Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 1 of 65
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. _______________________
LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation, LITTLE SISTERS OF THE POOR, BALTIMORE, INC., a Maryland non-profit corporation, by themselves and on behalf of all others similarly situated, CHRISTIAN BROTHERS SERVICES, a New Mexico non-profit corporation, and CHRISTIAN BROTHERS EMPLOYEE BENEFIT TRUST,
Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, THOMAS E. PEREZ, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, JACOB J. LEW, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
CLASS ACTION COMPLAINT
Plaintiffs LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER,
COLORADO, a Colorado non-profit corporation, LITTLE SISTERS OF THE POOR,
BALTIMORE, INC., a Maryland non-profit corporation, by themselves and on behalf of all
others similarly situated, CHRISTIAN BROTHERS SERVICES, a New Mexico non-profit

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 2 of 65
corporation, and CHRISTIAN BROTHERS EMPLOYEE BENEFIT TRUST (collectively the “Plaintiffs”), by and through their attorneys, allege and state as follows: I. NATURE OF THE ACTION
1. This is a class action lawsuit on behalf of Catholic employers who participate in the Christian Brothers Employee Benefit Trust (the “Christian Brothers Trust”). These employers are forbidden by their religion from participating in the federal government’s regulatory scheme to promote, encourage, and subsidize the use of sterilization, contraceptives, and drugs that cause abortions.
2. The government defendants, however, have imposed regulatory requirements that require the class plaintiffs to provide health benefits for their employees that include coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling (the “Final Mandate”).
3. The government defendants have exempted thousands of plans, covering tens of millions of employees, from the Final Mandate. These exemptions have been granted for a wide variety of reasons, from the purely secular exemption for plans in existence before a certain date (“grandfathered plans”) to a narrow religious exemption for certain “religious employers.” The class plaintiffs, however—despite their religious nature—do not qualify for these exemptions.
4. For example, the Little Sisters of the Poor is a Congregation of Catholic Sisters who operate homes for the elderly poor of every race and religion, including the two homes named above as representative plaintiffs (the “Little Sisters Homes.”). Like the other members of the class, the Little Sisters Homes are guided by and operate in accordance with Catholic teachings. Their religious beliefs forbid them from participating in the government’s scheme to provide contraceptives, sterilizations, and abortion-inducing drugs. Yet the government refuses to exempt the Little Sisters Homes and the other class members from its Final Mandate.
2

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 3 of 65
5. The result is that the class members have been offered a stark choice: they must either abandon their Catholic beliefs and participate in the Final Mandate, or they will be punished by the government with an array of fines and penalties unless and until they comply. The threat of such penalties imposes a substantial burden on the class members’ religious exercise, because it “requires participation in an activity prohibited by a sincerely held religious belief,” prevents participation in conduct motivated by a sincerely held religious belief, and “places substantial pressure on” the class members “to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013).
6. The Final Mandate also impermissibly coerces the two Catholic entities that work together to provide health benefits for the class members: the Christian Brothers Trust, and Christian Brothers Services, which administers the Trust. Both the Christian Brothers Trust and Christian Brothers Services are operated according to Catholic religious principles—indeed, they exist precisely to provide benefits to the class members and other Catholic institutions in accordance with those religious principles. Yet the Final Mandate effectively makes that mission largely illegal, and requires these entities to either participate in the government’s scheme or dramatically reduce their work providing insurance to Catholic institutions. In many circumstances, their religious exercise of providing health benefits in accordance with Catholic religious principles has been made illegal.
7. Fortunately, federal law forbids the government from forcing the Plaintiffs to face such penalties and harm for exercising their religion. In particular, the Religious Freedom Restoration Act forbids such burdens on religious exercise unless the government can demonstrate that the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §
3

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 4 of 65
2000bb-1(b). The government cannot meet that standard, making it illegal to impose the Final Mandate on the Plaintiffs. The Final Mandate is likewise invalid under the First Amendment’s Religion and Speech Clauses, the Fifth Amendment’s Due Process Clause, and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”).
8. Without judicial relief, the Final Mandate will take effect against the Christian Brothers Trust when its new plan year begins on January 1, 2014. Accordingly, all Plaintiffs— the Little Sisters Homes (on behalf of themselves and others similarly situated), the Christian Brothers Trust, and Christian Brothers Services—bring this action seeking injunctive and declaratory relief against the Final Mandate. For decades, the class members, the Christian Brothers Trust, and Christian Brothers Services have worked together to provide health benefits to employees that are consistent with their mission as Catholic organizations. The defendants’ attempt to make such behavior illegal should be rejected. II. JURISDICTION AND VENUE
9. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1.
10. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). One of the Plaintiffs, Little Sisters of the Poor Home for the Aged, Denver, Colorado, resides in this district. Additionally, a substantial part of the events or omissions giving rise to the claim occurred in this district. Little Sisters of the Poor Home for the Aged, Denver, Colorado maintains a significant organizational presence in this district; Little Sisters of the Poor Home for the Aged, Denver, Colorado would be harmed by the application of the Final Mandate in this district by having to provide coverage for female sterilization, contraceptives, abortifacient drugs and devices, or
4

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 5 of 65

related counseling and education in violation of its religious beliefs and/or having to pay

penalties as a result of its activities in this district; and application of the Final Mandate would

violate Little Sisters of the Poor Home for the Aged, Denver, Colorado’s religious beliefs,

foreclose their religious exercise, and violate their Constitutional rights in this district.

III. IDENTIFICATION OF PARTIES

A. Plaintiffs

1. Little Sisters of the Poor 11. Little Sisters of the Poor Home for the Aged, Denver, Colorado, (“Little Sisters of

Denver”) is a Colorado non-profit corporation that qualifies as a tax-exempt organization under

section 501(c)(3) of the Internal Revenue Code of 1986 (the “Code”). It was originally

incorporated in 1916. See http://www.littlesistersofthepoordenver.org/our-home/history (last

visited Sept. 23, 2013).

12. Little Sisters of the Poor, Baltimore, Inc. (“Little Sisters of Baltimore”) is a

Maryland non-profit corporation that qualifies as a tax-exempt organization under section

501(c)(3) of the Code.

It was founded in 1869.

See

http://www.littlesistersofthepoorbaltimore.org/our-home/history (last visited Sept. 23, 2013).

13. Both homes are controlled by and associated with the Little Sisters of the Poor, an

international Congregation of Catholic Sisters serving needy elderly people in the United States

(the “Little Sisters”).

