § 2590.7152713A(b)(1)(ii)), the government must be in a position promptly to communicate the religious objection to the insurer, or else the employer’s insurance plan will continue to include contraceptive coverage. An insurer that is kept in the dark about an employer’s religious objections cannot do what it must to honor the opt out.

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whatever beliefs a RFRA plaintiff avows—even erroneous beliefs about what a challenged regulation actually requires.
Neither the holding nor the reasoning of Hobby Lobby made that leap. RFRA understandably accorded Hobby Lobby Stores a victory in a contest over what religious meaning to ascribe to the Stores’ payment for contraceptive coverage. That holding does not require us to credit Priests for Life’s legally inaccurate assertions about the operation of the regulation they challenge. See Univ. of Notre Dame v. Burwell, No. 13-3853, slip op. at 11, 15 (7th Cir. May 19, 2015); see also id. at 34 (Hamilton, J., concurring). But see id. at 44-46 (Flaum, J., dissenting). Our panel opinion explains that it is the mandate on insurers that causes Plaintiffs’ employees to receive contraceptive coverage, and not anything Plaintiffs are required to do in claiming their accommodation. The panel thus held that Plaintiffs suffered no substantial burden triggering RFRA strict scrutiny.
The dispute we resolved is legal, not religious. Under the ACA regulations, a woman who obtains health insurance coverage through her employer is no more entitled to contraceptive coverage if her employer submits the disputed notice than if it does not. The ACA obligation to provide contraceptive coverage to all insured women does not depend on that notice. Nothing in RFRA requires that we accept Plaintiffs’ assertions to the contrary.
RFRA protects religious exercise. In no respect do we, nor could we, question Plaintiffs’ sincere beliefs about what their faith permits and forbids of them. But we can and must decide which party is right about how the law works. We concluded that the regulation challenged in this case does not, as a matter of law or fact, give Plaintiffs’ conduct the contraception-facilitating effect of which they complain.

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Indeed, it bears emphasis that the whole point of the challenged regulation is to scrupulously shield objecting religious nonprofits from any role in making contraception available to women. The accommodation is itself evidence of the fundamental commitment of this Nation to religious freedom that RFRA embodies. The regulation is, of course, properly subject to judicial scrutiny to verify that it comports with governing law, including Hobby Lobby. Because we conclude that it does, we believe that en banc review is not warranted in this case.

BROWN, Circuit Judge, with whom HENDERSON, Circuit Judge, joins, dissenting from the denial of rehearing en banc: The French say: plus ça change et plus c'est la même chose. The more things change; the more they remain the same. There was once a time when the church was the state and the church as the state embodied all hope of human well-being. R.W. SOUTHERN, WESTERN SOCIETY AND THE CHURCH IN THE MIDDLE AGES 23 (1970). To challenge the church was to undermine civilization. Thus, the imposition of orthodoxy was deemed necessary, and dissent, which amounted to heresy, was met with coercion and violence. See ST. THOMAS AQUINAS, SUMMA THEOLOGIÆ pt. II-II, q. 11, art. 3.
This history prompted John Locke to urge toleration and stress the necessity of distinguishing “the business of civil government from that of religion” and establishing clear boundaries between them. John Locke, A Letter Concerning Toleration, reprinted in 5 THE WORKS OF JOHN LOCKE 5, 9 (12th ed. 1824). The Framers went further, establishing not only a limited government, but recognizing the primacy of individual conscience and seeking the line between freedom and justice. Thus, the Bill of Rights “grew in soil which also produced a philosophy that . . . liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men’s affairs.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639–40 (1943). The federal government was given no authority over men’s souls. For the Founders, the not-so-distant history of persecution engendered a fierce commitment to each individual’s natural and inalienable right to believe according to his “conviction and conscience” and to exercise his religion “as these may dictate.” James Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in 2 WRITINGS OF JAMES MADISON 183, 184 (G. Hunt ed. 1901). “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in

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politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Barnette, 319 U.S. at 642.
Of course, the right to freely exercise one’s religion is not—and was not intended to be—absolute. The Founders recognized state coercion would at times be necessary, with Madison himself stating “full and free exercise . . . according to the dictates of conscience” could be limited where “the preservation of equal liberty . . . and the existence of the [government] may be manifestly endangered.” G. Hunt, Madison and Religious Liberty, 1 ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSOCIATION, H.R. Doc. No. 702, 57th Cong., 1st Sess., 163, 166–67 (1901). However, “[t]he essence of all that has been said and written on the subject is that only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
The soil of the eighteenth century has eroded and that fixed star grown surprisingly dim. We live in a time where progress is sought “through expanded and strengthened governmental controls.” Barnette, 319 U.S. at 640. In a sense the government now fills the role formerly occupied by the church, embodying the hope of human well-being. For the government to pursue the good and to solve society’s problems, it must first identify that which is good and that which is problematic through subjective and value-laden judgments. Cf. Laurence H. Tribe, Disentangling Symmetries: Speech, Association, Parenthood, 28 PEPP. L. REV. 641, 651–53 (2001) (stating that when the government takes a side in a “direct clash of competing images of ‘the good life,’” it “is making an intrinsically contestable statement about the rightness or wrongness” of ideals). Consequently, orthodoxy has been rehabilitated, and dissent

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from the government’s determinations may be quelled through coercion—onerous fines or banishment from commerce and the public square.
Despite the parallels, we do not find ourselves full circle quite yet. Religious adherents may still seek refuge from unnecessary governmental coercion through the Religious Freedom Restoration Act (“RFRA”). When the federal government substantially burdens free exercise, it may do so only in pursuit of a compelling interest and even then must use the least restrictive means. 42 U.S.C. § 2000bb-1. Further, the conscience of the individual remains protected in that he must “answer to no man for the verity of his religious views.” United States v. Ballard, 322 U.S. 78, 87 (1944). But, in our respectful view, the panel in this case failed to apply these protections. The panel conceded Plaintiffs sincerely “believe that the regulatory framework makes them complicit in the provision of contraception,” Slip Op. at 27 (quoting Mich. Catholic Conf. v. Burwell, 755 F.3d 372, 385 (6th Cir. 2014), vacated and remanded, No. 14-701, 2015 WL 1879768, at *1 (U.S. Apr. 27, 2015)). That acknowledgement should end our inquiry into the substance of their beliefs. Viewed objectively, Plaintiffs’ belief that the acts the regulations compel them to perform would facilitate access to contraception in a manner that violates the teachings of their Church may “seem incredible, if not preposterous,” to some people. Ballard, 322 U.S. at 87. However, this Court is neither qualified nor authorized to so scrutinize any religious belief. The panel trespassed into an area of inquiry Supreme Court precedent forecloses. It then proceeded to accept evidence that is insufficient under the rulings of the Supreme Court to find the purported compelling interest. For these reasons we believe this exceptionally important case is worthy of en banc review.

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I
We begin by addressing the panel’s opening observations and by making some of our own with the hopes of distinguishing between fact and fancy. First, this case is not about denying any woman access to contraception. A woman’s right to obtain and use contraception was recognized long ago, and nothing about this case calls for the issue to be revisited. See Griswold v. Connecticut, 381 U.S. 479 (1965).
Second, this case is about the religious freedom of these religiously-affiliated organizations and not about the free exercise concerns of the plaintiffs in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). In that case, the Supreme Court found the Department of Health and Human Services’ (“HHS”) approach to religious nonprofits demonstrated there were less restrictive means available to deal with conscientious objectors among for-profit corporations. Id. at 2781–82. The Court expressly reserved judgment on whether HHS’s approach “complies with RFRA for purposes of all religious claims.” Id. at 2782. While the government’s approach to religious non-profits may—or may not—fully put to rest the Hobby Lobby plaintiffs’ religious objections, that is irrelevant to our consideration of the religious objections put forth by Plaintiffs in this case. The present Plaintiffs are entitled to their own personal beliefs.
Third, this case is not “paradoxical” because Plaintiffs object to regulatory requirements the government intended as a religious accommodation. Slip Op. at 24 (quoting Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 557 (7th Cir. 2014), vacated and remanded, 135 S. Ct. 1528 (2015)). That the government’s expressed intent in enacting the regulations at issue was to allay religious adherents’ concerns about the contraception mandate is not determinative of the ultimate

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question of whether Plaintiffs were in fact accommodated. Where the government imposes a substantial burden on religious exercise and labels it an “accommodation,” that burden is surely as distressing to adherents as it would be if imposed without such a designation. Therefore, heightened skepticism is not appropriate. We should look at Plaintiffs’ claims as we would any RFRA claim. After all, in the substantial burden analysis, the government’s motivations— no matter how benevolent—are irrelevant; we ask only whether the government’s action operates to place “substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd., 450 U.S. 707, 718 (1981).
Fourth, this case is not one in which Plaintiffs’ “only harm . . . is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out.” Slip Op. at 24. The regulations compel Plaintiffs to take actions they believe would amount to “impermissibly facilitating access to abortion-inducing products, contraceptives, and sterilization” in violation of their religious tenets. Pet. for Reh’g En Banc at 1. Make no mistake: the harm Plaintiffs complain of—and the harm this Court therefore is called to assess—is from their inability to conform their own actions and inactions to their religious beliefs without facing massive penalties from the government.
II
The panel’s substantial burden analysis is inconsistent with the precedent of the Supreme Court and this Court, which identifies both permissible and impermissible lines of inquiry in the substantial burden analysis of a RFRA claim.

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A
As we have recognized, whether a burden is “substantial” for purposes of RFRA is a question of law for the court to answer, not a “question[] of fact, proven by the credibility of the claimant.” Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011). Relying on longstanding precedent, the Supreme Court recently described permissible lines of inquiry for a court to pursue in determining whether an adherent’s religious exercise has been substantially burdened, both in Hobby Lobby and in Holt v. Hobbs, 135 S. Ct. 853 (2015), a case involving the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §2000cc et seq, (RLUIPA).1 The plaintiff bears ‘the initial burden of proving [the law or regulation at issue] implicates his religious exercise.” Holt, 135 S. Ct. at 862. While RFRA forecloses asking whether the exercise is “compelled by, or central to, a system of religious belief,” 42 U.S.C. § 2000cc-5(7)(A), the court does ask whether the plaintiff’s beliefs are sincere. The answer is no if his claims are not “sincerely based on a religious belief” but instead on “some other motivation.” Holt, 135 S. Ct. at 862; see also Hobby Lobby, 134 S. Ct. at 2774 n.28 (“To qualify for RFRA’s protection, an asserted belief must be ‘sincere.’”).
Next, the plaintiff bears the “burden of proving that the [law or regulation] substantially burden[s] that exercise of religion.” Holt, 135 S. Ct. at 862. The court asks whether he has been “put[] to th[e] choice” of either “‘engag[ing] in conduct that seriously violates [his] religious beliefs” or
1 RLUIPA “targets two areas of state and local action: land use regulation, 42 U.S.C. § 2000cc (RLUIPA § 2), and restrictions on the religious exercise of institutionalized persons, § 2000cc–1 (RLUIPA § 3).” Sossamon v. Texas, 131 S. Ct. 1651, 1656 (2011). It “borrows important elements from RFRA . . . but is less sweeping in scope.” Id.

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facing “serious” consequences. Id. (quoting Hobby Lobby, 134 S. Ct. at 2775); see also Thomas, 450 U.S. at 718 (stating a substantial burden exists when the government places “substantial pressure on an adherent to modify his behavior and to violate his beliefs”). The answer is no if the plaintiff can identify “no [compelled] action or forbearance on his part.” Kaemmerling, 553 F.3d at 679 (plaintiff objecting to the government’s extraction of DNA information from fluid or tissue samples but not to providing DNA samples); see also Bowen v. Roy, 476 U.S. 693, 699–700 (1986) (plaintiff objecting to the government’s independent utilization of his daughter’s social security number, which he himself was not required to provide or use). The answer is also no where the pressure being placed upon a person to act contrary to his beliefs or the consequences he faces for not doing so are not substantial. See Thomas, 450 U.S. at 717 (assessing the “coercive impact” of being “put to a choice between fidelity to religious belief or cessation of work”). Finally, this Court has “inquir[ed] into the importance of a religious practice” to the individual. Henderson v. Kennedy, 265 F.3d 1072, 1074 (D.C. Cir. 2001) (denying rehearing en banc). In doing so, we have found no substantial burden exists where a regulation is “at most a restriction on one of a multitude of means” for an individual to engage in his desired religious exercise. Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (the plaintiffs could spread the gospel any number of ways, just not the prohibited means of selling t-shirts on the National Mall); see also Mahoney, 642 F.3d at 1120–21 (the plaintiff had ample alternative means of spreading his religious message besides chalking the sidewalk in front of the White House).2
2 While the propriety of this sort of inquiry in pure free exercise cases is arguably called into question by recent Supreme Court

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Here, Plaintiffs’ faith compels them to provide their employees and students with health insurance plans. Oral Arg. Tr. at 19:5–15. Their religious beliefs forbid them not only from providing or paying for contraception, but also from facilitating its provision. Pls. Br. at 15. Plaintiffs therefore believe they exercise their religion by providing health insurance plans that do not facilitate access to contraception. Id. at 11-12, 15, 24–25. In determining whether an act constitutes impermissible facilitation Plaintiffs are informed by “the Catholic doctrines of material cooperation and scandal.” Id. at 36. The sincerity of Plaintiffs’ beliefs has not been questioned. Slip Op. at 26.
Plaintiffs identify at least two acts that the regulations compel them to perform that they believe would violate their religious obligations: (1) “hiring or maintaining a contractual relationship with any company required, authorized, or incentivized to provide contraceptive coverage to beneficiaries enrolled in Plaintiffs’ health plans,” Pet. for Reh’g En Banc at 3; and (2) “filing the self-certification or notification,” id. at 4. Plaintiffs have therefore shown both that they are being compelled to modify their behavior and that, if undertaken, the modification would be a violation of their religious beliefs. They are unlike the plaintiffs in Kaemmerling and Bowen, as they have shown they are themselves being compelled to modify their behavior.
If Plaintiffs do not act in violation of their beliefs, however, they face two alternatives. First, they may offer coverage that does not include contraceptives and face onerous fines. 26 U.S.C. § 4980D(b)(1). Alternatively, they
precedent, see Holt, 135 S. Ct. at 862, it is not relevant to this case. That the practice Plaintiffs defend here is of sufficient importance to them to form the basis of a substantial burden under RFRA has not been questioned.

