2:13-cv-11229-DPH-MAR Doc # 1 Filed 03/20/13 Pg 1 of 40 Pg ID 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

EDEN FOODS, INC.; MICHAEL POTTER, Chairman, President, and Sole Shareholder of Eden Foods, Inc.,

Plaintiffs,

v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,

COMPLAINT [Civil Rights Action under 42 U.S.C. § 1983]

Defendants. __________________________________________/

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001 __________________________________________/

COMPLAINT

Now come Plaintiffs Eden Foods, Inc. (hereinafter   “Eden Foods”) and Michael Potter

(collectively  “Plaintiffs”), by and through undersigned counsel, and bring this Complaint against

the above-named Defendants, their employees, agents, and successors in office, and in support

thereof state the following upon information and belief:

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NATURE OF THE ACTION 1. This is a case about religious freedom. Thomas Jefferson, a Founding Father of our country, principal author of the Declaration of Independence, and our third president, when describing  the  construct  of  our  Constitution  proclaimed,  “No  provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the  civil  authority.”    Letter  from  Thomas  Jefferson,  United  States  Office  of  the  President,  to  the   Soc’y  of  the  Methodist  Episcopal Church at New London, Conn. (Feb. 4, 1809) cited in People v. Dejonge, 442 Mich. 266, 278 (1993) (emphasis added). 2. This is a challenge to regulations ostensibly issued under the  “Patient  Protection   and   Affordable   Care   Act”   (Pub.   L.   111-148, March 23,   2010,   124   Stat.   119)   and   the   “Health   Care   and   Education   Reconciliation   Act”   (Pub.   L.   111-152, March 30, 2010, 124 Stat. 1029) (collectively   known   and   hereinafter   referred   to   as   the   “Affordable   Care   Act”) that force individuals to violate their deepest held religious beliefs. 3. The Affordable Care Act, through a Mandate from the United States Department of Health and Human Services, attacks and desecrates a foremost tenet of the Catholic Church, as stated by Pope Paul VI in His 1968 encyclical Humanae Vitae,  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, abortion, and abortifacients—is immoral and unnatural. 4. One of the provisions of the Affordable Care Act mandates that health plans “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”   and   directs   the  
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Secretary of the United States Department of Health and Human Services to determine what would  constitute  “preventative  care”  under  the  mandate.  42  U.S.C  §  300gg–13(a)(4).
5. Without notice of rulemaking or opportunity for public comment, the United States Department of Health and Human Services, the United States Department of Labor, and the United States Department of Treasury adopted the Institute of Medicine (“IOM”)   recommendations   in   full   and   promulgated   an   interim   final   rule   (“the   Mandate”),   which   requires   that   all   “group   health   plan[s]   and   .   .   .   health   insurance   issuer[s]   offering   group   or   individual   health  insurance  coverage”  provide  all  FDA-approved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
6. The Mandate requires all insurance issuers (e.g. Blue Cross/ Blue Shield of Michigan) to provide contraception, abortion, and abortifacients in all of its insurance plans, group and individual.
7. Health Resources and Services Administration also issued guidelines adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines).
8. Under the IOM guidelines, the Mandate requires all insurance issuers to provide not only contraception, but also abortion, because certain drugs and devices such as the “morning-after  pill,”  “Plan  B,”  and  “ella”  come  within  the  Mandate’s  and  Health  Resources and Services  Administration’s  definition  of  “Food  and  Drug  Administration-approved contraceptive methods”  despite  their  known  abortifacient  mechanisms  of  action.  
9. The Mandate forces employers and individuals to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers which fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs.
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10. Since under the Mandate all insurance issuers must provide what the United States Department of Health and Human  Services  has  deemed  “preventive  care,”  employers  and   individuals are stripped of any choice between insurance issuers or insurance plans to avoid violating their religious beliefs.
11. The United States Department of Health and Human Services in an unprecedented despoiling of religious rights forces religious employers and individuals, who believe that funding and providing for contraception, abortion, and abortifacients is wrong, to participate in acts that violate their beliefs and their conscience—and are forced out of the health insurance market in its entirety in order to comply with their religious beliefs.
12. Plaintiffs seek a Preliminary Injunction and Permanent Injunction, enjoining Defendants from implementing and enforcing provisions of the regulations promulgated under the Affordable Care Act,  specifically  the  Mandate.    The  Mandate  violates  Plaintiffs’  rights  to the free exercise of religion under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
13. Plaintiffs also seek a Declaratory Judgment that the regulations promulgated under the Affordable Care Act, specifically the Mandate, violate Plaintiffs’   rights   to the free exercise of religion under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
14. The Affordable Care Act’s   contraception,   abortion, and abortifacient mandate violates the rights of Plaintiffs Eden Foods and Michael Potter.
15. Plaintiff Michael Potter is the Chairman, President, and sole shareholder of Plaintiff Eden Foods.
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16. Plaintiffs employ 128 full-time employees, are subject to monetary penalties under the Affordable Care Act, and are forced under the Mandate by penalty of heavy fines to conduct business in a manner that violates their religious faith by providing and funding contraceptives and abortifacients, which violates deeply held religious beliefs.
17. Plaintiffs bring this action to vindicate not only their own rights, but also to protect the rights of all Americans who care about our Constitutional guarantee of free exercise of religion.
JURISDICTION AND VENUE 18. This action in which the United States is a defendant arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1346. 19. Plaintiffs’  claims  for  declaratory  and  preliminary  and permanent injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by 42 U.S.C. § 2000bb-1, and by the general legal and equitable powers of this Court. 20. Venue is proper under 28 U.S.C. § 1391(e) because this is the judicial district in which Plaintiffs are located.
PLAINTIFFS 21. Plaintiff Eden Foods is incorporated under the laws of the State of Michigan. 22. Plaintiff Eden Foods is registered at 701 Tecumseh Road, Clinton, Michigan 49236. 23. Plaintiff Eden Foods employs 128 full-time employees. 24. Plaintiff Eden Foods is subject to the Mandate.
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25. Plaintiff Michael Potter is the Chairman, President, and sole shareholder of Plaintiff Eden Foods. Plaintiff Michael Potter is an individual and a citizen of the State of Michigan and the United States.
26. Plaintiff Michael Potter is an original founder of Plaintiff Eden Foods. 27. Plaintiff   Eden   Foods   is   Plaintiff   Michael   Potter’s   livelihood   and   life.      Plaintiff   Michael Potter has   devoted   and   continues   to   devote   countless   hours   to   Plaintiffs   Eden   Foods’   success and advancement. 28. Plaintiff Michael Potter was instrumental in starting Plaintiff Eden Foods in Ann Arbor, Michigan in the late 1960s. 29. Plaintiff Eden Foods began as Eden co-op. 30. In the late 1960s, natural and organic foods were not common, so members of the co-op actually traveled rural roads, knocking on doors for farmers to grow food using organic methods. 31. The Eden co-op grew into a natural food store offering whole grains, beans, soyfoods, sea vegetables, miso, cereals, vegetable oils, seed and nut butters, and the like. Eden co-op expanded with the addition of a cafeteria, bakery, and books. The expansion became known as the Eden Deli. It was one of very few places in the United States where one could get natural, organic, and macrobiotic food. 32. Soon health food stores called asking to carry   Eden’s   foods,   and   Plaintiff   Eden   Foods began to take shape. 33. In 1972, Plaintiff Eden Foods opened its first warehouse, solidifying Plaintiff Eden Foods as an important natural food source for the United States and Canada.
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34. Plaintiff Eden Foods is a natural food company which strives to provide only the finest food from known and trusted growers and handlers.
35. Plaintiff Eden Foods is the oldest natural and organic food company in North America and the largest independent manufacturer of dry grocery organic foods.
36. Plaintiff Eden Foods is deeply rooted in Michigan outside of Ann Arbor, and manages grower relations, manufacturing, trucking, quality control, customer and retailer services, marketing, import/export, accounting, databases and websites from that location.
37. Plaintiff Eden Foods is centered on macrobiotics—eating a diet of whole grain and seasonal local plant foods that are not nutrient depleted and without toxic chemical adulteration.
38. Plaintiff Eden Foods strives to maintain integrity and transparency in all they do and obtains Superior ratings from AIB International, their highest rating for food safety and sanitation from the most prestigious third-party certifier in North America.
39. Plaintiff   Eden   Foods’   design, construction, and operation of their warehouse reflect their commitment to sustainable growth and follow “LEED” (Leadership in Energy and Environmental Design) principles. Plaintiff Eden Foods in building their most recent warehouse utilized 80% recycled steel forged in the area. Plaintiff Eden Foods uses energy efficient lights and insulation, preserves native flora, and is good-neighbor landscaped.
40. Plaintiff Eden Foods tracks the environmental impact of its food upstream with suppliers, through company operations, and downstream monitoring all its social impacts. Energy consumption and waste are tracked using custom in-house tools.
41. In 2009, Plaintiff Eden Foods was selected as the best food company in the world, and the third best company overall by The Better World Shopping Guide.
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42. The Better World Shopping Guide acknowledged Plaintiff Eden Foods' outstanding record in social and environmental responsibility. The company earned an A+ and an A rating in ten food categories.
43. Plaintiff Eden Foods only provides foods that are Non-GMO and third party certified organically grown, handled, and processed. They are locally-grown focused and maintain direct relations with, and payment directly to, family farms, many of which rival or exceed their commercial counterparts in size and productivity.
44. Plaintiff  Eden  Foods’  products,   methods,  and  accomplishments   are  described  by   critics as: tasteful, nutritious, wholesome, principled, unrivaled, nurturing, pure.
45. Plaintiff Eden Foods has won several awards including: Grocery Headquarters Trailblazer Award Best of the Best in Wellness, January 2013; Men's Health Best Foods for Men Black Bean & Quinoa Chili, Refried Pinto Beans, Chickpeas, November 2012; Whole Living Green Giant Visionary Award, October 2012; Women's Health Best Food for Women Black Bean & Quinoa Chili, September 2012; Clean Eating "Favorite Fiber Booster" Foodie Award Black Beans, July 2012; Vegetarian Times Readers' Faves Foodie Award Soba, November 2011; GPI Friend of Glass Packaging Award, November 2011; Men's Health Best Foods for Men Black Beans & Spicy Refried Black Beans, November 2011; NASFT Best of the Best Organic Concord Grape Juice, May 2011; Grocery Headquarters Trailblazer Award Edensoy, January 2011; Women's Health Best Food for Women 100% Whole Grain Udon, November 2010; Men's Health Best Foods for Men Beans & Pumpkin Seeds, November 2010; Vegetarian Times Readers' Faves Foodie Awards Red Quinoa & Apple Cherry Butter, September 2010; Men's Health Best Organic Food Spicy Pumpkin Seeds, April 2010; Responsible Packaging Award, April 2010; Best Practices by a Big Food Brand, April 2010;
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Grocery Headquarters Trailblazer Award Chili, January 2010; Michigan Trucking Association, Fleet Safety Award 1987 to 2009; Women's Health Top 125 Best Packaged Foods for Women Quinoa & Wild Berry Mix, September 2009; Vegetarian Times Best Go-To Grain Wild Rice, September 2009; Cornucopia Institute, Organic Score Card Five Bean Rating, June 2009; The Better World Shopping Guide #1 Food Company in the World, February 2009; Nutrition Action Healthletter Thumbs Up, Unseasoned Beans, February 2009; Grocery Headquarters Trailblazer Award Red Quinoa, January 2009; San Francisco Chronicle Taster's Choice Hall of Fame Apple Sauce, April 2008; San Francisco Chronicle Taster's Choice Tamari, May 2007; Men's Health 125 Best Foods for Men Refried Kidney Beans, June 2006; Michigan Organic Foods & Farm Alliance community Service Award May 2006; Nutrition Action Healthletter Best Bite Refried Beans, September 2004; Men's Health 125 Best Foods for Men Refried Kidney Beans, June 2004; Alive Magazine Award of Excellence Apple Juice, November 2002; Khalsa International Industries and Trade, Socially Responsible Business Award, October 2001; Cook's Illustrated Highly Recommended Shoyu, January 2000; Prevention Magazine All Around Best Buy Olive Oil, September 1999.
46. Plaintiff Eden Foods offers certified kosher and pareve foods. 47. The production of Plaintiff   Eden   Foods’   kosher   foods   are Rabbinically supervised. The Rabbi visits on a regular basis. He inspects the machines prior to production and verifies that every step required by Jewish Law has been observed and fulfilled. Ninety-one percent of all foods produced by Plaintiff Eden Foods are kosher and marked with a Circle-K on the package. 48. The  term  “pareve” indicates all ingredients, food contact surfaces, processing, and storage equipment are certified meat and dairy free.
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49. Plaintiffs serve their customers with honesty and integrity by providing the best, healthiest, and most natural foods and products available.
50. Plaintiff Michael Potter has also devoted his life to the Catholic faith. 51. Plaintiff Michael Potter is Catholic and follows the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church. 52. Plaintiff Michael Potter is guided by his religious beliefs. 53. Plaintiff Michael Potter holds religious beliefs that prevent him from participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients. 54. Plaintiff Michael Potter strives to follow the tenets of the Catholic faith in his business practices. 55. Plaintiff Michael Potter is responsible for setting policies governing the conduct of all phases of business of Plaintiff Eden Foods. 56. Prior to the issuance of the Mandate, Plaintiffs engineered an insurance policy with Blue Cross/Blue Shield of Michigan which specifically excluded contraception and abortifacients, and exempts Plaintiffs from providing, paying, contributing, or supporting contraception and abortion for others. 57. Plaintiffs specifically excluded what Blue Cross/Blue Shield of Michigan historically categorized as “Lifestyle Drugs”—a category which encompassed contraceptives and other drugs such as Viagra. 58. Plaintiffs obtained these exclusions due to their deeply held religious beliefs. 59. Plaintiff Eden Foods has never offered insurance which included coverage for contraception and abortifacients.
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60. Plaintiffs’   employees   receive   insurance   under   this   engineered insurance policy with Blue Cross/Blue Shield of Michigan which specifically excludes contraception and abortifacients, and exempts Plaintiffs from providing, paying, contributing, or supporting contraception and abortifacients for others.
61. Plaintiff Michael Potter and Plaintiff Eden Foods ensured that their insurance policy contained these exclusions to reflect their deeply held religious beliefs.
62. Based on the teachings of the Catholic Church, and their deeply held religious beliefs, Plaintiffs do not believe that contraception or abortifacients are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed, Plaintiffs believe these procedures almost always involve immoral and unnatural practices.
DEFENDANTS 63. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 64. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health   and   Human   Services   (“HHS”).      In   this   capacity,   she   has   responsibility   for   the   operation   and management of HHS. Defendant Sebelius is sued in her official capacity only. 65. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit. 66. Defendant Seth D. Harris is the Acting Secretary of the United States Department of Labor. In this capacity, he holds responsibility for the operation and management of the United States Department of Labor. Defendant Harris is sued in his official capacity only.
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67. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
68. Defendant Jack Lew is the Secretary of the United States Department of the Treasury. In this capacity, he holds responsibility for the operation and management of the United States Department of Treasury. Defendant Lew is sued in his official capacity only.
69. Defendant United States Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
FACTUAL ALLEGATIONS Plaintiffs’  Religious  Beliefs   70. Plaintiffs hold and actively profess religious beliefs in accordance with the traditional Christian teachings on the sanctity of life. Plaintiffs believe that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Plaintiffs therefore believe that abortion ends a human life and is a sin. 71. Plaintiffs’   religious   beliefs   also   include   traditional   Christian   teaching   on   the   nature and purpose of human sexuality. In particular, Plaintiffs believe, in accordance with Pope Paul   VI’s   1968   encyclical Humanae Vitae, that human sexuality has two primary purposes: to “most   closely   unit[e]   husband   and   wife”   and   “for   the   generation   of   new   lives.”      Accordingly,   Plaintiffs   believe   and   actively   profess,   with   the   Catholic   Church,   that   “[t]o   use   this   divine gift destroying, even if only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to contradict also the  plan  of  God  and  His  Will.”    Therefore,  Plaintiffs believe   and  teach  that   “any   action  which  
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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, abortifacients, and abortion—is immoral and unnatural.
72. Furthermore, Plaintiffs subscribe to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, Plaintiffs believe, in accordance  with  Pope  John  Paul  II’s  1995  encyclical   Evangelium Vitae,  that  “‘[c]ausing  death’   can  never  be  considered  a  form  of  medical  treatment,”  but  rather  “runs  completely  counter  to  the   health-care  profession,  which  is  meant  to  be  an  impassioned  and  unflinching  affirmation  of  life.”  
73. Several leaders within the Catholic Church have publicly spoken out about how the Mandate is a direct violation of Catholic Faith.
74. Cardinal Timothy Dolan, Archbishop of New York and President of the United States   Conference   of   Catholic   Bishops   wrote,   “Since   January   20   [2012],   when   the   final,   restrictive HHS Rule was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops on their recent ad limina visit:   ‘Of   particular concern are certain attempts being made to limit that most cherished of American freedoms,   the   freedom   of   religion.’   .   .   .   We have made it clear in no uncertain terms to the government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish  as  Catholics  and  Americans.”    (http://www.usccb.org., last visited March 2, 2012).
75. Archbishop Charles J. Chaput, the Archbishop of Philadelphia, has expressed that the Affordable Care Act and the Mandate seek “to   coerce   Catholic   employers,   private   and   corporate, to violate their religious convictions . . . [t]he HHS mandate, including its latest variant, is belligerent, unnecessary, and deeply offensive to the content of Catholic belief . . . The
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HHS mandate needs to be rescinded. In reality, no similarly aggressive attack on religious freedom in our country has occurred in recent memory . . . [t]he HHS mandate is bad law; and not merely bad, but dangerous and insulting. It needs to be withdrawn—now.” (http://theamerican-catholic.com/2012/02/14/archbishop-chaput-hhs-mandate-dangerous-and-insulting/, last visited Feb. 14, 2012).
Plaintiffs Eden Foods and Michael Potter 76. Plaintiff Eden Foods is a for-profit, natural foods company. 77. Plaintiff Michael Potter cannot compartmentalize his conscience or his religious beliefs from his daily work and actions as the Chairman, President, and sole shareholder of Plaintiff Eden Foods. Therefore, Plaintiff Michael Potter and Plaintiff Eden Foods share a common mission of conducting their business operations with integrity and consistent with the teachings, mission, and values of the Catholic Church. 78. Plaintiffs Eden Foods and Michael Potter purchase and provide group insurance through Blue Cross/Blue Shield of Michigan and provide this insurance to their employees. 79. Plaintiffs Eden Foods and Michael Potter strive to provide their employees with employee health coverage superior to coverage generally available in the Michigan market in order to be a competitive employer. 80. Plaintiffs Eden Foods and Michael Potter specifically designed their health insurance plan to exclude contraception and abortifacients in line with the religious beliefs of the Catholic faith. 81. Moreover, as a part of his religious commitment to the authoritative teachings of the Catholic Church, Plaintiff Michael Potter steadfastly avoids practices that subvert the
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teaching of the Catholic Church such as providing or funding drugs, devices, services or procedures inconsistent with his Catholic faith.
82. Plaintiffs Eden Foods and Michael Potter cannot provide, fund, or participate in health care insurance which covers artificial contraception or abortifacients, or related education and counseling, without violating their deeply held religious beliefs.
83. Plaintiffs Eden Foods and Michael Potter cannot provide information or guidance to their employees regarding artificial contraception, abortifacients or related education and counseling, without violating their deeply held religious beliefs.
84. With full knowledge of these aforementioned beliefs, Defendants issued an administrative  rule  (“the  Mandate”)  that  runs  roughshod  over Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans.
85. The Mandate not only forces Plaintiffs to finance contraception, abortifacients, and related education and counseling as health care, but also subverts the expression of Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans, by forcing Plaintiffs to fund, promote, and assist others to acquire services which Plaintiffs believe involve almost always immoral and unnatural practices.
86. The Mandate unconstitutionally coerces Plaintiffs to violate their deeply-held religious beliefs under threat of directly violating their consciences, in addition to any imposed fines and penalties. Having to pay a fine to the taxing authorities or being entirely forced out of the insurance market in order to ensure the privilege   of   practicing   one’s   religion substantially burdens Plaintiffs’  religious  liberty under the First Amendment.
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87. The Mandate strips the Plaintiffs of any choice to select an insurance plan that does not cover and finance contraception and abortifacients, as the Mandate requires that all insurance issuers provide this coverage.
88. Plaintiffs’ plan is not considered  “grandfathered”  and   is subject to the provisions of the Mandate.
89. Due to the Mandate, Plaintiffs are no longer allowed to exclude contraception and abortifacients from their insurance plan—and are forced to provide and pay for these services which violate their religious beliefs.
90. Plaintiffs, since Plaintiff Eden Foods’ inception, have excluded objectionable coverage such as providing contraception and abortifacients from their insurance plan.
91. On February 21, 2013 when presented with a contract by its insurance issuer Blue Cross/Blue Shield of Michigan to   change   Plaintiffs’   group   insurance   plan   to   include   the objectionable contraception and abortifacients coverage, Plaintiffs objected and refused to sign the contract.
92. Without   Plaintiffs’   consent   or   authority,   Blue   Cross/Blue   Shield   of Michigan in compliance  with  the  Mandate  changed  Plaintiffs’  plan  to  include  the  objectionable contraception and abortifacients coverage.
93. Plaintiffs, as well as the employees and agents of Plaintiff Eden Foods, learned that objectionable contraception and   abortifacients   coverage   had   been   recently   added   to   Plaintiffs’   group insurance plan without their consent or authority on March 15, 2013.
94. Plaintiffs wish to conduct their business in a manner that does not violate the principles of their religious faith.
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95. Complying with the Mandate requires a direct violation of the Plaintiffs’  religious   beliefs because it requires Plaintiffs to pay for and assist others in paying for or obtaining not only   contraception,   but   also   abortion,   because   certain   drugs   and   devices   such   as   the   “morningafter  pill,”  “Plan  B,”  and  “ella”  come  within  the  Mandate’s  and  Health Resources and Services Administration’s  definition  of  “Food  and  Drug  Administration-approved  contraceptive  methods”   despite their known abortifacient mechanisms of action.
96. Defendants’  refusal  to  accommodate  the  conscience  of  the  Plaintiffs,  and  of  other   Americans   who   share   the   Plaintiffs’   religious   views,   is   highly   selective.      Numerous   exemptions   exist in the Affordable Care Act which appear arbitrary and were granted to employers who purchase group insurance. This evidences that Defendants do not mandate that all insurance plans  need  to  cover  “preventative  services”  (e.g.  the  thousands  of  waivers  from  the   Affordable Care Act issued by Defendants for group insurance based upon the commercial convenience of large corporations, the age of the insurance plan, or the size of the employer).
97. Despite granting waivers upon a seemingly arbitrary basis, no exemption exists for an employer or individual whose religious conscience instructs him that certain mandated services are unethical, immoral, and volatile to one’s   religious   beliefs.         Defendants’   Mandate fails   to   give   the   same   level   of   weight   or   accommodation   to   the   exercise   of   one’s   fundamental   First Amendment freedoms that it assigns to the yearly earnings of a corporation.
98. The Defendants’  actions  violate  Plaintiffs’ right to freedom of religion, as secured by the First Amendment to the United States Constitution and civil rights statutes, including the Religious Freedom Restoration Act (RFRA).
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99. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
100. Had Plaintiffs’ religious beliefs, or the beliefs of the millions of other Americans who share Plaintiffs’ religious  beliefs  been  obscure  or  unknown,  the  Defendants’  actions  might   have been an accident. But because the Defendants acted with full knowledge of those beliefs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on the Catholic Church, the religious beliefs held by Plaintiffs and the similar religious beliefs held by millions of other Americans. The Defendants have, in sum, intentionally used government power to force individuals to believe in, support, and endorse the mandated services manifestly contrary to their own religious convictions, and then to act on that coerced belief, support, or endorsement. Plaintiffs seek declaratory and injunctive relief to protect against this attack.
The Affordable Care Act 101. In March 2010, Congress passed, and President Obama signed into law, the “Patient  Protection  and  Affordable  Care  Act”  (Pub.  L.  111-148, March 23, 2010, 124 Stat. 119) and  the  “Health  Care  and  Education  Reconciliation  Act”  (Pub.  L.  111-152, March 30, 2010, 124 Stat. 1029) (referred to in this complaint as  the  “Affordable  Care  Act”). 102. The Affordable Care Act regulates the national health insurance market by directly  regulating  “group  health  plans”  and  “health  insurance  issuers.”   103. The Affordable Care Act does not apply equally to all insurers. 104. The Affordable Care Act does not apply equally to all individuals.
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105. The Affordable Care Act requires employers with more than 50 full-time employees or full-time employee equivalents to provide federal government-approved health insurance or pay a substantial per-employee fine. (26 U.S.C. § 4980H).
106. Plaintiff Eden Foods employs over 50 full-time employees or full-time equivalents.
107. Plaintiff Eden Foods constitutes   a   “single   employer”   for   purposes   of   the   Affordable Care Act as defined at 42 U.S.C. § 18024(b)(4)(A).
108. Plaintiff Eden Foods, as well as Plaintiff Michael Potter as the Chairman, President, and sole shareholder of Eden Foods must provide federal government-approved health insurance under the Affordable Care Act or pay substantial per-employee fines.
109. The Affordable Care Act purports to not apply to the failure to offer employersponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A).
110. However, even employees with fewer than 50 employees purchase insurance from health insurance issuers, who are subject to the Affordable Care Act. 42 USC § 300GG-13 (a)(1),(4).
111. Certain provisions of the Affordable Care Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii) (individual mandate does  not  apply  to  members  of  “recognized  religious  sect  or  division”  that  conscientiously  objects   to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(B)(ii) (individual mandate  does  not  apply  to  members  of  “health  care  sharing  ministry”  that  meets  certain  criteria).  
112. Plaintiffs do not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii) as Plaintiffs do not object to acceptance of public or private insurance
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funds in their totality and currently enjoy health insurance benefits that exclude contraceptives and abortifacients.
113. The Affordable Care Act’s   preventive   care   requirements   do   not   apply   to   employers who provide so-called  “grandfathered”  health  care  plans.  
114. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
115. Plaintiffs’   current   insurance   plans   do   not   qualify   as   “grandfathered”   health   care   plans,  and  are  considered  “non-grandfathered.”
116. Furthermore,   Plaintiffs   do   not   qualify   for   the   “religious   employer”   exemption   contained in 45 CFR § 147.130 (a)(1)(A) and (B).
117. There have been changes made to Plaintiffs’   plan after 2010, and participants have  never  been  notified  of  a  “grandfathered”  status.    
118. Furthermore, Plaintiffs are not   eligible   for   “grandfathered”   status   under   the   Affordable Care Act and will be subject to the requirements of the Affordable Care Act and the Health and Human Services Mandate because: (1) the health care plan does not include the required  “disclosure  of  grandfather  status”  statement;;  (2)  Plaintiffs do not take the position that its health care plan is a grandfathered plan and thus does not maintain the records necessary to verify, explain, or clarify its status as a grandfathered plan nor will it make such records available for examination upon request; and (3) the health care plan has an increase in a percentage cost-sharing requirement measured from March 23, 2010. See 42 U.S.C. § 18011(a) (2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140.
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119. Since   the   Plaintiffs   do   not   qualify   for   the   “religious   employer”   exemption,   they   are  not  permitted  to  take  advantage  of  the  “temporary  safe-harbor”  as  set  forth  by  the  Defendants   at 77 Fed. Register 8725 (Feb. 15, 2012).
120. Plaintiffs are thus subjected to the Mandate now and are confronted with choosing between complying with its requirements in violation of their religious beliefs or violating federal law.
121. Plaintiffs Eden Foods and Michael Potter must choose between complying with the requirements of the Affordable Care Act in violation of their religious beliefs or paying ruinous fines that would have a crippling impact on their ability to survive economically.
122. Plaintiffs Eden Foods and Michael Potter must provide federal governmentapproved health insurance under the Affordable Care Act or pay substantial per-employee fines.
123. Under 26 U.S.C. § 4980H since Plaintiffs have over fifty full-time employees, if Plaintiffs do not meet   the   “minimum   essential   coverage”   requirements   (i.e.   do   not   provide   contraception, abortion, and abortifacients) Plaintiffs could owe $2,000 per year for each fulltime employee excluding the first thirty full-time employees. The tax penalty assessable payment calculation would generally be: (128 employees - 30) x $2,000 per year = $196,000 per year tax penalty.
124. Under the United States Internal Revenue Code, 26 U.S.C. § 4980D(a), there is a tax imposed on any failure of a group plan to meet the requirements of Chapter 100 (relating to group plan requirements). Under 26 U.S.C. § 4980D(b), the amount of the tax is $100 for each day in the non-compliance period with respect to each individual to whom such failure relates. This tax penalty would generally be: 128 employees x 365 days per year x $100 each day = $4,672,000 per year tax.
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125. Plaintiffs are collectively confronted with complying with the requirements of the Affordable Care Act in violation of their religious beliefs or removing themselves and employees from the health insurance market in its entirety—endangering the health and economic stability of their employees and forcing Plaintiff Eden Foods to be non-competitive as employers in a market where other, non-Catholic employers will be able to provide insurance to their employees under the Affordable Care Act without violating their religious beliefs.
126. The Affordable Care Act is not generally applicable because it provides for numerous exemptions from its rules.
127. The Affordable Care Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. Some groups, both secular and religious, have received waivers from complying with the provisions of the Affordable Care Act, while others—such as the Plaintiffs—have not.
128. The Affordable Care Act creates a system of individualized exemptions. 129. The United States Department of Health and Human Services has the authority under the Affordable Care Act to  grant  compliance  waivers  (“HHS  waivers”)  to  employers  and   other health insurance plan issuers. 130. HHS waivers release employers and other plan issuers from complying with the provisions of the Affordable Care Act. 131. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. 132. Upon information and belief, more than a thousand HHS waivers have been granted.
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The  “Preventive  Care”  Mandate 133. A provision of the Affordable Care Act mandates   that   health   plans   “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”   and   directs   the   Secretary   of   United States Department of Health and Human Services to determine what would constitute “preventive  care”  under  the  mandate.    42 U.S.C § 300gg–13(a)(4). 134. On July 19, 2010, HHS, along with the United States Department of Treasury and the United States Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010). The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010). 135. On February 15, 2012, the United States Department of Health and Human Services promulgated a mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August 1,  2012  (hereafter,  “the  Mandate”). See 45 CFR § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines). 136. The Mandate was enacted pursuant to statutory authority under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, as amended by the Health Care and Education Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (ACA). 77 Fed. Reg. 31, 8725 (“Affordable Care Act”).
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137. In its ruling, HHS included all FDA-approved contraceptives under the banner of preventive   services,   including   contraception,   abortion,   and   abortifacients   such   as   the   “morningafter   pill,”   “Plan   B,”   and   “ella,”   a   close   cousin of the abortion pill RU-486. (http://www.hrsa.gov/womensguidelines).
138. The  Mandate’s  reach  seeks  to  control  the  decisions  of  employers,  individuals  and   also the decisions of all insurance  issuers  (i.e.  “Blue Cross/Blue Shield of Michigan,” etc.). 42 USC § 300gg-13 (a)(1),(4). (“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 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; . . . 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  for  purposes  of  this  paragraph.”).    
139. All insurance issuers are mandated to include contraception, abortion, and abortifacients   such   as   the   “morning-after   pill,”   “Plan   B,”   and   “ella”   in   all of its group and individual plans, not specifically exempted, beginning as of August 1, 2012 and effective on the anniversary  of  the  employer’s  plan  year.
140. Individuals and employers, regardless of the number of employees they employ, will eventually be forced to select an insurance plan which includes what HHS deemed “preventive  care.”    
141. All individuals and employers will be stripped of their choice not to pay for the “preventive  care,”  regardless  of  whether  paying  for  such  “services”  violates  one’s  conscience  or   deeply held religious beliefs.
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142. Health insurance issuers include insurance companies such as Blue Cross/Blue