14. Each Little Sister has chosen to follow Jesus Christ by taking lifetime vows to

offer the poorest elderly of every race and religion a home where they will be welcomed as if

they were Jesus himself, cared for as family, and treated with dignity until God calls them to his

home. Because care for the dying is a focal point of the Little Sisters’ ministry, they commit to

constantly living out a witness that proclaims the unique, inviolable dignity of every person,

5

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 6 of 65
particularly those whom others regard as weak or worthless. To guide that commitment, the Little Sisters have vowed obedience to the Pope, and thus obey the ethical teachings of the Catholic Church.
15. Both of the named Little Sisters Homes have adopted the Christian Brothers Employee Benefit Trust to provide medical coverage for their employees. The Little Sisters Homes each employ more than 50 lay employees that are covered, along with their dependents, under the Christian Brothers Employee Benefit Trust health plan.
2. Class Action Plaintiffs 16. The Little Sisters Homes bring this action on behalf of themselves and all others similarly situated. The class consists of employers that: (i) have adopted or in the future adopt the Christian Brothers Employee Benefit Trust to provide medical coverage for their “employees” or former employees and their dependents (“employees” for purposes of this requirement has the meaning set forth in Code section 414(e)(3)(B)); (ii) are or could be reasonably construed to be “eligible organizations” within the meaning of the Final Mandate (as hereinafter defined); and (iii) are not “religious employers” with the meaning of the Final Mandate. The class members are all Catholic organizations operated in accordance with Catholic religious teachings, including teachings on abortion, contraception, sterilization, and cooperation with sin.
3. Christian Brothers Employee Benefit Trust 17. Christian Brothers Employee Benefit Trust (the “Christian Brothers Trust”) provides health and other welfare benefits for current and former employees of various Catholic organizations throughout the United States that have adopted the Christian Brothers Trust.
6

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 7 of 65
18. The Christian Brothers Trust covers employees and dependents of more than 200 non-exempt Catholic employers throughout the country. The Christian Brothers Trust currently covers more than 5,000 active employees.
19. Participation in the Christian Brothers Trust is limited to organizations that are: (i) operated under the auspices of the Roman Catholic Church, in good standing thereof, and currently listed, or approved for listing in The Official Catholic Directory, published by P.J. Kenedy & Sons; (ii) exempt from federal income taxes under section 501(c)(3) of the Code; and (iii) organized as a non-profit corporation, if the organization is a corporation.
20. The Official Catholic Directory includes the names and addresses of the agencies and instrumentalities and the educational, charitable, and religious institutions operated by the Roman Catholic Church in the United States, its territories, and possessions. Each year since 1946, the Internal Revenue Service has issued a Group Ruling affirmation letter affirming the exemption under section 501(c) of the Code from federal income taxes of all Catholic institutions listed in The Official Catholic Directory for that year.
21. The Christian Brothers Trust is a “church plan” within the meaning of section 414(e) of the Code (26 U.S.C. § 414(e)) and has received a private letter ruling from the Internal Revenue Service confirming its status as such.
22. The Christian Brothers Trust is not subject to the Employee Retirement Income Security Act of 1974 (“ERISA”) because it has not made an election under section 410(d) of the Code.
23. The Christian Brothers Trust is a self-insured health plan. Therefore, the Christian Brothers Trust does not contract with an insurance company to provide the health benefits provided by the Christian Brothers Trust.
24. The plan year for the Christian Brothers Trust begins on January 1st of each year.
7

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 8 of 65
25. Consistent with Catholic teachings, the Christian Brothers Trust does not provide and has never provided coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling. However, consistent with Catholic teachings, it does provide coverage for contraceptives prescribed by a physician for noncontraceptive purposes.
26. The Christian Brothers Trust is managed by a Board of Trustees elected by participating employers in the Christian Brothers Trust.
27. The trustees of the Christian Brothers Trust have not appointed an administrator of the Christian Brothers Trust that is willing to act as a “third party administrator” under the Final Mandate, because the Christian Brothers Trust would thereby be contracting for, arranging for or otherwise facilitating the provision of abortifacients, sterilizations and contraceptives in violation of Catholic teachings.
B. Christian Brothers Services 28. The Christian Brothers Trust is administered by Christian Brothers Services, a New Mexico non-profit corporation affiliated with The Brothers of The Christian Schools (also known as the “Christian Brothers”), a male religious order of the Catholic Church. 29. Christian Brothers Services is a Catholic organization designed to “serve the Catholic Church community and other faith-based organizations.” Because Christian Brothers Services “understand[s] the unique dynamics of Church organizations and institutions,” it serves those institutions by helping them “to remain faithful to [their] mission and the universal mission of the Catholic Church.” Christian Brothers Services’ “incentive is to serve the Church, not profit.” See https://www.cbservices.org/about-us.html (last visited Sept. 12, 2013) . 30. It would be a violation of Christian Brothers Services’ sincerely held Catholic beliefs for it to act as a “third party administrator” under the Final Mandate because it would
8

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 9 of 65
have to contract for, arrange for or otherwise facilitate the provision of abortifacients, sterilizations and contraception in violation of Catholic teachings.
C. Defendants 31. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing and enforcing the challenged regulations. 32. 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. Secretary Sebelius is sued in her official capacity only. 33. Defendant United States Department of Health and Human Services is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations. 34. Defendant Thomas E. Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Secretary Perez is sued in his official capacity only. 35. 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 challenged regulations. 36. Defendant Jacob J. Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department of the Treasury. Secretary Lew is sued in his official capacity only. 37. Defendant United States Department of the Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations.
9

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 10 of 65
IV. PLAINTIFFS’ RELIGIOUS BELIEFS AND PRACTICES RELATED TO CONTRACEPTION COVERAGE 38. The class members, Christian Brothers Trust, and Christian Brothers Services are
all Catholic organizations operated in accordance with Catholic religious teachings, including teachings on abortion, contraception, sterilization, and cooperation with sin.
39. Section 2270 of the Catechism of the Catholic Church (1994) teaches that life begins at conception. It states:
“Human life must be respected and protected absolutely from the moment of conception. From the first moment of his existence, a human being must be recognized as having the rights of a person—among which is the inviolable right of every innocent being to life.” 40. Thus, the Catholic Church teaches that a post-conception contraceptive is an abortifacient and “gravely contrary to moral law.” Section 2271 of the Catechism of the Catholic Church (1994) provides: Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law. The Catholic Church also teaches that contraception and sterilization are intrinsic evils. For example, Section 2370 of the Catechism of the Catholic Church (1994) characterizes as “intrinsically evil” : “[e]very action which, whether in anticipation of the conjugal act, or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible.” 41. Section 234 of the Compendium of the Social Doctrine of the Church (2004) provides that “[a]ll programmes of economic assistance aimed at financing campaigns of sterilization and contraception . . . are to be morally condemned as affronts to the dignity of the person and the family.”
10