9
may stop providing health insurance altogether, which would also be a violation of their religious beliefs. Oral Arg. Tr. at 19:5–15. Imposing such harsh consequences certainly substantially pressures Plaintiffs to alter their behavior in a way inconsistent with their religious beliefs. See Hobby Lobby, 134 S. Ct. at 2759 (stating if “heavy” financial penalties “do not amount to a substantial burden, it is hard to see what would”). Plaintiffs have therefore demonstrated their free exercise is substantially burdened: they are being “put[] to [the] choice” of either “‘engag[ing] in conduct that seriously violates [their sincere] religious beliefs’” or facing “serious” consequences. Holt, 135 S. Ct. at 862 (quoting Hobby Lobby, 134 S. Ct. at 2775).
B
The panel’s opinion parts ways with precedent by wading into impermissible lines of inquiry. The panel did not dispute that federal law operates to compel Plaintiffs to maintain a relationship with an issuer or TPA that will provide the contraceptive coverage and to execute the self-certification or alternative notice. Their disagreement with Plaintiffs is about the significance of those compelled acts; in other words, the panel rejected the “adherents’ claim about the religious meaning of the undisputed operation of [] federal regulation[s].” Concurring Op. at 1; see also Eternal Word Television Network, Inc. v. Sec’y, Dep’t of Health & Human Servs., 756 F.3d 1339, 1340 (11th Cir. 2014) (Pryor, J. specially concurring) (disposing of the argument that the plaintiff’s complaint should “fail[] because [the plaintiff] holds an erroneous legal opinion about how the contraception mandate works” because the plaintiff “offer[ed] no evidence that its complaint turns on the advice of counsel” but instead offered “undisputed declarations . . . about the ancient teachings of the Catholic Church”). With a thorough analysis

10
of the regulations, the panel determined they “do not compel” Plaintiffs to “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.” Slip Op. at 26 (quoting Pls.’ Br. at 15). The panel explained the regulations allow Plaintiffs to “wash[] their hands of any involvement in providing insurance coverage for contraceptive services.” Id. Therefore, the panel concluded, Plaintiffs have been subjected to only to a de minimis burden of completing a form, and their RFRA claim fails. Id. at 31.
In declaring that—contrary to Catholic Plaintiffs’ contentions—it would be consistent with the teaching of the Catholic Church for Plaintiffs to comply with the regulations the panel exceeded both the “judicial function and [the] judicial competence.” Thomas, 450 U.S. at 716. What amounts to “facilitating immoral conduct,” Pet. for Reh’g En Banc at 1, “scandal,” id. at 7, and “material” or “impermissible cooperation with evil,” id.; Slip Op. at 14, are inherently theological questions which objective legal analysis cannot resolve and which “federal courts have no business addressing.” Hobby Lobby, 134 S. Ct. at 2778; see also id. (stating “the circumstances under which it is wrong for a person to perform an act that is innocent in itself but has the effect of enabling or facilitating the commission of an immoral act by another” is “a difficult and important question of religion and moral philosophy”). The causal connection sufficient to create impermissible “facilitation” in the eyes of a religious group may be very different from what constitutes proximate cause in the common law tradition. See Univ. of Notre Dame, 743 F.3d at 566 (Flaum, J., dissenting) (“[W]e are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith.”). Likewise, where civil authorities may conclude an individual has “wash[ed his] hands of any involvement,” Slip Op. at 26,

11
adherents of a faith may examine the same situation and, in their religious judgment, reach the opposite conclusion. Pontius Pilate, too, washed his hands, but perhaps he perceived the stain of complicity remained. See Matthew 27:24.
Under the panel’s analysis, it seems no claim of substantial burden may prevail where the religious significance of conduct under scripture as interpreted by a faith tradition differs from the legal significance of that conduct under the laws of the United States as interpreted by federal judges. But RFRA would be an exceedingly shallow—perhaps nonexistent—protection of religious exercise if adherents were only permitted to give the same meaning to their actions or inactions as does the secular law.
Plaintiffs, including an Archbishop and two Catholic institutions of higher learning, say compliance with the regulations would facilitate access to contraception in violation of the teachings of the Catholic Church. What law or precedent grants this Court authority to conduct an independent inquiry into the correctness of this belief? Instead, where one sincerely believes performing certain acts would cause him to cross the line between permissible behavior and sin, the Supreme Court has instructed, “it is not for us to say that the line he drew was an unreasonable one.” Hobby Lobby, 134 S. Ct. at 2778 (quoting Thomas, 450 U.S. at 715). Plaintiffs’ sincere determination about the obligations their religion imposes is between them and their God and need not be “acceptable, logical, consistent, or comprehensible to others in order to merit . . . protection.” Thomas, 450 U.S. at 714. This is so even when, in the government’s opinion, Plaintiffs’ determination is based on a misunderstanding of the nature of their legal obligations, their religious obligations, or both—as the two could certainly

12
overlap.3 RFRA’s concern is with the sincerity of religious beliefs and not their accuracy. For example in United States v. Lee, Mr. Lee claimed he could not pay social security taxes without violating an obligation under his Amish faith to care for fellow church members. 455 U.S. 252, 257 (1982). The Supreme Court refused to consider the government’s argument that paying social security taxes did not actually interfere with exercise of this belief, as the Amish would
3 Confusion remains as to the legal obligations the regulations impose on third party administrators (“TPAs”). In Wheaton College v. Burwell, Justice Sotomayor explained a TPA does not have an independent obligation but instead “bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification.” 134 S. Ct. 2806, 2814 n.6 (2014) (Sotomayor, J., dissenting) (citing 26 C.F.R. § 54.9815– 2713A(b)(2) (2013); 29 C.F.R. § 2510.3–16(b) (2013)). Even evaluating the new regulations as supplemented in light of the Supreme Court’s ruling in Wheaton College, the panel did not identify any scenario under which a TPA is obligated to provide contraceptive coverage until the TPA is designated a “plan administrator” for purposes of ERISA. Slip Op. 41–43. As the regulations currently stand, this designation occurs only after a religious nonprofit has either completed the self-certification form or the alternative notice and after the TPA agrees to enter into or remain in a contractual relationship with the nonprofit organization. See 26 C.F.R. § 54.9815-2713AT(b)(2) (2014) (“If a third party administrator receives a copy of the self-certification from an eligible organization or a notification from the Department of Labor [sent after the religious nonprofit provides notice of its objection to the Department] . . . and agrees to enter into or remain in a contractual relationship with the eligible organization . . . the third party administrator shall provide or arrange for payments of contraceptive services . . . .”) (emphasis added). If the panel relied on a mistaken assumption about the regulations imposing an independent obligation on TPAs to provide contraceptive coverage, rehearing en banc is all the more warranted.

13
remain free to care for their own community if they paid social security taxes but did not collect benefits. Id. Instead the Court simply accepted Mr. Lee’s “contention that both payment and receipt of social security benefits is forbidden by the Amish faith,” explaining “[c]ourts are not arbiters of scriptural interpretation.” Id. (quoting Thomas, 450 U.S. at 716).
The panel’s analysis further parts ways with precedent by recasting Plaintiffs’ objection to the facilitation of access as an objection to the conduct of third parties. Slip Op. at 34. The panel relied on Bowen and Kaemmerling to find Plaintiffs may not object “to the role of [their] action in the broader regulatory scheme.” Slip Op. at 35. There are two problems with this analysis. First, in this case the government is requiring Plaintiffs to perform objectionable acts. In contrast, the Bowen and Kaemmerling plaintiffs’ objections were to the government’s actions. See Bowen, 476 U.S. at 699–700; Kaemmerling, 553 F.3d at 678. The claims in Bowen and Kaemmerling are different in kind from a claim that the government is compelling the individual himself to undertake actions he believes are sinful.
Second, the actions to which Plaintiffs object—which may seem innocent if examined devoid of context—must be understood in light of the broader regulatory scheme. When the Supreme Court has considered claims involving beliefs about facilitation of immoral conduct, it has not employed the panel’s approach of requiring the adherent to view their own actions in isolation. Instead the Court found a substantial burden where the plaintiffs were compelled to take actions they believed to be impermissible based on the actions’ place in a chain of events. See, e.g., Hobby Lobby, 134 S. Ct. at 2759 (the plaintiffs objected to providing access to abortifacients because others’ use of the drugs may result in

14
the destruction of a human embryo); Thomas, 450 U.S. at 710 (plaintiff objected to fabricating turrets because those turrets would then be affixed by others to military tanks and used by others in warfare). This makes good sense, as the concept of facilitation inherently involves a view of one’s conduct in relation to that of others’. Logic and precedent therefore compel us to permit persons to object to performing an act that would be itself innocent but for its illicit consequences. Plaintiffs object to maintaining a relationship with an issuer or third-party administrator (“TPA”) that will use Plaintiffs’ health insurance plans as vehicles to provide contraceptive coverage. They object to completing, as the panel describes it, an “opt-out mechanism that shifts to third parties the obligation to provide contraceptive coverage.” Slip Op. at 36. Such claims do not fall outside the purview of RFRA.
III
As Plaintiffs have demonstrated a substantial burden on their free exercise, the government may only prevail by demonstrating the regulations further a compelling interest and employ the least restrictive means of doing so. 42 U.S.C. § 2000bb–1. A compelling interest is an interest “of the highest order.” Yoder, 406 U.S. at 215. To satisfy strict scrutiny, the government must “specifically identify an actual problem in need of solving” and the burden on free exercise “must be actually necessary to the solution.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011) (internal citations and quotations omitted). The panel found the government demonstrated a compelling interest in “seamless provision of contraceptive services.” Slip Op. at 49. The panel then rejected any less restrictive means of providing contraceptive coverage without cost sharing that would require women to complete additional steps to obtain the coverage, explaining such means “make the coverage no

15
longer seamless from the beneficiaries’ perspective.” Id. at 24.
Even assuming for the sake of argument that the government possesses a compelling interest in the provision of contraceptive coverage without cost sharing, it has not succeeded in demonstrating a compelling interest in the “seamless” provision of coverage. The government has pointed to no evidence in the record demonstrating its purported interest in providing contraceptive coverage without cost-sharing is harmed when women must undergo additional administrative steps to receive the coverage. The government cites only to one page in the Federal Register to support the proposition that coverage must be provided seamlessly.4 Gov’t Supp. Br. at 20 (citing 78 Fed. Reg. 39,870, 39,888 (Jul. 2, 2013)). This page provides no evidence that a procedure under which individuals must take additional steps to receive contraceptive coverage poses a “problem in need of solving,” but instead offers only conclusory and unsubstantiated statements that surely cannot be sufficient for the government to meet its burden in strict scrutiny analysis. That “additional steps” would be so burdensome as to hinder women’s access to contraception is pure speculation. For example, if all that was required was that the employee or student fills out a “simple, one-step form,” that would be a “de minimis requirement” to which we assume the panel would have no objection. Slip Op. at 26, 31; see also Roman Catholic Archdiocese of New York v.
4 The government also references pages of a 2011 Institute of Medicine Report entitled, “Clinical Preventative Services for Women: Closing the Gaps.” Gov’t Supp. Br. at 20 (citing pages 103–07). These pages of the report discuss benefits of contraceptive services and do not reference, much less weigh, the comparative advantage or disadvantage of procedures for accessing those services.

16
Sebelius, 987 F. Supp. 2d 232, 256 (E.D.N.Y. 2013) (“If these steps only entail filling out a form, it seems that the burden of filling out that form should fall on those who have no religious objection to doing so.”).
Further, the government cannot meet its burden of demonstrating a compelling interest where it leaves “appreciable damage to [the] supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (quoting Fla. Star v. B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J., concurring)); see also Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002) (stating a law’s purpose is undermined when it is “so woefully underinclusive as to render belief in [its] purpose a challenge to the credulous”). As the panel notes, the Affordable Care Act permits employers to “ceas[e] to offer health insurance as an employment benefit, and instead pay[] the shared responsibility assessment and leav[e] the employees to obtain subsidized health care coverage on an insurance exchange.” Slip Op. at 23. While Plaintiffs state they cannot exercise this option without violating their religious obligations, Oral Arg. Tr. at 19:5–15, the panel nevertheless reminds them it would be acceptable under the law. Slip Op. at 23. The untold many whose employers provide no health insurance and instead pay the assessment must face “logistical, informational, and administrative burdens,” id. at 63, in arranging for subsidized coverage on a health insurance exchange. They must “take steps to learn about, and to sign up for,” 78 Fed. Reg. at 39,888, health insurance on their own. The government simply cannot argue with a straight face that women who gain access to contraceptive coverage by identifying and signing up for a subsidized health insurance plan on a government exchange receive that coverage “seamlessly.” Cf. Hobby Lobby, 134 S. Ct. at 2783. Therefore, in leaving “appreciable damage” to its

17
“supposedly vital interest” in seamless provision of contraceptive coverage, the government’s regulations cannot survive strict scrutiny. Church of the Lukumi Babalu Aye, 508 U.S. at 547 (quoting Fla. Star, 491 U.S. at 542 (Scalia, J., concurring)).
The question of least restrictive means then becomes the other side of the same coin. The government could treat employees whose employers do not provide complete coverage for religious reasons the same as it does employees whose employers provide no coverage. This would entail providing for subsidized—or in this case free—contraceptive coverage to be made available on health care exchanges. An employee of a religious objector then would face the same administrative burdens as those who find complete coverage—including contraceptive services coverage—on the exchanges. However, just like others who use the exchanges, after overcoming these administrative hurdles, employees of religious objectors would have contraceptive coverage without cost sharing. Such a mechanism would therefore be effective and would minimize the burden on religious adherents, demonstrating its viability as a less restrictive means than the current regulations.
IV
The Supreme Court has interpreted the First Amendment to deprive individuals of constitutional protection against neutral laws—meaning almost any law where the government does not announce its intention “to infringe upon or restrict practices because of their religious motivation.” Church of the Lukumi Babalu Aye, 508 U.S. at 533. Genuine neutrality, however, would “allow[] many different and contending voices to be represented in public discourse.” Michael W. McConnell, Why is Religious Liberty the “First Freedom”?,

18
21 CARDOZO L. REV. 1243, 1262 (2000). When the state quells disparate voices, declaring a winner on one side of the culture wars, neutrality becomes a proxy for majoritarianism and secularism. Id.
Priests for Life is an organization that exists solely for the purpose of countering the benign narrative that contraception and abortion are beneficial to women. The other Plaintiffs exist, at least in part, to engender a counter-cultural narrative that “life begins at the moment of conception . . . and that certain ‘preventative’ services that interfere with conception or terminate a pregnancy are immoral.” Pls. Br. at 15. Those who accept employment with these organizations and students who enroll at these schools do so with full awareness of their mediating stance. Nevertheless, though the government acknowledges that a primary goal of such organizations is to oppose the government’s mission of increasing access to and use of contraception, it places them outside its grudging religious exemption and offers only one real choice—they can renounce their religious scruples overtly or in practical effect. If the government coopts their contractors and administrative structures to dispense advice, drugs, and services that contravene their religious views, in effect, it has written contraceptive care, including access to abortifacients, into Plaintiffs’ employment contracts and student health care agreements. Commandeering is not accommodation, and, in this context, “seamlessness” is just shorthand for surrender.
The French have another saying, mocking the Bourbon restoration: ils n'ont rien appris, ni rien oublié. Learning nothing and forgetting nothing. The modern maxim does the Bourbon monarchs one better: learning nothing and forgetting everything. Alas, preserving the fragile ark of our constitutionalism requires us to remember that the first

19
principle of liberty is freedom from gratuitous coercion. We respectfully dissent.