Shield of Michigan, which is the insurance issuer used by Plaintiffs.

143. The Mandate reaches even further than the Affordable Care Act to eliminate all

employers and individuals from selecting a health insurance plan in which the insurance issuers

do not automatically provide contraception and abortifacients.

144. Prior to promulgating the Mandate, HHS accepted public comments to the 2010

interim final regulations from July 19, 2010 to September 17, 2010. Upon information and

belief, a large number of groups filed comments, warning of the potential conscience

implications of requiring religious individuals and groups to pay for certain kinds of services,

including contraception and abortifacients.

145. HHS directed a private health policy organization, the Institute of Medicine

(“IOM”),   to   suggest   a   list   of   recommended   guidelines   describing   which   drugs,   procedures,   and  

services should be covered by all health plans as preventative care for women.

(http://www.hrsa.gov/womensguidelines, last visited March 6, 2013).

146. In developing its guidelines, IOM invited a select number of groups to make

presentations on the preventive care that should be mandated by all health plans. These were the

Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John

Santelli,   the   National   Women’s   Law   Center,   National   Women’s   Health   Network,   Planned  

Parenthood

Federation

of

America

and

Sara

Rosenbaum.

(http://www.nap.edu/openbook.php?record_id=13181&PAGE=217, last visited March 6, 2013).

147. No religious groups or other groups that oppose government-mandated coverage

of contraception, abortifacients, and related education and counseling were among the invited

presenters.

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148. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventative services include “All   Food and Drug Administration approved contraceptive methods.”      (Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011)).
149. Preventative services therefore include FDA-approved contraceptive methods such as birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known   as   the   “morning-after   pill”;;   and   ulipristal,   also   known   as   “ella”   or   the   “week-after   pill”;;   and other drugs, devices, and procedures.
150. Plan B and “ella” can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute  an  “abortion”  as  that  term  is  used  in  federal  law  and  Catholic teaching. Consequently, Plan B and “ella” are abortifacients.
151. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the United States Department of Labor, and the United States Department of Treasury adopted the IOM recommendations in full and promulgated an interim   final   rule   (“the   Mandate”),   which   requires   that   all   “group   health   plan[s]   and   .   .   .   health   insurance   issuer[s]   offering   group   or   individual   health   insurance   coverage”   provide   all   FDAapproved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. Health Resources and Services Administration issued guidelines adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines, last visited March 6, 2013).
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152. The Mandate also requires group health care plans and insurance issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
153. The  Mandate  went  into  effect  immediately  as  an  “interim  final  rule.”   154. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued. 155. Instead the Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations. 156. When it issued the Mandate, HHS requested comments from the public by September 30th and indicated that comments would be available online. 157. Upon information and belief, over 100,000 comments were submitted against the Mandate. 158. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that   “we   are   in   a   war.”   She   did   not   state   whom   she   and   NARAL   Pro-Choice America were warring against. 159. During a Congressional hearing on April 26, 2012, Defendant Sebelius admitted that she is totally unfamiliar with the United States Supreme Court religious freedom cases. 160. Defendant Sebelius showed little concern for the constitutional issues involved in promulgating the Mandate. At the aforementioned congressional hearing, she admitted that prior to issuing the Mandate she did not review any written materials or any sort of legal memo from her general counsel discussing the effects of the Mandate on religious freedom. 161. The Mandate fails to take into account the statutory and constitutional conscience rights of religious business owners and for profit companies that exercise business practices in
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compliance with certain faith practices, such as Plaintiffs Michael Potter and Eden Foods, a subject of comment.
162. The Mandate requires that Plaintiffs assist, provide, or fund coverage for contraception, abortifacients, and related education and counseling against its conscience in a manner that is contrary to law.
163. The Mandate constitutes government-imposed pressure and coercion on Plaintiffs to change or violate their religious beliefs.
164. The Mandate exposes Plaintiff Eden Foods and Plaintiff Michael Potter, as individuals and as employers or companies with over 50 full-time employees, to substantial fines for refusal to change or violate their religious beliefs.
165. The Mandate imposes a   burden   on   Plaintiffs’   employee   recruitment efforts by creating uncertainty as to whether Plaintiffs will be able to offer health insurance.
166. The Mandate places Plaintiffs at a competitive disadvantage in their efforts to recruit and retain employees and members.
167. Furthermore as a Christian, his religious beliefs and the principle of stewardship require that Plaintiff Michael Potter care for his employees by providing insurance coverage for them and their families.
168. The Mandate forces Plaintiffs to provide, fund, or approve and assist its employees and members in purchasing contraception and abortifacient drugs in violation of Plaintiffs’  religious beliefs that doing so is immoral and unnatural.
169. Plaintiffs have a sincere religious objection to providing coverage for emergency contraceptive drugs such as Plan B and “ella” since they believe those drugs could prevent a
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human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a person.
170. Plaintiffs consider the prevention by artificial means of the implantation of a human embryo to be an abortion.
171. Plaintiffs believe that Plan B and “ella” can cause the death of the embryo, which is a person.
172. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 173. “Ella” can prevent the implantation of a human embryo in the wall of the uterus. 174. Plan B and “ella” can cause the death of the embryo. 175. The use of artificial means to prevent the implantation of a human embryo in the wall  of  the  uterus  constitutes  an  “abortion”  as that term is used in federal law. 176. The use of artificial means to cause the death of a human embryo constitutes an “abortion”  as  that  term  is  used  in  federal  law.   177. The Mandate forces Plaintiffs to provide emergency contraception, including Plan B and “ella,” free of charge, regardless of the ability of insured persons to obtain these drugs from other sources. 178. The Mandate forces Plaintiffs to fund education and counseling concerning contraception and abortifacients that directly conflicts with Plaintiffs’ religious beliefs and teachings. 179. Plaintiffs could not cease in providing its employees with health insurance coverage without violating their religious duty to provide for the health and well-being of their employees and their families. Additionally, employees would be unable to attain similar coverage in the market as it now exists.
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180. The Mandate forces Plaintiffs to choose between violating their religious beliefs, incurring substantial fines, or terminating their employee or individual health insurance coverage.
181. Group health plans and insurance issuers are subject to the Mandate. 182. Without relief and intervention from the Court, Plaintiffs are subject to the Mandate. 183. Plaintiffs have already had to devote significant institutional resources, including both staff time and funds, to determine how to respond to the Mandate. Plaintiffs anticipate continuing to make such expenditures of time and money regarding the Mandate and its effect on Plaintiffs’  plan. The Narrow and Discretionary Religious Exemption 184. The Mandate indicates that the Health Resources and Services Administration (“HRSA”)   “may”   grant   religious   exemptions   to   certain   religious   employers.   45   C.F.R.   §   147.130(a)(iv)(A). 185. The   Mandate   allows   HRSA   to   grant   exemptions   for   “religious   employers”   who   “meet[  ]  all  of  the  following  criteria:  (1)  The  inculcation  of  religious  values  is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (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)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.”  45  C.F.R.  §  147.130(a)(iv)(B).  
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186. The  Mandate  imposes  no  constraint  on  HRSA’s  discretion  to  grant  exemptions  to some,   all,   or   none   of   the   organizations   meeting   the   Mandate’s   definition   of   “religious   employers.”  
187. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
188. There is no exemption for a for-profit company. 189. Plaintiffs, as confirmed by the unilateral  decisions  of  Plaintiffs’  insurance  issuer   (Blue Cross/Blue Shield of Michigan), are subject to the Mandate despite the existence of exemptions to the Mandate as none of the exemptions apply to Plaintiffs. 190. On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption. She   added   that   “[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,”  on  the  condition   that those employers certify they qualify for the extension. At the same time, however, Sebelius announced  that  HHS  “intend[s]  to  require  employers  that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with incomebased   support.”      See Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, (http://www.hhs.gov/news/press/2012pres/01/20120120a.html). To date, Defendant HHS has not released any official rule implementing either the one-year extension or the additional forced-speech requirement that applies to either Plaintiff. 191. It is inevitable with the current state of the law that Plaintiffs currently are forced to comply with the Mandate, despite the fact that doing so violates the teachings of the Catholic
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faith and  Plaintiffs’  deeply  held  religious  beliefs  by directly providing, funding, and/or allowing its members to engage in disseminating information and guidance about where to obtain contraception or abortifacient services.
CLAIMS COUNT I Violation of the First Amendment to the United States Constitution Free Exercise Clause 192. Plaintiffs incorporate by reference all preceding paragraphs. 193. Plaintiffs’  sincerely held religious beliefs prohibit them from providing coverage for contraception, abortifacients, or related education and counseling. Plaintiffs’   compliance with these beliefs is a religious exercise. 194. Neither the Affordable Care Act nor the Mandate is neutral. 195. Neither the Affordable Care Act nor the Mandate is generally applicable. 196. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 197. The Mandate furthers no compelling governmental interest. 198. The Mandate is not the   least   restrictive   means   of   furthering   Defendants’   stated   interests. 199. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 200. The Mandate chills Plaintiffs’  religious exercise. 201. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that they will no longer be permitted to offer health insurance. 202. The Mandate exposes Plaintiffs to substantial fines for their religious exercise.
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203. The Mandate exposes Plaintiffs to monetary and health risks as they will no longer be able to accept health insurance, nor be able to purchase or provide health care insurance without violating their religious beliefs.
204. The Mandate imposes a substantial burden on Plaintiffs’  religious exercise. 205. The Mandate is not narrowly tailored to any compelling governmental interest. 206. The   Mandate   and   Defendants’   threatened   enforcement   of   the   Mandate   violate   Plaintiffs’   rights   secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution. 207. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause 208. Plaintiffs incorporate by reference all preceding paragraphs. 209. Plaintiffs’   sincerely held religious beliefs prohibit them from purchasing or providing coverage for contraception, abortifacients, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 210. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs. 211. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Plaintiffs and others.
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212. The  Mandate  and  Defendants’  threatened  enforcement  of  the  Mandate  thus  violate   Plaintiffs’   rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
213. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause 214. Plaintiffs incorporate by reference all preceding paragraphs. 215. By design, Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions. 216. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions  to  some,  all,  or  no  organizations  meeting  the  definition  of  “religious  employers.”   217. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no religious individuals. 218. The  Mandate  and  Defendants’  threatened  enforcement  of  the  Mandate  thus  violate   Plaintiffs’   rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. 219. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Establishment Clause 220. Plaintiffs incorporate by reference all preceding paragraphs.
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221. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on Plaintiffs.
222. Defendants also imposed the Mandate on some religious individuals and religious organizations but not on others, resulting in a selective burden on Plaintiffs.
223. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions  to  some,  all,  or  no  organizations  meeting  the  definition  of  “religious  employers.”  
224. The Mandate also vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no individuals.
225. The   Mandate   and   Defendants’   threatened   enforcement of the Mandate therefore violates Plaintiffs’  rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution.
226. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Free Exercise Clause 227. Plaintiffs incorporate by reference all preceding paragraphs. 228. By  stating  that  HRSA  “may”  grant  an  exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations or individuals can have its First Amendment interests accommodated. 229. The Mandate furthermore seems to have completely failed to address the constitutional and statutory implications of the Mandate on for-profit employers such as Plaintiff Eden Foods and Plaintiff Michael Potter. As such, Plaintiff Eden Foods and Plaintiff Michael
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Potter are subject to the unbridled discretion of HRSA to determine whether such companies would be exempt or are wholly left without relief from the Mandate.
230. Defendants’   actions   violate   Plaintiffs’   right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution.
231. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the Religious Freedom Restoration Act 232. Plaintiffs incorporate by reference all preceding paragraphs. 233. Plaintiffs’   sincerely held religious beliefs prohibit them from providing or purchasing coverage for contraception, abortifacients, or related education and counseling. Plaintiffs’  compliance with these beliefs is a religious exercise. 234. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 235. The Mandate chills Plaintiffs’  religious exercise. 236. The Mandate exposes Plaintiffs to substantial fines for their religious exercise. 237. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that they will no longer be permitted to offer or purchase health insurance. 238. The Mandate imposes a substantial burden on Plaintiffs’  religious exercise. 239. The Mandate furthers no compelling governmental interest. 240. The Mandate is not narrowly tailored to any compelling governmental interest. 241. The   Mandate   is   not   the   least   restrictive   means   of   furthering   Defendants’   stated   interests.
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242. The   Mandate   and   Defendants’   threatened   enforcement   of   the   Mandate   violate   Plaintiffs’  rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
243. Absent injunctive and declaratory relief against the Defendants, Plaintiffs have been and will continue to be harmed.
COUNT VII Violation of the Administrative Procedure Act 244. Plaintiffs incorporate by reference all preceding paragraphs. 245. Defendants’   stated   reasons   that   public   comments   were   unnecessary,   impractical,   and opposed to the public interest are false and insufficient,  and  do  not  constitute  “good  cause.” 246. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the  relevant  matter  presented.”    Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 247. Therefore, Defendants have taken agency action not in observance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 248. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VIII Violation of the Administrative Procedure Act 249. Plaintiffs incorporate by reference all preceding paragraphs. 250. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Plaintiffs and similar organizations, companies, and individuals.
37

2:13-cv-11229-DPH-MAR Doc # 1 Filed 03/20/13 Pg 38 of 40 Pg ID 38
251. Defendants’   explanation   for   its   decision   not   to   exempt   Plaintiffs and similar companies and religious individuals from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
252. Thus,  Defendants’  issuance  of  the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them.
253. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT IX Violation of the Administrative Procedure Act 254. Plaintiffs incorporate by reference all preceding paragraphs. 255. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (September 30, 2008). 256. The Weldon Amendment  provides  that  “[n]one  of  the  funds  made  available  in  this   Act [making appropriations for Defendants United States Department of Labor and United States 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.”   257. The Mandate requires issuers, employers, and individuals, including Plaintiffs, to provide and purchase coverage of all Federal Drug Administration-approved contraceptives. 258. Some FDA-approved contraceptives cause abortions. 259. As set forth above, the Mandate violates RFRA and the First Amendment.
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2:13-cv-11229-DPH-MAR Doc # 1 Filed 03/20/13 Pg 39 of 40 Pg ID 39
260. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act.
261. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT X Violation of the Administrative Procedure Act 262. Plaintiffs incorporate by reference all preceding paragraphs. 263. The Mandate is contrary to the provisions of the Affordable Care Act. 264. Section 1303(a)(1)(A)(i) of the Affordable Care Act states   that   “nothing   in   this   title”—i.e.,  title  I  of  the  Act,  which  includes  the  provision  dealing  with  “preventive  services”— “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.”   265. Section   1303   further   states   that   it   is   “the   issuer”   of   a   plan   that   “shall   determine   whether  or  not  the  plan  provides  coverage”  of  abortion  services.   266. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does. 267. However, the Mandate requires all issuers, including Plaintiffs and Plaintiffs’   insurance issuer Blue Cross/Blue Shield of Michigan, to provide coverage of all Federal Drug Administration-approved contraceptives. 268. Some FDA-approved contraceptives cause abortions. 269. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 270. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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2:13-cv-11229-DPH-MAR Doc # 1 Filed 03/20/13 Pg 40 of 40 Pg ID 40
PRAYER FOR RELIEF Wherefore, Plaintiffs request that the Court: a. Declare   that   the   Mandate   and   Defendants’   enforcement   of   the   Mandate   against   Plaintiffs violates the First Amendment to the United States Constitution; b. Declare   that   the   Mandate   and   Defendants’   enforcement   of   the   Mandate   against   Plaintiffs violates the Religious Freedom Restoration Act; c. Declare that the Mandate was issued in violation of the Administrative Procedure Act; d. Issue both a preliminary and a permanent injunction prohibiting and enjoining Defendants and insurance issuers from enforcing the Mandate against Plaintiffs and other religious individuals, employers, and companies that object to funding and providing insurance coverage for contraceptives, abortifacients, and related education and counseling; e. Award Plaintiffs the  costs  of  this  action  and  reasonable  attorney’s  fees;;  and   f. Award such other and further relief as it deems equitable and just.
Respectfully submitted, THOMAS MORE LAW CENTER /s/ Erin Elizabeth Mersino Erin Elizabeth Mersino, Esq. (P70886) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, Michigan 48106 Tel (734) 827-2001 emersino@thomasmore.org
Counsel for Plaintiffs
40

 
 Eden Foods, Inc. v. Sebelius, Not Reported in F.Supp.2d (2013)