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 11 of 65
42. Section 91 of the papal encyclical Evangelium Vitae (1995) teaches that “[i]t is morally unacceptable to encourage, let alone impose, the use of methods such as contraception, sterilization, and abortion in order to regulate births.”
43. As a matter of religious faith, the Plaintiffs believe that these Catholic teachings are among the religious ethical teachings they must follow.
44. Accordingly, the class members have selected an insurance plan—Christian Brothers Trust—that does not provide access to abortion, sterilization, and contraception. The Trust is operated in accordance with Catholic religious teachings, is open only to Catholic organizations, and is operated by Christian Brothers Services in order to help Catholic organizations “to remain faithful to [their] mission and the universal mission of the Catholic Church.”
45. These Plaintiffs believe that it would be immoral and sinful for them to intentionally facilitate the provision of contraceptives, abortifacient drugs, sterilizations, and related education and counseling, as would be required by the Final Mandate. V. STATUTORY AND REGULATORY BACKGROUND
A. Statutory Background 46. In March 2010, Congress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119 (March 23, 2010), amended by the Health Care & Education Reconciliation Act, Pub. L. 111-152, 124 Stat. 1029 (March 30, 2010) (“Affordable Care Act” or the “Act”). 47. The Affordable Care Act established many new requirements for “group health plan[s]” within the meaning of Code section 5000(b)(1), which include any “plan . . . of, or contributed to by, an employer . . . to provide health care (directly or otherwise) to the
11

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 12 of 65
employees, former employees, the employer associated with or formerly associated with the employer in a business relationship, or their families.” 26 U.S.C. §§ 9815 & 9832.
48. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care.” Specifically, it indicated that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for—(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.” Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C § 300gg-13(a)(4)).
49. As discussed below, it is through these comprehensive guidelines supported by the Health Resources and Services Administration that the Departments are attempting to force Plaintiffs to provide, contract for or otherwise facilitate coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling in violation of their religious beliefs.
50. The statute specifies that all of these services must be provided without “any cost sharing.” See 42 U.S.C. § 300gg-13(a).
51. Violations of the Affordable Care Act can subject an employer to substantial monetary penalties.
52. For employee benefit plans like the Christian Brothers Trust that are not subject to ERISA, these requirements are implemented through section 4980D of the Code, which requires “group health plans” to comply with 42 U.S.C. § 300gg-13(a)(4) and certain other provisions of the Public Health Services Act, as amended by the Affordable Care Act.
12

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 13 of 65
53. An employer offering a group health plan to its employees that fails to provide certain required coverage, including required contraceptive coverage, will be subject to an assessment of $100 per day for each affected individual beginning with the first plan year beginning on or after January 1, 2014. See 26 U.S.C. § 4980D(b) & (e)(1).
54. Additionally, certain employers that fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employersponsored plan” will be exposed to significant annual excise tax penalties of $2,000 per full-time employee. See id. at § 4980H(a), (c)(1). The implementation of this requirement, which was required to take effect on January 1, 2014, has been delayed until 2015 by the Defendants.
B. Regulatory Background 1. The Initial Interim Final Rules and the IOM Guidelines
55. On July 19, 2010, the Departments published interim final rules (the “Interim Final Rules”) “implementing the rules for group health plans and health insurance coverage . . . under provisions of the . . . Affordable Care Act regarding preventive health services.” 75 Fed. Reg. 41726 (July 19, 2010). Among other things, the Interim Final Rules required group health plans and health insurers to cover preventive care for women as provided for in “guidelines supported by the Health Resources and Services Administration.” 75 Fed. Reg. at 41756-59 (codified at 26 C.F.R. §54.9815-2713T(a)(1)(iv); 29 C.F.R. §2590.715-2713(a)(1)(iv) and 45 C.F.R. §147.130(a)(1)(iv)).
56. The Interim Final Rules were enacted without prior notice of rulemaking or opportunity for public comment. Even though federal law had never required coverage of abortion-inducing drugs, sterilization, or contraceptives, Defendants determined for themselves that “it would be impracticable and contrary to the public interest to delay putting the provisions
13

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 14 of 65
. . . in place until a full public notice and comment process was completed.” 75 Fed. Reg. at 41730.
57. Defendants stated they would later “provide the public with an opportunity for comment, but without delaying the effective date of the regulations,” demonstrating their intent to impose the regulations regardless of the legal flaws or general opposition that might be manifest in public comments. Id.
58. In addition to reiterating the Affordable Care Act’s preventive services coverage requirements, the Interim Final Rules provided further guidance concerning the Act’s restriction on cost sharing.
59. The Interim Final Rules made clear that “cost sharing” refers to “out-of-pocket” expenses for plan participants and beneficiaries. Id. at 41731.
60. The Interim Final Rules acknowledged that, without cost sharing, expenses “previously paid out-of-pocket” would “now be covered by group health plans and issuers” and that those expenses would, in turn, result in “higher average premiums for all enrollees.” Id.; see also id. at 41737 (“Such a transfer of costs could be expected to lead to an increase in premiums”).
61. In other words, HHS admitted that the prohibition on cost-sharing was simply a way “to distribute the cost of preventive services more equitably across the broad insured population.” Id. at 41730.
62. After the Interim Final Rules were issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and organizations to include certain kinds of services—specifically contraception, sterilization, and abortion services—in their health care plans.
14

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 15 of 65
63. HHS directed a private health policy organization, the Institute of Medicine (“IOM”), to make recommendations regarding which drugs, procedures, and services should be considered in the development of comprehensive guidelines for preventive services for women. See http://www.hrsa.gov/womensguidelines (last visited Sept. 23, 2013) (attached as Exhibit A).
64. IOM was not tasked with making insurance coverage recommendations and explicitly excluded cost considerations and other considerations relevant to coverage recommendations from its determinations regarding effective preventive care for women.
65. In developing its guidelines, IOM invited a select number of groups to make presentations on preventive care. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists, John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
66. No religious groups or other groups that opposed government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
67. On July 19, 2011, the IOM published its preventive care guidelines for women, including a recommendation that preventive services include “the full range of Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, 102-10 and Recommendation 5.5 (2011), available at http://www.nap.edu/catalog.php?record_id=13181 (last visited Sept. 23, 2013).
68. On August 1, 2011, thirteen days after the IOM issued its recommendations, the Health Resources and Services Administration (“HRSA”) issued guidelines tracking the language of the IOM report, defining preventive services exactly as the IOM report did. See 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012); see also Exhibit A,
15

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 16 of 65

http://www.hrsa.gov/womensguidelines. HRSA did not explain how, if at all, its guidelines

accounted for various factors relevant to insurance coverage decisions that IOM had declined to

consider (including “cost effectiveness”; “established practice; patient and clinician preferences;

availability; ethical, legal, and social issues; and availability of alternatives”).