KAVANAUGH, Circuit Judge, dissenting from the denial of rehearing en banc: In my respectful view, the panel opinion misapplies the Religious Freedom Restoration Act and contradicts the Supreme Court’s recent decisions in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), and Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 1022 (2014). I would grant rehearing en banc and rule for the plaintiff religious organizations.
At the outset, it is important to recognize that two of the key Supreme Court precedents here – Hobby Lobby and Wheaton College – were divided decisions with vigorous dissents. Some believe that those two decisions tilted too far in the direction of religious freedom. Others, by contrast, think that those decisions did not go far enough in the direction of religious freedom. We are a lower court in a hierarchical judicial system headed by “one supreme Court.” U.S. Const. art. III, § 1. It is not our job to re-litigate or trim or expand Supreme Court decisions. Our job is to follow them as closely and carefully and dispassionately as we can. Doing so here, in my respectful view, leads to the conclusion that the plaintiff religious organizations should ultimately prevail on their RFRA claim, but not to the full extent that they seek.
Some background: The Affordable Care Act requires most employers, including non-profit organizations, to provide health insurance coverage for their employees or else pay a significant monetary penalty to the Government. By regulation, that insurance must cover all FDA-approved contraceptives, including certain methods of birth control that, some believe, operate as abortifacients and result in the destruction of embryos.
As a religious accommodation, the regulations exempt religious non-profit organizations from the contraceptive

2
mandate. To be exempt from the monetary penalty, however, the religious organizations must either submit a form with certain required information to their insurer or submit a letter with certain required information to the Secretary of Health and Human Services.1 (For ease of reference, I will use the term “form” to cover both documents.) The insurer must continue to provide contraceptive coverage to the religious organizations’ employees, albeit with separate funds provided either by the insurer itself or by the United States.
Many prominent religious organizations around the country – including the plaintiffs in this case – have bitterly
1 The form submitted to a religious organization’s insurer must certify that the organization (1) opposes providing coverage for some or all of the contraceptive services required by the contraceptive mandate on account of religious objections; (2) is organized and operates as a non-profit entity; and (3) holds itself out as a religious organization. See 29 C.F.R. § 2590.7152713A(a), (b)(1)(ii), (c)(1); 45 C.F.R. § 147.131(b), (c)(1). In certain circumstances, the form must also “include notice” of the insurer’s obligations to provide contraceptive coverage to the religious organization’s employees. 29 C.F.R. § 2590.7152713A(b)(1)(ii)(A).
The letter to the Secretary of Health and Human Services must include the following information: (1) the name of the religious non-profit organization; (2) the basis on which it qualifies for an accommodation; (3) its objection based on sincerely held religious beliefs to providing coverage for some or all contraceptive services, including notice of the subset of contraceptive services to which it objects; (4) its insurance plan’s name and type; and (5) the name and contact information for any of the insurance plan’s third party administrators and health insurance issuers. See 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B), (c)(1)(ii); 45 C.F.R. § 147.131(c)(1)(ii); Coverage of Certain Preventative Services Under the Affordable Care Act, 79 Fed. Reg. 51,092, 51,094-95 (Aug. 27, 2014).

3
objected to this scheme. They complain that submitting the required form contravenes their religious beliefs because doing so, in their view, makes them complicit in providing coverage for contraceptives, including some that they believe operate as abortifacients. They say that the significant monetary penalty for failure to submit the form constitutes a substantial burden on their exercise of religion. They contend, moreover, that the Government has less restrictive ways of ensuring that the employees of the religious organizations have access to contraception without making the organizations complicit in the scheme in this way.
The plaintiffs in this case have sued under the Religious Freedom Restoration Act, known as RFRA. RFRA grants individuals and organizations an exemption from generally applicable federal laws that “substantially burden” their “exercise of religion,” unless the Government demonstrates that the law furthers a “compelling governmental interest” and is the “least restrictive means” of furthering that interest. 42 U.S.C. § 2000bb-1.2 As the Supreme Court has explained, “RFRA was designed to provide very broad protection for religious liberty.” Hobby Lobby, 134 S. Ct. at 2767, slip op. at 17. RFRA statutorily incorporated the compelling interest test that the Supreme Court had applied in cases such as Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). 42 U.S.C. § 2000bb(b)(1).
Under RFRA and the relevant Supreme Court case law, we must consider three questions here. First, do the
2 The relevant section of RFRA provides in full: “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b).

4
regulations – which compel religious organizations to submit the required form or else pay significant monetary penalties – “substantially burden” the religious organizations’ “exercise of religion”? Second, if so, does the Government have a “compelling” interest in facilitating access to contraception for the employees of these religious organizations? Third, if the Government does have such a compelling interest, do the regulations represent the “least restrictive” means of furthering that interest?
I conclude as follows:
First, under Hobby Lobby, the regulations substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs (submitting the form) or else pay significant monetary penalties.
Second, that said, Hobby Lobby strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.
Third, this case therefore comes down to the least restrictive means question. Under Hobby Lobby, Wheaton College, and Little Sisters of the Poor, requiring the religious organizations to submit this form is not the Government’s least restrictive means of furthering its interest in facilitating access to contraception for the organizations’ employees. Rather, the Government can achieve its interest even if it accepts the less restrictive notice that the Supreme Court has already relied on in the Wheaton College and Little Sisters of the Poor cases. Unlike the form required by current federal regulations, the Wheaton College/Little Sisters of the Poor notice does not require a religious organization to identify or

5
notify its insurer, and thus lessens the religious organization’s complicity in what it considers to be wrongful. And even with just the Wheaton College/Little Sisters of the Poor notice, the Government can independently determine the identity of the organization’s insurer and thereby ensure that the same insurer continues to provide the same contraceptive coverage to the organization’s employees. Hence, the Wheaton College/Little Sisters of the Poor notice is a less restrictive way for the Government to achieve its compelling interest.
I
First, under Hobby Lobby, this regulatory scheme imposes a substantial burden on plaintiffs’ exercise of religion.
Under RFRA, a substantial burden on the exercise of religion occurs when, for example, the Government imposes sanctions or punishment on someone, or denies a benefit to someone, for exercising his or her religion. Thus, if the Government requires someone (under threat of incurring monetary sanctions or punishment, or of having a benefit denied) to act or to refrain from acting in violation of his or her sincere religious beliefs, that constitutes a substantial burden on the exercise of religion. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2775-79, slip op. at 31-38 (2014); Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 717-18 (1981); Sherbert v. Verner, 374 U.S. 398, 403-04 (1963).
That is precisely what has happened here.
The “substantial burden” in this case comes from the large monetary penalty imposed on religious organizations

6
that choose not to submit the required form. Cf. Hobby Lobby, 134 S. Ct. at 2775-76, 2779, slip op. at 31-32, 38. It is settled that a direct monetary penalty on the exercise of religion constitutes a “substantial burden.” See id. (penalty for not providing contraceptive coverage); Wisconsin v. Yoder, 406 U.S. 205, 208, 218-19 (1972) (fine for not sending children to high school); Sherbert, 374 U.S. at 404 (describing hypothetical fine for Saturday worship).3
Therefore, the remaining question with respect to the first prong of the RFRA analysis is whether submitting the form actually contravenes plaintiffs’ sincere religious beliefs. In analyzing that question, we must first understand the context in which the question arises. In most religious liberty cases, the Government has said in essence: “Do X or suffer a penalty.” The religious objector responds that X violates his
3 The Supreme Court has determined that denying benefits to (and not just imposing penalties on) someone engaged in conduct mandated by religious belief imposes a substantial burden on the exercise of religion. In denial-of-benefits cases, “[w]hile the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Thomas, 450 U.S. at 718. Congress incorporated that broad understanding of substantial burden into RFRA. Of course, the question of indirect burdens from the denial of government benefits is not at issue in this case. Here, we have the classic direct monetary penalty compelling conduct that contravenes religious belief. There has never been a question that such a direct penalty imposes a substantial burden on the exercise of religion. See Hobby Lobby, 134 S. Ct. at 2775-76, 2779, slip op. at 31-32, 38; Yoder, 406 U.S. at 208, 218; Sherbert, 374 U.S. at 404. Put simply, it is black-letter law that a “substantial burden” on the exercise of religion occurs when, as here, the government “compel[s] someone to do something that violates his religious beliefs, or prohibit[s] someone from doing something that is mandated by his religious beliefs.” Eugene Volokh, The First Amendment and Related Statutes 1060 (5th ed. 2014).

7
or her religious beliefs. For example, in the recent Holt v. Hobbs case, it was “shave your beard or suffer a penalty.” See Holt v. Hobbs, 135 S. Ct. 853, 860-61, slip op. at 4 (2015). Or in the classic Wisconsin v. Yoder case, it was “send your children to high school or pay a $5 fine.” See 406 U.S. at 208. Or in United States v. Lee, it was “pay the Social Security tax or suffer a penalty.” See 455 U.S. 252, 254-55 (1982). Simple enough.
Here, the situation is only slightly more complicated. The Government has said in essence: “Do X or Y or suffer a penalty.” X is provide contraceptive coverage. Y is submit the form. All agree that X – providing contraceptive coverage – implicates plaintiffs’ “exercise of religion.” But religious organizations can avoid that option by choosing Y – submitting the form. In other words, the Government is exempting religious organizations from providing contraceptive coverage but is still saying: “Submit the form or suffer a penalty.”
As a result, the key inquiry under the first prong of RFRA is whether submitting the form violates plaintiffs’ sincere religious beliefs. The form is part of the process by which the Government ensures that the religious organizations’ insurers provide contraceptive coverage to the organizations’ employees. To plaintiffs, the act of “submitting” this form would, “in their religious judgment, impermissibly facilitate[] delivery” of contraceptive and abortifacient coverage. Plaintiffs’ Supplemental Br. 1.
As the Supreme Court stated in Hobby Lobby, such a question of complicity – that is, when “it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another” – is “a difficult and important

8
question of religion and moral philosophy.” Hobby Lobby, 134 S. Ct. at 2778, slip op. at 36. Judge Gorsuch has explained well the complicity issue that arises in these circumstances: “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. [Plaintiffs] are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1152 (10th Cir. 2013) (Gorsuch, J., concurring).
But what if the religious organizations are misguided in thinking that this scheme – in which the form is part of the process by which the Government ensures contraceptive coverage – makes them complicit in facilitating contraception or abortion? That is not our call to make under the first prong of RFRA. The Supreme Court has emphasized that judges in RFRA cases may question only the sincerity of a plaintiff’s religious belief, not the correctness or reasonableness of that religious belief. See Hobby Lobby, 134 S. Ct. at 2774 n.28, 2777-79, slip op. at 29 n.28, 35-38; see also Thomas, 450 U.S. at 714-16.4 The Supreme Court has long stated, moreover,
4 In that regard, it is important to note at least three limits on a claimant’s ability to prevail under RFRA.
First, RFRA does not provide protection to philosophical, policy, political, or personal beliefs, for example. It protects only religious beliefs. 42 U.S.C. § 2000bb-1(a) (“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.”) (emphasis added).

9
that religious beliefs need not be “acceptable, logical, consistent, or comprehensible to others” in order to merit protection. Thomas, 450 U.S. at 714. As Justice Brennan, the primary architect of the body of religious freedom law now incorporated into RFRA, once put it: “[R]eligious freedom – the freedom to believe and to practice strange and, it may be, foreign creeds – has classically been one of the highest values
Second, RFRA does not cover insincere religious beliefs – that is, beliefs that are not truly held – such as when someone asserts a personal objection dressed up as a religious objection. Under RFRA, the courts must police sincerity. As the Supreme Court has explained, RFRA reflects Congress’s confidence in “the ability of the federal courts to weed out insincere claims.” Hobby Lobby, 134 S. Ct. at 2774, slip op. at 29. And the Hobby Lobby Court approvingly cited a number of cases where courts have inquired into the sincerity of religious claims. Id. at 2774 nn.28-29, slip op. at 29-30 nn.28-29 (citing United States v. Quaintance, 608 F.3d 717, 718-19 (10th Cir. 2010); Abate v. Walton, 77 F.3d 488, 1996 WL 5320, at *5 (9th Cir. Jan. 5, 1996); Ochs v. Thalacker, 90 F.3d 293, 296 (8th Cir. 1996); Green v. White, 525 F. Supp. 81, 83-84 (E.D. Mo. 1981); Winters v. State, 549 N.W.2d 819, 819-20 (Iowa 1996)). As the Supreme Court has previously stated: “[W]hile the truth of a belief is not open to question, there remains the significant question whether it is truly held. This is the threshold question of sincerity which must be resolved in every case.” United States v. Seeger, 380 U.S. 163, 185 (1965) (internal quotation marks omitted). In short, in these religious freedom cases, the courts appropriately “inquir[e] into the sincerity” of a claimant’s “professed religiosity.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (applying the related Religious Land Use and Institutionalized Persons Act).
Third, as explained more fully below, RFRA’s compelling interest standard allows the Government to compel or proscribe action in certain circumstances even though, by doing so, the Government may be substantially burdening someone’s religion.