2013 WL 1190001 Only the Westlaw citation is currently available.
United States District Court, E.D. Michigan,
Southern Division.
EDEN FOODS, INC. and Michael Potter, Chairman, President and Sole Shareholder of
Eden Foods, Inc., Plaintiffs, v.
Kathleen SEBELIUS, Secretary of the United States Department of Health and Human Services; United States Department of Health and Human
Services; Seth D. Harris, Acting Secretary of the United States Department of Labor; United States
Department of Labor; Ack Lew, Secretary of the United States Department of the Treasury; and
United States Department of the Treasury, Defendants.
Civil Action No. 13–11229. | March 22, 2013.
Attorneys and Law Firms
Erin E. Mersino, Thomas More Law Center, Ann Arbor, MI, for Plaintiffs.
Opinion
ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER and NOTICE OF SETTING HEARING DATE ON MOTION FOR
PRELIMINARY INJUNCTION
DENISE PAGE HOOD, District Judge.
I. BACKGROUND *1 On March 20, 2013, Plaintiffs filed the instant action against Defendants Kathleen Sebelius, Secretary of the United States Department of Health and Human Services; United States Department of Health and Human Services (“HHS”); Seth Harris, Acting Secretary of the United States Department of Labor (“DOL”); Jack Lew, Secretary of the United States Department of the Treasury; and United States Department of the Treasury (“Treasury”). Plaintiffs allege the following claims: Violation of the First Amendment to the United States Constitution Free Exercise Clause (Count I); Violation of

the First Amendment to the United States Constitution Free Exercise Clause (Count II); Violation of the First Amendment to the United States Constitution Free Exercise Clause (Count III); Violation of the First Amendment to the United States Constitution Establishment Clause (Count IV); Violation of the First Amendment to the United States Constitution Free Exercise Clause (Count V); Violation of the Religious Freedom Restoration Act (“RFRA”) (Count VI); Violation of the Administrative Procedure Act (Count VII); Violation of the Administrative Procedure Act (Count VIII); Violation of the Administrative Procedure Act (Count IX); and Violation of the Administrative Procedure Act (Count X).
The Complaint is a challenge to the regulations issued under the Patient Protection and Affordable Care Act (Pub.L. 111–148, March 23, 2010, 124 Stat. 119) and the Health Care and Education Reconciliation Act (Pub.L. 111–152, March 30, 2010, 124 Stat. 1029) (collectively, the “Affordable Care Act”). (Comp., ¶ 2) The Affordable Care Act mandates that health plans provide coverage with respect to women, such as additional preventive care and screenings and directs the Secretary of HHS to determine what would constitute “preventive care” under 42 U.S.C. § 30066–13(a)(4). (Comp., ¶ 4) Without notice of rulemaking or opportunity for public comment, HHS, DOL and the Treasury, adopted the Institute of Medicine (“IOM”) recommendations in full and promulgated an interim final rule (“Mandate”) which requires all group health plans and health insurance insurers offering group or individual health insurance coverage provide all FDA-approved contraceptive methods and procedures. 76 Fed.Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. (Comp., ¶ 5) The Mandate requires all insurance carriers, including Blue Cross/Blue Shield of Michigan, to provide coverage for contraception, abortion, and abortifacients in all of its insurance plans, group and individual. (Comp., ¶ 6)
Plaintiffs assert that the Mandate forces employers and individuals to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers which fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs. (Comp., ¶ 9) Plaintiffs seek to enjoin Defendants from implementing and enforcing provisions of the regulations, specifically the Mandate, asserting that the Mandate violates Plaintiffs’ rights to the free exercise of religion under the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act. (Comp., ¶ 12) Plaintiffs seek a Declaratory Judgment that the regulations, specifically the Mandate, violate Plaintiffs’ rights to the
1

Eden Foods, Inc. v. Sebelius, Not Reported in F.Supp.2d (2013)

free exercise of religion under the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act. (Comp., ¶ 13)
*2 Potter is the Chairman, President and sole shareholder of Eden Foods. (Comp., ¶ 15) Plaintiffs employ 128 full-time employees, are subject to the monetary penalties under the Affordable Care Act, and are forced under the Mandate by penalty of heavy fines to conduct business in a manner that violates their deeply held religious faith by providing and funding contraceptives and abortifacients. (Comp., ¶ 16) Eden Foods is a for-profit, natural foods company. (Comp., ¶ 76) Potter asserts he cannot compartmentalize his conscience or his religious beliefs from his daily work and actions as Chairman, President, and sole shareholder of Eden Foods. (Comp., ¶ 77) Plaintiffs share a common mission of conducting their business operations with integrity and consistent with the teachings, mission, and values of the Catholic Church. (Comp., ¶ 77) Plaintiffs purchase and provide group insurance through Blue Cross/Blue Shield of Michigan and provide this insurance to their employees. (Comp., ¶ 78)
Due to the Mandate, Plaintiffs are no longer allowed to exclude contraception and abortifacients from their insurance plan-and are forced to provide and pay for these services which violate their religious beliefs. (Comp., ¶ 89) Since Eden Foods’ inception, Plaintiffs have excluded objectionable coverage such as providing contraception and abortifacients from their insurance plan. (Comp., ¶ 90) When presented with a contract on February 21, 2013 amending the group insurance plan to include the contraception and abortifacients coverage, Plaintiffs refused to sign the contract. (Comp., ¶ 91) Plaintiffs learned on March 15, 2013 that their group insurance plan added the contraception and abortifacients coverage without their consent. (Comp., ¶ 93) Plaintiffs wish to conduct their business in a manner that does not violate the principles of their religious faith. (Comp., ¶ 94)
Plaintiffs do not qualify for the “religious employer” exemption contained in 45 C.F.R. § 147.130(a)(1)(A) and (B). Since Plaintiffs do not qualify for the “religious employer” exemption, they are not permitted to take advantage of the “temporary safe-harbor” set forth at 77 Fed. Register 8725 (Feb. 15, 2012). (Comp., ¶ 119) Plaintiffs assert they must provide federal government-approved health insurance under the Affordable Care Act or pay substantial per-employee fines at $196,000 per year tax penalty. (Comp., ¶¶ 122–23) In addition, Plaintiffs assert that the Internal Revenue Code imposes a tax on any failure of a group plan to meet the requirements relating to group plan requirements, which for Plaintiffs would be at $4,672,000

per year. (Comp., ¶ 124)
Plaintiffs assert that the Affordable Care Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. (Comp., ¶ 127) Plaintiffs claim that HHS has issued more than a thousand waivers regarding particular employers and other health insurance plan issuers from compliance with certain provisions of the Affordable Care Act. (Comp., ¶¶ 130–132) The Mandate indicates that the Health Resources and Services Administration (“HRSA”) “may” grant religious exemptions to certain religious employers if they meet certain criteria and the organization is a non-profit organization. 45 C.F.R. § 147.130(a)(iv)(A) and (B). (Comp., ¶¶ 184–85) There is no exemption for a for-profit company. (Comp., ¶ 188)
*3 This matter is before the Court on Plaintiffs Eden Foods, Inc. and Michael Potter’s Emergency Motion for Temporary Restraining Order filed March 22, 2013. Plaintiffs assert they sought concurrence from Defendants, but the case had not yet been assigned to a specific attorney. (Motion, ¶ 14) Plaintiffs assert they will provide notice to Defendants via facsimile and via federal express. (Motion, ¶ 15)
II. ANALYSIS
A. Motion for Temporary Restraining Order
1. Standard The sole issue presented by Plaintiffs in this Motion for Temporary Restraining Order is whether denying Plaintiffs the ability to offer health insurance without the Mandate violates their sincerely held religious beliefs causing irreparable harm sufficient to warrant injunctive relief. (Motion, p. i) Plaintiffs cite the RFRA and the Free Exercise Clause of the First Amendment as a basis for the issuance of the temporary restraining order.
Plaintiffs filed the instant Motion for Temporary Restraining Order citing Fed.R.Civ.P. 65(b)(1). Rule 65(b) of the Federal Rules of Civil Procedures provides the Court with authority to issue a temporary restraining order as follows:
Rule 65(b) Temporary Restraining Order.
(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) specific facts shown by affidavit or by a verified complaint clearly show that immediate and
2

Eden Foods, Inc. v. Sebelius, Not Reported in F.Supp.2d (2013)

irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition;
(B) the movant’s attorney certifies to the court in writing any efforts made to give the notice and the reasons why it should not be required.
Fed.R.Civ.P. 65(b).
Rule 65(b) is clear that the possibly drastic consequences of a restraining order mandate careful consideration by a trial court faced with such a request. 1966 Advisory Committee Note to 65(b). Before a court may issue a temporary restraining order, it should be assured that the movant has produced compelling evidence of irreparable and imminent injury and that the movant has exhausted reasonable efforts to give the adverse party notice. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Sniadach v. Family Finance Corp., 339 U.S. 337 (1969); 11 Wright & Miller, Federal Practice and Procedure § 2951, at 504–06 (1973). Other factors such as the likelihood of success on the merits, the harm to the non-moving party and the public interest may also be considered. 11 Wright & Miller at § 2951, at 507–08; Workman v. Bredesen, 486 F.3d 896, 904–05 (6th Cir.2007).

1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 204 (1972).
*4 The Court takes as true, Plaintiffs’ deeply held religious beliefs. However, at this preliminary stage of the litigation without a response from Defendants, the Court will not issue a temporary restraining order based on the RFRA. Plaintiffs do not expressly make a distinction between the corporate entity Eden Foods and the individual Potter, who has brought the instant suit as Eden Foods’ sole shareholder. The issue of what constitutes a “person” under the RFRA was not briefed by Plaintiffs.
Courts have held that the Mandate in question applies only to the corporate entity, not to its officers or owners, and that as to the individual owners, any burden imposed on them individually by the contraception mandate is remote and too attenuated to be considered substantial for purposes of the RFRA. See Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1294 (W.D.Okla.2012); Gilardi v. Sebelius, 2013 WL 71150, at *9 (D.D.C. Mar. 3, 2013); Conestoga Wood Specialties Corp. v. Sebelius, 2013 WL 140110, at ––––10, 14 (E.D.Pa. Jan.11, 2013); Grote v. Sebelius, 708 F.3d 850, 2013 WL 362725, at *6 (7th Cir. Jan.30, 2013) (dissent). At this juncture of the proceedings, without benefit of Defendants’ response, Plaintiffs have not shown that they have an action under the RFRA.

2. RFRA Plaintiffs argue that the HHS Mandate violates the RFRA, 42 U.S.C. § 2000bb et seq. The RFRA strictly prohibits the Government from substantially burdening a person’s exercise of religion, 42 U.S .C. § 2000bb–1(a), except when the Government can demonstrate that application of the burden to the person furthers a compelling government interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb–1(b). The RFRA was enacted in response to the Supreme Court’s decision in Employment Division, Department of Human Services of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), where the Supreme Court held that the right to free exercise of religion under the First Amendment does not exempt an individual from a law that is neutral and of general applicability, and explicitly disavowed the test used in earlier decisions which prohibited the government from substantially burdening a plaintiff’s religious exercise unless the government could show that its action served a compelling interest and was the least restrictive means to achieve that interest. 42 U.S.C. § 2000bb. The purpose of the RFRA was to “restore the compelling interest test” as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct.

3. First Amendment Free Exercise Clause Plaintiffs also assert that the HHS Mandate violates the Free Exercise Clause of the First Amendment to the United States Constitution.
The Free Exercise Clause is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Sch. Dist. of Abington Twp. v. Schempp, 377 U.S. 203, 223 (1963). Religious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely human rights provided by the Constitution. Courts have held that the nature, history and purpose of the Free Exercise Clause demonstrate that it is one of the “purely personal” rights and as such, is unavailable to a secular, for-profit corporation. See, Conestoga Wood, 2013 WL 140110 at * 7. An incorporation’s basic purpose is to create a legal entity, with legal rights, obligations, powers, and privileges different from those of natural individuals who created it, who own it, or whom it employs. Id. at *8, citing Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001). The separation between a corporation and its owners means the corporation is not the alter ego of its owners for
3

Eden Foods, Inc. v. Sebelius, Not Reported in F.Supp.2d (2013)

purposes of religious belief and exercise. Conestoga Wood, 2013 WL at *8. As to Eden Foods, at this juncture, the Court is not persuaded that Eden Foods has a right to proceed under the Free Exercise Clause of the First Amendment. As to the individual Potter, as sole shareholder of Eden Foods, the Court is not persuaded at this time that he has demonstrated that the Mandate violates the Free Exercise Clause based on his argument that the Mandate is not neutral nor generally applicable.
*5 The protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Where a law is found to violate the Free Exercise Clause, it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. Id. at 533. The Free Exercise Clause is not violated by a “valid and neutral law of general applicability on the ground that the law proscribes conduct that a plaintiff’s religion prescribes. Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). A neutral law of general applicability need only be “rationally related to a legitimate government objective” to be upheld. Combs v. Homer–Ctr. Sch. Dist., 540 F.3d 231, 243 (3d Cir.2008). Courts have held that the Women’s Preventive Healthcare Regulations are not specifically targeted at conduct motivated by religious belief. O’Brien v. U.S Dep’t of Health & Human Services, 2012 WL 4481208, at *8 (E.D.Mo. Sept.28, 2012). Even though exemptions were made for religious employees, this does not indicate that the regulations seek to burden

religion but that the government made efforts to accommodate religious beliefs. Id. The purpose of the Women’s Preventive Healthcare Regulations is not to target religion, but instead to promote public health and gender equality. Id. at *7; Hobby Lobby, 870 F.Supp.2d at 1289–90. Since courts have held that the regulations at issue do not offend the Free Exercise Clause, the individual Plaintiff Potter has not carried his burden that he will likely succeed on the merits of his Free Exercise Clause claim.
III. CONCLUSION For the reasons set forth above,
IT IS ORDERED that the Emergency Motion for Temporary Restraining Order (Doc. No. 10, filed March 22, 2013) is DENIED.
IT IS FURTHER ORDERED that the Motion for Preliminary Injunction is set for a hearing on Friday, May 10, 2013, 2:00 p.m.
IT IS FURTHER ORDERED that Plaintiffs must serve Defendants with a copy of the Complaint, the Motion for Preliminary Injunction and this Order by March 27, 2013 and file a certificate of service indicating same. A response to the Motion for Preliminary Injunction must be filed by April 19, 2013. Any reply to the response must be filed by May 1, 2013.
	  

4

 
 2:13-cv-11229-DPH-MAR Doc # 22 Filed 05/21/13 Pg 1 of 13 Pg ID 606

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EDEN FOODS, INC. and MICHAEL POTTER, Chairman, President and Sole Shareholder of Eden Foods, Inc.,
Plaintiffs,
v.

Civil Action No. 13-11229 Honorable Denise Page Hood

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; ACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,

Defendants. ___________________________________________/

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

I. BACKGROUND

On March 20, 2013, Plaintiffs filed the instantaction against Defendants Kathleen Sebelius,

Secretary of the United States Department of Health and Human Services; United States Department

of Health and Hum an Services (“HHS”); Seth Harris, Acting Secretary of the United States

Department of Labor ( “DOL”); Jack Lew, Secret ary of the United States Departm ent of the

Treasury; and United States Departm ent of the Treasury (“Treasury”). Plai ntiffs allege the

following claims: Violation ofthe First Amendment to the United States Constitution Free Exercise

Clause (Count I); Violation of the First Amendment to the UnitedStates Constitution Free Exercise

Clause (Count II); Violation of the First Amendment to the United States Constitution Free Exercise

2:13-cv-11229-DPH-MAR Doc # 22 Filed 05/21/13 Pg 2 of 13 Pg ID 607
Clause (Count III); V iolation of the F irst Amendment to the U nited States Constitution Establishment Clause (Count IV); Violation of the First Am endment to the United States Constitution Free Exercise Clause (Count V); Violation of the Religious Freedom Restoration Act (“RFRA”) (Count VI); Violation of the Administrative Procedure Act (Count VII); Violation of the Administrative Procedure Act (Count VIII); Violation of the Administrative Procedure Act (Count IX); and Violation of the Administrative Procedure Act (Count X).
The Complaint is a challenge to the regulations issued under the Patient Prote ction and Affordable Care Act (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the Health Care and Education Reconciliation Act (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (collectively, the “Affordable Care Act”). (Comp., ¶ 2) The Affordable Care Act mandates that health plans provide coverage with respect to women, such as additional preventive care and screenings and directs the Secretary of HHS to determine what would constitute “preventive care” under 42 U.S.C. § 3006613(a)(4). (Comp., ¶ 4) W ithout notice of rulemaking or opportunity for public com ment, HHS, DOL and the Treasury, adopted the Institute of Medicine (“IOM”) recommendations in full and promulgated an interim final rule (“Mandate”) which requires all group health plans and he alth insurance insurers offering group or individual helath insurance coverage provide all FDA-approved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. (Comp., ¶ 5) The Mandate requires all insurance carriers, including Blue Cross/Blue Shield of Michigan, to provide coverage for contraception, abortion, and abortifacients in all of its insurance plans, group and individual. (Comp., ¶ 6)
Plaintiffs assert that the Mandate forces employers and individuals to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers
2

2:13-cv-11229-DPH-MAR Doc # 22 Filed 05/21/13 Pg 3 of 13 Pg ID 608
which fund and directly provide for drugs, devices , and services which violate their deeply he ld religious beliefs. (Com p., ¶ 9) P laintiffs seek to enjoin D efendants from implementing and enforcing provisions of the regulations, specificallythe Mandate, asserting that the Mandate violates Plaintiffs’ rights to the free exercise of religoi n under the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act. (Comp., ¶ 12) Plaintiffs seek a Declaratory Judgment that the regulations, specifically the Mandate, violate Plaintiffs’ rights to the free exercise of religion under the First Ame ndment, the Religious Freedom Restoration Act, and the Administrative Procedure Act. (Comp., ¶ 13)
Potter is the Cha irman, President and sole shareholder of Eden Foods. (Com p., ¶ 15) Plaintiffs employ 128 full-tim e employees, are subject to the m onetary penalties under the Affordable Care Act, and are forced under the Manda te by penalty of heavy fines to conduct business in a m anner that violates their deeply held religious faith by providing and fundi ng contraceptives and abortifacients. (Comp., ¶ 16) Eden Foods is a for-profit, natural foods company. (Comp., ¶ 76) Potter asserts he cannot compartmentalize his conscience or his religious beliefs from his daily work and actions as Chairman, President, and sole shareholder of Eden Foods. (Comp., ¶ 77) Plaintiffs share a common mission of conducting their business operations with integrity and consistent with the teachings, mission, and values of the Catholic Church. (Comp., ¶ 77) Plaintiffs purchase and provide group insurance through Blue Corss/Blue Shield of Michigan and provide this insurance to their employees. (Comp., ¶ 78)
Due to the Mandate, Pl aintiffs are no longer allowed to exclude contraception and abortifacients from their insurance plan–and are forced to provide and pay for these services which violate their religious beliefs. (Comp., ¶ 89) Since Eden Foods’ inception, Plaintiffs have excluded
3

2:13-cv-11229-DPH-MAR Doc # 22 Filed 05/21/13 Pg 4 of 13 Pg ID 609
objectionable coverage such as providing contraception and abortifacients fromtheir insurance plan. (Comp., ¶ 90) When presented with a contracton February 21, 2013 amending the group insurance plan to include the contraception and abortifacientscoverage, Plaintiffs refused to sign the contract. (Comp., ¶ 91) Plaintiffs learned on March 15, 2013 that their group insurance pl an added the contraception and abortifacients coverage without their consent. (Comp., ¶ 93) Plaintiffs wish to conduct their business in a m anner that does not violate the principl es of their religious faith. (Comp., ¶ 94)
Plaintiffs assert they do not qualify for the “religious employer” exemption contained in 45 C.F.R. § 147.130(a)(1)(A) and (B). Since Plaintiffs do not qualify for the “ religious employer” exemption, they are not permitted to take advantage of the “temporary safe-harbor” set forth at 77 Fed. Register 8725 (Feb. 15, 2012). (Com p., ¶ 119) Pl aintiffs assert they m ust provide federal government-approved health insurance under the Affordable Care Ac t or pay substantial peremployee fines at $196,000 per year tax penalty. (Comp., ¶¶ 122-23) In addition, Plaintiffs assert that the Internal Revenue Code imposes a tax on any failure of a group plan to meet the requirements relating to group plan requirements which, for Plaintiffs, would be at $4,672,000 per year. (Comp., ¶ 124)
Plaintiffs assert that the Affordable Care Atcis not neutral becausesome groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. (Comp., ¶ 127) Plaintiffs claim that HHS has issued more than a thousand waivers regarding particular employers and other health insurance plan issuers from compliance with certain provisions of the Affordable Care Act. (Com p., ¶¶ 130-132) The Manda te indicates that the Health Resources and Services Administration (“HRSA”) “may” grant religious exemptions to certain religious employers if they
4

2:13-cv-11229-DPH-MAR Doc # 22 Filed 05/21/13 Pg 5 of 13 Pg ID 610
meet certain criteria and the ogr anization is a non-profit organization. 45 C.F.R. § 147.130(a)(iv)(A) and (B). (Comp., ¶¶ 184-85) There is no exemption for a for-profit company. (Comp., ¶ 188)
Plaintiffs filed a Motion for an Emergency Temporary Restraining Order and Preliminary Injunction. The Court denied the Motion for Emergency Temporary Restraining Order on March 22, 2013 and scheduled a hearing on the Motion for Preliminary Injunction. (Doc. No. 12) Defendants filed a response on April 19, 2013 and Palintiffs replied on May 1, 2013. A Motion for Leave to File Amicus Cureae Brief was filed by the American Civil Liberties Union and American Civil Liberties Union Fund of Michigan (co llectively, “ACLU”) on April 19, 2013. To date, no opposition has been filed to the ACLU’s motion. II. ANALYSIS
A. Preliminary Injunction Standard “The court may issue a preliminary injunction only on notice to the adverse party.” Fed. R. Civ. P. 65(a)(1). Four factors m ust be balan ced and considered before the Court m ay issue a preliminary injunction pursuant to Fed. R. Civ. P. 65(b): 1) the likelihood of the plaintiffs' success on the merits; 2) whether plaintiff will suffer irreparable injury without the injunction; 3) the harm to others which will occur ifthe injunction is granted; and 4) whether the injunction would serve the public interest. In re Delorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985);In re Eagle-Pitcher Industries, Inc., 963 F.2d 855, 858 (6th Cir. 1992); andN.A.A.C.P. v. City of Mansfield, Ohio, 866 F.2d 162, 166 (6th Cir. 1989). The first factor is tehmost critical inquiry of the four criteria.Mason County Med. Ass’n v. Knebel, 563 F.22d 256, 261 (6th Cir. 1977). In making its determination the “district court is required to make specific findings concerning each of the four factors, unless fewer factors are dispositive of the issue.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d
5

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393, 399 (6th Cir. 1997). B. Likelihood of Plaintiff’s Success on the Merits In their Motion f or Preliminary Injunction, Pl aintiffs assert that the Mandate violates
Plaintiffs’ rights under the RFRA and the FirsAt mendment of the Constitution. Defendants respond that Plaintiffs have not shown a likelihood of success on their claim under the RFRA and the First Amendment’s Free Exercise and Free Speech Clausse. The ACLU argues in support of Defendants’ response that Plaintiffs are unl ikely to succeed on the m erits of their claim that the federal contraception rule infringes on Pl aintiffs’ religious liberty. The ACLU asserts that courts have squarely rejected Plaintiffs’ argument that they have a right to discriminate against women and deny them benefits because of the com panies’ owners’ religious beliefs. The Court addresses below Plaintiffs’ RFRA and First Amendment claims.
1. RFRA Plaintiffs argue that the HHS Mandate violates the RFRA, 42 U.S.C. § 2000bb et seq. The RFRA strictly prohibits the Governm ent from substantially burdening a person’s exercise of religion, 42 U.S.C. § 2000bb-1(a), except when the Government can demonstrate that application of the burden to the person furthers a com pelling government interest and is the least restrictive means of furthering that interest. 42 U.S.C.§ 2000bb-1(b). The RFRA was enacted in response to the Supreme Court’s decision in Employment Division, Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990). In that case, the Supreme Court held that the right to the free exercise of religion under the First Amendment does not exempt an individual from a law that is neutral and of general applicability. The Supreme Court explicitly disavowed the test used in earlier decisions which prohibited the government from substantially burdening a plaintiff’s religious exercise unless
6