69. Food and Drug Administration (“FDA”) approved contraceptive methods include:

birth-control pills; prescription contraceptive devices such as IUDs; Plan B (also known as the

“morning-after pill”); ulipristal (also known as “ella” or the “week-after pill”); and other drugs,

devices,

and

procedures.

See

http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm

(last visited Sept. 23, 2013) (attached as Exhibit B).

70. Some of these drugs and devices—including “emergency contraceptives” such as

Plan B, ella, and certain IUDs—are known abortifacients, in that they can cause the death of an

embryo by preventing it from implanting in the wall of the uterus.

71. Indeed, the FDA’s own Birth Control Guide states that both Plan B and ella can

work by “preventing attachment (implantation) to the womb (uterus).” Ex. B at 10-11,

http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm.

72. Neither the HRSA guidelines nor the Interim Final Rule mentioned or purported

to apply the Religious Freedom Restoration Act.

2. The Amended Interim Final Rules and the “Religious Employers” Exemption
73. On August 1, 2011, the Departments promulgated an amendment to the Interim

Final Rules. See 76 Fed. Reg. 46621 (Aug. 3, 2011).

16

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 17 of 65
74. As amended, the Interim Final Rules granted the Health Resources and Services Administration “discretion to exempt certain religious employers from the [IOM] Guidelines where contraceptive services are concerned.” Id. at 46623 (emphasis added).
75. The “religious employers” exemption was severely limited to formal churches, their integrated auxiliaries, and religious orders whose purpose is to inculcate faith and that hire and serve primarily people of their own faith tradition. 45 C.F.R.§ 147.130(a)(1)(iv)(B) at 76 Fed. Reg. 46626.
76. The vast majority of religious organizations with conscientious objections to providing contraceptive or abortifacient services were excluded from the “religious employers” exemption.
77. The Health Resources and Services Administration exercised its discretion under the amended Interim Final Rules to grant an exemption for defined “religious employers” via a footnote on its website listing the Women’s Preventive Services Guidelines. The footnote states that “guidelines concerning contraceptive methods and counseling described above do not apply to women who are participants or beneficiaries in group health plans sponsored by religious employers.” See Ex. A at n.**, http://www.hrsa.gov/womensguidelines.
78. Like the original Interim Final Rules, the amended Interim Final Rules were made effective immediately, without prior notice or opportunity for public comment. 76 Fed. Reg. at 46624.
3. The Safe Harbor 79. The public outcry for a broader religious employers exemption continued for many months and, on January 20, 2012, HHS issued a press release acknowledging “the important concerns some have raised about religious liberty” and stating that religious objectors would be “provided an additional year . . . to comply with the new law.” See Press Release, U.S.
17

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 18 of 65

Department of Health and Human Services, Statement by U.S. Department of Health and Human

Services

Secretary

Kathleen

Sebelius

(Jan.

20,

2012),

http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited Sept. 23, 2013)

(attached as Exhibit C).

80. Defendants then created a “temporary enforcement safe harbor,” which is a self-

imposed stay of enforcement of the contraceptive services mandate for certain qualified

organizations. This “safe harbor” would remain in effect for a qualified organization until its

first plan year that began on or after August 1, 2013. See HHS Guidance on Temporary

Enforcement Safe Harbor (Feb. 10, 2012); 77 Fed. Reg. 16501, 16504 (Mar. 21, 2012).

81. The “temporary enforcement safe harbor” applied to “group health plans

sponsored by nonprofit organizations that, on and after February 10, 2012, do not provide some

or all of the contraceptive coverage otherwise required . . . because of the religious beliefs of the

organization.” See 77 Fed. Reg. at 16502-03.

82. The Departments also indicated they would develop and propose changes to the

regulations to accommodate the objections of non-exempt, nonprofit religious organizations

following August 1, 2013. Id. at 16503.

4. The Advance Notice of Proposed Rulemaking 83. On March 21, 2012, the Departments issued an Advance Notice of Proposed

Rulemaking (“ANPRM”), presenting “questions and ideas to help shape” a discussion of how to

“maintain the provision of contraceptive coverage without cost sharing,” while accommodating

the religious beliefs of non-exempt religious organizations. Id. at 16503.

84. The ANPRM recognized that forcing religious organizations to “contract,

arrange, or pay for” the objectionable contraceptive and abortifacient servicers would infringe

their “religious liberty interests.” Id. (emphasis added).

18

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 19 of 65
5. The Notice of Proposed Rulemaking 85. On February 1, 2013, the Departments issued a Notice of Proposed Rulemaking (“NPRM”) purportedly addressing the comments submitted in response to the ANPRM. See 78 Fed. Reg. 8456 (Feb. 6, 2013). 86. The NPRM proposed two changes to the then-existing Final Interim Rules. Id. at 8458-59. 87. First, it proposed revising the religious employers exemption to define a “religious employer” as one “that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” Id. at 8474. 88. The Departments emphasized, however, that this proposal “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the [Interim Final Rules].” Id. at 8461. 89. In other words, religious organizations like the Class Action Plaintiffs that are not formal churches, their integrated auxiliaries, or religious orders would continue to be excluded from the exemption. 90. Second, the NPRM reiterated the Departments’ intention to “accommodate” nonexempt, nonprofit religious organizations by making them “designate” their insurers and third party administrators to provide plan participants and beneficiaries with free coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling. Id. at 8474-75. 91. The NPRM made no reference to the requirements of RFRA. 92. The proposed “accommodation” did not resolve the concerns of religious organizations like the Class Action Plaintiffs because it continued to force them to deliberately
19

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 20 of 65
provide coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling.
93. During the two months allowed for comments, “over 400,000 comments” were submitted in response to the NPRM, 78 Fed. Reg. at 39871, with religious organizations again overwhelmingly decrying the proposed “accommodation” as a gross violation of their religious liberty because it would conscript their health care plans as the main cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
94. On April 8, 2013, the Church Alliance, of which Christian Brothers Services is a member, submitted a 20-page comment letter on the NPRM, detailing how the expanded definition of “religious employer” excluded bona fide religious organizations, and how the proposed accommodation for “eligible organizations” was unworkable, particularly for selfinsured church plans like the Christian Brothers Employee Benefit Trust. The Church Alliance is an organization composed of the chief executives of thirty-eight church benefit boards, covering mainline and evangelical Protestant denominations, two branches of Judaism, and Catholic schools and institutions. A copy of the Church Alliance’s comment letter is available at http://church-alliance.org/initiatives/comment-letters (last visited September 23, 2013).
95. The Little Sisters also submitted comments on the NPRM on April 8, 2013, stating essentially the same objections stated in this complaint. The Little Sisters asserted that “[t]he federal government should not force us to counteract through the health benefits for our employees the very same Gospel of Life that we attempt to live out in communion and solidarity with the needy elderly. But under the proposed exemption and proposed accommodation, there is no way that we can comply with the Final Mandate without taking affirmative steps to change our health coverage arrangements to ensure coverage of female sterilization and all FDA-
20