10
of our society.” Braunfeld v. Brown, 366 U.S. 599, 612 (1961) (Brennan, J., concurring in part and dissenting in part).
That bedrock principle means that we may not question the wisdom or reasonableness (as opposed to the sincerity) of plaintiffs’ religious beliefs – including about complicity in wrongdoing. In Hobby Lobby, the Supreme Court emphatically confirmed that point. There, as here, the Government argued that the employers’ alleged complicity in providing contraception did not infringe on the employers’ religious beliefs. In particular, the Government claimed that “the connection between what the objecting parties must do” (pay for insurance) and “the end that they find to be morally wrong (destruction of an embryo)” was “simply too attenuated” because the end would occur only as a result of intervening decisions by individual covered employees. Hobby Lobby, 134 S. Ct. at 2777, slip op. at 35.
The Supreme Court adamantly rejected the basic premise of the Government’s argument. The Court emphasized that federal courts have “no business” trying to answer whether the religious beliefs asserted in a RFRA case – including the complicity belief at issue in Hobby Lobby – are correct or reasonable. Id. at 2778, slip op. at 36. A federal court may not tell the objectors that “their beliefs are flawed,” and thus may not arrogate to itself “the authority to provide a binding national answer to this religious and philosophical question” of complicity. Id. at 2778, slip op. at 36-37. Instead, the “narrow function” of federal courts is to determine whether the belief is sincere and “reflects an honest conviction.” Id. at 2779, slip op. at 37-38 (internal quotation marks omitted). In doing so, moreover, courts must keep in mind that RFRA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (defining “religious exercise” for purposes

11
of the related Religious Land Use and Institutionalized Persons Act); see id. § 2000bb-2 (incorporating that Act’s definition set forth in § 2000cc-5 into RFRA).
As a matter of religious belief, plaintiffs in this case say that the act of submitting the required form makes them complicit in moral wrongdoing. Importantly, no one here disputes that plaintiffs’ religious belief is sincere and reflects an honest conviction. Cf. Wheaton College v. Burwell, 134 S. Ct. 2806, 2808, slip op. at 4 (2014) (Sotomayor, J., dissenting) (“The sincerity of Wheaton’s deeply held religious beliefs is beyond refute.”); id. at 2812, slip op. at 11. Therefore, plaintiffs’ decision to decline to submit the required letter or form is an “exercise of religion” under RFRA. No one disputes, moreover, that plaintiffs will be required to pay huge monetary penalties if they do not submit the required form. Those large monetary penalties plainly represent a “substantial burden” on plaintiffs’ exercise of religion. See Hobby Lobby, 134 S. Ct. at 2759, slip op. at 2.
Judge Flaum persuasively summarized the point in a similar case that involved Notre Dame: “Yet we are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith. Notre Dame tells us that Catholic doctrine prohibits the action that the government requires it to take. So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.” University of Notre Dame v. Sebelius, 743 F.3d 547, 566 (7th Cir. 2014) (Flaum, J., dissenting), vacated and remanded, 135 S. Ct. 1528 (2015). Judge Pryor has likewise cogently explained: “So long as the [religious organization’s] belief is sincerely held and undisputed – as it is here – we have no choice but to decide that compelling the participation of the [religious organization] is a substantial burden on its religious exercise.” Eternal Word Television Network, Inc. v.

12
Secretary, Department of Health & Human Services, 756 F.3d 1339, 1348 (11th Cir. 2014) (Pryor, J., specially concurring).
In short, under Hobby Lobby, the regulations substantially burden plaintiffs’ exercise of religion.
The panel opinion concludes, however, that there is no substantial burden on plaintiffs’ exercise of religion. In particular, the panel opinion says that plaintiffs are wrong to think that they would be complicit in moral wrongdoing if they submit this form, as required by the Government. But to reiterate: Judicially second-guessing the correctness or reasonableness (as opposed to the sincerity) of plaintiffs’ religious beliefs is exactly what the Supreme Court in Hobby Lobby told us not to do. See Hobby Lobby, 134 S. Ct. at 2778, slip op. at 36. And Hobby Lobby was not the first Supreme Court case to say as much. See Thomas, 450 U.S. at 714-16.
The panel opinion responds that plaintiffs are simply misunderstanding the law and that the law, properly understood, does not actually make plaintiffs complicit in providing contraceptive coverage. But there is no dispute that the Government is requiring plaintiffs to submit a form (to the Government or to the insurer) or else pay a penalty. And there is no dispute that the form is part of the process by which the Government ensures that the religious organizations’ insurers provide contraceptive coverage to the organizations’ employees. In other words, the form matters and plays a role in this scheme. After all, if the form were meaningless, why would the Government require it? The Government is requiring plaintiffs to submit the form precisely because the form is part of the process by which the Government ensures that the religious organizations’ insurers provide contraceptive coverage to the organizations’

13
employees.5 Plaintiffs in turn sincerely believe that submitting the form under those circumstances makes them complicit in wrongdoing in contravention of their religious beliefs. See Plaintiffs’ Supplemental Br. 1. Compelling submission of the form therefore imposes a substantial burden under RFRA.6
The panel opinion separately notes that the Government intended the form to accommodate religious organizations so that the organizations themselves would not have to provide
5 If the form were meaningless, the Government presumably would not require it and perpetuate this rancorous dispute with religious organizations around the country.
6 The panel’s concurrence in the denial of rehearing en banc largely echoes Justice Sotomayor’s dissent in Wheaton College. Compare Panel Concurrence at 5 (“In no respect do we, nor could we, question Plaintiffs’ sincere beliefs about what their faith permits and forbids of them. But we can and must decide which party is right about how the law works.”), with Wheaton College, 134 S. Ct. at 2812, slip op. at 10 (Sotomayor, J., dissenting) (“Wheaton is mistaken – not as a matter of religious faith, in which it is undoubtedly sincere, but as a matter of law . . . . Any provision of contraceptive coverage by Wheaton’s third-party administrator would not result from any action by Wheaton; rather, in every meaningful sense, it would result from the relevant law and regulations.”). But the Supreme Court, by a 6-3 margin, did not agree with Justice Sotomayor’s dissent in Wheaton College, at least for purposes of the injunction. The Court instead granted an injunction under the All Writs Act to Wheaton College, which the Court could do only if it concluded that the required form “indisputably” would impose a substantial burden on Wheaton College’s exercise of religion. See Turner Broadcasting System, Inc. v. Federal Communications Commission, 507 U.S. 1301, 1303 (1993) (Rehnquist, C.J., in chambers) (internal quotation marks omitted); Wheaton College, 134 S. Ct. at 2808, slip op. at 4 (Sotomayor, J., dissenting) (internal quotation marks omitted).

14
contraceptive coverage. But the panel opinion has been faked out by the Government’s accommodation. The accommodation provides an alternative, but the alternative itself imposes a substantial burden on the religious organizations’ exercise of religion. Again, this case arises in a “Do X or Y or pay a penalty” posture. All agree that X – providing contraceptive coverage – infringes plaintiffs’ exercise of religion. But so does Y – submitting the form. What the panel opinion misses is that submitting this form is itself an act that contravenes the organizations’ sincere religious beliefs. It is no different from the recent Holt case, in which the act that contravened the Muslim prisoner’s sincere religious beliefs was shaving his beard. Submitting the form = shaving your beard. Or the Yoder case, in which the act that contravened the Amish parents’ beliefs was sending their children to high school. Submitting the form = sending your children to high school. Or the Lee case, in which the act that contravened the Amish employer’s religious beliefs was paying Social Security taxes. Submitting the form = paying the Social Security tax. Or the Sherbert case, in which the act that contravened the Seventhday Adventist’s belief was working on Saturday, the Sabbath day of the faith. Submitting the form = working on the Sabbath.
In all of those cases, the Supreme Court recognized that the act in question represented a sincere religious belief that the Government could not override except by employing the least restrictive means to further a compelling governmental interest. The same is true here. The panel opinion does not fully come to grips with that critical point, in my view.
The panel opinion therefore also does not appreciate that the substantial burden on plaintiffs’ exercise of religion comes from the monetary penalty (which in this case happens to be

15
huge) that the organizations will have to pay if they adhere to their religious beliefs and do not submit the required form. In Holt, the substantial burden came from the discipline the prisoner would receive if he refused to shave his beard. In Yoder, it was the $5 monetary fine for the parents whose children did not attend high school. In Lee, it was the monetary penalty for failure to pay taxes. In Sherbert, it was the denial of unemployment benefits for not working on the Sabbath.
The essential principle is crystal clear: When the Government forces someone to take an action contrary to his or her sincere religious belief (here, submitting the form) or else suffer a financial penalty (which here is huge), the Government has substantially burdened the individual’s exercise of religion. So it is in this case.
To be clear, that conclusion does not mean that plaintiffs prevail on their RFRA claim. Rather, it means only that they prevail on the first prong of the three-part RFRA inquiry and that we now must move on to the second and third prongs. The Government may still be able to compel plaintiffs to submit the required form if the Government prevails on those second and third prongs. Cf. Lee, 455 U.S. at 257, 261 (Government may force Amish employer to pay Social Security taxes notwithstanding substantial burden on Amish employer’s religion).
II
Second, does the Government have a compelling interest in facilitating women’s access to contraception – in particular, in facilitating access to contraception for the employees of these religious organizations? See 42 U.S.C. § 2000bb-1(b) (“Government may substantially burden a person’s exercise

16
of religion only if it demonstrates that application of the burden to the person . . . is in furtherance of a compelling governmental interest.”) (emphasis added); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (compelling interest test focuses on interest as applied to particular plaintiffs).
The plaintiff religious organizations strenuously argue that there is no such compelling governmental interest. As I see it, however, plaintiffs’ argument cannot be squared with the views expressed by a majority of the Justices in Hobby Lobby.
To begin with, how do we determine whether the Government has a “compelling interest” in overriding a fundamental constitutional or statutory right such as RFRA’s right to religious freedom? Good question. No code or history book lists the Government’s compelling interests. Rather, courts have developed those interests over time, in common-law-like fashion.7 What we do know, to put it in colloquial and somewhat question-begging terms, is that the asserted governmental interest must be so critically important that it justifies overriding certain fundamental individual rights in certain circumstances. To quote the Supreme Court,
7 The compelling interest nomenclature took root somewhat ignominiously in free speech cases as a way to justify the Government’s suppression of Communist speech. See, e.g., Konigsberg v. State Bar of California, 366 U.S. 36, 49-52 (1961); Barenblatt v. United States, 360 U.S. 109, 126-27 (1959); Sweezy v. New Hampshire, 354 U.S. 234, 265-67 (1957) (Frankfurter, J., concurring in result). In any event, the compelling interest override is now an established part of various constitutional doctrines, including the First and Fourteenth Amendments. And Congress expressly incorporated it into the Religious Freedom Restoration Act.

17
the interest must be “of the highest order.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); see Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2781, slip op. at 41 (2014). Examples of compelling interests from past Supreme Court cases include conducting the military draft, maintaining the tax system, running the Social Security program, and preventing discrimination against third parties. See Gillette v. United States, 401 U.S. 437, 461-63 (1971); Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699-700 (1989); United States v. Lee, 455 U.S. 252, 257-59 (1982); Bob Jones University v. United States, 461 U.S. 574, 603-04 (1983).8
In this case, we do not have to tackle the compelling interest question without guidance from above. Justice Kennedy strongly suggested in his Hobby Lobby concurring opinion – which appears to be controlling de facto if not also de jure on this particular issue – that the Government generally has a compelling interest in facilitating access to contraception for women employees. Hobby Lobby, 134 S. Ct. at 2785-86, slip op. at 2 (Kennedy, J., concurring); see also id. at 2779-80, slip op. at 39-40 (majority opinion); id. at 2799-2801, slip op. at 23-27 (Ginsburg, J., dissenting); cf. Marks v. United States, 430 U.S. 188, 193 (1977). In particular, Justice Kennedy referred to the “premise” of the Court’s decision: namely, its “assumption” that the
8 As noted above, at least three aspects of RFRA limit the statute’s reach and thus help answer the parade of horribles sometimes raised in opposition to religious freedom claims. First, RFRA covers only religious objections. Second, insincere religious claims are excluded from RFRA’s protection. Third, RFRA’s compelling interest standard allows the Government to compel or proscribe action in certain circumstances even though, by doing so, the Government may be substantially burdening someone’s religion.