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the government could show that its action served acompelling interest and was the least restrictive means to achieve that interest. 42 U.S.C. § 2000bb. The purpose of the RFRA was to “restore the compelling interest test” as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 204 (1972).
The Court takes as true, Plaintiffs’ deeply heldreligious beliefs. However, courts have held that the Mandate in question applies only to the corporate entity, not to its officers or owners, and that as to the individual owner s, any burden imposed on them individually by the contraception mandate is remote and too attenuated to be considered substantial for purposes of the RFRA. See Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1294 ( W.D. Okla. 2012); Gilardi v. Sebelius, 2013 WL 71150, at *9 (D .D.C. Mar. 3, 2013); Conestoga Wood Specialties Corp. v. Sebelius, 2013 WL 140110, at **10, 14 (E.D. Pa. J an. 11, 2013); Grote v. Sebelius, 2013 WL 362725, at *6 (7th Cir. Jan. 30, 2013)(dissent).
The Tenth Circuit, in addressing a motion for an injunction pending resolution of the appeal on the Mandate issue, found that the plaintiffs/appellants failed to demonstrate entitlement to such relief. See Hobby Lobby Stores, Inc. v. Sebelius,2012 WL 6930302 at *1 (10th Cir. Dec. 20, 2012). Three types of prelim inary injunctions noted by the Tenth Circuit are specifically di sfavored: injunctions that alter the status quo (the last peaceable uncontested status existing between the parties before the dispute developed); mandatory injunctions (requiring the nonmoving party to take affirmative action before trial on the merits); and injunctions that afford the movant all of the relief it could recover at the conclusion of a full trial on the m erits. Id. The m ovant must show the preliminary injunction factors “weigh heavily and compellingly in its favor.”Id. The Tenth Circuit, in denying the request for injunction, found that thpelaintiffs/appellants failed to satisfy their burden
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as to the first element on their RFRA claim, that the challenged mandate substantially burdened their exercise of religion. Id. at *2. Since the plaintiffs/appellants could not meet this burden, there is no need to further consider whether the defendants have shown that the mandate is in furtherance of a compelling governmental interest and is the elast restrictive means of furthering that compelling governmental interest. Id. The Tenth Circ uit agreed with the district court’s substantial-burden analysis that:
[T]he particular burden of which plaintiffs c omplain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by the [c orporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.” Id. at *3 (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012). Plaintiffs in this case raise a similar argument that the Mandate substantially burdens their religious beliefs since the corporate entity providingat least part of the funds for its employees and its shareholder hold religious beliefs contrary tothe Mandate’s requirement that women be provided with birth control choices. The Tenth Circuit’s anaylsis on this issue applies in this instance because an employee’s participation (specifically women), after consultation with healthcare providers as to whether to take advantage of the birth controlchoices in the Mandate, is indirect and attenuated to the Plaintiffs’ religious beliefs. The employee may or may not participate in the Mandate’s offer. On leave to appeal to the United States Supreme Court as to the denial of the preliminary injunction motion, Justice Sonya Sotom ayor found that the applications did not satisf y the demanding standard for extraordinary relief sought because it is not “indisputably clear” that the
8

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applicants are entitled to such relie.f Hobby Lobby Stores, Inc. v. Sebelius,133. S.Ct. 641, 643 (Dec. 26, 2012) (in chambers). Justice Sotomayor noted that the Supreme Court has yet to address similar RFRA or free exercise of religion claims brought by closely held for-profit-corporations and their controlling shareholders alleging that the m andatory provision of certain em ployee benefits substantially burdens their exercise of religion. Id. Justice Sotomayor recognized that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims and that no court has issued a final decision granting permanent relief with respect to such claim s. Id. W hile the applicants allege irrepa rable harm if they are forced to choose between complying with the contraception-coveragerequirement and paying significant fines, they cannot show that an injunction is necessary or apporpriate to aid in the Supreme Court’s jurisdiction. Id.
The Sixth Circuit has addressed a m otion for an injunction pending an appea l of the plaintiffs’ motion for preliminary injunction which was denied by the district court in the Western District of Michigan. Autocam Corp. v. Sebelius,Case No. 12-2673 (Dec. 28, 2012) (Moore, Rogers and Griffin). The panel noted Justice Sotomayor’s decision addressed above. Although the panel wrote that the divergence of opinion by the district courts establishes the possibility of success on the merits, in light of the lower court’s reasoned opinion and the Supreme Court’s recent denial of an injunction pending appeal, the panel concluded that the plaintiffs have not demonstrated more than a possibility of relief. Id. at 2. The panel further stated that purely monetary damages, in this case the penalty the corporate entity may have to pay, do not warrant an injunction. Id. at 3. Also, if the penalties are codified as a tax, which the district court so noted, then taxes cannot be subject to a preliminary or permanent enjoinment. Id.; see Autocam Corp. v. Sebelius, 2012 WL 6845677
9

2:13-cv-11229-DPH-MAR Doc # 22 Filed 05/21/13 Pg 10 of 13 Pg ID 615
(W.D. Mich. Dec. 24, 2012)(Jonker). As stated by Justice Sotom ayor and the Sixth Circuit, there are divergent opinions as to
whether preliminary injunction should be granted pending a hearing on the merits before the district court on the Mandate issue based on a claim under the RFRA. In light of the above and that the initial issue of whether a corporate entity and its shareholder do not have such an established right under the RFRA, Plaintiffs in this case have not carried their burden to show that they are likely to succeed on the merits.
3. First Amendment Free Exercise Clause Plaintiffs assert that the HHS Mandate viol ates the Free Exercise Clause of the First Amendment to the United States Constitution. The Free Exercise Clause is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Sch. Dist. of Abington Twp. v. Schempp, 377 U.S. 203, 223 (1963). Religious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely human rights provided by the Constitution. Courts have held that the nature, history and purpose of the Free Exercise Clause dem onstrate that it is one of the “pur ely personal” rights and, as such, is unavailable to a secular, for-profit corpor ation. See, Conestoga Wood, 2013 WL 140110 at * 7. An incorporation’s basic purpose is to create a legal entity, with legal rights, obligations, powers, and pr ivileges different from those of natural individuals who created it, who own it, or whom it employs. Id. at *8, citing Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). The separation between a corporation a nd its owners means the corporation is not the alter ego of its owners for purposes of religious belief and exercise. Conestoga Wood, 2013 WL at *8.
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For the reasons s et forth above under the RFRA analysis and the law cited regarding corporate entities, Eden Foods has not carried its burden to show that it will likely succeed on the merits that it is able to proceed under the Free Exercise Clause of the First Amendment.
Regarding the individual Plaintiff Potter, as sole shareholder of Eden Foods, the Court is not persuaded at this time that he has demonstrated that the Mandate violates the Free Exercise Clause based on his argument that the Mandate is not neutral nor generally applicable.
The protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). Where a law is found to violate the Free Exercise Cl ause, it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. Id. at 533. The Free Exercise Clause is not violated by a “valid and neutral lwa of general applicability on the ground that the law proscribes conduct that a plaintiff’s religion prescribes. Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). A neutral law of general applicability need only be “rationally related to a legitimate government objective” to be upheld. Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 243 (3d Cir. 2008). Courts have held that the Women’s Preventive Healthcare Regulations are not specifically targeted at conduct motivated by religious belief. O’Brien v. U.S Dep’t of Health & Human Services, 2012 WL 4481208, at *8 (E.D. Mo. Sept. 28, 2012). Even though exemptions were made for religious employees, this does not indicate that the regulations seek to burden religion but that the government made efforts to accommodate religious beliefs. Id. The purpose of the Women’s Preventive Healthcare Regulations is not to target religion, but instead to promote public health and gender equality. Id. at *7; Hobby Lobby, 870 F.Supp.2d at 1289-90.
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Since courts have held that the regulations at issue do not offend the Free Exercise Clause, t he individual Plaintiff Potter has not carried his burdne to show that he willlikely succeed on the merits of his Free Exercise Clause claim.
The individual Plaintiff Potter has not show n anything new as to the Court’s previous analysis on his Free Exercise claim. For the reasons set forth above in the RFRA analysis and the law cited in this section, individual Potter has notmet his burden to show that he will likely succeed on the merits.
C. Irreparable Injury Because the Court finds Plaintiffs have not carried their burden as to the likelihood of success on the merits factor, this Court need not address the remaining factors. Even if Plaintiffs could meet the likelihood of success factor, Plaintiffs harm is monetary. As noted above, the Sixth Circuit has found that purely monetary damages do not warrant an injunction. Autocam, Case No. 12-2673 at 3. In addition, if the penalties are codifiedas a tax, which the district court so noted, then taxes cannot be subject to preliminary or permanent enjoinment. Id.; see Autocam Corp. v. Sebelius, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012)(Jonker). It is well settled that a plaintiff's harm is not irreparable if it is fully compensable by money damages. Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992);Overstreet v. Lexington-Fayette Urban County Government,305 F.3d 566, 579 (6th Cir. 2002). D. Harm to Others and Public Interest Because Plaintiff is unable to meet the likelihood of success on the merits and irreparable injury factors, the two m ost important factors, these two other factor s need not be addressed. However, based on both parties’ briefs and theamici brief, these two remaining factors do not weigh
12

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in favor of any party. There is public interest inbeing able to exercise one’s religious belief under the RFRA and the First Amendment, but also in providing healthcare options to all. III. CONCLUSION
For the reasons set forth above, IT IS ORDERED that the Motion for Preliminary Injunction (Doc. No. 10) is DENIED. IT IS FURTHER ORDERED that the Motion for Leave to File Amicus Curiae Brief (Doc. No. 13) is GRANTED.
S/Denise Page Hood Denise Page Hood United States District Judge Dated: May 21, 2013 I hereby certify that a copy of the foregoing document was served upon counsel of record on May 21, 2013, by electronic and/or ordinary mail. S/LaShawn R. Saulsberry Case Manager
13

 
 2:13-cv-11229-DPH-MAR Doc # 29 Filed 06/12/13 Pg 1 of 1 Pg ID 669

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

____________________________________

)

EDEN FOODS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

____________________________________)

Case No. 2:13-cv-11229
Judge Denise Page Hood
Magistrate Judge Mark A. Randon
JOINT MOTION TO STAY DISTRICT COURT PROCEEDINGS PENDING APPEAL

ORDER GRANTING JOINT MOTION TO STAY DISTRICT COURT PROCEEDINGS PENDING APPEAL
Given the parties’ Joint Motion to Stay District Court Proceedings Pending Appeal, Docket No. 25, it is ORDERED:
The parties’ motion is GRANTED. The above-captioned matter is hereby stayed pending a further order of this Court, or upon a motion to lift the stay filed by either party.

Dated: June 12, 2013
DENISE U.S.

s/Denise Page Hood
PAGE HOOD DISTRICT COURTJUDGE

I hereby certify that a copy of this order was served upon the attorneys of record on this date, June 12, 2013, by electronic and/or ordinary mail.

s/LaShawn R. Saulsberry Case Manager

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

August 4, 2014

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

Clerk United States Court of Appeals
for the Sixth Circuit 524 Potter Stewart Courthouse 100 East Fifth Street Cincinnati, Ohio 45202

Re: Eden Foods, Inc., et al. v. Sylvia Burwell, Secretary of Health and Human Services, et al. No. 13-591 (Your docket No. 13-1677)

Dear Clerk: Attached please find a certified copy of the judgment of this Court in the above-
entitled case. You may obtain a copy of the opinion cited in the judgment by visiting our website @www.supremecourt.gov.
Sincerely, SCOTT S. HARRIS, Clerk
By Elizabeth Brown Judgments/Mandates Clerk
Enc. cc: Richard Thompson, Esq.
Solicitor General

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

August 4, 2014

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

Mr. Richard Thompson Thomas More Law Center 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106

Re: Eden Foods, Inc., et al. v. Sylvia Burwell, Secretary of Health and Human Services, et al. No. 13-591

Dear Mr. Thompson:

Today, a certified copy of the judgment of this Court in the above-entitled case was emailed to the Clerk of the United States Court of Appeals for the Sixth Circuit.

The petitioners are given recovery of costs in this Court as follows:

Clerk’s costs:

$300.00

This amount may be collected from the respondents.

Sincerely,

SCOTT S. HARRIS, Clerk

By
Elizabeth Brown Judgments/Mandates Clerk

cc: Solicitor General Clerk, USCA for the Sixth Circuit (Your docket No. 13-1677)

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Supreme Court of the United States

No.

13-591

EDEN FOODS, INC., ET AL., v.

Petitioners

SYLVIA BURWELL, SECRETARY OF HEALTH and HUMAN SERVICES, ET AL.

ON PETITION FOR WRIT OF CERTIORARI to the United States Court of Appeals for the Sixth Circuit.
THIS CAUSE having been submitted on the petition for writ of certiorari and the response thereto.
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the petition for writ of certiorari is granted. The judgment of the above court is vacated with costs, and the case is remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014).
IT IS FURTHER ORDERED that the petitioners Eden Foods, Inc., et al. recover from Sylvia Burwell, Secretary of Health and Human Services, et al. Three Hundred Dollars ($300.00) for costs herein expended.

Clerk’s costs:

$300.00

July 1, 2014

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(Slip Opinion)

OCTOBER TERM, 2013

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
BURWELL, SECRETARY OF HEALTH AND HUMAN 
 SERVICES, ET AL. v. HOBBY LOBBY STORES, INC., 

ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 13–354. Argued March 25, 2014—Decided June 30, 2014*
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden 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). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). At issue here are regulations promulgated by the Department of Health and Human Services (HHS) under the Patient Protection and Affordable Care Act of 2010 (ACA), which, as relevant here, requires specified employers’ group health plans to furnish “preventive care and screenings” for women without “any cost sharing requirements,” 42 U. S. C. §300gg–13(a)(4). Congress did not specify what types of preventive care must be covered; it authorized the Health Resources and Services Administration, a component of HHS, to decide. Ibid. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Admin-
—————— * Together with No. 13–356, Conestoga Wood Specialties Corp. et al.
v. Burwell, Secretary of Health and Human Services, et al., on certiorari to the United States Court of Appeals for the Third Circuit.

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2

BURWELL v. HOBBY LOBBY STORES, INC.

Syllabus
istration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any costsharing requirements on the employer, its insurance plan, or its employee beneficiaries.
In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives. In No. 13–356, the District Court denied the Hahns and their company—Conestoga Wood Specialties—a preliminary injunction. Affirming, the Third Circuit held that a for-profit corporation could not “engage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their personal capacity. In No. 13–354, the Greens, their children, and their companies—Hobby Lobby Stores and Mardel—were also denied a preliminary injunction, but the Tenth Circuit reversed. It held that the Greens’ businesses are “persons” under RFRA, and that the corporations had established a likelihood of success on their RFRA claim because the contraceptive mandate substantially burdened their exercise of religion and HHS had not demonstrated a compelling interest in enforcing the mandate against them; in the alternative, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.
Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA. Pp. 16–49. (a) RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mardel. Pp. 16–31. (1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as cor-

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Cite as: 573 U. S. ____ (2014)

3

Syllabus
porations. RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. Pp. 16–19.
(2) HHS and the dissent make several unpersuasive arguments. Pp. 19–31.
(i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] corporations, . . . as well as individuals.” 1 U. S. C. §1. The Court has entertained RFRA and free-exercise claims brought by nonprofit corporations. See, e.g., Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418. And HHS’s concession that a nonprofit corporation can be a “person” under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; no conceivable definition of “person” includes natural persons and nonprofit corporations, but not for-profit corporations. Pp. 19–20.
(ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profitmaking objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U. S. 599. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877. Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles. Pp. 20–25.
(iii) Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of religion” was meant to be tied to pre-

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4

BURWELL v. HOBBY LOBBY STORES, INC.

Syllabus
Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enough, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition of the phrase from that in First Amendment case law. Third, the preSmith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored this Court’s pre-Smith decisions in ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had recognized before Smith. Pp. 25–28.
(3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because of the difficulty of ascertaining the “beliefs” of large, publicly traded corporations, but HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. That disputes among the owners of corporations might arise is not a problem unique to this context. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. Courts will turn to that structure and the underlying state law in resolving disputes. Pp. 29–31.
(b) HHS’s contraceptive mandate substantially burdens the exercise of religion. Pp. 31–38.
(1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere religious belief that life begins at conception. If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel. And if they drop coverage altogether, they could face penalties of roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. P. 32.
(2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average cost of providing insurance, and therefore that dropping insurance coverage eliminates any substantial burden imposed by the mandate. HHS has never argued this and the Court does not know its position with respect to the argument. But even if the Court reached the argument, it would find it unpersuasive: It ignores the fact that the plaintiffs have religious reasons for providing health-insurance coverage for their employees, and it is far from clear that the net cost to the companies of providing insur-

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ance is more than the cost of dropping their insurance plans and paying the ACA penalty. Pp. 32–35.
(3) HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral 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. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief reflects “an honest conviction,” id., at 716, and there is no dispute here that it does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distinguished. Pp. 35–38.
(c) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. Pp. 38–49.
(1) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 39–40.
(2) The Government has failed to satisfy RFRA’s leastrestrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests. Pp. 40–45.
(3) This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage man-

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dates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee, 455 U. S. 252, which upheld the payment of Social Security taxes despite an employer’s religious objection, is not analogous. It turned primarily on the special problems associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there is no less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternative to the contraceptive mandate. Pp. 45–49. No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to all but Part III–C–1. BREYER and KAGAN, JJ., filed a dissenting opinion.

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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. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

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


AND


CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

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

[June 30, 2014]


JUSTICE ALITO delivered the opinion of the Court.
We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the

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Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.
In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.
Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.
Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.

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In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.
As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women em-

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ployed by Hobby Lobby.” Post, at 2.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
I 
 A 

Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employ­ ment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U. S. 398 (1963), and Wiscon­ sin v. Yoder, 406 U. S. 205 (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U. S., at 408–409. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U. S., at 210–211, 234–236.
In Smith, however, the Court rejected “the balancing
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1 See also post, at 8 (“The exemption sought by Hobby Lobby and Conestoga . . . would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure”)

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test set forth in Sherbert.” 494 U. S., at 883. Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U. S., at 875.
This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 494 U. S., at 888. The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U. S. 507, 514 (1997).
Congress responded to Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U. S. C. §2000bb(a)(2); see also §2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb–1(a).2 If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “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 govern-
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2 The Act defines “government” to include any “department” or “agency” of the United States. §2000bb–2(1).

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mental interest.” §2000bb–1(b).3 As enacted in 1993, RFRA applied to both the Federal
Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U. S., at 516–517. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533–534. See also id., at 532.
Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See Cutter v. Wilkinson, 544 U. S. 709, 715–716 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” See §2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition

——————
3 In City of Boerne v. Flores, 521 U. S., 507 (1997), we wrote that RFRA’s “least restrictive means requirement was not used in the preSmith jurisprudence RFRA purported to codify.” Id., at 509. On this understanding of our pre-Smith cases, RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions.
4 See, e.g., Hankins v. Lyght, 441 F. 3d 96, 108 (CA2 2006); Guam v. Guerrero, 290 F. 3d 1210, 1220 (CA9 2002).

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made reference to the First Amendment. See §2000bb– 2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc– 3(g).5
B
At issue in these cases are HHS regulations promulgated under the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U. S. C. §5000A(f)(2); §§4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individ-
——————
5 The principal dissent appears to contend that this rule of construction should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase “exercise of religion,” as it appears in RLUIPA, must be interpreted broadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” 42 U. S. C. §2000bb–2(4). It necessarily follows that the “exercise of religion” under RFRA must be given the same broad meaning that applies under RLUIPA.

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ual.” §§4980D(a)–(b). And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its fulltime employees. §§4980H(a), (c)(1).
Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U. S. C. §300gg–13(a)(4). Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See 77 Fed. Reg. 8725–8726 (2012).
In August 2011, based on the Institute’s recommendations, the HRSA promulgated the Women’s Preventive Services Guidelines. See id., at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725 (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS

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Opinion of the Court
in No. 13–354, pp. 9–10, n. 4;6 FDA, Birth Control: Medicines to Help You.7
HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” 45 CFR §147.131(a). That category encompasses “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26 U. S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services. See http://hrsa.gov/ womensguidelines.
In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contraceptive mandate. See 45 CFR §147.131(b); 78 Fed. Reg. 39874 (2013). An “eligible organization” means a nonprofit organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 CFR §147.131(b). To qualify for this accommodation, an employer must certify that it is such an organization. §147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan
——————
6 We will use “Brief for HHS” to refer to the Brief for Petitioners in No. 13–354 and the Brief for Respondents in No. 13–356. The federal parties are the Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments.
7 Online at http://www.fda.gov/forconsumers/byaudience/forwomen/ freepublications/ucm313215.htm. The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, see, e.g., 62 Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify them.

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and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. §147.131(c).8 Although this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed. Reg. 39877.9
In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. 42 U. S. C. §§18011(a), (e). And employers with fewer than 50 employees are not required to provide health insurance
——————
8 In the case of self-insured religious organizations entitled to the accommodation, the third-party administrator of the organization must “provide or arrange payments for contraceptive services” for the organization’s employees without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815– 2713A(b)(2)). The regulations establish a mechanism for these thirdparty administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insurers to participate in the federally facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–2713A (b)(3)). HHS believes that these fee reductions will not materially affect funding of the exchanges because “payments for contraceptive services will represent only a small portion of total [exchange] user fees.” 78 Fed. Reg. 39882.
9 In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. See Little Sisters of the Poor v. Sebelius, 571 U. S. ___ (2014).

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at all. 26 U. S. C. §4980H(c)(2). All told, the contraceptive mandate “presently does not
apply to tens of millions of people.” 723 F. 3d 1114, 1143 (CA10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221.10 The count for employees working for firms that do not have to provide insurance at all because they employ fewer than 50 employees is 34 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Businesses 1.11
II
 A 

Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages . . . shares humanity with those who conceived it.”12
Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania
——————
10 While the Government predicts that this number will decline over time, the total number of Americans working for employers to whom the contraceptive mandate does not apply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out.
11 Online at http : / / www . whitehouse . gov / files / documents / health _ reform_for_small_businesses.pdf.
12 Mennonite Church USA, Statement on Abortion, online at http://www.mennoniteusa.org /resource-center/resources/statements-andresolutions/statement-on-abortion/.

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law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO.
The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” 917 F. Supp. 2d 394, 402 (ED Pa. 2013). To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” Ibid. (internal quotation marks omitted). The company’s “Vision and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.” App. in No. 13–356, p. 94 (complaint).
As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” 724 F. 3d 377, 382, and n. 5 (CA3 2013) (internal quotation marks omitted). It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” Ibid. (internal quotation marks omitted). The Hahns have accordingly excluded from the grouphealth-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients. Id., at 382.
The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDAapproved contraceptives that may operate after the fertilization of an egg.13 These include two forms of emergency
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13 The Hahns and Conestoga also claimed that the contraceptive

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contraception commonly called “morning after” pills and two types of intrauterine devices.14
In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” Ibid. The District Court denied a preliminary injunction, see 917 F. Supp. 2d, at 419, and the Third Circuit affirmed in a divided opinion, holding that “forprofit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First Amendment. 724 F. 3d, at 381. The Third Circuit also rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity. Id., at 389.
B
David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-andcrafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 13,000 employees. 723 F. 3d, at 1122. Hobby Lobby is organized as a for-profit corporation under Oklahoma law.
One of David’s sons started an affiliated business, Mardel, which operates 35 Christian bookstores and employs close to 400 people. Ibid. Mardel is also organized as a for-profit corporation under Oklahoma law.
Though these two businesses have expanded over the
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mandate violates the Fifth Amendment and the Administrative Procedure Act, 5 U. S. C. §553, but those claims are not before us.
14 See, e.g., WebMD Health News, New Morning-After Pill Ella Wins FDA Approval, online at http://www.webmd.com/sex/birth-control/news/ 20100813/new-morning-after-pill-ella-wins-fda-approval.

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years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. Ibid. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO. See Brief for Respondents in No. 13–354, p. 8.15
Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.” App. in No. 13–354, pp. 134–135 (complaint). Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. 723 F. 3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. Id., at 1122; App. in No. 13– 354, at 136–137. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” Ibid. (internal quotation marks omitted).
Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. 723 F. 3d, at 1122. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Id., at 1125. Although their group-health-insurance plan predates the enactment of ACA, it is not a grandfathered plan

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15 The Greens operate Hobby Lobby and Mardel through a management trust, of which each member of the family serves as trustee. 723 F. 3d 1114, 1122 (CA10 2013). The family provided that the trust would also be governed according to their religious principles. Ibid.