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 21 of 65
approved contraceptives, including abortifacient drugs and devices.” See Comments of the Little Sisters of the Poor (attached as Exhibit D).
96. On April 8, 2013, the same day the notice-and-comment period ended and the day the Church Alliance and the Little Sisters submitted their comments, Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University.
97. In her remarks, Secretary Sebelius stated: We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st . . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package.
See Kathleen Sebelius, Remarks at The Forum at Harvard School of Public Health (Apr. 8, 2013), available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (starting at 51:20) (last visited Sept. 23, 2013) (emphasis added).
98. It is clear from the timing of these remarks that Defendants gave no consideration to the comments submitted by Plaintiffs or others in response to the NPRM’s proposed “accommodation.”
6. The Final Mandate 99. On June 28, 2013, Defendants issued final rules that ignore the objections repeatedly raised by religious organizations and continues to require objecting religious employers to participate in the government’s scheme of expanding free access to contraceptive and abortifacient services. See 78 Fed. Reg. 39870. The Final Rules assert, without explanation or analysis, that the mandate and the narrow exemption comply with the requirements of RFRA.
21

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 22 of 65
For convenience, we will refer to these rules, together with the comprehensive guidelines regarding preventive services for women supported by the Health Resources and Services Administration as the “Final Mandate.”
100. Under the Final Mandate, the discretionary “religious employers” exemption, which is still implemented via footnote on the Health Resources and Services Administration website, see Ex. A, http://www.hrsa.gov/womensguidelines, is limited to formal churches and religious orders “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39896 (codified at 45 C.F.R.§ 147.131(a)).
101. All other religious organizations, including the Class Action Plaintiffs, are excluded from the exemption.
102. Although religious organizations like the Class Action Plaintiffs share the same religious beliefs and concerns as Catholic churches, their integrated auxiliaries, and Catholic religious orders that are exempt as “religious employers,” the Departments deliberately ignored the regulation’s impact on their religious liberty, stating that the “simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement.” 78 Fed. Reg. at 39874.
103. The Final Mandate creates a separate “accommodation” for certain non-exempt religious organizations defined as “eligible organizations”. 78 Fed. Reg. at 39874 (codified at 45 C.F.R. § 147.131(b)&(c)).
104. An organization is an “eligible organization” and therefore eligible for the “accommodation” if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a
22

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 23 of 65
religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874 (codified at 45 C.F.R.§ 147.131(b)).
105. The purpose or, at the very least, the impact of the Final Mandate, including the restrictively narrow scope of the religious employers exemption, is to discriminate against religious organizations that oppose contraception and abortion and to violate the Plaintiffs’ rights to the free exercise of religion, the freedom of speech, expressive association under the First Amendment, the Establishment Clause of the First Amendment, equal protection of the law guaranteed by the Fifth Amendment, and rights under RFRA and the APA. The Final Mandate is also generally invalid because its adoption violated the APA.
106. The Final Mandate applies to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, except that the amendments to the religious employers exemption apply to plan years beginning on or after August 1, 2012. See 78 Fed. Reg. at 39870. Defendants also extended the “temporary enforcement safe harbor” to encompass plan years beginning on or after August 1, 2013, and before January 1, 2014. Id. at 39872.
107. An eligible organization seeking an “accommodation” must execute a selfcertification “prior to the beginning of the first plan year to which an accommodation is to apply”, and deliver it to the organization’s insurer or, if the organization has a self-insured plan, to the plan’s third party administrator. Id. at 39875.
108. Thus, an eligible organization would need to execute the self-certification prior to its first plan year that begins on or after January 1, 2014. Id. VI. APPLICATION OF THE FINAL MANDATE TO THE PLAINTIFFS
A. Class Action Plaintiffs 109. By definition, none of the Class Action Plaintiffs are “religious employers” eligible for exemption under the Final Mandate. Therefore, the Final Mandate forces the Class
23

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 24 of 65
Action Plaintiffs to choose between incurring severe financial hardship or violating their religious beliefs in one of the four following courses of action.
1. Incur Financial Hardship or Violate Religious Beliefs By Continuing Participation in the Christian Brothers Trust
110. First, a Class Action Plaintiff could continue its participation in the Christian Brothers Trust. Doing so, however, would force the Class Action Plaintiffs to choose between two unacceptable actions. The Class Action Plaintiffs could act consistently with the requirements of their religion and refuse to designate Christian Brothers Services or Christian Brothers Trust to provide the required contraceptive coverage. For such refusal, however, each Class Action Plaintiff, regardless of its size, will be discriminated against for exercising its religious beliefs by being subject to a penalty beginning on January 1, 2014, under section 4980D of the Code, of $100 per day with respect to each individual to whom the failure to provide contraceptive services relates. See 26 U.S.C. §§ 4980D & 9815 (the latter section implements the preventive services requirements set forth in 42 U.S.C. § 300gg-13(a)(4)). The alternative course – to designate Christian Brothers Services or Christian Brothers Trust to provide the required contraceptive coverage – would require the Class Action Plaintiffs to violate the requirements of their religion both by facilitating the coverage at issue, and by pressuring Christian Brothers Services and Christian Brothers Trust to provide that coverage in violation of their shared Catholic faith.
2. Violate Religious Beliefs and Incur Financial and Competitive Hardship By Discontinuing All Coverage
111. Second, a Class Action Plaintiff could discontinue participation in the Christian Brothers Trust and not seek replacement coverage. However, this choice would require the Class Action Plaintiffs to compromise their beliefs and place themselves at a disadvantage because of the Final Mandate. The Class Action Plaintiffs’ Catholic faith compels them to promote the
24