18
Government has a “legitimate and compelling interest” in facilitating access to contraception. Hobby Lobby, 134 S. Ct. at 2786, slip op. at 2 (Kennedy, J., concurring). Justice Kennedy’s use of the term “compelling” in this context was no doubt carefully considered. And the four dissenting Justices likewise stated that the Government had a compelling interest in facilitating women’s access to contraception. Id. at 2799-2801, slip op. at 23-27 (Ginsburg, J., dissenting).
It is not difficult to comprehend why a majority of the Justices in Hobby Lobby (Justice Kennedy plus the four dissenters) would suggest that the Government has a compelling interest in facilitating women’s access to contraception. About 50% of all pregnancies in the United States are unintended. The large number of unintended pregnancies causes significant social and economic costs. To alleviate those costs, the Federal Government has long sought to reduce the number of unintended pregnancies, including through the Affordable Care Act by making contraceptives more cheaply and widely available. It is commonly accepted that reducing the number of unintended pregnancies would further women’s health, advance women’s personal and professional opportunities, reduce the number of abortions,9 and help break a cycle of poverty that persists when women who cannot afford or obtain contraception become pregnant unintentionally at a young age. In light of the numerous benefits that would follow from reducing the number of unintended pregnancies, it comes as no surprise that Justice Kennedy’s opinion expressly referred to a “compelling” governmental interest in facilitating women’s access to contraception.
9 As the panel opinion in this case accurately pointed out, as of now about 40% of all unintended pregnancies end in abortion.

19
In short, even if the Court did not formally hold as much, Hobby Lobby at least strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.10
III
Third, in light of those two conclusions, we must consider the least restrictive means issue. When, as here, a law substantially burdens the exercise of religion, but the law furthers a compelling governmental interest, RFRA requires the Government to use the “least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The Supreme Court has emphasized that the “least-restrictive-means standard is exceptionally demanding.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2780, slip op. at 40 (2014).
Congress adopted the least restrictive means requirement to help thread the needle between two conflicting principles. The least restrictive means requirement, properly applied, allows religious beliefs to be accommodated and the Government’s compelling interests to be achieved – a winwin resolution of these often contentious disputes. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436 (2006) (quoting 42 U.S.C. § 2000bb(a)(5)) (RFRA “‘is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.’”). As a leading First Amendment scholar has put
10 Justice Kennedy’s Hobby Lobby opinion did not expressly discuss whether a compelling governmental interest in ensuring general coverage for contraceptives encompasses ensuring coverage for those specific drugs and services that, some believe, operate as abortifacients and result in the destruction of embryos.

20
it: “If there’s some way of granting an exemption and yet accomplishing the government’s goal, then there’s no real need to interfere with the religious practice, so the exemption must be granted.” Eugene Volokh, The First Amendment and Related Statutes 986 (5th ed. 2014).
Requiring religious organizations to submit the form mandated by current federal regulations is not the Government’s least restrictive means of furthering its interest in facilitating access to contraception for the organizations’ employees. That is because the Government can still achieve its interest by allowing the religious organizations to submit the less restrictive notice that the Supreme Court has already twice indicated should be good enough to satisfy the Government’s interest.
In the Wheaton College and Little Sisters of the Poor cases, the Supreme Court carefully specified that the religious organizations would satisfy their current legal obligations by submitting a simple notice to the Secretary of Health and Human Services “in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Wheaton College v. Burwell, 134 S. Ct. 2806, 2807, slip op. at 1 (2014); see also Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 1022, 1022, slip op. at 1 (2014) (notice should be “in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services”); cf. Eternal Word Television Network, Inc. v. Secretary, Department of Health & Human Services, 756 F.3d 1339, 1349 (11th Cir. 2014) (Pryor, J., specially concurring) (“The United States, for example, could require the [religious organization] to provide a written notification of its religious objection to the Department of Health and Human Services.”).

21
By contrast to the form required by current federal regulations, the Wheaton College/Little Sisters of the Poor notice does not require the religious organizations to identify or notify their insurers, and thus (according to plaintiffs) lessens the religious organizations’ degree of complicity in what they consider to be wrongful as a matter of religious belief. See Plaintiffs’ Supplemental Br. 10. And even with the less detailed Wheaton College/Little Sisters of the Poor notice, the Government can independently determine the identity of the organizations’ insurers and thereby ensure that the insurers provide contraceptive coverage to the organizations’ employees. The Wheaton College/Little Sisters of the Poor notice may create some administrative inconvenience for the Government, because the Government itself will have to identify the religious organizations’ insurers. But administrative inconvenience alone does not negate the feasibility of an otherwise less restrictive means – unless the administrative problem would be “of such magnitude” that it would render “the entire statutory scheme unworkable.” Sherbert v. Verner, 374 U.S. 398, 408-09 (1963); see also Bowen v. Roy, 476 U.S. 693, 731 (1986) (O’Connor, J., concurring in part and dissenting in part) (“[A]dministrative inconvenience is not alone sufficient to justify a burden on free exercise unless it creates problems of substantial magnitude.”).
If a religious organization does not use the currently required form but instead uses the Wheaton College/Little Sisters of the Poor notice, how would that affect third parties, namely the religious organizations’ employees? That question matters because the Supreme Court has stated that “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (applying the related

22
Religious Land Use and Institutionalized Persons Act). In Hobby Lobby, the Court reiterated that this consideration “will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest.” Hobby Lobby, 134 S. Ct. at 2781 n.37, slip op. at 42 n.37. As Justice Kennedy put it in his concurrence, the accommodation must not “unduly restrict other persons, such as employees, in protecting their own interests.” Id. at 2787, slip op. at 4 (Kennedy, J., concurring).
But here, the religious organizations’ employees would still receive the same insurance coverage from the same insurer for contraceptives. As the Supreme Court explained in its Wheaton College order: “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives” or “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” Wheaton College, 134 S. Ct. at 2807, slip op. at 1-2. So accommodating the religious organizations by allowing them to use the Wheaton College/Little Sisters of the Poor notice would not, to use Justice Kennedy’s formulation, “unduly restrict” third parties. Cf. Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J., at 116 (forthcoming 2015) (version of Apr. 10, 2015) (“Wheaton College, like Hobby Lobby, appears to tie accommodation to the fact that the government has other ways of providing for the statute’s intended beneficiaries so that no third-party harm would result from the accommodation.”).
Although the Supreme Court’s Wheaton College and Little Sisters of the Poor orders were not final merits rulings, they at least qualify as extremely strong signals from the

23
Supreme Court about how to resolve the least restrictive means issue in this case. In particular, the Court in Wheaton College granted an injunction under the All Writs Act, which is appropriate “only where the legal rights at issue are indisputably clear.” Wheaton College, 134 S. Ct. at 2808, slip op. at 4 (Sotomayor, J., dissenting) (internal quotation marks omitted). Moreover, the Court issued the Wheaton College order just days after its Hobby Lobby decision, and it did so over a detailed and forceful dissent.
In any event, regardless of whether we as a lower court are formally bound by the Supreme Court stay orders in Wheaton College and Little Sisters of the Poor, the notice identified by the Supreme Court in those two cases is undoubtedly a less restrictive way for the Government to further its interest than the form required by current federal regulations. It necessarily follows that the form required by current regulations is not the “least restrictive means” available to the Government. As the Supreme Court said a few months ago in a similar context: If “a less restrictive means is available for the Government to achieve its goals, the Government must use it.” Holt v. Hobbs, 135 S. Ct. 853, 864, slip op. at 11 (2015) (internal quotation marks omitted). So too here.
To be sure, some religious organizations claim that even the less restrictive Wheaton College/Little Sisters of the Poor notice still imposes a substantial burden on their religious beliefs. But that obviously does not help the Government’s argument in support of the current, even more burdensome form. The key point here is that the Wheaton College/Little Sisters of the Poor notice is less restrictive (that is, less burdensome) than the currently required form and yet still furthers the Government’s compelling interest. Under RFRA,

24
the Government therefore must employ that less restrictive means.11
Put simply, the Government need not – and therefore under RFRA may not – pursue its compelling interest in facilitating access to contraception by requiring religious nonprofit organizations to submit the form required by current federal regulations.12
11 The Wheaton College/Little Sisters of the Poor notice requires a religious organization to, in effect, raise its hand to opt out. But contrary to what the panel’s concurrence in the denial of rehearing en banc says, see Panel Concurrence at 3-4 n.1, the currently required form requires a religious organization both to raise its hand and to point to its insurer. From the perspective of the plaintiff religious organizations, the currently required form is therefore more burdensome because it makes the organizations identify or notify their insurers, which the organizations believe makes them more complicit in the provision of contraceptive coverage to which they object as a matter of religious belief.
12 As the Court in Hobby Lobby noted, the Government could directly subsidize or provide contraceptives to employees of religious non-profit organizations. See Hobby Lobby, 134 S. Ct. at 2780-81, slip op. at 41. The direct funding option raises certain feasibility issues. A means that is not a reasonably feasible way of furthering the Government’s interest cannot be deemed a less restrictive means of furthering that interest. In Little Sisters of the Poor, Hobby Lobby, and Wheaton College, the Court did not say that direct funding was the least restrictive means of furthering the Government’s interest. If it had, then even the Wheaton College/Little Sisters of the Poor notice would itself be too restrictive. In any event, what matters in the present case is that the Wheaton College/Little Sisters of the Poor notice is less restrictive than the form required by the current federal regulations but still achieves the Government’s interest.

25
One final note for clarity: The Government may of course continue to require the religious organizations’ insurers to provide contraceptive coverage to the religious organizations’ employees, even if the religious organizations object. As Judge Flaum correctly explained, “RFRA does not authorize religious organizations to dictate the independent actions of third-parties, even if the organization sincerely disagrees with them.” University of Notre Dame v. Sebelius, 743 F.3d 547, 567 (7th Cir. 2014) (Flaum, J., dissenting), vacated and remanded, 135 S. Ct. 1528 (2015). “That is true whether the third-party is the government, an insurer, a student, or some other actor.” Id. “So long as the government does not require” religious organizations themselves “to take action, RFRA does not give” the religious organizations “a right to prevent the government from providing contraceptives to” the religious organizations’ employees. Id.
* * *
In sum, I respectfully would grant rehearing en banc and rule for the plaintiff religious organizations on the ground that the Wheaton College/Little Sisters of the Poor notice is a less restrictive way than the currently mandated form for the Government to achieve its compelling interest in facilitating access to contraception for the organizations’ employees.

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 13-5368

September Term, 2014

Priests For Life, et al.,

1:13-cv-01261-EGS 1:13-cv-01441-ABJ
Filed On: June 10, 2015

Appellants

v.

United States Department of Health and Human Services, et al.,

Appellees

-----------------------------Consolidated with 13-5371, 14-5021

BEFORE: Rogers, Pillard, and Wilkins, Circuit Judges
O R D E R
Upon consideration of appellants/cross-appellees’ motion for stay of mandate pending petition for writ of certiorari, to which no opposition has been filed, it is
ORDERED that the motion be granted. The Clerk is directed to withhold the mandate through August 26, 2015. If, within the period of the stay, appellants/crossappellees notify the Clerk in writing that a petition for writ of certiorari has been filed, the Clerk is directed to withhold issuance of the mandate pending the Supreme Court’s final disposition. See Fed. R. App. R. 41(d)(2)(B); D.C. Cir. Rule 41(a)(2).
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Michael C. McGrail Deputy Clerk

 
 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made th is 13th day of October 2017, by and between the entities and individuals listed in Exhibit A ("Plaintiffs") and the United States of America, acting by and through Eric D. Hargan, in hi s offic ial capacity as Acting Secretary of Health and Human Services; R. A lexander Acosta, in hi s offic ial capacity as Secretary ofLabor; Steven T. M nuchin, in his official capacity as Secretary of the Treasury; the United States Department of Health and Human Services; the United States Department ofLabor; and the United States Department of the Treasury (the "Government" or the " D epartme nts") (collectively, the " Parties").
R EC ITALS WHEREAS, there is now pending a series of lawsuits listed in Exh ibit B (collectively, the " Litigation'") in which Pla intiffs a llege that the Government has, among other things, vio lated the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-I et seq., by promulgating and enforcing regulations pursuant to 42 U.S.C. § 300gg-13 that required Plaintiffs to take actions that facilitated the prov is ion, through or in connection with their health plans, of Food and Drug Administration-approved contraceptive methods and abortifacients, as wel I as sterilization procedures and re lated patient education and counseling to which Plaintiffs object on relig ious grounds ("the Objectionable Coverage"). The regulations were found at 26 C.F.R. § 54.98 l 5-27 I 3A (Sept. 14, 20 15), 26 C.F. R. § 54.98 15-27 13(a)(l)(iv) (July 19, 2010), 29 C.F.R. § 2590.7 152713A (Sept. 14, 2015), 29 C.F. R. § 2590.715- 2713(a)(l)(iv) (July 19, 20 10), 45 C.F.R.
I of 10

§ 147.13 1 (Sept. 14, 20 15), and 45 C.F.R. § 147.l30(a)(l)(iv) (July 19, 20 10) (the ·' Regulations' ').
\\'HEREAS, the Departments of Hea lth and Huma n Services, Labor, and T reasury have issued new regulations afford ing Plaintiffs an exemption. 82 Fed. Reg. 47.792 (Oct. 13, 20 17), available at https://www.gpo.gov/ fd sys/pkg/F R-20 17-I 013/pd f/2 017-21851 .pdf.
WHEREAS, those new regulations state that " requiring certain objecting entities or indiv idua ls to choose between the Mandate, the accommodatio n, o r penalties fo r noncompliance imposes a substantia l burden on relig ious exercise under RFRA," that " the application of the Mandate to certa in o bjecting employers [i]s [not] necessary to serve a compelli ng governmental interest,"' and that "alternati ve approaches can further the interest the Departments prev ious ly identified behind the Mandate." 82 Fed. Reg. 47,792, 4 7,800. 47,806 (O ct. 13, 20 17), available at https://www.gpo.gov/fdsys/pkg/FR-20 17- 1013/pdf/20 17-2 185 1.pdf.
WH EREAS, recent Executi ve Orders establish that it is the po licy of the Government •·to vigorous ly enfo rce Federal law's robust protecti ons for re ligious freed om." and to '·exercise al l authority and discretion available ... to waive, defer, grant exem ptio ns from, o r delay the implementation o f any provision o r req uire ment of the [Affordab le Ca re] Act that wou ld impose ... a cost, fee, tax, pena lty, o r regulatory burden on ... health insurers, ... [o r] purchasers of hea lth insurance ." Executi ve Order 13798, Promoting Free Speech and Religio us Liberty 82 Fed. Reg.2 1,675 (May4, 20 17); Executi ve
2of 10