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because Hobby Lobby elected not to retain grandfathered status before the contraceptive mandate was proposed. Id., at 1124.
The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the contraceptive mandate under RFRA and the Free Exercise Clause.16 The District Court denied a preliminary injunction, see 870 F. Supp. 2d 1278 (WD Okla. 2012), and the plaintiffs appealed, moving for initial en banc consideration. The Tenth Circuit granted that motion and reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law.
The court then held that the corporations had established a likelihood of success on their RFRA claim. 723 F. 3d, at 1140–1147. The court concluded that the contraceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annually if they “drop[ped] health-insurance benefits for all employees.” Id., at 1141.
The court next held that HHS had failed to demonstrate a compelling interest in enforcing the mandate against the Greens’ businesses and, in the alternative, that HHS had failed to prove that enforcement of the mandate was the “least restrictive means” of furthering the Government’s asserted interests. Id., at 1143–1144 (emphasis deleted; internal quotation marks omitted). After concluding that the companies had “demonstrated irreparable harm,” the
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16 They also raised a claim under the Administrative Procedure Act, 5 U. S. C. §553.

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court reversed and remanded for the District Court to consider the remaining factors of the preliminaryinjunction test. Id., at 1147.17
We granted certiorari. 571 U. S. ___ (2013).
III
 A 

RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden 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) (emphasis added). The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel.
HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannot be heard because the regulations, at least as a formal matter, apply only to the companies and not to the owners as individuals. HHS’s argument would have dramatic consequences.
Consider this Court’s decision in Braunfeld v. Brown,

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17 Given its RFRA ruling, the court declined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 723 F. 3d, at 1156 (Gorsuch, J., concurring); id., at 1184 (Matheson, J., concurring in part and dissenting in part), and three of those judges would have granted plaintiffs a preliminary injunction, see id., at 1156 (Gorsuch, J., concurring).

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366 U. S. 599 (1961) (plurality opinion). In that case, five Orthodox Jewish merchants who ran small retail businesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free Exercise Clause. Because of their faith, these merchants closed their shops on Saturday, and they argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court entertained their claim (although it ruled against them on the merits), and if a similar claim were raised today under RFRA against a jurisdiction still subject to the Act (for example, the District of Columbia, see 42 U. S. C. §2000bb–2(2)), the merchants would be entitled to be heard. According to HHS, however, if these merchants chose to incorporate their businesses—without in any way changing the size or nature of their businesses—they would forfeit all RFRA (and free-exercise) rights. HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.
As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.18 Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests? An examination of RFRA’s text, to which we turn
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18 As discussed, n. 3, supra, in City of Boerne we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was required by our pre-Smith decisions. Although the author of the principal dissent joined the Court’s opinion in City of Boerne, she now claims that the statement was incorrect. Post, at 12. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre-Smith cases. See infra, at 25–28.

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in the next part of this opinion, reveals that Congress did no such thing.
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:
“General business corporations do not, separate and apart from the actions or belief systems of their indi­ vidual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F. 3d, at 385 (emphasis added).
All of this is true—but quite beside the point. Corpora-

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tions, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.
B 1
As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1.
Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.
We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17;

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Reply Brief in No. 13–354, at 7–8.19 This concession effectively dispatches any argument
that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.20 Cf. Clark v. Martinez, 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”).
2
The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion.
Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can
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19 Cf. Brief for Federal Petitioners in O Centro, O. T. 2004, No. 04– 1084, p. II (stating that the organizational respondent was “a New Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor, O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesiastical corporation”).
20 Not only does the Government concede that the term “persons” in RFRA includes nonprofit corporations, it goes further and appears to concede that the term might also encompass other artificial entities, namely, general partnerships and unincorporated associations. See Brief for HHS in No. 13–354, at 28, 40.

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be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their religious “autonomy . . . often furthers individual religious freedom as well.” Post, at 15 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle applies equally to for-profit corporations: Furthering their religious freedom also “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.21
If the corporate form is not enough, what about the profit-making objective? In Braunfeld, 366 U. S. 599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profession but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Smith, 494 U. S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition. Thus, a law that “operates so as to make the practice of . . . religious beliefs more expensive” in the context of business activities imposes a burden on the exercise of religion. Braunfeld, supra, at 605; see United States v. Lee, 455 U. S. 252, 257 (1982) (recognizing that “compulsory participation in the social security system interferes with [Amish employers’] free exercise
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21 Although the principal dissent seems to think that Justice Brennan’s statement in Amos provides a ground for holding that for-profit corporations may not assert free-exercise claims, that was not Justice Brennan’s view. See Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, 642 (1961) (dissenting opinion); infra, at 26– 27.

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rights”). If, as Braunfeld recognized, a sole proprietorship that
seeks to make a profit may assert a free-exercise claim,22 why can’t Hobby Lobby, Conestoga, and Mardel do the same?
Some lower court judges have suggested that RFRA does not protect for-profit corporations because the purpose of such corporations is simply to make money.23 This
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22 It is revealing that the principal dissent cannot even bring itself to acknowledge that Braunfeld was correct in entertaining the merchants’ claims. See post, at 19 (dismissing the relevance of Braunfeld in part because “[t]he free exercise claim asserted there was promptly rejected on the merits”).
23 See, e.g., 724 F. 3d, at 385 (“We do not see how a for-profit, ‘artificial being,’ . . . that was created to make money” could exercise religion); Grote v. Sebelius, 708 F. 3d 850, 857 (CA7 2013) (Rovner, J. dissenting) (“So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere”); Autocam Corp. v. Sebelius, 730 F. 3d 618, 626 (CA7 2013) (“Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as ‘persons’ under RFRA”); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting) (“[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorized and treated under the law” and “it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers”).
The principal dissent makes a similar point, stating that “[f]or-profit corporations are different from religious nonprofits in that they use labor to make a profit, rather than to perpetuate the religious values shared by a community of believers.” Post, at 18–19 (internal quotation marks omitted). The first half of this statement is a tautology; forprofit corporations do indeed differ from nonprofits insofar as they seek to make a profit for their owners, but the second part is factually untrue. As the activities of the for-profit corporations involved in these cases show, some for-profit corporations do seek “to perpetuate the religious values shared,” in these cases, by their owners. Conestoga’s Vision and Values Statement declares that the company is dedicated to operating “in [a] manner that reflects our Christian heritage and the highest ethical and moral principles of business.” App. in No. 13–356, p. 94. Similarly, Hobby Lobby’s statement of purpose proclaims that the company “is committed to . . . Honoring the Lord in all we do by

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argument flies in the face of modern corporate law. “Each American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general corporation act for any lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1, p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations §102 (rev. ed. 2010). While it is certainly true that a central objective of forprofit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energyconservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.
HHS would draw a sharp line between nonprofit corpo-
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operating . . . in a manner consistent with Biblical principles.” App. in No. 13–354, p. 135. The dissent also believes that history is not on our side because even Blackstone recognized the distinction between “ecclesiastical and lay” corporations. Post, at 18. What Blackstone illustrates, however, is that dating back to 1765, there was no sharp divide among corporations in their capacity to exercise religion; Blackstone recognized that even what he termed “lay” corporations might serve “the promotion of piety.” 1 W. Blackstone, Commentaries on the Law of England 458–459 (1765). And whatever may have been the case at the time of Blackstone, modern corporate law (and the law of the States in which these three companies are incorporated) allows forprofit corporations to “perpetuat[e] religious values.”

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rations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.24 In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.25
In any event, the objectives that may properly be pur-

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24 See, e.g., M. Sanders, Joint Ventures Involving Tax-Exempt Organizations 555 (4th ed. 2013) (describing Google.org, which “advance[s] its charitable goals” while operating as a for-profit corporation to be able to “invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce” (internal quotation marks and alterations omitted)); cf. 26 CFR §1.501(c)(3)–1(c)(3).
25 See Benefit Corp Information Center, online at http:// www.benefitcorp.net/state-by-state-legislative-status; e.g., Va. Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corporation shall have as one of its purposes the purpose of creating a general public benefit,” and “may identify one or more specific public benefits that it is the purpose of the benefit corporation to create. . . . This purpose is in addition to [the purpose of engaging in any lawful business].” “ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or educational purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation . . . .”); S. C. Code Ann. §§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012 Cum. Supp.) (similar).

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sued by the companies in these cases are governed by the laws of the States in which they were incorporated— Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in conformity with the owners’ religious principles. 15 Pa. Cons. Stat. §1301 (2001) (“Corporations may be incorporated under this subpart for any lawful purpose or purposes”); Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (“[E]very corporation, whether profit or not for profit” may “be incorporated or organized . . . to conduct or promote any lawful business or purposes”); see also §1006(A)(3); Brief for State of Oklahoma as Amicus Curiae in No. 13–354.
3
HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre-Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws.
First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of religion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. 42 U. S. C. §2000bb–2(4) (1994 ed.). When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, 28

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U. S. C. §2254(d)(1) (authorizing habeas relief from a state-court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”).
Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the First Amendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted to tie RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc– 3(g). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre-Smith decisions.
Third, the one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961), the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a forprofit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim,26 but not one member of the Court expressed agreement with that

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26 See Brief for Appellants in Gallagher, O. T. 1960 No. 11, pp. 16, 28– 31 (arguing that corporation “has no ‘religious belief’ or ‘religious liberty,’ and had no standing in court to assert that its free exercise of religion was impaired”).

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argument. The plurality opinion for four Justices rejected the First Amendment claim on the merits based on the reasoning in Braunfeld, and reserved decision on the question whether the corporation had “standing” to raise the claim. See 366 U. S., at 631. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the other challengers and thus implicitly recognized their right to assert a free-exercise claim. See id., at 642 (Brennan, J., joined by Stewart, J., dissenting); McGowan v. Maryland, 366 U. S. 420, 578–579 (1961) (Douglas, J., dissenting as to related cases including Gallagher). Finally, Justice Frankfurter’s opinion, which was joined by Justice Harlan, upheld the Massachusetts law on the merits but did not question or reserve decision on the issue of the right of the corporation or any of the other challengers to be heard. See McGowan, 366 U. S., at 521– 522. It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty, left for-profit corporations unprotected simply because in Gallagher—the only pre-Smith case in which the issue was raised—a majority of the Justices did not find it necessary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim.
Finally, the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?
Presumably in recognition of the weakness of this ar-

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gument, both HHS and the principal dissent fall back on the broader contention that the Nation lacks a tradition of exempting for-profit corporations from generally applicable laws. By contrast, HHS contends, statutes like Title VII, 42 U. S. C. §2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. See, e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).27 If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations.

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27 The principal dissent points out that “the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage.” Post, at 16, n. 15. The dissent takes this to mean that RFRA did not, in fact, “ope[n] all statutory schemes to religion-based challenges by forprofit corporations” because if it had “there would be no need for a statute-specific, post-RFRA exemption of this sort.” Ibid.
This argument fails to recognize that the protection provided by §238n(a) differs significantly from the protection provided by RFRA. Section 238n(a) flatly prohibits discrimination against a covered healthcare facility for refusing to engage in certain activities related to abortion. If a covered healthcare facility challenged such discrimination under RFRA, by contrast, the discrimination would be unlawful only if a court concluded, among other things, that there was a less restrictive means of achieving any compelling government interest.
In addition, the dissent’s argument proves too much. Section 238n(a) applies evenly to “any health care entity”—whether it is a religious nonprofit entity or a for-profit entity. There is no dispute that RFRA protects religious nonprofit corporations, so if §238n(a) were redundant as applied to for-profit corporations, it would be equally redundant as applied to nonprofits.

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4
Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at 30.
These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders— including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.28
HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. On the contrary, the scope of RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category
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28 To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Cf., e.g., United States v. Quaintance, 608 F. 3d 717, 718–719 (CA10 2010).

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that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners to assert claims of dubious sincerity was well documented.29 Nevertheless, after our decision in City of Boerne, Congress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seemingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits?
HHS and the principal dissent express concern about the possibility of disputes among the owners of corporations, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do— disagree about the conduct of business. 1 Treatise of the Law of Corporations §14:11. And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8, §351 (2011) (providing that certificate of incorporation

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29 See, e.g., Ochs v. Thalacker, 90 F. 3d 293, 296 (CA8 1996); Green v. White, 525 F. Supp. 81, 83–84 (ED Mo. 1981); Abate v. Walton, 1996 WL 5320, *5 (CA9, Jan. 5, 1996); Winters v. State, 549 N. W. 2d 819– 820 (Iowa 1996).

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may provide how “the business of the corporation shall be managed”). Courts will turn to that structure and the underlying state law in resolving disputes.
For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.30
IV
Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. 42 U. S. C. §2000bb– 1(a). We have little trouble concluding that it does.
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30 The principal dissent attaches significance to the fact that the “Senate voted down [a] so-called ‘conscience amendment,’ which would have enabled any employer or insurance provider to deny coverage based on its asserted religious beliefs or moral convictions.” Post, at 6. The dissent would evidently glean from that vote an intent by the Senate to prohibit for-profit corporate employers from refusing to offer contraceptive coverage for religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA’s standards. But that is not the only plausible inference from the failed amendment—or even the most likely. For one thing, the text of the amendment was “written so broadly that it would allow any employer to deny any health service to any American for virtually any reason—not just for religious objections.” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral objectors; it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but also the government’s interest and how narrowly tailored the requirement is. It is thus perfectly reasonable to believe that the amendment was voted down because it extended more broadly than the pre-existing protections of RFRA. And in any event, even if a rejected amendment to a bill could be relevant in other contexts, it surely cannot be relevant here, because any “Federal statutory law adopted after November 16, 1993 is subject to [RFRA] unless such law explicitly excludes such application by reference to [RFRA].” 42 U. S. C. §2000bb–3(b) (emphasis added). It is not plausible to find such an explicit reference in the meager legislative history on which the dissent relies.

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Opinion of the Court
A
As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.
If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. 26 U. S. C. §4980D. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial.
It is true that the plaintiffs could avoid these assessments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a subsidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. §4980H. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel.
B
Although these totals are high, amici supporting HHS

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have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance, see Brief for Religious Organizations 22, and therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, see United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, n. 2 (1981); Bell v. Wolfish, 441 U. S. 520, 532, n. 13 (1979); Knetsch v. United States, 364 U. S. 361, 370 (1960), and there are strong reasons to adhere to that practice in these cases. HHS, which presumably could have compiled the relevant statistics, has never made this argument— not in its voluminous briefing or at oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue now before us has been litigated around the country. As things now stand, we do not even know what the Government’s position might be with respect to these amici’s intensely empirical argument.31 For this same reason, the plaintiffs have never had an opportunity to respond to this novel claim that—contrary to their longstanding practice and that of most large employers— they would be better off discarding their employer insurance plans altogether.
Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they nevertheless did so—in part, no doubt, for conventional business

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31 Indeed, one of HHS’s stated reasons for establishing the religious accommodation was to “encourag[e] eligible organizations to continue to offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added).

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reasons, but also in part because their religious beliefs govern their relations with their employees. See App. to Pet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354, at 139.
Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that employees value. If the companies simply eliminated that benefit and forced employees to purchase their own insurance on the exchanges, without offering additional compensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers. See App. in No. 13–354, at 153.
The companies could attempt to make up for the elimination of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. 26 U. S. C. §106(a). Likewise, employers can deduct the cost of providing health insurance, see §162(a)(1), but apparently cannot deduct the amount of the penalty that they must pay if insurance is not provided; that difference also must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.32
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32 Attempting to compensate for dropped insurance by raising wages would also present administrative difficulties. In order to provide full

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In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government— that dropping insurance coverage eliminates the substantial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.
C
In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 13–354, pp. 31–34; post, at 22–23. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue.33 Ibid.
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compensation for employees, the companies would have to calculate the value to employees of the convenience of retaining their employerprovided coverage and thus being spared the task of attempting to find and sign up for a comparable plan on an exchange. And because some but not all of the companies’ employees may qualify for subsidies on an exchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante for all employees.
33 This argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same religious objections as the Hahns and Greens and their companies. The connection between what these religious employers would be required

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This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.34 Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the princi-
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to do if not exempted (provide insurance coverage for particular contraceptives) and the ultimate event that they find morally wrong (destruction of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury Departments authorized the exemption from the contraceptive mandate of group health plans of certain religious employers, and later expanded the exemption to include certain nonprofit organizations with religious objections to contraceptive coverage. 78 Fed. Reg. 39871. When this was done, the Government made clear that its objective was to “protec[t]” these religious objectors “from having to contract, arrange, pay, or refer for such coverage.” Ibid. Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial.
34 See, e.g., Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins, Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The general principles governing cooperation” in wrongdoing—i.e., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and without approving of what B does”).

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pal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, e.g., Smith, 494 U. S., at 887 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim”); Hernandez v. Commissioner, 490 U. S. 680, 699 (1989); Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 450 (1969).
Moreover, in Thomas v. Review Bd. of Indiana Employ­ ment Security Div., 450 U. S. 707 (1981), we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. In Thomas, a Jehovah’s Witness was initially employed making sheet steel for a variety of industrial uses, but he was later transferred to a job making turrets for tanks. Id., at 710. Because he objected on religious grounds to participating in the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the employee, the state court had difficulty with the line that the employee drew between work that he found to be consistent with his religious beliefs (helping to manufacture steel that was used in making weapons) and work that he found morally objectionable (helping to make the weapons themselves). This Court, however, held that “it is not for us to say that the line he drew was an unreasonable one.” Id., at 715.35
Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to
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35 The principal dissent makes no effort to reconcile its view about the substantial-burden requirement with our decision in Thomas.

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determine” whether the line drawn reflects “an honest conviction,” id., at 716, and there is no dispute that it does.
HHS nevertheless compares these cases to decisions in which we rejected the argument that the use of general tax revenue to subsidize the secular activities of religious institutions violated the Free Exercise Clause. See Tilton v. Richardson, 403 U. S. 672, 689 (1971) (plurality); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249 (1968). But in those cases, while the subsidies were clearly contrary to the challengers’ views on a secular issue, namely, proper church-state relations, the challengers never articulated a religious objection to the subsidies. As we put it in Tilton, they were “unable to identify any coercion directed at the practice or exercise of their religious beliefs.” 403 U. S., at 689 (plurality opinion); see Allen, supra, at 249 (“[A]ppellants have not contended that the New York law in any way coerces them as individuals in the practice of their religion”). Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Because the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.
V
Since the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(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.

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§2000bb–1(b).
A
HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” Brief for HHS in No. 13– 354, at 46, 49. RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O’Centro, 546 U. S., at 430–431 (quoting §2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro, supra, at 431.
In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief for HHS in No. 13–356, at 10, 48. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, 381 U. S. 479, 485–486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13–354, at 50 (internal quotation marks omitted).
The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—

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those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all.
HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.” 75 Fed. Reg. 34540 (2010). But the contraceptive mandate is expressly excluded from this subset. Ibid.
We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b)(2).
B
The least-restrictive-means standard is exceptionally demanding, see City of Boerne, 521 U. S., at 532, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b) (requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least

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Opinion of the Court
restrictive means of furthering [a] compelling governmental interest” (emphasis added)).
The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http:// www.fda.gov/forconsumers/byaudience/forwomen/freepubli cations/ucm313215.htm. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurancecoverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable Care Act, April 2014, p. 2.36 If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this
——————
36 Online at http://cbo.gov/publication/45231.

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Opinion of the Court
important goal. HHS contends that RFRA does not permit us to take
this option into account because “RFRA cannot be used to require creation of entirely new programs.” Brief for HHS in 13–354, at 15.37 But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may

——————
37 In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying RFRA “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 RLUIPA). That consideration will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest. But it could not reasonably be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation requires the religious adherent to confer a benefit on third parties. Otherwise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, our decision in these cases need not result in any detrimental effect on any third party. As we explain, see infra, at 43–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under their health-insurance plans due to their employers’ religious objections.

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be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.
In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can selfcertify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).38
——————
38 HHS has concluded that insurers that insure eligible employers

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Opinion of the Court
We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.39 At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40
The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.41 Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal
——————
opting out of the contraceptive mandate and that are required to pay for contraceptive coverage under the accommodation will not experience an increase in costs because the “costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. 39877. With respect to self-insured plans, the regulations establish a mechanism for the eligible employers’ third-party administrators to obtain a compensating reduction in the fee paid by insurers to participate in the federally facilitated exchanges. HHS believes that this system will not have a material effect on the funding of the exchanges because the “payments for contraceptive services will represent only a small portion of total [federally facilitated exchange] user fees.” Id., at 39882; see 26 CFR §54.9815–2713A(b)(3).
39 See n. 9, supra. 40 The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 30. The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address. 41 In the principal dissent’s view, the Government has not had a fair opportunity to address this accommodation, post, at 30. n. 27, but the Government itself apparently believes that when it “provides an exception to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests.” Brief for the United States as Amicus Curiae in Holt v. Hobbs, No. 13–6827, p. 10, now pending before the Court.

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Opinion of the Court
logistical and administrative obstacles,” post, at 28 (internal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26 CFR §§54.9815–2713A(b), (d). Ironically, it is the dissent’s approach that would “[i]mped[e] women’s receipt of benefits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” post, at 28, because the dissent would effectively compel religious employers to drop healthinsurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress contemplated.” Ibid.
C
HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction.42 HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.
It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all

——————
42 Cf. 42 U. S. C. §1396s (Federal “program for distribution of pediatric vaccines” for some uninsured and underinsured children).

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BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court
employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurancecoverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
HHS also raises for the first time in this Court the argument that applying the contraceptive mandate to forprofit employers with sincere religious objections is essential to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems

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Opinion of the Court
associated with a national system of taxation. We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U. S., at 260. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Ibid.; see O Centro, 546 U. S., at 435.
Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing taxpayers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very different. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Rather, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contributions do not necessarily funnel into “undifferentiated funds.” Post, at 23. The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 45 CFR §147.131(c)(2)(ii).

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BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court
Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing religious objections to particular expenditures from general tax revenues would.43
In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post, at 32–35. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. 494 U. S., at 888– 889 (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §2000bb(a)(5). The wisdom of Congress’s judgment on this
——————
43 HHS highlights certain statements in the opinion in Lee that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 455 U. S., at 261. Lee was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obligations that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met.

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matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.
* * *
The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.
The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit in No. 13–356 is reversed, and that case is remanded for further proceedings consistent with this opinion.
It is so ordered.

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1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

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


AND


CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

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

[June 30, 2014]


JUSTICE KENNEDY, concurring.
It seems to me appropriate, in joining the Court’s opinion, to add these few remarks. At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent. The Court and the dissent disagree on the proper interpretation of the Religious Freedom and Restoration Act of 1993 (RFRA), but do agree on the purpose of that statute. 42 U. S. C. §2000bb et seq. It is to ensure that interests in religious freedom are protected. Ante, at 5–6; post, at 8–9 (GINSBURG, J., dissenting).
In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this

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KENNEDY, J., concurring
course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community. But in a complex society and an era of pervasive governmental regulation, defining the proper realm for free exercise can be difficult. In these cases the plaintiffs deem it necessary to exercise their religious beliefs within the context of their own closely held, for-profit corporations. They claim protection under RFRA, the federal statute discussed with care and in detail in the Court’s opinion.
As the Court notes, under our precedents, RFRA imposes a “ ‘stringent test.’ ” Ante, at 6 (quoting City of Boerne v. Flores, 521 U. S. 507, 533 (1997)). The Government must demonstrate that the application of a substantial burden to a person’s exercise of religion “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b).
As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate 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. Ante, at 39; see, e.g., Brief for HHS in No. 13–354, pp. 14–15. There are many medical conditions for which pregnancy is contraindicated. See, e.g., id., at 47. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees. Ante, at 40.

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3

KENNEDY, J., concurring
But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases. Ante, at 9–10, and n. 9, 43–44.
The means the Government chose is the imposition of a direct mandate on the employers in these cases. Ante, at 8–9. But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. See ante, at 9–10, and n. 9, 43–44. The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs. See ante, at 44.
On this record and as explained by the Court, the Government has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections under this established framework. RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.
The parties who were the plaintiffs in the District Courts argue that the Government could pay for the methods that are found objectionable. Brief for Respond-

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KENNEDY, J., concurring
ents in No. 13–354, p. 58. In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program. Ante, at 41–43. The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place. Ante, at 43–44.
“[T]he American community is today, as it long has been, a rich mosaic of religious faiths.” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15). Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise. Ante, at 45–46.
For these reasons and others put forth by the Court, I join its opinion.