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 25 of 65
spiritual and physical well-being of their employees by providing them with health benefits within the construct of Catholic beliefs; however, the Act and Final Mandate would require them to act against those beliefs.
112. Similarly, by being forced to discontinue all coverage, the Class Action Plaintiffs would be placed at a severe competitive disadvantage in their efforts to hire and retain employees.
113. Additionally, discontinuing coverage would impose on a Class Action Plaintiff with an average of 50 or more full-time employees an excise tax penalty of $2,000 annually beginning in 2015 for each full-time employee if at least one full-time employee enrolls for and receives subsidized coverage on a Health Insurance Marketplace formed in response to the Act (commonly referred to as an “exchange”).
3. Violate Their Religious Beliefs by Replacing Coverage Under the Christian Brothers Trust With Group Insurance
114. Third, to avoid any penalties, a Class Action Plaintiff could discontinue participation in the Christian Brothers Trust and seek other coverage for its employees through group insurance that provides coverage for contraception, sterilization, abortifacients, and related education and counseling under the Act and Final Mandate. However, this would not be an acceptable alternative for a Class Action Plaintiff because it would require it to contract for, facilitate or pay for the provision of contraception, sterilization, abortifacients, and related education and counseling in violation of Catholic teaching.
a. Contracting For 115. The Class Action Plaintiffs’ religious convictions equally forbid them from contracting with an insurance company that will provide free coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling.
25

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 26 of 65
116. Even if group insurance were an acceptable alternative, it is not a practical alternative. A change in coverage effective January 1, 2014, would require a Class Action Plaintiff to: (i) budget for the new coverage; (ii) select an insurer; (iii) negotiate a group contract with the insurer; and (iv) communicate the changes to their employees. There is insufficient time in which to do so.
117. The Affordable Care Act requires that participants in a group health plan be given a Summary of Benefits and Coverage that “accurately describes the benefits and coverage” of the plan. Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C § 300gg-9).
118. Additionally, plan participants must be given a written notice of any material change in the Summary of Benefits and Coverage at least 60 days’ in advance notice of any such change. See 77 Fed. Reg. 8668, 8698-8705 (Feb. 14, 2012) (codified at 26 C.F.R. § 54.98152715(b), 29 C.F.R. § 2590.715-2715(b) and 45 C.F.R. § 147.200(b)).
119. Any change to a fully insured plan would likely constitute a material change in the information previously provided to covered employees of a Class Action Plaintiff in the Summary of Benefits and Coverage, which would require 60 days’ advance notice to the participants. 77 Fed. Reg. at 8698-8705. However, because of the lateness of the Final Mandate, there is inadequate time in which to change coverage within the law.
b. Facilitating 120. By having to take active steps to identify an insurance company that provides contraceptive and abortifacient services, to contract with that insurer, and to supply and adopt plan documentation and information that triggers coverage for those services (including the selfcertification form), the Class Action Plaintiffs would be required to actively facilitate and promote the distribution of these services in ways that are forbidden by their religion.
26

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 27 of 65
c. Paying For 121. Defendants state that they “continue to believe, and have evidence to support,” that providing payments for contraceptive and abortifacient services will be “cost neutral for issuers,” because “[s]everal studies have estimated that 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. at 39877. 122. On information and belief, the studies Defendants rely upon to support this claim are severely flawed. 123. Nevertheless, even if the payments were—over time—to become cost neutral, it is undisputed that there will be up-front costs for making the payments. See, e.g., id. at 39877-78 (addressing ways insurers can cover up-front costs). 124. Moreover, if cost savings arise that make insuring an employer’s employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers. 125. The Departments suggest that to maintain cost neutrality issuers may simply ignore this fact and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” Id. at 39877. 126. This encourages issuers to artificially inflate the eligible organization’s premiums. 127. Under this methodology—even assuming its legality—the eligible organization would still bear the cost of the required payments for contraceptive and abortifacient services in violation of its conscience, as if the accommodation had never been made.
27

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 28 of 65
4. Violate Religious Beliefs by Adopting a Self-Insured Plan With a Third Party Administrator Willing to Provide or Arrange for Contraception Benefits
128. Fourth, a Class Action Plaintiff could discontinue participation in the Christian Brothers Trust and adopt a self-insured employee benefit plan for its employees and appoint a “third party administrator” under the Final Mandate to provide or arrange for the provision of abortifacients, sterilizations and contraceptives, and related education and counseling.
129. As with the third option, this, too, would not be an acceptable alternative to the Class Action Plaintiffs because it would involve them in contracting for, facilitating or paying for the provision of abortifacients, sterilizations and contraceptives, and related education and counseling.
a. Contracting For 130. By delivering its self-certification to the third party administrator of the Christian Brothers Trust, a Class Action Plaintiff would trigger the third party administrator’s obligation to “provide or arrange separate payments for contraceptive services directly for plan participants and beneficiaries.” Id. at 39880. 131. The self-certification must specifically notify the third party administrator of its “obligations set forth in the[] final regulations, and will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” Id. at 39879. 132. Because the designation makes the third party administrator a plan administrator with fiduciary duties under a Class Action Plaintiff’s plan, the payments for contraceptive and abortifacient services would be payments made under the new plan. 133. The third party administrator would be also be required to provide the contraceptive benefits “in a manner consistent” with the provision of other covered services. Id.
28

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 29 of 65
at 39876-77. Thus, any payment or coverage disputes presumably would be resolved under the terms of the Class Action Plaintiff’s plan documents.
134. As previously discussed, even if this alternative were an acceptable option, this would not be a practical alternative for a Class Action Plaintiff effective January 1, 2014. Class Action Plaintiffs would be required to: (i) budget for the new coverage; (ii) select a third party administrator willing to provide for or arrange contraceptive coverage; (iii) negotiate an administrative services agreement with the third party administrator; and (iv) communicate the plan changes to their employees.
135. For budgeting purposes, new self-insured coverage may not be practical for a Class Action Plaintiff because it would impose a potential uncapped liability on the Class Action Plaintiff in light of the Act’s prohibition on annual and lifetime limits. Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-11).
136. A Class Action Plaintiff may have difficulty in finding a third party administrator willing to provide or arrange for contraception and other objectionable benefits. Defendants acknowledge “there is no obligation for a third party administrator to enter into or remain in a contract with the eligible organization if it objects to any of these responsibilities.” 78 Fed. Reg. at 39880.
137. Additionally, there is inadequate time to provide any changes in plan documentation, including any Summary of Benefits and Coverage and notices of any material change in the Summary of Benefits and Coverage. See 77 Fed. Reg. at 8698-8705 (codified at 26 C.F.R. § 54.9815-2715(b), 29 C.F.R. § 2590.715-2715(b) and 45 C.F.R. § 147.200(b)).
b. Facilitating 138. Under this option, the Class Action Plaintiffs would be required to actively facilitate and promote the distribution of these services in ways that are forbidden by their
29