Order 13765, Minimizing the Economic Burden on the Patient Protectio n and Affordable Care Act Pending Repeal 82 Fed. Reg. 8,351 (Jan. 20, 2017).
WHEREAS, after yea rs of liti gatio n, the Supreme Court considered the claims m these cases and, instead of reso lving the legal issues, remanded the cases to allow the parties to "resolve any o utstanding issues between them." Zubik v. Burwell, 136 S. Ct. 1557, 1560(2016).
WHEREAS, the Supreme Court's remand orders provided that "the Government may not impose taxes o r penalties on [Plaintiffs] for fa il ure to provide the ... notice" required by the Regu lations. Id. at 1561.
WHEREAS, the new regulations, the Supreme Court's remand order, and the President's Executive Orders have placed this litigation in an extraordi nary posture.
WHEREAS, it is the desire of the Parties to resolve finally and permanently a ll disputes, asserted or unasserted, arising out o f, or related to the matters set forth , a lleged , embraced by, o r otherwi se referred to in the Litigation.
NOW THEREFORE, in consideration of the Rec itals and mutual promises contained herein, including the discontinuation of the pending Litigation, and fo r other good and valuable consideration hereby deemed rece ived , the Parties agree as follows :
TERMS OFAGREEMENT
I. The Paities agree that, under the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Affordable Care Act's "contraceptive mandate." if applied as set out in 26 C.F.R. § 54.98 l 5-27 l 3(a)(l )(iv) (July 19, 2010), 29 C.F.R. §2590.715- 2713(a)(l)(iv) (July 19, 20 10), and 45 C.F.R. § 147.130(a)( l)( iv) (Ju ly
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19, 2010), would .. impose(] a substantial burden on [Plaintiffs'] exercise of religion," id. at 2779, and "violate[] RFRA," id. at 2785. The Government therefore agrees that the "contraception mandate" as described in Hobby lobby cannot be legal ly enforced. under RFRA, against Plaintiffs or their health plans.
2. The Government agrees, with respect to all Plaintiffs, to abide by the terms of the permanent injunction in Zubik v. Sebelius, 13-cv- 1459, l3-cv-303. 20 13 WL 6922024 (W.D. Pa. Dec. 20, 20 13), as it relates to the Objectionable Coverage. The Government accordingly will treat Plaintiffs and their health plans, including their insurance issuers and/or third party administrators in connection with those health plans, as exempt from the Regulations or any materially similar regulation or agency policy. A materially similar regulation or agency policy includes any requirement that Plaintiffs, their insurance issuers, or their third-pa11y administrators provide any of the Objectionable Coverage through or in connection with Plaintiffs' health plans, wh ich means:
a. Plainti ffs (and their insurers and third-party administrators acting in connection with Plaintiffs' health plans) may provide health coverage without the Objectionable Coverage, and no procedure for providing any of the Objectionable Coverage may require any action by Plaintiffs;
b. If the Objectionable Coverage is provided, it may not be provided as part of any health plan sponsored by Plaintiffs, but instead must be provided through a separate and distinct health plan or other arrangement that is separate and distinct from Plaintiffs' health plan;
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c. Plaintiffs or the ir health plans may not be requ ired to pay fo r the provision of the Objectionable Coverage, either directly or indirectly (though Plai ntiffs are not excused from paying generally appl icable taxes);

d. An insurance or health plan card issued in conjunction with Plaintiffs ' hea lth plans may not be used by any person to obtain any of the products or services included within the Objecti onab le Coverage, or payment or reimbursement therefor:

e. No person may receive the Objectionable Coverage as an automatic consequence of enro llment in any health plan sponsored by Plaintiffs;

f.

If the Government seeks to prov ide the Objectionable Coverage to individuals

partic ipating in Plaintiffs' health plans, such provis ion may only be through

separate enrollments by those individuals in a separate and distinct hea lth pl an

or other separate and disti nct arrangement to obtain the Objectionable Coverage;

a nd

g. Any communications regarding the Objectionable Coverage, other than disc losures in plan documents required by federal law that the Obj ectionable Coverage is not covered by the plan or notice provided for in foo tnote I of this agreement, must be separate from communications relating to Plaintiffs' health plans.

3. The Government further agrees to withd raw any letters sent to Plaintiffs· issuers and/or third-party admini strators. pursuant to 29 C.F.R. §2590.715-27 13A and 45

5 of I0

C.F. R. § 147.1 3 1, as they re late to the provision of any of the Objectionable Coverage with in 14 days of the effective date of this agreement. 1
4. The Government furth er agrees, in light of interim relief ordered by several courts. including the Supreme Court in Zubik, that neither Plaintiffs that are party to this Agreement nor their health plans, insurers, or third-party administrators acting in connection with Plainti ffs' health plans shall be subject to any penalties or other adverse consequences, since August 20 11 , as a result of their non-compIiance with any law or regulati on requiring the provision of the Objectionable Coverage that the government is prohibited from enforcing by the terms of this agreement.
5. Notwithstanding this Agreement, the Plaintiffs retain their full legal rights to challenge any new law, regulation, or other requirement that the government may enact or impose relating to the provision of Objectionable Coverage and to challenge or defend against such action on any grounds they choose (including the Constitution, federal law, and/or this Agreement). Nothing herein shall be construed as an admission or indication that any law, regulation, or other requirement wou ld be lawful or unobj ectionable to Plaintiffs.
6. The Parties agree to resolve all proceedings identified above and to fil e such papers as are necessary to terminate the Litigation. In all cases where appeals are current ly pending, the parties will file dismissals of appea l under Federal Rule of Appellate Procedure
1 The effective date of the withdrawal may be contingent on proper notice being given to participants. If contraception coverage is currently being offered by an issuer or third-party adm inistrator. the cessation of coverage wou ld be effective no sooner than the first day of the first plan year that begins thirty days after the date of this Settlement Agreement (to allow for the provision of notice to plan participants in cases where contraceptive bene fits will no longer be provided). Alternatively, sixty-days advance notice may be given pursuant to 42 U.S.C. § 300ggl 5(d)(4) if app licab le.
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42(b). After the appea ls are dism issed, the parties agree that they wil ljointly file stipulations of dismissal or motions fo r dismissa l under Federa l Rule of Civ il Procedure 41 (a), except in cases where there is a final judgment in the district court. This agreement shall not be effective until the Parties fil e dismissals of all appeals currently pending.
7. The Government agrees to pay Plaintiffs $3 million in costs and fees . 8. The Parties agree that this Agreement constitutes a good-fa ith settlement of the Litigation for good and va luable consideration and acknowledge that it is entered into freely and voluntarily. 9. The Parties further agree that thi s Agreement has been full y read and understood by them, and that each of them has received independent legal advice from their respective attorney(s) as to the effect and import of its prov isions. The Parties furth er agree that this Agreement is being entered into for the express purpose and intention of mak ing and entering inco a full and final compromise, adjustment, and settlement of all c laims which were or could have been asserted in the Litigation, whether or not referred to therein. I0. This Agreement constitutes the sole and entire agreement between Plaintiffs and the Government. and supersedes all prior agreements, negotiations, and discuss ions between the Parties with respect to the subject matter covered hereby. It is express ly understood and agreed that this Agreement may not be altered, amended, waived, mod ified, or otherwise changed except by writing, du ly executed by authorized representatives of Pla intiffs and the Gove rnment, respectively. The Parties furth er acknowledge and agree that they wi ll make no claim at any time or place that this Agreement has been orally supp lemented, mod ified, or altered.
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11. AII signatories represent that they have authority to enter into this Agreement on behalf of the ir respective clients.
12. This Agreement may be executed in counterparts. IN WITNESS WHEREOF, thi s Agreement is executed as of the date and year first indicated above.
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of!O

ON BEHALF OF THE GOVERNM ENT: Deputy Assistant Attorney General Civil Division, U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, District of Columbia 20530 Counsel.for Defendants
10 of10

EXHIBIT A

EXHIBIT A
The term "Plaintiffs," as used in the attached settlement agreement includes the fo llowing organ izations and individuals; their subsidi ari es, a ffili ates, and s uccessors; and re lated entities that offer coverage through the health plan of any signatory:
• The Roman Catholic Archdiocese of New York • The Roman Catholic Diocese of Rockville Centre, New York • Catholic Health Care System • Catholic Health Services of Long Island • Cardinal Spe llm an High School • Monsignor Farrell High School • Most Reverend David A. Zubik • Roman Catho lic Diocese of Pittsburgh • Catholic Charities of the Diocese of Pittsburgh, Inc. • Most Reverend Lawrence T. Persico • Roman Catholic Diocese of Erie • St. Martin Center, Inc. • Prince of Peace Center, Inc. • Erie Catho li c Preparatory School • Most Reverend Lawrence Brandt • Most Reverend Edward Matesic • Diocese of Greensburg • Catholic Charities of the Diocese of Greensburg • St. John the Evangelist Regional Catho lic School • Catho lic Diocese of Beaumont • Catholi c Charities of Southeast Texas • Catho li c Chari ties, Diocese of Fort Worth, Inc. • Uni versity of Dallas • Catholic Diocese of Biloxi, Inc.

• The Most Reverend Roger P. Morin, Bishop and President of The Cathol ic Diocese of Biloxi, Inc. and hi s successors in office, as Trustee fo r and on behalf of the Resurrection Catholic School and the Sacred Heart Catho lic School.
• De L'Eppe Deaf Center, Inc. • Catholic Social and Community Services, Inc. of Biloxi • Catholic Diocese of Jackson • The Most Reve rend Joseph N. Latino, Bishop and Chief Executive Officer of the
Catholic Diocese of Jackson, and his successors in office, in accordance with the discipline and government of the Roman Catho lic Church;
• Vicksburg Catho lic Schoo l, Inc. • St. Joseph Catholic School • Catholic Charities, Inc. of Jackson • St. Dominic-Jackson Memorial Hospi tal
• Catholic Diocese of Nashville
• Catholic Charities of Tennessee, Inc.
• Camp Marymount, Inc. • St. Mary Villa, Inc. • Mary, Queen of Angels, Inc.
• St. Cecilia Congregation • Aquinas College
• Michigan Catholic Conference
• Catholic Famil y Services d/b/a Catholic Chari ties Diocese of Kalamazoo • Franciscan Universi ty of Steubenville
• University of Notre Dame • Diocese of Fort Wayne-South Bend, Inc. • Catholic Charities of the Diocese of Fort Wa yne-South Bend, Inc. • St. Anne Home of the Diocese off0 11 Wayne-South Bend, Inc. • Franciscan All iance, Inc. • Specialty Physicians of Illinois, LLC • University of Sa int Francis of Fort Wayne, Ind iana, Inc.

• Our Sunday Visitor, Inc. • Archdiocese of St. Louis • Catholic Charities of St. Louis • Diocese of Cheyenne • Catho li c Charities of Wyoming • St. Joseph's Children's Home • St. Anthony Tri-Parish School (a.k.a, St. Anthony's Tri-Parish Catholic School) • Wyoming Catholic College • The Archdi ocese of Atlanta, an association of churches and schools • Archbishop Wilton 0. Gregory • Catholic Education of North Georgia, Inc. • CathoIic Charities of the Archdiocese of Atlanta, Inc. • The Roman Catho lic Diocese of Savannah; • The Most Rev. Gregory J. Hartmayer, OFM Conv., as Bishop and his successors in
office. • Donald W. Wuerl , Roman Catholic Archbishop of Washi ngton, and his s uccessors in
office, in accordance with the discipline and government of the Roman Catholic Church, a corporation sole (the Archdiocese of Washington) • Consortium of Catholic Academies of the Archdiocese of Washington, Inc. • Archbishop Can·o ll Hi gh School, Inc. • Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc. • Mary of Nazareth Elementary School, Inc. • Catholic Charities of the Archdiocese of Washington , Inc. • Victory Housing, Inc. • The Catholic Information Center, Inc. • The Catholic University of America • Thomas Aqu inas College

EXHIBITB

E XHIBIT B

District Court Roman Catholic Archdiocese ofN. Y. v. Sebelius , No. I2-cv-2542 (E.D.N.Y.). Zubik v. Sebelius,No. 13-cv-1459 (W.D. Pa.).
Persico v. Sebelius, No. l 3-cv-0303 (W.D. Pa.)
Brandl v. Burwell. , No. I4-cv-681 (W.D. Pa.).

Court of Appeals Catholic Health Care Sys. v. Burwell, No. 14-427, (2d Cir.)
Zubik v. Sec'y US Dep't of Health & Human Servs. , Nos. 14-1376, 14-1377 (3d Cir.) Brandl v. Burwell, Nos. 14-4087 & 14-3663 (3d Cir.)

Catholic Diocese ofBiloxi Inc. , et al. v. Burwell, No. l 4-cv-00146 (S.D. Miss.). Universily ofDallas v. Burwell, No. l 2-cv-00314 (N. D. Texas) Catholic Diocese ofBeaumont v. Sebelius, No. I :13-cv-709 (E.D. Texas) Michigan Catholic Co1?ference v. Sebelius, No. l 3-cv-1247 (W.D. Mich.) Catholic Diocese ofNashville v. Sebelius, No. 3:13-01303 (M.D . Tenn.)
Franciscan University a_(Steubenville v. Sebelius, No. 12-CV-440 (S.D. Ohio) University ofNotre Dame v. Sebelius No. 13-cv- 1276 (N.D. Ind.)
Diocese ofFt. Wayne-South Bend v. Burwell, No. 12-cv- 159, (N.D. Ind. 2013). Archdiocese ofSt. Louis v. Burwell, No. I3-cv-2300 (E.D. Mo.).

No ne
Catholic Diocese ofBeaumont v. Burwell, Nos. 14-40212, 14-1024 1, 14-1066 I. (5th Cir.),
Michigan Catholic Conference v. Burwell, Nos. 13-2723, 13-6640 (6th Cir.).
None
University ofNotre Dame v. Sebelius, No. 13-3853 (7th Cir.). Diocese ofFt. Wayne-South Bend v. Bunvell, No. 14-1431 (7th Cir.) Archdiocese ofSt. Louis, et al v. Burwell, No. 14-3016 (8th Cir.)