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1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

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


AND


CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

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

[June 30, 2014] 


JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICE BREYER and JUSTICE KAGAN join as to all but Part III–C–1, dissenting.
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based optouts impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a

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BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante, at 41–43.1
The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. See infra, at 6–8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
I
“The 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 Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992). Congress acted on that understand-
——————
1 The Court insists it has held none of these things, for another less restrictive alternative is at hand: extending an existing accommodation, currently limited to religious nonprofit organizations, to encompass commercial enterprises. See ante, at 3–4. With that accommodation extended, the Court asserts, “women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing.” Ante, at 4. In the end, however, the Court is not so sure. In stark contrast to the Court’s initial emphasis on this accommodation, it ultimately declines to decide whether the highlighted accommodation is even lawful. See ante, at 44 (“We do not decide today whether an approach of this type complies with RFRA . . . .”).

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3

GINSBURG, J., dissenting
ing when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services (HHS), in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these cases.
A
The Affordable Care Act (ACA), in its initial form, specified three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary.2 Particular services were to be recommended by the U. S. Preventive Services Task Force, an independent panel of experts. The scheme had a large gap, however; it left out preventive services that “many women’s health advocates and medical professionals believe are critically important.” 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer). To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive services specific to women’s health.
Women paid significantly more than men for preventive care, the amendment’s proponents noted; in fact, cost

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2 See 42 U. S. C. §300gg–13(a)(1)–(3) (group health plans must provide coverage, without cost sharing, for (1) certain “evidence-based items or services” recommended by the U. S. Preventive Services Task Force; (2) immunizations recommended by an advisory committee of the Centers for Disease Control and Prevention; and (3) “with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration”).

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barriers operated to block many women from obtaining needed care at all. See, e.g., id., at 29070 (statement of Sen. Feinstein) (“Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.”); id., at 29302 (statement of Sen. Mikulski) (“copayments are [often] so high that [women] avoid getting [preventive and screening services] in the first place”). And increased access to contraceptive services, the sponsors comprehended, would yield important public health gains. See, e.g., id., at 29768 (statement of Sen. Durbin) (“This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] . . . . This expanded access will reduce unintended pregnancies.”).
As altered by the Women’s Health Amendment’s passage, the ACA requires new insurance plans to include coverage without cost sharing of “such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)],” a unit of HHS. 42 U. S. C. §300gg–13(a)(4). Thus charged, the HRSA developed recommendations in consultation with the Institute of Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012).3 The IOM convened a group of independent experts, including “specialists in disease prevention [and] women’s health”; those experts prepared a report evaluating the efficacy of a number of preventive services. IOM, Clinical Prevention Services for Women: Closing the Gaps 2 (2011) (hereinafter IOM Report). Consistent with the findings of “[n]umerous health professional associations” and other organizations, the IOM experts determined that preven-

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3 The IOM is an arm of the National Academy of Sciences, an organization Congress established “for the explicit purpose of furnishing advice to the Government.” Public Citizen v. Department of Justice, 491 U. S. 440, 460, n. 11 (1989) (internal quotation marks omitted).

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tive coverage should include the “full range” of FDAapproved contraceptive methods. Id., at 10. See also id., at 102–110.
In making that recommendation, the IOM’s report expressed concerns similar to those voiced by congressional proponents of the Women’s Health Amendment. The report noted the disproportionate burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employees without cost sharing. See, e.g., id., at 19 (“[W]omen are consistently more likely than men to report a wide range of cost-related barriers to receiving . . . medical tests and treatments and to filling prescriptions for themselves and their families.”); id., at 103–104, 107 (pregnancy may be contraindicated for women with certain medical conditions, for example, some congenital heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be used to reduce risk of endometrial cancer, among other serious medical conditions); id., at 103 (women with unintended pregnancies are more likely to experience depression and anxiety, and their children face “increased odds of preterm birth and low birth weight”).
In line with the IOM’s suggestions, the HRSA adopted guidelines recommending coverage of “[a]ll [FDA-] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”4 Thereafter, HHS, the Department of Labor, and the Department of Treasury promulgated regulations requiring group health plans to include coverage of the contraceptive services recommended in the
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4 HRSA, HHS, Women’s Preventive Services Guidelines, available at http://www.hrsa.gov/womensguidelines/ (all Internet materials as visited June 27, 2014, and available in Clerk of Court’s case file), reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a. See also 77 Fed. Reg. 8725–8726 (2012).

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HRSA guidelines, subject to certain exceptions, described infra, at 25–27.5 This opinion refers to these regulations as the contraceptive coverage requirement.
B
While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moral convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” Id., at S1127 (Feb. 29, 2012). Rejecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.
II
Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga7 might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). In Smith, two members of the Native American Church were dis-
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5 45 CFR §147.130(a)(1)(iv) (2013) (HHS); 29 CFR §2590.715– 2713(a)(1)(iv) (2013) (Labor); 26 CFR §54.9815–2713(a)(1)(iv) (2013) (Treasury).
6 Separating moral convictions from religious beliefs would be of questionable legitimacy. See Welsh v. United States, 398 U. S. 333, 357–358 (1970) (Harlan, J., concurring in result).
7 As the Court explains, see ante, at 11–16, these cases arise from two separate lawsuits, one filed by Hobby Lobby, its affiliated business (Mardel), and the family that operates these businesses (the Greens); the other filed by Conestoga and the family that owns and controls that business (the Hahns). Unless otherwise specified, this opinion refers to the respective groups of plaintiffs as Hobby Lobby and Conestoga.

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missed from their jobs and denied unemployment benefits because they ingested peyote at, and as an essential element of, a religious ceremony. Oregon law forbade the consumption of peyote, and this Court, relying on that prohibition, rejected the employees’ claim that the denial of unemployment benefits violated their free exercise rights. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion . . . is not the object of [governmental regulation] but merely the incidental effect of a generally applicable and otherwise valid provision.” Id., at 878; see id., at 878–879 (“an individual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”). The ACA’s contraceptive coverage requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it has on such exercise is incidental.
Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.8

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8 See Wisconsin v. Yoder, 406 U. S. 205, 230 (1972) (“This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”); Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985) (invalidating state statute requiring employers to accommodate an employee’s Sabbath observance where that statute failed to take into account the burden such an accommodation would impose on the employer or other employees). Notably, in construing the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc et seq., the Court has cautioned that “adequate account” must be taken of “the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005); see id., at 722 (“an accommodation must be measured so that it does not override other significant interests”). A

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The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 565, 85 P. 3d 67, 93 (2004) (“We are unaware of any decision in which . . . [the U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”). In sum, with respect to free exercise claims no less than free speech claims, “ ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ ” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).
III
 A 

Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling governmental interest.” 42 U. S. C. §2000bb–1(a), (b)(2). In RFRA, Congress “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 424 (2006).
RFRA’s purpose is specific and written into the statute itself. The Act was crafted to “restore the compelling
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balanced approach is all the more in order when the Free Exercise Clause itself is at stake, not a statute designed to promote accommodation to religious beliefs and practices.

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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.” §2000bb(b)(1).9 See also §2000bb(a)(5) (“[T]he compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”); ante, at 48 (agreeing that the pre-Smith compelling interest test is “workable” and “strike[s] sensible balances”).
The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (1993) (hereinafter Senate Report) (RFRA’s purpose was “only to overturn the Supreme Court’s decision in Smith,” not to “unsettle other areas of the law.”); 139 Cong. Rec. 26178 (1993) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103– 88, pp. 6–7 (1993) (hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith, without “creat[ing] . . . new rights for any religious practice or for any potential litigant.” 139 Cong. Rec. 26178 (statement of Sen. Kennedy). Given the Act’s moderate purpose, it is hardly surprising that RFRA’s enactment in 1993 provoked little controversy. See Brief for Senator Murray et al. as Amici Curiae 8 (hereinafter Senators
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9 Under Sherbert and Yoder, the Court “requir[ed] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 894 (1990) (O’Connor, J., concurring in judgment).

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Brief ) (RFRA was approved by a 97-to-3 vote in the Senate and a voice vote in the House of Representatives).
B
Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7, 17, 25–27. To support its conception of RFRA as a measure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc et seq., which altered RFRA’s definition of the term “exercise of religion.” RFRA, as originally enacted, defined that term to mean “the exercise of religion under the First Amendment to the Constitution.” §2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000bb–2(4) (2012 ed.) (crossreferencing §2000cc–5). That definitional change, according to the Court, reflects “an obvious effort to effect a complete separation from First Amendment case law.” Ante, at 7.
The Court’s reading is not plausible. RLUIPA’s alteration clarifies that courts should not question the centrality of a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the class of entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to inquire whether a government action substantially burdens a religious exercise. See Rasul v. Myers, 563 F. 3d 527, 535 (CADC 2009) (Brown, J., concurring) (“There is no doubt that RLUIPA’s drafters, in changing the definition of ‘exercise of religion,’ wanted to broaden the scope of the kinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep.

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No. 106–219, p. 30 (1999). See also Gilardi v. United States Dept. of Health and Human Servs., 733 F. 3d 1208, 1211 (CADC 2013) (RFRA, as amended, “provides us with no helpful definition of ‘exercise of religion.’ ”); Henderson v. Kennedy, 265 F. 3d 1072, 1073 (CADC 2001) (“The [RLUIPA] amendments did not alter RFRA’s basic prohibition that the ‘[g]overnment shall not substantially burden a person’s exercise of religion.’ ”).10
Next, the Court highlights RFRA’s requirement that the government, if its action substantially burdens a person’s religious observance, must demonstrate that it chose the least restrictive means for furthering a compelling interest. “[B]y imposing a least-restrictive-means test,” the Court suggests, RFRA “went beyond what was required by our pre-Smith decisions.” Ante, at 17, n. 18 (citing City of Boerne v. Flores, 521 U. S. 507 (1997)). See also ante, at 6, n. 3. But as RFRA’s statements of purpose and legislative history make clear, Congress intended only to restore, not to scrap or alter, the balancing test as this Court had applied it pre-Smith. See supra, at 8–9. See also Senate Report 9 (RFRA’s “compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith.”); House Report 7 (same).
The Congress that passed RFRA correctly read this Court’s pre-Smith case law as including within the “compelling interest test” a “least restrictive means” requirement. See, e.g., Senate Report 5 (“Where [a substantial] burden is placed upon the free exercise of religion, the Court ruled [in Sherbert], the Government must demon-
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10 RLUIPA, the Court notes, includes a provision directing that “[t]his chapter [i.e., RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of [the Act] and the Constitution.” 42 U. S. C. §2000cc–3(g); see ante, at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of religion,” as RLUIPA does, but contains no omnibus rule of construction governing the statute in its entirety.

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strate that it is the least restrictive means to achieve a compelling governmental interest.”). And the view that the pre-Smith test included a “least restrictive means” requirement had been aired in testimony before the Senate Judiciary Committee by experts on religious freedom. See, e.g., Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 78–79 (1993) (statement of Prof. Douglas Laycock).
Our decision in City of Boerne, it is true, states that the least restrictive means requirement “was not used in the pre-Smith jurisprudence RFRA purported to codify.” See ante, at 6, n. 3, 17, n. 18. As just indicated, however, that statement does not accurately convey the Court’s preSmith jurisprudence. See Sherbert, 374 U. S., at 407 (“[I]t would plainly be incumbent upon the [government] to demonstrate that no alternative forms of regulation would combat [the problem] without infringing First Amendment rights.”); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 718 (1981) (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”). See also Berg, The New Attacks on Religious Freedom Legislation and Why They Are Wrong, 21 Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court erroneously said that the least restrictive means test ‘was not used in the pre-Smith jurisprudence.’ ”).11
C
With RFRA’s restorative purpose in mind, I turn to the

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11 The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that “least restrictive means . . . was not used [pre-Smith].” Ante, at 17, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion).

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Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consideration of several questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corporations rank among “person[s]” who “exercise . . . religion”? Assuming that they do, does the contraceptive coverage requirement “substantially burden” their religious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest?
Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis.
1
RFRA’s compelling interest test, as noted, see supra, at 8, applies to government actions that “substantially burden a person’s exercise of religion.” 42 U. S. C. §2000bb– 1(a) (emphasis added). This reference, the Court submits, incorporates the definition of “person” found in the Dictionary Act, 1 U. S. C. §1, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20. The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e] otherwise.” §1. Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis added). See also §§2000bb–2(4), 2000cc–5(7)(a).12 Whether

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12 As earlier explained, see supra, at 10–11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute to RLUIPA any purpose to cover entities other than “religious assembl[ies] or institution[s].” 42 U. S. C. §2000cc(a)(1). But cf. ante, at 26. That law applies to land-use regulation. §2000cc(a)(1). To permit commercial enterprises to challenge zoning and other land-use regula-

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a corporation qualifies as a “person” capable of exercising religion is an inquiry one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.” Gilardi, 733 F. 3d, at 1212. There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations.
Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part).
The First Amendment’s free exercise protections, the

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tions under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26.
13 The Court regards Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961), as “suggest[ing] . . . that for-profit corporations possess [free-exercise] rights.” Ante, at 26–27. See also ante, at 21, n. 21. The suggestion is barely there. True, one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews. The other challengers were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation. Accordingly, the plurality stated it could pretermit the question “whether appellees ha[d] standing” because Braunfeld v. Brown, 366 U. S. 599 (1961), which upheld a similar closing law, was fatal to their claim on the merits. 366 U. S., at 631.

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Court has indeed recognized, shelter churches and other nonprofit religion-based organizations.14 “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community,” and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment). The Court’s “special solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), however, is just that. No such solicitude is traditional for commercial organizations.15 Indeed, until today, religious

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14 See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012); Gonzales v. O Centro Espírita Benefi­ cente União do Vegetal, 546 U. S. 418 (2006); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993); Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U. S. 378 (1990).
15 Typically, Congress has accorded to organizations religious in character religion-based exemptions from statutes of general application. E.g., 42 U. S. C. §2000e–1(a) (Title VII exemption from prohibition against employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on . . . of its activities”); 42 U. S. C. §12113(d)(1) (parallel exemption in Americans With Disabilities Act of 1990). It can scarcely be maintained that RFRA enlarges these exemptions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or Hahns. Nor does the Court suggest otherwise. Cf. ante, at 28.
The Court does identify two statutory exemptions it reads to cover for-profit corporations, 42 U. S. C. §§300a–7(b)(2) and 238n(a), and infers from them that “Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations,” ante, at 28. The Court’s inference is unwarranted. The exemptions the Court cites cover certain medical personnel who object to performing or assisting with abortions. Cf. ante, at 28, n. 27 (“the protection provided by §238n(a) differs significantly from the protection provided by

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exemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos, 483 U. S., at 337.16
The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the

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RFRA”). Notably, the Court does not assert that these exemptions have in fact been afforded to for-profit corporations. See §238n(c) (“health care entity” covered by exemption is a term defined to include “an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions”); Tozzi, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 J. Catholic Legal Studies 269, 296, n. 133 (2009) (“Catholic physicians, but not necessarily hospitals, . . . may be able to invoke [§238n(a)] . . . .”); cf. S. 137, 113th Cong., 1st Sess. (2013) (as introduced) (Abortion Non-Discrimination Act of 2013, which would amend the definition of “health care entity” in §238n to include “hospital[s],” “health insurance plan[s],” and other health care facilities). These provisions are revealing in a way that detracts from one of the Court’s main arguments. They show that Congress is not content to rest on the Dictionary Act when it wishes to ensure that particular entities are among those eligible for a religious accommodation.
Moreover, the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, §515, 110 Stat. 1321–245. If, as the Court believes, RFRA opened all statutory schemes to religionbased challenges by for-profit corporations, there would be no need for a statute-specific, post-RFRA exemption of this sort.
16 That is not to say that a category of plaintiffs, such as resident aliens, may bring RFRA claims only if this Court expressly “addressed their [free-exercise] rights before Smith.” Ante, at 27. Continuing with the Court’s example, resident aliens, unlike corporations, are flesh-andblood individuals who plainly count as persons sheltered by the First Amendment, see United States v. Verdugo-Urquidez, 494 U. S. 259, 271 (1990) (citing Bridges v. Wixon, 326 U. S. 135, 148 (1945)), and a fortiori, RFRA.

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work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Air­ lines, Inc. v. Hardison, 432 U. S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.17 One can only wonder why the Court shuts this key difference from sight.
Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). The text of RFRA makes no such statement and the legislative history does not so much as mention forprofit corporations. See Hobby Lobby Stores, Inc. v. Sebe­ lius, 723 F. 3d 1114, 1169 (CA10 2013) (Briscoe, C. J., concurring in part and dissenting in part) (legislative record lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corporations”). See also Senators Brief 10–13 (none of the
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17 I part ways with JUSTICE KENNEDY on the context relevant here. He sees it as the employers’ “exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.” Ante, at 2 (concurring opinion). See also ante, at 45–46 (opinion of the Court) (similarly concentrating on religious faith of employers without reference to the different beliefs and liberty interests of employees). I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health hazards employees who do not subscribe to their employers’ religious beliefs.

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cases cited in House or Senate Judiciary Committee reports accompanying RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profit corporations).
The Court notes that for-profit corporations may support charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. See ante, at 20–25. See also ante, at 3 (KENNEDY, J., concurring) (criticizing the Government for “distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation”).18 Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9 Cranch 43, 49 (1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non-
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18 According to the Court, the Government “concedes” that “nonprofit corporation[s]” are protected by RFRA. Ante, at 19. See also ante, at 20, 24, 30. That is not an accurate description of the Government’s position, which encompasses only “churches,” “religious institutions,” and “religious non-profits.” Brief for Respondents in No. 13–356, p. 28 (emphasis added). See also Reply Brief in No. 13–354, p. 8 (“RFRA incorporates the longstanding and common-sense distinction between religious organizations, which sometimes have been accorded accommodations under generally applicable laws in recognition of their accepted religious character, and for-profit corporations organized to do business in the commercial world.”).

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profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].” Gilardi, 733 F. 3d, at 1242 (Edwards, J., concurring in part and dissenting in part) (emphasis deleted).
Citing Braunfeld v. Brown, 366 U. S. 599 (1961), the Court questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and Conestoga] can’t . . . do the same?” Ante, at 22 (footnote omitted). See also ante, at 16–17. But even accepting, arguendo, the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation. In any event, Braunfeld is hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free exercise claim asserted there was promptly rejected on the merits.
The Court’s determination that RFRA extends to forprofit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.19 Little doubt that RFRA
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19 The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for “it seems unlikely” that large corporations “will often assert RFRA claims.” Ante, at 29. Perhaps so, but as Hobby Lobby’s case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is

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GINSBURG, J., dissenting
claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.
2
Even if Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an exemption, they must demonstrate that the contraceptive coverage requirement “substantially burden[s] [their] exercise of religion.” 42 U. S. C. §2000bb–1(a). Congress no doubt meant the modifier “substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered by Senators Kennedy and Hatch. See
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hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons. See Forbes, America’s Largest Private Companies 2013, available at http://www.forbes.com/ largest-private-companies/.
Nor does the Court offer any instruction on how to resolve the disputes that may crop up among corporate owners over religious values and accommodations. The Court is satisfied that “[s]tate corporate law provides a ready means for resolving any conflicts,” ante, at 30, but the authorities cited in support of that proposition are hardly helpful. See Del. Code Ann., Tit. 8, §351 (2011) (certificates of incorporation may specify how the business is managed); 1 J. Cox & T. Hazen, Treatise on the Law of Corporations §3:2 (3d ed. 2010) (section entitled “Selecting the state of incorporation”); id., §14:11 (observing that “[d]espite the frequency of dissension and deadlock in close corporations, in some states neither legislatures nor courts have provided satisfactory solutions”). And even if a dispute settlement mechanism is in place, how is the arbiter of a religion-based intracorporate controversy to resolve the disagreement, given this Court’s instruction that “courts have no business addressing [whether an asserted religious belief] is substantial,” ante, at 36?

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139 Cong. Rec. 26180. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with the Court’s pre-Smith case law, “does not require the Government to justify every action that has some effect on religious exercise.” Ibid.
The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f ] that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Ante, at 36.20 I agree with the Court that the Green and Hahn families’ religious convictions regarding contraception are sincerely held. See Thomas, 450 U. S., at 715 (courts are not to question where an individual “dr[aws] the line” in defining which practices run afoul of her religious beliefs). See also 42 U. S. C. §§2000bb–1(a), 2000bb–2(4), 2000cc–5(7)(A).21 But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, distinguishes between “factual allegations that [plaintiffs’]
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20 The Court dismisses the argument, advanced by some amici, that the $2,000-per-employee tax charged to certain employers that fail to provide health insurance is less than the average cost of offering health insurance, noting that the Government has not provided the statistics that could support such an argument. See ante, at 32–34. The Court overlooks, however, that it is not the Government’s obligation to prove that an asserted burden is insubstantial. Instead, it is incumbent upon plaintiffs to demonstrate, in support of a RFRA claim, the substantiality of the alleged burden.
21 The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent “tell the plaintiffs that their beliefs are flawed.” Ante, at 37. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the plausibility of a religious claim,” ante, at 37 (internal quotation marks omitted), but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States. See supra, at 7–8; infra, at 27.

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GINSBURG, J., dissenting
beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion . . . that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake. Kaemmerling v. Lappin, 553 F. 3d 669, 679 (CADC 2008).
That distinction is a facet of the pre-Smith jurisprudence RFRA incorporates. Bowen v. Roy, 476 U. S. 693 (1986), is instructive. There, the Court rejected a free exercise challenge to the Government’s use of a Native American child’s Social Security number for purposes of administering benefit programs. Without questioning the sincerity of the father’s religious belief that “use of [his daughter’s Social Security] number may harm [her] spirit,” the Court concluded that the Government’s internal uses of that number “place[d] [no] restriction on what [the father] may believe or what he may do.” Id., at 699. Recognizing that the father’s “religious views may not accept” the position that the challenged uses concerned only the Government’s internal affairs, the Court explained that “for the adjudication of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the frame of reference.” Id., at 700–701, n. 6. See also Hernandez v. Commissioner, 490 U. S. 680, 699 (1989) (distinguishing between, on the one hand, “question[s] [of] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds,” and, on the other, “whether the alleged burden imposed [by the challenged government action] is a substantial one”). Inattentive to this guidance, today’s decision elides entirely the distinction between the sincerity of a challenger’s religious belief and the substantiality of the burden placed on the challenger.
Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The re-

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quirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply with the ACA, see supra, at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services.
Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employer’s] decision or action.” Grote v. Sebelius, 708 F. 3d 850, 865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.
3
Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage

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24

BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. See IOM Report 102–107. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. See Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15– 16; 78 Fed. Reg. 39872 (2013); IOM Report 107.
That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corporations exclude intrauterine devices (IUDs), devices significantly more effective, and significantly more expensive than other contraceptive methods. See id., at 105.22 Moreover, the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contraceptives. See Tr. of Oral Arg. 38–39 (counsel for Hobby Lobby acknowledged that his “argument . . . would apply just as well if the employer said ‘no contraceptives’ ” (internal quotation marks added)).
Perhaps the gravity of the interests at stake has led the
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22 IUDs, which are among the most reliable forms of contraception, generally cost women more than $1,000 when the expenses of the office visit and insertion procedure are taken into account. See Eisenberg, McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible Contraceptive (LARC) Use in Adolescents, 52 J. Adolescent Health S59, S60 (2013). See also Winner et al., Effectiveness of Long-Acting Reversible Contraception, 366 New Eng. J. Medicine 1998, 1999 (2012).