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 30 of 65
religion. Initially, a Class Action Plaintiff would have to identify its employees to the third party administrator for the distinct purpose of enabling the government’s scheme. Thereafter, a Class Action Plaintiff would have to coordinate with the third party administrator regarding when it was adding or removing employees and beneficiaries from its healthcare plan and, as a result, from the contraceptive and abortifacient services payment scheme. A Class Action Plaintiff would also have to coordinate with third party administrators to provide notice to plan participants and beneficiaries of the contraceptive payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan, under the auspices of the Class Action Plaintiff’s own selffunded plan. 78 Fed. Reg. at 39876.
c. Paying For 139. The Final Rule sets forth complex means through which a third party administrator may seek to recover its costs incurred in making payments for contraceptive and abortifacient services. 140. The third party administrator must identify an issuer who participates in the federal exchanges established under the Affordable Care Act and who would be willing to make payments on behalf of the third party administrator. 141. Cooperating issuers would then be authorized to obtain refunds from the user fees they have paid to participate in the federal exchange as a means of being reimbursed for making payments for contraceptive and abortifacient services on behalf of the third party administrator. 142. Issuers would be required to pay a portion of the refund back to the third party administrator to compensate it for any administrative expenses it has incurred. 143. These extreme machinations, ostensibly employed only to shift the cost of the Final Mandate, are severely flawed.
30

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 31 of 65
144. There is no way to ensure that the cost of administering the coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling would not be passed on to the Class Action Plaintiffs through the third party administrator’s fees.
145. Moreover, taking the user fees intended for funding the federal exchanges and using them to provide contraceptive and abortifacient services to employees not participating in the federal exchanges would violate the statute authorizing the user fees. See 78 Fed. Reg. 15410, 15412 (Mar. 11, 2013); 31 U.S.C. § 9701.
146. For all these reasons, the accommodation does nothing to relieve non-exempt religious organizations like the Class Action Plaintiffs with self-insured plans from facilitating free access to contraception, sterilization, abortifacients, and related education and counseling.
B. Christian Brothers Employee Benefit Trust 147. The Christian Brothers Trust does not meet the definition of a “grandfathered” plan under the Affordable Care Act for multiple reasons, including, but not limited to, the following: (1) the Christian Brothers Trust does not include the required “disclosure of grandfather status” statement; (2) neither the Christian Brothers Trust nor the participating employers in the Christian Brothers Trust take the position that the Christian Brothers Trust is a grandfathered plan and thus they do not maintain the records necessary to verify, explain, or clarify its status as a grandfathered plan; and (3) in certain cases the Christian Brothers Trust has increased the percentage cost-sharing requirement measured from March 23, 2010, in excess of certain permitted limits. See 26 C.F.R. § 54.9815-1251T. 148. It is not clear whether Christian Brothers Services, the administrator for the Christian Brothers Trust, is a “third party administrator” under the Final Mandate. If it is, by the terms of the “accommodation,” the Class Action Plaintiffs participating in the Christian Brothers Trust seeking to comply with the requirements for an “accommodation” under the Final Mandate
31

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 32 of 65
will be required to execute the self-certification and deliver it to Christian Brothers Services before January 1, 2014.
149. The Final Mandate forces the Christian Brothers Trust to choose between violating the shared religious beliefs of its participating employers or suffering financial consequences. The Christian Brothers Trust has only four courses of action with respect to the coverage for employees of the Class Action Plaintiffs after December 31, 2013.
1. Continue Refusal to Provide Coverage for Contraceptives 150. First, the Christian Brothers Trust could continue to refuse to do anything that would provide coverage under the Christian Brothers Trust for contraceptives and related services. However, as discussed earlier, this would expose Class Action Plaintiffs that remain in the Christian Brothers Trust to the financially ruinous penalties under Code section 4980D of $100 per day for each affected individual. Alternatively, Class Action Plaintiffs may be financially forced to cancel their health care coverage for their employees, and this would have a substantial adverse financial impact on the Christian Brothers Trust and the remaining employers because there would be fewer participating employers to share the fixed costs of administration. 151. Pursuing this course would force the Trust to dramatically scale back its religious ministry of providing health insurance benefits to Catholic organizations.
2. Provide Coverage for Contraceptive Coverage Through an Accommodation
152. Second, at least in theory the Christian Brothers Trust could provide, either directly or through an “accommodation,” coverage for contraceptives, sterilization, abortifacients, and related education and counseling services. However, doing so would violate the religious beliefs it shares with its participating employers, including the Class Action Plaintiffs. Furthermore, Class Action Plaintiffs may be forced to cancel their health care
32

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 33 of 65
coverage for their employees for religious reasons to avoid the provision of objectionable coverage, and this would have a substantial adverse financial impact on the Christian Brothers Trust and the remaining employers because there would be fewer participating employers to share the fixed costs of administration.
3. Drop Coverage for Class Action Plaintiffs 153. Third, effective January 1, 2014, the Christian Brothers Trust could limit its coverage to only “religious employers” that are exempt from the Final Mandate. This would cause a severe disruption to the Class Action Plaintiffs who would be dropped from the Christian Brothers Trust, since unless they wanted to drop employee health coverage altogether, they would be forced at this late date to seek other coverage beginning January 1, 2014. Doing so would also require the Trust to case its ongoing religious exercise of providing health benefits to Catholic non-profits in accordance with Catholic teachings. Finally, limiting coverage would also force the Christian Brothers Trust to give up an important part of its ministry, and impose substantial financial burdens on both the Trust and the remaining “religious employers” because there would be fewer participating employers to share the fixed costs of administration.
4. Attempt to Avail Itself of the Safe Harbor from Enforcement for SelfInsured Plans Without Third Party Administrators
154. Fourth, the Christian Brothers Trust could consider itself a self-administered plan without a third party administrator.
155. The Supplementary Information section of the Final Mandate, but not the final regulations adopted in the Final Mandate, suggests that a self-insured plan without a third party administrator may apply for a “safe harbor from enforcement of the contraceptive coverage requirement” contingent upon several conditions. 78 Fed. Reg. at 39880.
33

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 34 of 65
156. However, the Defendants apparently do not consider the Christian Brothers Trust a self-insured plan without a third party administrator.
157. In the Final Mandate the Defendants indicated they “continue to believe that no self-insured plans” without third party administrators exist. Id. This statement was issued despite the fact that, prior to the issuance of the Final Mandate, the Defendants were aware of employee benefit plans like the Christian Brothers Trust that were administered by religious organizations that were separate from—but nevertheless affiliated with—employers participating in the plan.
158. In the comment submitted by the Church Alliance on April 8, 2013, on the NPRM, the Church Alliance noted:
The Departments noted in the Supplementary Information to the NPRM that “[n]o comments were submitted in response to the ANPRM on the extent to which there are plans without a third party administrator.” 78 Fed. Reg. at 8464. The absence of comments does not mean there are no such plans, especially since there was no guidance issued defining what constitutes a third party administrator. The Church Alliance did comment that the third party administrator approach for self-insured plans would not accommodate the religious objections of self-insured church plans using an affiliated religious organization as an administrator. If a religious organization cannot provide contraception coverage without violating its religious tenets and beliefs, neither can an affiliated religious organization. A copy of the Church Alliance’s comment letter is available at http://churchalliance.org/initiatives/comment-letters (last visited September 23, 2013). 159. In any event, any attempt by the Christian Brothers Trust to avail itself of the safe harbor from enforcement suggested for self-insured plans without third party administrators would be futile as the safe harbor would only be available “while an additional accommodation is considered.” 78 Fed. Reg. at 39881.
34