Diocese ofCheyenne v. Sebelius, No. I4-cv-00021 (0. Wyo.) Roman Catholic Archdiocese ofAtlanta v. Sebelius , No. 12-cv-03489 (N.0. Ga.). Roman Catholic Archbishop o.fWashington v. Sebelius, No. l 3-cv-144 l (0 .0.C.).

Diocese ofCheyenne v. Burwell, No. 14-8040 (10th Cir.). Roman Catholic Archdiocese ofAtlanta v. Burwell, Nos. 14-12890, 14-13239 (11th Cir.). Roman Catholic Archbishop ofWashington v. Burwell, Nos. 13-5371 , 14-5021 (0.C. Cir.)

2

 
 Case: 1:12-cv-815 As of: 03/15/2016 05:26 PM EDT 1 of 8
CLOSED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:12−cv−00815−ABJ

ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON et al Date Filed: 05/21/2012

v. SEBELIUS et al

Date Terminated: 01/26/2013

Assigned to: Judge Amy Berman Jackson

Jury Demand: None

Case: 1:13−cv−01441−ABJ

Nature of Suit: 440 Civil Rights: Other

Case in other court: 13−05091

Jurisdiction: U.S. Government Defendant

Cause: 42:1983 Civil Rights Act

Plaintiff

ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON

represented by Eric S. Dreiband JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001−2113 (202) 879−3720 Fax: (202) 626−1700 Email: esdreiband@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noel John Francisco JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001−2113 (202) 879−5485 Fax: (202) 626−1700 Email: njfrancisco@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Albert McSorley 613 8th Street NE Washington, DC 20002 2023020318 Email: jamcsorley@yahoo.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC.

represented by Eric S. Dreiband (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noel John Francisco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Albert McSorley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
ARCHBISHOP CARROLL HIGH SCHOOL, INC.

represented by Eric S. Dreiband (See above for address) LEAD ATTORNEY

Case: 1:12-cv-815 As of: 03/15/2016 05:26 PM EDT 2 of 8

ATTORNEY TO BE NOTICED

Noel John Francisco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Albert McSorley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC.

represented by Eric S. Dreiband (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noel John Francisco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Albert McSorley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
CATHOLIC UNIVERSITY OF AMERICA

represented by Eric S. Dreiband (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noel John Francisco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Albert McSorley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant KATHLEEN SEBELIUS in her official capacity as Secretary of the U.S. Department of Health and Human Services
Defendant HILDA SOLIS in her official capacity as Secretary of the

represented by Jacek Pruski U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Room 7332 Washington, DC 20044 (202) 616−2035 Fax: (202) 616−8470 Email: jacek.pruski@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address)

Case: 1:12-cv-815 As of: 03/15/2016 05:26 PM EDT 3 of 8

U.S. Department of Labor

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
TIMOTHY F. GEITHNER in his official capacity as Secretary of the U.S. Department of the Treasury

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. DEPARTMENT OF LABOR

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
U.S. DEPARTMENT OF THE TREASURY

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
AMERICAN CENTER FOR LAW & JUSTICE

represented by Jay Alan Sekulow AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue NE Washington, DC 20002 (202) 546−8890 Fax: (202) 546−9309 Email: sekulow@aclj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Matthew Henderson , Sr. 102 Jean Circle Jacksonville, NC 28540 (571) 235−2405 Email: JMHenderson@aclj−dc.org TERMINATED: 10/19/2012

Amicus 79 MEMBERS OF CONGRESS

represented by Jay Alan Sekulow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Matthew Henderson , Sr. (See above for address) TERMINATED: 10/19/2012

Date Filed 05/21/2012

# Docket Text
1 COMPLAINT against TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S.

Case: 1:12-cv-815 As of: 03/15/2016 05:26 PM EDT 4 of 8

05/21/2012
05/21/2012 05/21/2012 05/21/2012 05/21/2012 05/21/2012 06/20/2012 06/21/2012 06/21/2012 06/21/2012 06/21/2012 06/21/2012 06/21/2012 06/21/2012 06/21/2012

DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY ( Filing fee $ 350, receipt number 4616048391) filed by CATHOLIC UNIVERSITY OF AMERICA, CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., ARCHBISHOP CARROLL HIGH SCHOOL, INC., ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC.. (Attachments: # 1 Civil Cover Sheet)(jf, ) . (Entered: 05/21/2012)
SUMMONS (8) Issued as to TIMOTHY GEITHNER, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY, KATHLEEN SEBELIUS, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 05/21/2012)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC. (jf, ) (Entered: 05/21/2012)
3 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by ARCHBISHOP CARROLL HIGH SCHOOL, INC. (jf, ) (Entered: 05/21/2012)
4 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC. (jf, ) (Entered: 05/21/2012)
5 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by CATHOLIC UNIVERSITY OF AMERICA (jf, ) (Entered: 05/21/2012)
6 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON (jf, ) (Entered: 05/21/2012)
7 ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CIVIL PROCESS CLERK served on 5/25/2012 (Francisco, Noel) Modified on 6/21/2012 (jf, ). (Entered: 06/20/2012)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TIMOTHY GEITHNER served on 5/25/2012 (Francisco, Noel) (Entered: 06/21/2012)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 5/25/2012 (Francisco, Noel) (Entered: 06/21/2012)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/29/2012. (Francisco, Noel) Modified on 6/21/2012 (jf, ). (Entered: 06/21/2012)
11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF LABOR served on 6/01/2012 (Francisco, Noel) Modified on 6/21/2012 to correct service date (jf, ). (Entered: 06/21/2012)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. KATHLEEN SEBELIUS served on 5/25/2012 (Francisco, Noel) (Entered: 06/21/2012)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. HILDA SOLIS served on 5/25/2012 (Francisco, Noel) (Entered: 06/21/2012)
14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF THE TREASURY served on 5/25/2012 (Francisco, Noel) (Entered: 06/21/2012)
15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/29/2012. Answer due for ALL FEDERAL DEFENDANTS by 7/28/2012. (Francisco, Noel) Modified on 6/21/2012 to correct answer due date (jf, ). (Entered: 06/21/2012)

Case: 1:12-cv-815 As of: 03/15/2016 05:26 PM EDT 5 of 8

06/21/2012 06/21/2012 06/21/2012
07/02/2012 07/11/2012 07/11/2012 07/11/2012 07/11/2012 07/11/2012 08/06/2012 08/23/2012 08/27/2012
08/28/2012

NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 7 Summons Returned Executed as to Federal Defendant was entered in error and counsel was instructed to refile said pleading using the correct court event. Counsel has been advised not to add any new parties after the civil complaint filing. (jf, ) (Entered: 06/21/2012)
Reset Deadlines: Answer due for ALL FEDERAL DEFENDANTS by 7/28/2012 (jf, ) (Entered: 06/21/2012)
16 ERRATA Omitted USPS Track & Confirm confirmation from filing by ARCHBISHOP CARROLL HIGH SCHOOL, INC., CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CATHOLIC UNIVERSITY OF AMERICA, CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON 14 Summons Returned Executed as to Federal Defendant. (Francisco, Noel) (Entered: 06/21/2012)
17 NOTICE of Appearance by Jacek Pruski on behalf of All Defendants (Pruski, Jacek) (Entered: 07/02/2012)
18 Joint MOTION for Extension of Time to Respond to Complaint by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Pruski, Jacek) (Entered: 07/11/2012)
ENTERED IN ERROR.....MINUTE ORDER granting 18 Motion for Extension of Time to Respond to Complaint. The answer/response will be due 7/30/2012. Signed by Judge Amy Berman Jackson on 7/11/2012. (MT) Modified on 7/11/2012 (jf, ). (Entered: 07/11/2012)
NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry re Order on Motion for Extension of Time to was entered in error and a corrected order to be issued. (jf, ) (Entered: 07/11/2012)
MINUTE ORDER granting 18 Motion for Extension of Time to Respond to Complaint. Defendants' motion to dismiss will be due 8/6/2012, with plaintiffs' opposition due 8/27/2012, and defendants' reply due 9/24/2012. Signed by Judge Amy Berman Jackson on 7/11/2012. (MT) (Entered: 07/11/2012)
Set/Reset Deadlines: Defendants' Dispositive Motion is due by 8/6/2012; Plaintiffs' Opposition is due by 8/27/2012; Defendants' Reply is due by 9/24/2012. (jth) (Entered: 07/11/2012)
19 MOTION to Dismiss for Lack of Jurisdiction by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Pruski, Jacek) (Entered: 08/06/2012)
20 MOTION for Leave to File Amici Curiae Brief by AMERICAN CENTER FOR LAW & JUSTICE, 79 MEMBERS OF CONGRESS (Attachments: # 1 Text of Proposed Order, # 2 Proposed Amici Brief, # 3 Corporate Disclosure Statement)(znmw, ) (Entered: 08/24/2012)
21 Memorandum in opposition to re 19 MOTION to Dismiss for Lack of Jurisdiction filed by ARCHBISHOP CARROLL HIGH SCHOOL, INC., CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CATHOLIC UNIVERSITY OF AMERICA, CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Text of Proposed Order)(Francisco, Noel) (Entered: 08/27/2012)
MINUTE ORDER granting 20 Motion for Leave to File amici curiae brief. Signed by Judge Amy Berman Jackson on 8/28/12. (DMK) (Entered: 08/28/2012)

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08/28/2012 08/28/2012 09/24/2012 09/28/2012 10/03/2012 10/03/2012 10/04/2012
10/04/2012 10/04/2012 10/04/2012 10/16/2012 10/17/2012 10/17/2012
10/19/2012

22 AMICUS BRIEF by 79 MEMBERS OF CONGRESS, AMERICAN CENTER FOR LAW & JUSTICE. (dr) (Entered: 08/28/2012)
23 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by 79 MEMBERS OF CONGRESS, AMERICAN CENTER FOR LAW & JUSTICE identifying Corporate Parent NONE for 79 MEMBERS OF CONGRESS, AMERICAN CENTER FOR LAW & JUSTICE. (dr) (Entered: 08/28/2012)
24 REPLY to opposition to motion re 19 MOTION to Dismiss for Lack of Jurisdiction filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY. (Pruski, Jacek) (Entered: 09/24/2012)
NOTICE of Hearing on Motion: 19 MOTION to Dismiss for Lack of Jurisdiction. Motion Hearing is scheduled for 10/17/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 09/28/2012)
25 Joint MOTION to Continue Oral Argument Pending Resolution of Defendants' Motion to Stay Case by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Pruski, Jacek) (Entered: 10/03/2012)
26 MOTION to Stay Case Pending Resolution of Expedited Appeals Raising Identical Issues by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Pruski, Jacek) (Entered: 10/03/2012)
MINUTE ORDER granting 25 Motion to Continue Oral Argument. It is ORDERED that the motion hearing scheduled for October 17, 2012 is VACATED. It is FURTHER ORDERED that plaintiffs' response to the motion to stay [Dkt. # 26] is due October 17, 2012; defendants' reply is due October 24, 2012; and a status conference/hearing on the motion to stay is scheduled for October 25, 2012 at 10:00 am in Courtroom # 3 before Judge Amy Berman Jackson. In the event of a scheduling conflict, counsel may contact the Deputy Clerk and need not file a motion on the docket. Signed by Judge Amy Berman Jackson on 10/4/12. (lcabj1) (Entered: 10/04/2012)
Set/Reset Deadlines/Hearings: plaintiffs' response due by 10/17/2012. defendants' reply due by 10/24/2012. Status Conference/Hearing set for 10/25/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (kc) Modified on 10/4/2012 (kc ). (Entered: 10/04/2012)
Terminate hearings: The 10/17/2012 motion hearing is hereby vacated. (kc ) (Entered: 10/04/2012)
Set/Reset Hearings: Status Conference originally set for 10/25/2012 is rescheduled for 11/2/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (kc ) (Entered: 10/04/2012)
27 MEET AND CONFER STATEMENT. (Francisco, Noel) (Entered: 10/16/2012)
28 NOTICE of Appearance by Jay Alan Sekulow on behalf of 79 MEMBERS OF CONGRESS, AMERICAN CENTER FOR LAW & JUSTICE (Sekulow, Jay) (Entered: 10/17/2012)
29 Memorandum in opposition to re 26 MOTION to Stay Case Pending Resolution of Expedited Appeals Raising Identical Issues filed by ARCHBISHOP CARROLL HIGH SCHOOL, INC., CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CATHOLIC UNIVERSITY OF AMERICA, CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON. (Attachments: # 1 Text of Proposed Order)(Francisco, Noel) (Entered: 10/17/2012)
30 NOTICE OF WITHDRAWAL OF APPEARANCE as to 79 MEMBERS OF CONGRESS, AMERICAN CENTER FOR LAW & JUSTICE. Attorney James

Case: 1:12-cv-815 As of: 03/15/2016 05:26 PM EDT 7 of 8

10/24/2012 11/01/2012
11/01/2012 11/02/2012
11/05/2012 12/14/2012 12/14/2012 12/27/2012
01/02/2013