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Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. See ante, at 40.23 It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage, Brief for Guttmacher Institute et al. as Amici Curiae 16; that almost one-third of women would change their contraceptive method if costs were not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use, United States, 2004, 40 Perspectives on Sexual & Reproductive Health 94, 98 (2008); and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be, Gariepy, Simon, Patel, Creinin, & Schwarz, The Impact of Out-ofPocket Expense on IUD Utilization Among Women With Private Insurance, 84 Contraception e39, e40 (2011). See also Eisenberg, supra, at S60 (recent study found that women who face out-of-pocket IUD costs in excess of $50 were “11-times less likely to obtain an IUD than women who had to pay less than $50”); Postlethwaite, Trussell, Zoolakis, Shabear, & Petitti, A Comparison of Contraceptive Procurement Pre- and Post-Benefit Change, 76 Contraception 360, 361–362 (2007) (when one health system eliminated patient cost sharing for IUDs, use of this form of contraception more than doubled).
Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court
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23 Although the Court’s opinion makes this assumption grudgingly, see ante, at 39–40, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.” Ante, at 2 (opinion of KENNEDY, J.).

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GINSBURG, J., dissenting
suggests, Congress would not have created these exclusions. See ante, at 39–40.
Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., Family and Medical Leave Act of 1993, 29 U. S. C. §2611(4)(A)(i) (applicable to employers with 50 or more employees); Age Discrimination in Employment Act of 1967, 29 U. S. C. §630(b) (originally exempting employers with fewer than 50 employees, 81 Stat. 605, the statute now governs employers with 20 or more employees); Americans With Disabilities Act, 42 U. S. C. §12111(5)(A) (applicable to employers with 15 or more employees); Title VII, 42 U. S. C. §2000e(b) (originally exempting employers with fewer than 25 employees, see Arbaugh v. Y & H Corp., 546 U. S. 500, 505, n. 2 (2006), the statute now governs employers with 15 or more employees).
The ACA’s grandfathering provision, 42 U. S. C. §18011, allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. See 45 CFR §147.140(g). Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of coinsurance, deductibles, that sort of thing.” App. in No. 13– 354, pp. 39–40. Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.” Id., at 40.24 The percentage of employees in grand-
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24 Hobby Lobby’s amicus National Religious Broadcasters similarly

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fathered plans is steadily declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. Kaiser Family Foundation & Health Research & Educ. Trust, Employer Benefits 2013 Annual Survey 7, 196. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradually transitioning employers into mandatory coverage.” Gilardi, 733 F. 3d, at 1241 (Edwards, J., concurring in part and dissenting in part).
The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Ante, at 42, n. 37 (quoting Cutter v. Wil­ kinson, 544 U. S. 709, 720 (2005); emphasis added). No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect. Cf. supra, at 7–8; Prince v. Massachusetts, 321 U. S. 158, 177 (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound religious freedom . . . begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”).
4
After assuming the existence of compelling government interests, the Court holds that the contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing
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states that, “[g]iven the nature of employers’ needs to meet changing economic and staffing circumstances, and to adjust insurance coverage accordingly, the actual benefit of the ‘grandfather’ exclusion is de minimis and transitory at best.” Brief for National Religious Broadcasters as Amicus Curiae in No. 13–354, p. 28.

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GINSBURG, J., dissenting
insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. A “least restrictive means” cannot require employees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets. See supra, at 7–8, 27.25
Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Ante, at 41. The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” 78 Fed. Reg. 39888. Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. Ibid. Moreover, Title X of the Public Health Service Act, 42 U. S. C. §300 et seq., “is the nation’s only dedicated source of federal
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25 As the Court made clear in Cutter, the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause. 544 U. S., at 720–722. “[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U. S., at 606, a “rich mosaic of religious faiths,” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15). Consequently, one person’s right to free exercise must be kept in harmony with the rights of her fellow citizens, and “some religious practices [must] yield to the common good.” United States v. Lee, 455 U. S. 252, 259 (1982).

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funding for safety net family planning services.” Brief for National Health Law Program et al. as Amici Curiae 23. “Safety net programs like Title X are not designed to absorb the unmet needs of . . . insured individuals.” Id., at 24. Note, too, that Congress declined to write into law the preferential treatment Hobby Lobby and Conestoga describe as a less restrictive alternative. See supra, at 6.
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 303 (1985), or according women equal pay for substantially similar work, see Dole v. Shenandoah Baptist Church, 899 F. 2d 1389, 1392 (CA4 1990)? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?26 Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. See ante, at 3–4, 9–10, 43–45. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” Ante, at 44. I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths. See supra, at 14–17.
Ultimately, the Court hedges on its proposal to align forprofit enterprises with nonprofit religion-based organiza-
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26 Cf. Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 666 (2004) (in context of First Amendment Speech Clause challenge to a content-based speech restriction, courts must determine “whether the challenged regulation is the least restrictive means among available, effective alternatives” (emphasis added)).

2:13-cvC-1a1s2e2:91-3D-P16H7-M7 ARDoDcuomc #en3t4: 15F4il-e2d 08F/i0le4d/1: 408/P04g/29021o4f 98PaPgeg:I8D9782 (92 of 98)

30

BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
tions. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Ante, at 44. Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argument whether the Court-proposed alternative was acceptable,27 counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87.
Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to which the corporation objects) on their own, a tax credit would qualify as a less restrictive alternative. See Brief for Petitioners in No. 13– 356, p. 64. A tax credit, of course, is one variety of “let the government pay.” In addition to departing from the existing employer-based system of health insurance, Conestoga’s alternative would require a woman to reach into her own pocket in the first instance, and it would do nothing for the woman too poor to be aided by a tax credit.
In sum, in view of what Congress sought to accomplish,
——————
27 On brief, Hobby Lobby and Conestoga barely addressed the extension solution, which would bracket commercial enterprises with nonprofit religion-based organizations for religious accommodations purposes. The hesitation is understandable, for challenges to the adequacy of the accommodation accorded religious nonprofit organizations are currently sub judice. See, e.g., Little Sisters of the Poor Home for the Aged v. Sebelius, ___ F. Supp. 2d ___, 2013 WL 6839900 (Colo., Dec. 27, 2013), injunction pending appeal granted, 571 U. S. ___ (2014). At another point in today’s decision, the Court refuses to consider an argument neither “raised below [nor] advanced in this Court by any party,” giving Hobby Lobby and Conestoga “[no] opportunity to respond to [that] novel claim.” Ante, at 33. Yet the Court is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in the parties’ presentations. RFRA cannot sensibly be read to “requir[e] the government to . . . refute each and every conceivable alternative regulation,” United States v. Wilgus, 638 F. 3d 1274, 1289 (CA10 2011), especially where the alternative on which the Court seizes was not pressed by any challenger.

2:13-cvC-1a1s2e2:91-3D-P16H7-M7 ARDoDcuomc #en3t4: 15F4il-e2d 08F/i0le4d/1: 408/P04g/29031o4f 98PaPgeg:I9D0783 (93 of 98)

Cite as: 573 U. S. ____ (2014)

31

GINSBURG, J., dissenting
i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded.
IV
Among the pathmarking pre-Smith decisions RFRA preserved is United States v. Lee, 455 U. S. 252 (1982). Lee, a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Security system conflicted with Lee’s religious beliefs, the burden was not unconstitutional. Id., at 260–261. See also id., at 258 (recognizing the important governmental interest in providing a “nationwide . . . comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees”).28 The Government urges that Lee should control the challenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No. 13–356, p. 18. In contrast, today’s Court dismisses Lee as a tax case. See ante, at 46–47. Indeed, it was a tax case and the Court in Lee homed in on “[t]he difficulty in attempting to accommodate religious beliefs in the area of taxation.” 455 U. S., at 259.
But the Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be
——————
28 As a sole proprietor, Lee was subject to personal liability for violating the law of general application he opposed. His claim to a religionbased exemption would have been even thinner had he conducted his business as a corporation, thus avoiding personal liability.

2:13-cvC-1a1s2e2:91-3D-P16H7-M7 ARDoDcuomc #en3t4: 15F4il-e2d 08F/i0le4d/1: 408/P04g/29041o4f 98PaPgeg:I9D1784 (94 of 98)

32

BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
superimposed on statutory schemes which are binding on others in that activity.” Id., at 261. The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” Ibid.29 No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door,30 at least in the absence of directions from the Legislature or Administration to do so.
Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp.
——————
29 Congress amended the Social Security Act in response to Lee. The amended statute permits Amish sole proprietors and partnerships (but not Amish-owned corporations) to obtain an exemption from the obligation to pay Social Security taxes only for employees who are coreligionists and who likewise seek an exemption and agree to give up their Social Security benefits. See 26 U. S. C. §3127(a)(2), (b)(1). Thus, employers with sincere religious beliefs have no right to a religionbased exemption that would deprive employees of Social Security benefits without the employee’s consent—an exemption analogous to the one Hobby Lobby and Conestoga seek here.
30 Cf. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 299 (1985) (disallowing religion-based exemption that “would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an advantage over their competitors”).

2:13-cvC-1a1s2e2:91-3D-P16H7-M7 ARDoDcuomc #en3t4: 15F4il-e2d 08F/i0le4d/1: 408/P04g/29051o4f 98PaPgeg:I9D2785 (95 of 98)

Cite as: 573 U. S. ____ (2014)

33

GINSBURG, J., dissenting
941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff ’d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn. 1985) (born-again Christians who owned closely held, forprofit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986); Elane Photog­ raphy, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37.
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian

2:13-cvC-1a1s2e2:91-3D-P16H7-M7 ARDoDcuomc #en3t4: 15F4il-e2d 08F/i0le4d/1: 408/P04g/29061o4f 98PaPgeg:I9D3786 (96 of 98)

34

BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
Scientists, among others)?31 According to counsel for Hobby Lobby, “each one of these cases . . . would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision.
The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” Ante, at 46. But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Women’s Health Amendment.
There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear,
——————
31 Religious objections to immunization programs are not hypothetical. See Phillips v. New York, ___ F. Supp. 2d ___, 2014 WL 2547584 (EDNY, June 5, 2014) (dismissing free exercise challenges to New York’s vaccination practices); Liberty Counsel, Compulsory Vaccinations Threaten Religious Freedom (2007), available at http://www.lc.org/ media/9980/attachments/memo_vaccination.pdf.

2:13-cvC-1a1s2e2:91-3D-P16H7-M7 ARDoDcuomc #en3t4: 15F4il-e2d 08F/i0le4d/1: 408/P04g/29071o4f 98PaPgeg:I9D4787 (97 of 98)

Cite as: 573 U. S. ____ (2014)

35

GINSBURG, J., dissenting
has ventured into a minefield, cf. Spencer v. World Vision, Inc., 633 F. 3d 723, 730 (CA9 2010) (O’Scannlain, J., concurring), by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged . . . substantially in the exchange of goods or services for money beyond nominal amounts.” See id., at 748 (Kleinfeld, J., concurring).
* * *
For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit.

2:13-cvC-1a1s2e2:91-3D-P16H7-M7 ARDoDcuomc #en3t4: 15F4il-e2d 08F/i0le4d/1: 408/P04g/29081o4f 98PaPgeg:I9D5788 (98 of 98)

Cite as: 573 U. S. ____ (2014)

1

BREYER and KAGAN, JJ., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

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


AND


CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

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

[June 30, 2014] 


JUSTICE BREYER and JUSTICE KAGAN, dissenting.
We agree with JUSTICE GINSBURG that the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits. We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993. Accordingly, we join all but Part III–C–1 of JUSTICE GINSBURG’s dissenting opinion.

 
 2:13-cvC-1a1se2:2193-D-1P6H7-7MARDocDuomce#n3t:515F6i-l1ed 0F1i/l0e7d/:1051/0P7g/2101o5f 4 PPaggIeD: 1789

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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: January 07, 2015

Ms. Kimberlee Wood Colby Center for Law & Religious Freedom 8001 Braddock Road Suite 302 Springfield, VA 22151
Mr. Charles E. Davidow Paul, Weiss, Rifkind, Wharton & Garrison 2001 K Street, N.W. Washington, DC 20006
Ms. Deborah Jane Dewart Law Office 620 E. Sabiston Drive Swansboro, NC 28539
Ms. Jessica Lynn Ellsworth Hogan Lovells 555 Thirteenth Street, N.W. Columbia Square Washington, DC 20004
Mr. Adam C. Jed U.S. Department of Justice Appellate Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Ms. Ayesha N. Khan Americans United for Separation of Church and State 1301 K Street, NW

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Suite 850 Washington, DC 20005
Ms. Alisa B. Klein U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Mr. Gregory M. Lipper Americans United for the Separation of Church and State 518 C Street, N.E. Washington, DC 20002-0000
Mr. Daniel Mach American Civil Liberties Union Program on Freedom of Religion & Belief 915 15th Street, N.W. Washington, DC 20005
Ms. Erin Elizabeth Mersino Thomas More Law Center P.O. Box 393 Ann Arbor, MI 48106
Caitlin E. O'Connell Americans United for Separation of Church and State 1301 K Street, NW Suite 850 Washington, DC 20005
Ms. Jennifer C. Pizer Lambda Legal Defense and Education Fund 3325 Wilshire Boulevard Suite 1300 Los Angeles, CA 90010
Mr. Bruce Harvey Schneider Stroock, Stroock & Lavan 180 Maiden Lane New York, NY 10038
Ms. Mailee Rebecca Smith Americans United for Life 655 Fifteenth Street, N.W.

2:13-cvC-1a1se2:2193-D-1P6H7-7MARDocDuomce#n3t:515F6i-l1ed 0F1i/l0e7d/:1051/0P7g/2301o5f 4 PPaggIeD: 3791

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Suite 410 Washington, DC 20005
Mr. Mark B. Stern U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Ms. Camilla B. Taylor Lambda Legal Defense and Education Fund 11 E. Adams Street Suite 1008 Chicago, IL 60603
Mr. Thomas W. Ude Jr. Lambda Legal 120 Wall Street 19th Floor New York, NY 10005
Re: Case No. 13-1677, Eden Foods, Inc., et al v. Kathleen Sebelius, et al Originating Case No. : 2:13-cv-11229
Dear Sir or Madam,
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,

cc: Mr. David J. Weaver Enclosure Mandate to issue

s/Cheryl Borkowski Case Manager Direct Dial No. 513-564-7035

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No. 13-1677

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

EDEN FOODS, INC.; MICHAEL POTTER, )

Chairman, President and Sole Shareholder of )

Eden Foods, Inc.,

)

)

Plaintiffs-Appellants,

)

)

v.

)

)

SYLVIA MATHEWS BURWELL, Secretary, )

United States Department of Health and Human )

Services; THOMAS E. PEREZ, Secretary,

)

United States Department of Labor; JACK

)

LEW, Secretary, United States Department of )

the Treasury,

)

)

Defendants-Appellees.

)

FILED
Jan 07, 2015 DEBORAH S. HUNT, Clerk
O R D E R

Before: COLE, Chief Judge; DAUGHTREY and WHITE, Circuit Judges.
In view of the Supreme Court’s judgment vacating and remanding for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014),
This matter is REMANDED to the district court for any further proceedings as appropriate. Further, the clerk is directed to enter the mandate in this appeal.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk
 The Secretary of the United States Department of Health and Human Services, Sylvia Mathews Burwell, has been automatically substituted as the successor to Kathleen Sebelius. See Fed. R. App. P. 43(c)(2).

 
 2:13-cv-11229-DPH-MAR Doc # 39 Filed 02/12/15 Pg 1 of 3 Pg ID 800

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

EDEN FOODS, INC., et al., .
Plaintiffs,
v.

Case No. 13-cv-11229 Hon. Denise Page Hood Magistrate Mark A. Randon

SYLVIA M. BURWELL, et al.,

Defendants. ___________________________________/

INJUNCTION AND JUDGMENT For the reasons stated in the Parties’ Joint Motion (ECF No. 37), it is hereby ORDERED that this cause be re-opened, and In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), it is hereby ORDERED that defendants, their employees, agents, and successors in office are enjoined (a) from enforcing
(1) the “June 30, 2014 Contraceptive Coverage Requirement,” defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiff Eden Foods Inc. to provide its employees with health

2:13-cv-11229-DPH-MAR Doc # 39 Filed 02/12/15 Pg 2 of 3 Pg ID 801
coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and (2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D, and 29 U.S.C. §§ 1132 and 1185d; and (b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement against plaintiff Eden Foods, Inc., its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or Eden Foods Inc.’s health insurance issuers and/or third-party administrators with respect to Eden Foods Inc.’s health plan(s); and it is further ORDERED that judgment is entered in favor of plaintiffs and against defendants on plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further ORDERED that all other claims against Defendants are DISMISSED; and it is further ORDERED that the Parties will meet and confer to reach agreement on attorneys’ fees and costs. The Parties will file a joint status report, including a
2

2:13-cv-11229-DPH-MAR Doc # 39 Filed 02/12/15 Pg 3 of 3 Pg ID 802
recommendation for further proceedings, by no later than March 2, 2015. If there is no resolution of the attorneys’ fees and costs matter, Plaintiffs may file a motion for attorneys’ fees and costs within thirty days of March 2, 2015, pursuant to Federal Rule of Civil Procedure 54; and it is further
ORDERED that this injunction and Judgment does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents plaintiffs from filing a new civil action to challenge any such future changes.

Dated: February 12, 2015

s/Denise Page Hood Denise Page Hood United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on February 12, 2015, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry Case Manager

3

 
 Case: 2:13-cv-11229 As of: 04/19/2016 01:34 PM EDT 1 of 5
CLOSED,STAYED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:13−cv−11229−DPH−MAR

Eden Foods, Inc. et al v. Sebelius et al Assigned to: District Judge Denise Page Hood Referred to: Magistrate Judge Mark A. Randon

Case in other court:

U.S. Court of Appeals − Sixth Circuit, 13−01677

Cause: 42:1983 Civil Rights Act

Plaintiff

Date Filed: 03/20/2013 Date Terminated: 02/12/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Eden Foods, Inc.

represented by Erin E. Mersino Thomas More Law Center 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 734−827−2001 Fax: 734−930−7160 Email: emersino@thomasmore.org ATTORNEY TO BE NOTICED

Plaintiff Michael Potter

represented by Erin E. Mersino (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius
Defendant United States Department of Health and Human Services
Defendant

represented by Ben Berwick U.S. Department of Justice Civil Division 20 Massachusetts Avenue, N.W. Room 7306 Washington, DC 20530 202−305−8573 Email: Benjamin.L.Berwick@usdoj.gov ATTORNEY TO BE NOTICED
Bradley P. Humphreys − INACTIVE U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Room 7219 Washington, DC 20530 202−514−3367 Fax: 202−616−8470 ATTORNEY TO BE NOTICED
represented by Ben Berwick (See above for address) ATTORNEY TO BE NOTICED
Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Case: 2:13-cv-11229 As of: 04/19/2016 01:34 PM EDT 2 of 5

Seth D. Harris

represented by Ben Berwick (See above for address) ATTORNEY TO BE NOTICED

Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Labor

represented by Ben Berwick (See above for address) ATTORNEY TO BE NOTICED

Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Defendant Jack Lew

represented by Ben Berwick (See above for address) ATTORNEY TO BE NOTICED

Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Treasury

represented by Ben Berwick (See above for address) ATTORNEY TO BE NOTICED

Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Amicus American Civil Liberties Union

represented by Michael J. Steinberg American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union Fund of Michigan

represented by Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/20/2013
03/20/2013

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645−4001347 − Fee: &#036 350. County of 1st Plaintiff: Lenawee − County Where Action Arose: Lenawee − County of 1st Defendant: USA. [Previously dismissed case: No] [Possible companion case(s): None] (Mersino, Erin) (Entered: 03/20/2013)
2 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (TMcg) (Entered: 03/20/2013)

Case: 2:13-cv-11229 As of: 04/19/2016 01:34 PM EDT 3 of 5

03/20/2013 03/20/2013 03/20/2013 03/20/2013 03/21/2013 03/22/2013 03/22/2013 03/22/2013
03/22/2013 03/22/2013
03/22/2013 04/19/2013 04/19/2013 04/19/2013
04/24/2013 05/01/2013

3 SUMMONS Issued for *Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury* (TMcg) (Entered: 03/20/2013)
4 SUMMONS Issued for *Seth D. Harris* (TMcg) (Entered: 03/20/2013)
5 SUMMONS Issued for *Jack Lew* (TMcg) (Entered: 03/20/2013)
6 SUMMONS RE−Issued for *Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury* (TMcg) (Entered: 03/20/2013)
7 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by All Plaintiffs (Mersino, Erin) (Entered: 03/21/2013)
8 CERTIFICATE OF SERVICE by All Plaintiffs for Proof of Service of Summonses and Complaints (Mersino, Erin) (Entered: 03/22/2013)
9 MOTION for Leave to File Excess Pages for Emergency Temporary Restraining Order by All Plaintiffs. (Mersino, Erin) (Entered: 03/22/2013)
10 Emergency MOTION for Temporary Restraining Order by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8) (Mersino, Erin) (Entered: 03/22/2013)
11 NOTICE of Appearance by Bradley P. Humphreys on behalf of Seth D. Harris, Jack Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Humphreys, Bradley) (Entered: 03/22/2013)
12 ORDER Denying Emergency MOTION for Temporary Restraining Order 10 and Notice of Setting Hearing Date on Motion for Preliminary Injunction :( Responses due by 4/19/2013, Replies due by 5/1/2013, Motion Hearing set for 5/10/2013 02:00 PM before District Judge Denise Page Hood) Signed by District Judge Denise Page Hood. (LSau) (Entered: 03/22/2013)
TEXT−ONLY ORDER GRANTING 9 MOTION for Leave to File Excess Pages for Emergency Temporary Restraining Order filed by Eden Foods, Inc., Michael Potter. Signed by District Judge Denise Page Hood. (LSau) (Entered: 03/22/2013)
13 MOTION for Leave to File Amicus Curiae Brief by American Civil Liberties Union, American Civil Liberties Union Fund of Michigan. (Attachments: # 1 Document Continuation) (Steinberg, Michael) (Entered: 04/19/2013)
14 NOTICE of Appearance by Michael J. Steinberg on behalf of American Civil Liberties Union Fund of Michigan. (Steinberg, Michael) (Entered: 04/19/2013)
15 RESPONSE to 10 Emergency MOTION for Temporary Restraining Order filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Autocam Corp. v. Sebelius (6th Cir.), # 3 Exhibit Autocam Corp. v. Sebelius (6th Cir.), denying mot. for recon., # 4 Exhibit Autocam Corp v. Sebelius (W.D. Mich.), # 5 Exhibit Hobby Lobby v. Sebelius (Sotomayor, J., in chambers), # 6 Exhibit Hobby Lobby v. Sebelius (10th Cir.), # 7 Exhibit Conestoga Wood Specialities v. Sebelius (3d Cir.), # 8 Exhibit Conestoga Wood Specialities v. Sebelius (E.D. Pa.), # 9 Exhibit Annex Med., Inc. v. Sebelius (D. Minn.), # 10 Exhibit Annex Med., Inc. v. Sebelius (D. Minn.), denying mot. for stay pending appeal, # 11 Exhibit Grote Indus., Inc. v. Sebelius (S.D. Ind.), # 12 Exhibit Grote Indus, Inc. v. Sebelius (S.D. Ind.), denying mot. for recon., # 13 Exhibit Korte v. Sebelius (7th Cir.), # 14 Exhibit Korte v. Sebelius (S.D. Ill.), # 15 Exhibit O'Brien v. HHS (E.D. Mo.)) (Humphreys, Bradley) (Entered: 04/19/2013)
16 MOTION for Leave to File Excess Pages by All Plaintiffs. (Mersino, Erin) (Entered: 04/24/2013)
17 APPLICATION Supplemental Application to File a Reply Brief in Excess Page Length by All Plaintiffs. (Mersino, Erin) (Entered: 05/01/2013)

Case: 2:13-cv-11229 As of: 04/19/2016 01:34 PM EDT 4 of 5

05/01/2013 05/01/2013 05/10/2013
05/20/2013 05/20/2013
05/21/2013 05/21/2013 05/22/2013 05/31/2013 06/05/2013 06/05/2013 06/10/2013 06/10/2013 06/12/2013 06/12/2013 10/24/2013

18 REPLY to Response re 10 Emergency MOTION for Temporary Restraining Order , 16 MOTION for Leave to File Excess Pages filed by All Plaintiffs. (Mersino, Erin) (Entered: 05/01/2013)
19 ORDER Granting Plaintiffs' Ex Parte Application to File A Reply Brief in Excess of Five Pages 16 . Signed by District Judge Denise Page Hood. (LSau) (Entered: 05/01/2013)
Minute Entry − Motion Hearing held on 5/10/2013 re 13 MOTION for Leave to File Amicus Curiae Brief − GRANTED; 10 Emergency MOTION for Temporary Restraining Order/Preliminary Injunction − TAKEN UNDER ADVISEMENT before District Judge Denise Page Hood. (Court Reporter Cheryl Warren Daniel) (LSau) (Entered: 05/13/2013)
20 MOTION for Leave to File Excess Pages in Support of Defendants' Motion to Dismiss by All Defendants. (Humphreys, Bradley) (Entered: 05/20/2013)
21 MOTION to Dismiss Plaintiffs' Complaint by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Autocam Corp. v. Sebelius (6th Cir.), # 3 Exhibit Autocam Corp. v. Sebelius (6th Cir − Denying Reconsideration), # 4 Exhibit Autocam Corp. v. Sebelius (W.D. Mich.), # 5 Exhibit Hobby Lobby Stores, Inc. v. Sebelius (Sotomayor, J., in chambers), # 6 Exhibit Hobby Lobby Stores, Inc. v. Sebelius (10th Cir.), # 7 Exhibit Conestoga Wood Specialities, Corp. v. Sebelius (3d Cir.), # 8 Exhibit Conestoga Wood Specialities, Corp. v. Sebelius (E.D. Pa.), # 9 Exhibit Annex Medical, Inc. v. Sebelius (D. Minn.), # 10 Exhibit Annex Medical, Inc. v. Sebelius (D. Minn. − Denying Injunction Pending Appeal), # 11 Exhibit Grote Indus., Inc. v. Sebelius (S.D. Ind.), # 12 Exhibit Grote Indus., Inc. v. Sebelius (S.D. Ind. − Denying Mot. for Recon.), # 13 Exhibit Korte v. Sebelius (7th Cir), # 14 Exhibit Korte v. Sebelius (S.D. Ill.), # 15 Exhibit O'Brien v. Sebelius (E.D. Mo.), # 16 Exhibit Gilardi v. Sebelius (D.D.C.)) (Humphreys, Bradley) (Entered: 05/20/2013)
22 ORDER Denying Motion for Preliminary Injunction 10 . Signed by District Judge Denise Page Hood. (LSau) (Entered: 05/21/2013)
23 NOTICE OF APPEAL by All Plaintiffs re 22 Order on Motion for Leave to File. Receipt No: 0645−4107250 − Fee: $ 455 − Fee Status: Fee Paid. (Mersino, Erin) (Entered: 05/21/2013)
24 Certificate of Service re 23 Notice of Appeal. (KKra) (Entered: 05/22/2013)
25 Joint MOTION to Stay Proceedings by Eden Foods, Inc., Seth D. Harris, Jack Lew, Michael Potter, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Humphreys, Bradley) (Entered: 05/31/2013)
TEXT−ONLY ORDER Granting 20 MOTION for Leave to File Excess Pages. Signed by District Judge Denise Page Hood. (LSau) (Entered: 06/05/2013)
26 NOTICE OF HEARING on 21 MOTION to Dismiss Plaintiffs' Complaint. Motion Hearing set for 7/24/2013 02:30 PM before District Judge Denise Page Hood (LSau) (Entered: 06/05/2013)
27 AMENDED COMPLAINT filed by All Plaintiffs against All Defendants. NO NEW PARTIES ADDED. (Mersino, Erin) (Entered: 06/10/2013)
28 RESPONSE to 21 MOTION to Dismiss Plaintiffs' Complaint Opposition to Defendants' Motion to Dismiss as Moot filed by All Plaintiffs. (Mersino, Erin) (Entered: 06/10/2013)
TEXT−ONLY NOTICE: MOTION Hearing on 7/24/2013 is Cancelled re 26 Notice of Hearing on Motion (Loury, R) (Entered: 06/12/2013)
29 ORDER granting 25 Motion to Stay. Signed by District Judge Denise Page Hood. (KKra) (Entered: 06/12/2013)
30 OPINION from U.S. Court of Appeals − Sixth Circuit re 23 Notice of Appeal filed by Eden Foods, Inc., Michael Potter [Appeal Case Number 13−1677] (KKra) (Entered: 10/24/2013)

Case: 2:13-cv-11229 As of: 04/19/2016 01:34 PM EDT 5 of 5

11/05/2013
11/20/2013
07/01/2014
08/04/2014
01/07/2015
01/07/2015
02/03/2015 02/04/2015 02/12/2015 02/13/2015 03/13/2015 03/27/2015 05/12/2015 07/10/2015

31 ORDER from U.S. Court of Appeals − Sixth Circuit re 23 Notice of Appeal filed by Eden Foods, Inc., Michael Potter [Appeal Case Number 13−1677] (KKra) (Entered: 11/08/2013)
32 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on November 12, 2013. [Supreme Court Case Number: 13−591] [Court of Appeals Case Number: 13−1677] (KKra) (Entered: 11/25/2013)
33 LETTER from the US Supreme Court granting the petition for writ of certiorari [Supreme Court Case Number: 13−591] [Court of Appeals Case Number: 13−1677] (KKra) (Entered: 07/01/2014)
34 JUDGMENT from U.S. Supreme Court re 23 Notice of Appeal filed by Eden Foods, Inc., Michael Potter [Appeal Case Number 13−1677] (KKra) Modified on 8/8/2014 (KKra). (Entered: 08/08/2014)
35 ORDER from U.S. Court of Appeals − Sixth Circuit re 23 Notice of Appeal filed by Eden Foods, Inc., Michael Potter [Appeal Case Number 13−1677] (KCla) (Entered: 01/12/2015)
36 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 23 Notice of Appeal filed by Eden Foods, Inc., Michael Potter [Appeal Case Number 13−1677] (KCla) (Entered: 01/12/2015)
37 Joint MOTION to Reopen Case and Enter Judgment by All Defendants. (Humphreys, Bradley) (Entered: 02/03/2015)
38 NOTICE TO APPEAR: Status Conference set for 4/13/2015 02:30 PM before District Judge Denise Page Hood (LSau) (Entered: 02/04/2015)
39 INJUNCTION and Judgment. Signed by District Judge Denise Page Hood. (JOwe) (Entered: 02/12/2015)
TEXT−ONLY NOTICE: Status Conference Hearing on April 13, 2015 is Cancelled re 38 Notice to Appear (LSau) (Entered: 02/13/2015)
40 NOTICE by All Plaintiffs Joint Status Report (Mersino, Erin) (Entered: 03/13/2015)
41 NOTICE of Appearance by Ben Berwick on behalf of All Defendants. (Berwick, Ben) (Entered: 03/27/2015)
42 NOTICE by All Plaintiffs Joint Status Report (Mersino, Erin) (Entered: 05/12/2015)
43 NOTICE by All Plaintiffs Joint Status Report (Mersino, Erin) (Entered: 07/10/2015)

 
 Eden Foods, Inc. v. Sebelius, 733 F.3d 626 (2013)

733 F.3d 626 United States Court of Appeals,
Sixth Circuit.
EDEN FOODS, INC. and Michael Potter, Chairman, President and Sole Shareholder of
Eden Foods, Inc., Plaintiffs–Appellants, v.
Kathleen SEBELIUS, Secretary, United States Department of Health and Human Services; Thomas E. Perez, Secretary, United States Department of Labor; Jack Lew, Secretary, United
States Department of the Treasury, Defendants–Appellees.
No. 13–1677. | Decided and Filed: Oct. 24, 2013.
Synopsis Background: For-profit corporation and its principal commenced action against Cabinet departments and secretaries responsible for implementing contraceptive mandate of Patient Protection and Affordable Care Act (PPACA). The United States District Court for the Eastern District of Michigan, Denise Page Hood, J., denied plaintiffs’ request for preliminary injunction to forbid federal agencies from enforcing that mandate against them. Plaintiff appealed.
Holdings: The Court of Appeals, Martha Craig Daughtrey, Circuit Judge, held that:
[1] principal did not have standing to bring claim and
[2] corporation was not a “person” capable of “religious exercise” as intended by Religious Freedom Restoration Act (RFRA).
Affirmed.
Attorneys and Law Firms
*627 ON BRIEF: Erin Elizabeth Mersino, Thomas More Law Center, Ann Arbor, Michigan, for Appellants. Mark B. Stern, Alisa B. Klein, United States Department of Justice, Washington, D.C., for Appellees. Mailee R. Smith, Americans United for Life, Washington, D.C.,

Kimberlee Wood Colby, Center for Law and Religious Freedom Christian Legal Society, Springfield, Virginia, Deborah J. Dewart, Liberty, Life, and Law Foundation, Swansboro, North Carolina, Thomas W. Ude, Jr., Lambda Legal and Defense and Education Fund, Inc., New York, New York, Camilla B. Taylor, Lambda Legal Defense and Education Fund, Inc., Chicago, Illinois, Jennifer C. Pizer, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California, Charles E. Davidow, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, D.C., Bruce H. Schneider, Stroock & Stroock & Lavan LLP, New York, New York, Daniel Mach, American Civil Liberties Union Foundation, Washington, D.C., Ayesha N. Khan, Gregory M. Lipper, Caitlin E. O’Connell, Americans United for Separation Of Church and State, Washington, D.C., Jessica Ellsworth, Hogan Lovells U.S. LLP, Washington, D.C., for Amici Curiae.
Before: DAUGHTREY, COLE, and WHITE, Circuit Judges.
Opinion
OPINION
MARTHA CRAIG DAUGHTREY, Circuit Judge.
To comply with the Patient Protection and Affordable Care Act, Pub.L. No. 111–148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act of 2010, Pub.L. No. 111–152, 124 Stat. 1029 (2010), collectively known as the Affordable Care Act (the Act), most businesses employing 50 or more individuals must provide female employees with health-insurance coverage that includes, at no cost to the employee, “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). Those guidelines require plans to cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” 77 Fed.Reg. 8725 (Feb. 15, 2012).
The plaintiffs, Eden Foods, Inc., and Michael Potter, appeal from a denial of their request for a preliminary injunction that would forbid federal agencies from enforcing that mandate against them. They contend that offering such contraceptive services to the employees of
1

Eden Foods, Inc. v. Sebelius, 733 F.3d 626 (2013)
Eden Foods would substantially burden the plaintiffs’ religious beliefs and thus would contravene the protections afforded them under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb–4 (RFRA). However, the law of the circuit, announced in the recent decision in Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir.2013), convincingly establishes that the district court did not abuse its discretion in *628 denying the plaintiffs’ requests for injunctive relief.
FACTUAL AND PROCEDURAL BACKGROUND
The Affordable Care Act In March 2010, Congress passed, and President Obama signed, the Affordable Care Act. The cornerstone of the Act is the requirement that all non-exempt, non-grandfathered employers of 50 or more people ensure that their employees receive a minimum level of health insurance. As part of that coverage, Congress mandated:
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—
* * *
(4) 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).
The Health Resources and Services Administration (HRSA) then delegated the task of developing appropriate preventive-services guidelines to the Institute of Medicine (IOM), an arm of the National Academy of Sciences funded by Congress to provide the government with expert advice on matters of public health. The IOM reviewed “what preventive services are necessary for women’s health and well-being and therefore should be considered in the development of comprehensive guidelines for preventive services for women.” HRSA, Women’s Preventive Services Guidelines, available at http://www.hrsa.gov/womens guidelines/ (last visited Oct. 22, 2013). The Institute recommended, and the HRSA supported the suggestions, that the following preventive services be required to be provided to women employees

at no cost to the women themselves: well-woman visits; screening for gestational diabetes; human papillomavirus testing; counseling for sexually transmitted infections; counseling and screening for human immune-deficiency virus; contraceptive methods and counseling; breast-feeding support, supplies, and counseling; and screening and counseling for interpersonal and domestic violence. Id.
With respect to contraceptive methods and counseling, the guidelines require non-exempt employers and insurance plans to provide “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Id. Nevertheless, HRSA explained:
The guidelines concerning contraceptive methods and counseling ... do not apply to women who are participants or beneficiaries in group health plans sponsored by religious employers. Effective August 1, 2013, a religious employer is defined as an employer that is organized and operates as a non-profit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. HRSA notes that, as of August 1, 2013, group health plans established or maintained by religious employers (and group health insurance coverage provided in connection with such plans) are exempt from the requirement to cover contraceptive services under section 2713 of the Public Health Service Act, as incorporated into the Employee Retirement Income Security Act and the Internal Revenue Code. HRSA also notes that, as of January 1, 2014, accommodations are available to group health plans established or maintained by certain eligible *629 organizations (and group health insurance coverage provided in connection with such plans), as well as student health insurance coverage arranged by eligible
2

Eden Foods, Inc. v. Sebelius, 733 F.3d 626 (2013)

organizations, with respect to the

contraceptive

coverage

requirement.

Id.
Pursuant to the Act, therefore, exemptions from the contraceptive-coverage mandate are limited to certain sizes and types of employers. Specifically, the insurance requirements are not applicable to companies with fewer than 50 employees, see 26 U.S.C. §§ 4980H(a), (c)(2)(A); companies with health-insurance plans in existence on March 23, 2010, and unchanged after that date, see 45 C.F.R. § 147.140; and “religious employers,” see 45 C.F.R. § 147.130(a)(1)(iv)(B).1

1

The regulations define a “religious employer” as an

organization that meets each of the following criteria:

(1) The inculcation of religious values is the

purpose of the organization.

(2) The organization primarily employs persons

who share the religious tenets of the organization.

(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)(1) and section

6033(a)(3)(A)(i) or (iii) of the Internal Revenue

Code of 1986, as amended.

45 C.F.R. § 147.130(a)(1)(iv)(B) (2012).

Significant taxes are imposed upon a non-exempt employer who fails to provide the required insurance coverage. For example, an employer who offers its employees a health plan but omits items of required coverage shall be taxed “$100 for each day in the noncompliance period with respect to each individual to whom such failure relates.” 26 U.S.C. § 4980D(b)(1). Complete failure to offer employees any health-insurance coverage will result in the imposition upon the employer of “an assessable payment equal to the product of the applicable payment amount and the number of individuals employed by the employer as full-time employees during such month.” 26 U.S.C. § 4980H(a).2

2

“The term ‘applicable payment amount’ means, with

respect to any month, 1/12 of $2,000.” U.S.C. §

4980H(c)(1).

The Plaintiffs

Plaintiff Michael Potter is the founder, chairperson, president, and sole shareholder of Eden Foods, Inc., a for-profit, natural-foods corporation that employs 128 individuals, more than 50 of whom work full-time for the company. The complaint in this matter alleges that Potter is a Roman Catholic, follows the teachings of the Catholic Church, and has “deeply held religious beliefs” “that prevent him from participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients.” In fact, Potter claims that “these procedures almost always involve immoral and unnatural practices.”3

3

Interestingly, in a conversation with salon.com’s Irin

Carmon, Potter’s “deeply held religious beliefs,” see

Complaint ¶ 83, more resembled a laissez-faire,

anti-government screed. Potter stated to Carmon, “I’ve

got more interest in good quality long underwear than I

have in birth control pills.” Carmon then asked the

Eden Foods chairman why he didn’t seem to care about

birth control when he had taken the step to file a

lawsuit over the contraceptive mandate. Potter

responded, “Because I’m a man, number one[,] and it’s

really none of my business what women do.” The

article continued:

So, then, why bother suing? “Because I don’t care

if the federal government is telling me to buy my

employees Jack Daniel’s or birth control. What

gives them the right to tell me that I have to do

that? That’s my issue, that’s what I object to, and

that’s the beginning and end of the story.” He

added, “I’m not trying to get birth control out of

Rite Aid or Wal–Mart, but don’t tell me I gotta

pay for it.”

Irin Carmon, Eden Foods doubles down in birth

control flap, SALON.com (Apr. 15, 2013, 7:45 am),

http://www.salon.com/2013/04/15/eden_foods_ceo_

digs_ himself_deeper_in_birth_control_ourtrage.

*630 In his capacity as chairman of Eden Foods, Potter has for years negotiated health-insurance policies for his employees with Blue Cross Blue Shield of Michigan. Those previous policies “specifically excluded contraception and abortifacients, and exempted [Potter] from providing, paying, contributing, or supporting contraception or abortifacients for others.” On March 15, 2013, however, Potter was informed that, in compliance with the requirements of the Affordable Care Act, Blue Cross Blue Shield of Michigan would no longer offer such limited medical coverage; consequently, the corporation’s group plan “had been changed to include abortifacients and contraceptive coverage.”

3

Eden Foods, Inc. v. Sebelius, 733 F.3d 626 (2013)
Potter concedes that Eden Foods “does not fall under any sort of exemption” provided in the Affordable Care Act, and thus the corporation is subject to the Act’s requirement that its health-insurance policy provide no-cost coverage for contraceptives for women employees. He alleges, however, that adherence to his claimed religious beliefs would necessitate him and his company violating the Act’s mandate, resulting in the imposition of significant penalties. For example, were the corporation “to violate the law by ceasing to offer employee health insurance altogether, [it would] be penalized with fines of $2,000 per employee per year. The fines [would be] even more insurmountable [were the corporation to] decide to offer insurance without the objectionable coverage.” Faced with this prospect, Potter and Eden Foods filed a complaint in federal district court, challenging the legality of the contraceptive mandate. The plaintiffs also filed with the court a motion for issuance of a temporary restraining order and a preliminary injunction.
District Court and Motions Panel Rulings The district court denied the plaintiffs’ motion for injunctive relief. In doing so, the court first noted that the plaintiffs failed to satisfy their RFRA burden of showing that the contraceptive mandate substantially burdened their exercise of their religion. Quoting from the district court opinion in Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1294 (W.D.Okla.2012), rev’d 723 F.3d 1114 (10th Cir.2013), the district judge explained:
[T]he particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff’s religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.”
(Internal quotation marks and citation omitted.)
The district court further concluded that the plaintiffs established no likelihood of success on their First

Amendment free-exercise claim, noting that free-exercise-of-religion rights have never been extended to secular, for-profit corporations like Eden Foods, which are “not the alter ego[s] of [their] owners for purposes of religious belief and exercise.” Moreover, Potter’s First Amendment rights were not infringed by the mandate because that regulation does not seek to burden religion, but rather to promote public health and gender equality.
Both Eden Foods and Potter then appealed to this court, claiming as their sole *631 issue that “Plaintiffs Michael Potter and Eden Foods are Likely to Succeed on their RFRA Claims.” Pending resolution of the appeal, the plaintiffs sought issuance of an injunction restoring Eden Foods and Potter to the positions in which they found themselves prior to the implementation of the challenged provisions of the Affordable Care Act. A motions panel of this court unanimously denied that request, noting that the three judges were “not persuaded, at this stage of the proceedings, that a for-profit corporation has rights under the RFRA. Moreover, the burden Potter claims is too attenuated. The contraceptive mandate is imposed on Eden Foods, not Potter.” Eden Foods, Inc. v. Sebelius, No. 13–1677 (6th Cir. June 28, 2013) (order).
DISCUSSION
[1] [2] [3] In reviewing whether the plaintiffs have demonstrated entitlement to injunctive relief, we examine four factors: (1) the movants’ likelihood of success on the merits of their claim; (2) whether the movants would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether issuance of the injunction would serve the public interest. See, e.g., Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 590–91 (6th Cir.2012). We examine the district court’s decision on the likelihood of the movants’ success on the merits de novo, but we will reverse the district court’s decision to grant or deny an injunction only for an abuse of discretion. Id. at 591. “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir.2000).
[4] Given intervening events since the plaintiffs’ filing of this appeal, we conclude that the plaintiffs in this matter have “simply no likelihood of success on the merits.” On September 17, 2013, another panel of this court released its opinion in Autocam Corp. v. Sebelius, 730 F.3d 618
4

Eden Foods, Inc. v. Sebelius, 733 F.3d 626 (2013)
(6th Cir.2013), a case that resolved a similar challenge to the Affordable Care Act’s contraceptive mandate. Like the case presently before us, Autocam involved claims by a for-profit, secular, incorporated business and the owners of that closely-held corporation. Like Eden Foods and Potter, the plaintiffs in Autocam alleged that the mandate forces practitioners of the Roman Catholic faith to choose between incurring substantial financial penalties for disobeying duly-promulgated regulations and ignoring sincerely held religious beliefs concerning the use of artificial contraceptives. Id. at 620–21. As in this case, the plaintiffs in Autocam argued that compliance with the dictates of the contraceptive mandate would substantially burden their exercise of religion in contravention of the protections afforded by RFRA. Id.
Claims Raised by Plaintiff Potter Addressing those concerns and allegations, the Autocam opinion relied on basic, well-established principles of corporate law to hold that the individual owners/shareholders of Autocam had no standing to bring their claims against the government “in their individual capacities under RFRA, nor [could] Autocam assert the [individual plaintiffs’] claims on their behalf.” Id. at 624. According to the court, “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Id. (quoting Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001)).
[5] Autocam ‘s resolution of that standing issue now constitutes the law of *632 this circuit. Consequently, we may not ignore that published circuit precedent, absent an intervening Supreme Court decision or an overruling of the prior decision by this court sitting en banc. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985). Moreover, even if the Autocam decision had not been issued, we would not have ruled differently on Potter’s claims.
As the Supreme Court held in United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982):
When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the

statutory schemes which are binding on others in that activity. Granting an exemption from [statutory schemes] to an employer operates to impose the employer’s religious faith on the employees.
Id. at 261, 102 S.Ct. 1051 (declining to grant a Social Security tax exemption under the Free Exercise Clause to Amish employers). The Affordable Care Act’s contraceptive mandate imposes duties and potential penalties upon Eden Foods only, not upon Potter, despite his status as the sole shareholder of the corporation. By incorporating his business, Potter voluntarily forfeited his rights to bring individual actions for alleged corporate injuries in exchange for the liability and financial protections otherwise afforded him by utilization of the corporate form. Adoption of Potter’s argument that he should not be liable individually for corporate debts and wrongs, but still should be allowed to challenge, as an individual, duties and restrictions placed upon the corporation would undermine completely the principles upon which our nation’s corporate laws and structures are based. We are not inclined to so ignore law, precedent, and reason.
As this court held in Autocam, individual shareholders/owners of a corporation have no standing to challenge provisions of laws that the corporation must obey under risk of legal penalty. It follows that Potter’s claims must be dismissed for lack of jurisdiction.
Claims Raised by Eden Foods [6] In pertinent part, RFRA provides that the “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb–1(a). Relying on this statutory prohibition, Eden Foods claims that the Affordable Care Act’s contraceptive mandate does indeed burden the corporation’s exercise of religion. Such an assertion necessarily raises a threshold issue: “whether a for-profit, secular corporation is able to engage in religious exercise under the Free Exercise Clause of the First Amendment and the RFRA.” Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., 724 F.3d 377, 381 (3d Cir.2013), petition for cert. filed, (U.S. Sept. 19, 2013) (No. 13–356).
We need not engage in an extensive discussion of the pros and cons of the query because this court, in Autocam,
5

Eden Foods, Inc. v. Sebelius, 733 F.3d 626 (2013)
already has resolved the issue for this circuit. Relying in large part on the Third Circuit’s analysis in Conestoga Wood Specialties, Autocam held that a for-profit corporation “is not a ‘person’ capable of ‘religious exercise’ as intended by RFRA.” Autocam, 730 F.3d at 625. Such a holding necessarily guides our analysis of the identical issue in this case. Thus, as in Autocam, the corporate plaintiff here has failed to carry its burden of demonstrating that it has a strong likelihood of succeeding on the merits of its RFRA claims. Because Eden Foods cannot establish this first and most critical of the four criteria for justifying issuance of a preliminary injunction, see Gonzales, 225 F.3d at 625, the district *633 court’s denial of the relief sought by Eden Foods was proper and not an abuse of discretion.

CONCLUSION
Plaintiffs Eden Foods and Michael Potter have attempted to distinguish their challenges to the applicability of the Affordable Care Act’s contraceptive mandate from those raised by the plaintiffs in Autocam. They have failed to do so. Thus, in accordance with the law of the circuit announced in Autocam, we hold that Eden Foods, a secular, for-profit corporation, cannot establish that it can exercise religion, and that Potter cannot establish his standing to challenge obligations placed only upon the corporation, not upon him as an individual. Consequently, we AFFIRM the district court’s denial of Eden Foods’s motion for a preliminary injunction and REMAND the case to the district court with instructions to DISMISS Potter’s claims for lack of jurisdiction.

6