Matthew Henderson, Sr terminated. (Sekulow, Jay) (Entered: 10/19/2012)
31 REPLY to opposition to motion re 26 MOTION to Stay Case Pending Resolution of Expedited Appeals Raising Identical Issues filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY. (Pruski, Jacek) (Entered: 10/24/2012)
32 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jeffrey Albert McSorley, :Firm− Jones Day, :Address− 51 Louisiana Ave., NW, Washington, DC 20001. Phone No. − 202.879.3631. Fax No. − 202.626.1700 by ARCHBISHOP CARROLL HIGH SCHOOL, INC., CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CATHOLIC UNIVERSITY OF AMERICA, CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON (Francisco, Noel) (Entered: 11/01/2012)
MINUTE ORDER granting 32 Motion for Leave of Jeffrey Albert McSorley to Appear Pro Hac Vice only upon condition that the lawyer admitted, or at least one member of the lawyer's firm, undergo CM/ECF training, obtain a CM/ECF username and password, and agree to file papers electronically. No court papers will be mailed to any lawyer. Signed by Judge Amy Berman Jackson on 11/1/12. (DMK) (Entered: 11/01/2012)
Minute Entry for Proceedings held before Judge Amy Berman Jackson: Motion Hearing held on 11/2/2012 re 26 Defendants' MOTION to Stay Case Pending Resolution of Expedited Appeals Raising Identical Issues. For the reasons stated on the record in open Court, the 26 Motion to Stay is Granted. The parties are directed to file a Joint Status Report within ten (10) days of the decision by the DC Circuit in the consolidated appeals of Wheaton College v. Sebelius (12−5273) and Belmont Abbey College v. Sebelius (12−5291). The Administrative Record in this case is to be filed by 12/14/2012. Any motion to extend the deadline for the filing of the Administrative Record is due by 12/7/2012. (Court Reporter Kellie M. Humiston) (jth) (Entered: 11/02/2012)
33 NOTICE of Appearance by Eric Dreiband on behalf of All Plaintiffs (Dreiband, Eric) (Entered: 11/05/2012)
34 NOTICE of Filing of Administrative Record by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY (Attachments: # 1 Exhibit Index, # 2 Exhibit Certification)(Pruski, Jacek) (Entered: 12/14/2012)
35 ADMINISTRATIVE RECORD by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY. (See Docket Entry 34 to view document) (jf, ) (Entered: 12/16/2012)
36 STATUS REPORT by ARCHBISHOP CARROLL HIGH SCHOOL, INC., CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CATHOLIC UNIVERSITY OF AMERICA, CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., TIMOTHY F. GEITHNER, ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY. (Attachments: # 1 Exhibit)(Francisco, Noel) (Entered: 12/27/2012)
MINUTE ORDER. In light of the joint status report filed on December 27, 2012, [Dkt. # 36], it is ORDERED that on or before January 16, 2013, both sides shall file one pleading each, not to exceed five pages, addressing whether in light of the D.C. Circuit's Order in Wheaton College v. Sebelius, No. 12−5273, and Belmont Abbey College v. Sebelius, No. 12−5291 (Dec. 18, 2012), the Court should dismiss this case on ripeness grounds or maintain the case under stay. Signed by Judge Amy Berman Jackson on 1/2/13. (lcabj1) (Entered: 01/02/2013)

Case: 1:12-cv-815 As of: 03/15/2016 05:26 PM EDT 8 of 8

01/04/2013 01/16/2013 01/16/2013 01/25/2013 01/25/2013 03/25/2013
03/26/2013 03/29/2013 06/21/2013
10/31/2013

Set/Reset Deadlines: Both sides shall file one pleading each, not to exceed five (5) pages, addressing whether in light of the D.C. Circuit's Order in Wheaton College v. Sebelius, No. 12−5273, and Belmont Abbey College v. Sebelius, No. 12−5291 (Dec. 18, 2012), the Court should dismiss this case on ripeness grounds or maintain the case under stay. Pleadings from the parties are due by 1/16/2013. (jth) (Entered: 01/04/2013)
37 NOTICE OF SUPPLEMENTAL AUTHORITY by ARCHBISHOP CARROLL HIGH SCHOOL, INC., CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CATHOLIC UNIVERSITY OF AMERICA, CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON. (Francisco, Noel) Modified on 1/17/2013 to correct docket event (jf, ). (Entered: 01/16/2013)
38 SUPPLEMENTAL BRIEF re 37 NOTICE OF SUPPLEMENTAL AUTHORITY filed by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY. (Pruski, Jacek) Modified on 1/17/2013 to add link (jf, ). (Entered: 01/16/2013)
39 ORDER granting 19 Motion to Dismiss for Lack of Jurisdiction. It is ORDERED that defendants' motion to dismiss isGRANTED and the above−captioned case is DISMISSED. (SEE ORDER FOR COMPLETE DETAILS). Signed by Judge Amy Berman Jackson on 1/25/13. (lcabj1) (Entered: 01/25/2013)
40 MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 1/25/13. (lcabj1) (Entered: 01/25/2013)
41 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 40 Memorandum & Opinion, 39 Order on Motion to Dismiss/Lack of Jurisdiction, by ARCHBISHOP CARROLL HIGH SCHOOL, INC., CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CATHOLIC UNIVERSITY OF AMERICA, CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON. Filing fee $ 455, receipt number 0090−3261395. Fee Status: Fee Paid. Parties have been notified. (Francisco, Noel) (Entered: 03/25/2013)
42 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 41 Notice of Appeal to DC Circuit Court,. (jf, ) (Entered: 03/26/2013)
USCA Case Number 13−5091 for 41 Notice of Appeal to DC Circuit Court, filed by CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CATHOLIC UNIVERSITY OF AMERICA, ARCHBISHOP CARROLL HIGH SCHOOL, INC., ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON. (jf, ) (Entered: 03/29/2013)
43 ORDER of USCA (certified copy) as to 41 Notice of Appeal to DC Circuit Court, filed by CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CATHOLIC UNIVERSITY OF AMERICA, ARCHBISHOP CARROLL HIGH SCHOOL, INC., ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON ; USCA Case Number 13−5091. ORDERED that the motion be denied. FURTHER ORDERED, on the court's own motion, that this appeal be held in abeyance pending further order of the court. (kb, ) (Entered: 06/28/2013)
44 MANDATE of USCA (certified copy) as to 41 Notice of Appeal to DC Circuit Court, filed by CATHOLIC CHARITIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CONSORTIUM OF CATHOLIC ACADEMIES OF THE ARCHDIOCESE OF WASHINGTON, INC., CATHOLIC UNIVERSITY OF AMERICA, ARCHBISHOP CARROLL HIGH SCHOOL, INC., ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON ; ORDERED that the appeal with respect to the challenge to the old regulations be dismissed as moot; FURTHER ORDERED that the motion for preliminary injunction challenging the new regulations be denied, as such relief should be sought in the first instance in the district court. USCA Case Number 13−5091. (md, ) (Entered: 11/02/2013)

 
 (ORDER LIST: 577 U. S.)

FRIDAY, NOVEMBER 6, 2015

14-1418 14-1453 14-1505 15-35 15-105 15-119 15-191
15-109
15-145 15-5238

CERTIORARI GRANTED ZUBIK, DAVID A. ET AL. V. BURWELL, SEC. OF H&HS, ET AL. PRIESTS FOR LIFE, ET AL. V. DEPT. OF H&HS, ET AL. ROMAN CATHOLIC ARCHBISHOP V. BURWELL, SEC. OF H&HS, ET AL. E. TX BAPTIST UNIV., ET AL. V. BURWELL, SEC. OF H&HS LITTLE SISTERS, ET AL. V. BURWELL, SEC. OF H&HS, ET AL. SOUTHERN NAZARENE UNIV., ET AL. V. BURWELL, SEC. OF H&HS, ET AL. GENEVA COLLEGE V. BURWELL, SEC. OF H&HS, ET AL.
The petition for a writ of certiorari in No. 14-1418 is granted limited to Question 1 presented by the petition. The motion of Association of American Physicians & Surgeons, et al. for leave to file a brief as amici curiae and the petition for a writ of certiorari in No. 14-1453 are granted. The petitions for writs of certiorari in Nos. 14-1505, 15-35, 15-119, and 15-191 are granted. The petition for a writ of certiorari in No. 15-105 is granted limited to Questions 1 and 2 presented by the petition. The cases are consolidated. SIMMONS, JERMAINE, ET AL. V. HIMMELREICH, WALTER J.
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. HUSKY ELECTRONICS, INC. V. RITZ, DANIEL L.
The petition for a writ of certiorari is granted. NICHOLS, LESTER V. UNITED STATES
The motion of petitioner for leave to proceed in forma

1

pauperis is granted. The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.
2

 
 Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

May 16, 2016

Scott S. Harris Clerk of the Court (202) 479-3011

Clerk United States Court of Appeals for the Third Circuit 601 Market Street, Room 21400 Philadelphia, PA 19106

Re: David A. Zubik, et al. v. Sylvia Burwell, Secretary of Health and Human Services, et al. No. 14-1418 (Your No. 14-1376, 14-1377)

Dear Clerk:
The opinion of this Court was announced today in the above stated case. A copy of the opinion is available on the Court’s website at www.supremecourt.gov.
The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing.

Sincerely,
Scott S. Harris, Clerk by Cynthia Rapp Deputy Clerk (202) 479-3031

(Slip Opinion)

Cite as: 578 U. S. ____ (2016)

1

Per Curiam

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

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, and 15–191
_________________

DAVID A. ZUBIK, ET AL., PETITIONERS

14–1418

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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


PRIESTS FOR LIFE, ET AL., PETITIONERS

14–1453

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,

ET AL., PETITIONERS

14–1505

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


EAST TEXAS BAPTIST UNIVERSITY, ET AL., 
 PETITIONERS 


2

ZUBIK v. BURWELL

Per Curiam

15–35

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LITTLE SISTERS OF THE POOR HOME FOR 


THE AGED, DENVER, COLORADO, ET AL., 


PETITIONERS 


15–105

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SOUTHERN NAZARENE UNIVERSITY, ET AL.,

PETITIONERS

15–119

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.; AND

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

GENEVA COLLEGE, PETITIONER

15–191

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[May 16, 2016]

Cite as: 578 U. S. ____ (2016)

3

Per Curiam
PER CURIAM.
Petitioners are primarily nonprofit organizations that provide health insurance to their employees. Federal regulations require petitioners to cover certain contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners allege that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. §2000bb et seq.
Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Post, p. ___. Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. Supplemental Brief for Petitioners 4. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” Supplemental Brief for Respondents 14–15.
In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits. Given the gravity of the dispute and the substantial clari-

4

ZUBIK v. BURWELL

Per Curiam
fication and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.
The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance. Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them. This Court has taken similar action in other cases in the past. See, e.g., Madison County v. Oneida Indian Nation of N. Y., 562 U. S. 42, 43 (2011) (per curiam) (vacating and remanding for the Second Circuit to “address, in the first instance, whether to revisit its ruling on sovereign immunity in light of [a] new factual development, and—if necessary— proceed to address other questions in the case consistent with its sovereign immunity ruling”); Kiyemba v. Obama, 559 U. S. 131, 132 (2010) (per curiam) (vacating and remanding for the D. C. Circuit to “determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments”); Villarreal v. United States, 572 U. S. ___ (2014) (vacating and remanding to the Fifth Circuit “for further consideration in light of the position asserted by the Solicitor General in his brief for the United States”).
The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened,

Cite as: 578 U. S. ____ (2016)

5

Per Curiam
whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.
Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans “obtain, without cost, the full range of FDA approved contraceptives.” Wheaton College v. Burwell, 573 U. S. ___, ___ (2014) (slip op., at 1). Through this litigation, petitioners have made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds.” Id., at ___ (slip op., at 2). Nothing in this opinion, or in the opinions or orders of the courts below, “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage” going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.
The judgments of the Courts of Appeals are vacated, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.

Cite as: 578 U. S. ____ (2016)

1

SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, and 15–191
_________________

DAVID A. ZUBIK, ET AL., PETITIONERS

14–1418

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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


PRIESTS FOR LIFE, ET AL., PETITIONERS

14–1453

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,

ET AL., PETITIONERS

14–1505

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


EAST TEXAS BAPTIST UNIVERSITY, ET AL.,

PETITIONERS

15–35

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

2

ZUBIK v. BURWELL

SOTOMAYOR, J., concurring
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE FIFTH CIRCUIT


LITTLE SISTERS OF THE POOR HOME FOR 


THE AGED, DENVER, COLORADO, ET AL., 


PETITIONERS 


15–105

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE TENTH CIRCUIT


SOUTHERN NAZARENE UNIVERSITY, ET AL.,

PETITIONERS

15–119

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.; AND

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE TENTH CIRCUIT


GENEVA COLLEGE, PETITIONER

15–191

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

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

[May 16, 2016]


JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring.
I join the Court’s per curiam opinion because it expresses no view on “the merits of the cases,” “whether petition-

Cite as: 578 U. S. ____ (2016)

3

SOTOMAYOR, J., concurring
ers’ religious exercise has been substantially burdened,” or “whether the current regulations are the least restrictive means of serving” a compelling governmental interest. Ante, at 4–5. Lower courts, therefore, should not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands. We have included similarly explicit disclaimers in previous orders. See, e.g., Wheaton College v. Burwell, 573 U. S. ___ (2014) (“[T]his order should not be construed as an expression of the Court’s views on the merits”). Yet some lower courts have ignored those instructions. See, e.g., Sharpe Holdings, Inc., v. Department of Health and Human Servs., 801 F. 3d 927, 944 (CA8 2015) (“[I]n Wheaton College, Little Sisters of the Poor, and Zubik, the Supreme Court approved a method of notice to HHS that is arguably less onerous than [existing regulations] yet permits the government to further its interests. Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests”). On remand in these cases, the Courts of Appeals should not make the same mistake.
I also join the Court’s opinion because it allows the lower courts to consider only whether existing or modified regulations could provide seamless contraceptive coverage “ ‘to petitioners’ employees, through petitioners’ insurance companies, without any . . . notice from petitioners.’ ” Ante, at 3. The opinion does not, by contrast, endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a “separate policy, with a separate enrollment process.” Supp. Brief for Petitioners 1; Supp. Reply Brief for Petitioners 5. Such separate contraceptive-only policies do not currently exist, and the Government has laid out a number of legal and practical obstacles to their creation. See Supp. Reply Brief

4

ZUBIK v. BURWELL

SOTOMAYOR, J., concurring
for Respondents 3–4. Requiring standalone contraceptiveonly coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act. And requiring that women affirmatively opt into such coverage would “impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate.” Id., at 6.
Today’s opinion does only what it says it does: “afford[s] an opportunity” for the parties and Courts of Appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the Government’s clarification about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice. Ante, at 4. As enlightened by the parties’ new submissions, the Courts of Appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.