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 35 of 65

C. Christian Brothers Services 160. The Final Mandate also forces Christian Brother Services to choose between violating the shared religious beliefs of the Class Action Plaintiffs or suffering financial consequences and, in turn, suffering its own financial consequences. Christian Brother Services has only two courses of action.
1. Provide or Arrange for Contraceptive Benefits 161. First, Christian Brother Services can treat itself as a “third party administrator” under the Final Mandate and provide for or arrange for payments for contraceptives services provided to employees of Class Action Plaintiffs and their beneficiaries “on its own, or it can arrange for an issuer or other entity to provide such payments.” 78 Fed. Reg. at 39880. 162. However, doing so would violate Christian Brother Services’ religious beliefs because it would cause Christian Brother Services directly to “contract, arrange, pay or refer for contraception coverage” for contraceptive services through the contract between the Christian Brothers Trust and Christian Brother Services, and require the Class Action Plaintiffs to facilitate that coverage.1 Id. at 39874.

1

As an initial matter, it is not clear whether Christian Brother Services is a “third party

administrator” under the Final Mandate. The Final Mandate does not define “third party

administrator.” Even if Christian Brother Services is a third party administrator under the Final

Mandate, there is no way to obligate Christian Brother Services to provide or arrange for such

coverage other than through its contract with the Christian Brothers Trust. The Final Mandate

apparently assumes that the obligation to provide contraceptive and other services can be

imposed on third party administrators without any formal acceptance on the part of the third

party administrator.

In the case of a third party administrator to an ERISA-covered plan, the Final Mandate apparently assumes this obligation is imposed on the third party administrator by virtue of ERISA, because the third party administrator is already required to comply with the provisions of ERISA applicable to group health plans subject to ERISA, including section 715 of ERISA, which was added by the Affordable Care Act to impose the contraceptive coverage requirement on ERISA-covered plans. 78 Fed. Reg. at 39876-77 n. 28 and 39881 n. 42. However, this

35

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 36 of 65
163. Additionally, there would be a substantial adverse financial impact on the Christian Brothers Services as to the loss of the fee paying members who left because the provision of contraceptive and abortifacient coverage was contrary to their religious beliefs and the additional costs of providing such coverage.
2. Resign
164. Second, Christian Brothers Services can resign as administrator of the Christian Brothers Trust prior to January 1, 2014. This would require Christian Brothers Services to cease its long-time exercise of administering health benefits for Catholic institutions in accordance with Catholic teachings. Doing so would adversely and substantially affect Christian Brothers Services financially and disrupt the administration of the Christian Brothers Trust, thus penalizing the Class Action Plaintiffs and the other participating employers in the Christian Brothers Trust. This course would also dramatically reduce the scope of Christian Brothers Services’ religious ministry to provide health benefits to Catholic organizations. VII. RELIGIOUS FREEDOM RESTORATION ACT
165. Under RFRA the Federal Government is prohibited from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it “demonstrates that application of the burden to the person is (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1.
assumption is inapplicable in the case of a plan like the Christian Brothers Trust that is not subject to ERISA. Accordingly, there can be no other basis for Christian Brothers Services’ obligation to provide for or arrange for payments for contraceptives services other than through its contract with Christian Brothers Trust.
36

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 37 of 65
A. The Mandate Substantially Burdens Plaintiffs’ Exercise of Religion 166. Forcing Plaintiffs’ to provide, contract for, pay for or otherwise facilitate access to contraception, sterilization, abortifacients, and related education and counseling or suffer substantial adverse economic effects is a substantial burden on their exercise of religion. 167. For example, the Little Sisters Homes are dedicated to caring for the weak and the dying of all races and religions, and to doing so in accordance with Catholic religious principles. 168. Accordingly, they strive to respect the uniqueness and dignity of each elderly person as they reach the end of their life. They offer this respect both to honor the individual as loved by God and to convey a public witness of respect for life, in the hope that they can help build an international Culture of Life. See Little Sisters of the Poor, Mission, Vision, and Values (describing the Little Sisters’ “VISION” as building a “Culture of Life by nurturing communities where each person is valued, the solidarity of the human family and the wisdom of age are celebrated, and the compassionate love of Christ is shared with all,” and its “VALUES” as including “REVERENCE for the sacredness of human life and for the uniqueness of each person, especially those who are the poorest and/or weakest”) (attached as Exhibit E). 169. The Little Sisters have taken a vow of obedience to the Pope. They develop all of their programs, policies, and procedures to follow the ethical teachings of the Roman Catholic Church, with special emphasis on the sacredness of human life. 170. The Little Sisters Homes are therefore religiously bound to follow the religious teachings on abortion, sterilization, and contraception set forth in paragraphs 38-45 above. 171. For these reasons, the Little Sisters Homes are forbidden by their Catholic faith from participating in the government’s system for providing coverage for contraceptives, sterilization, abortion-inducing drugs, and related counseling and education, for its lay, and other employees, both lay and clergy. The Little Sisters Homes cannot pay for such benefits. They
37

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 38 of 65
cannot provide paperwork that will trigger such benefits. They cannot designate another party to provide such benefits. They cannot make certifications that would create a duty for Christian Brothers Services to provide such benefits. Simply put, as a matter of religious faith, the Little Sisters Homes may not participate in any way in the government’s program to provide access to these services.
172. Nor can the Little Sisters Homes violate their commitment to Christian witness by being seen to participate in the government’s program. Doing so would not only directly violate their obligations and vows, but also would risk leading others astray.
173. Nor can the Little Sisters Homes violate Catholic teachings without jeopardizing their ministry to the poor, because nearly half of their operating revenue is provided by voluntary donations.
174. The other class members—all of whom are official Catholic organizations, and all of whom have chosen to provide health benefits through the Trust, which is expressly designed to provide benefits in accordance with Catholic principles—likewise may not participate in the government’s program without violating their religion. They are all religiously bound to follow the religious teachings on abortion, sterilization, and contraception set forth in paragraphs 38-45 above.
175. Christian Brothers Trust itself is likewise operated in accordance with these Catholic teachings, and cannot participate in the government’s program to provide access to these services. As described above, the Final Mandate would require the Trust to either violate Catholic teachings or dramatically reduce its religious exercise of providing health benefits in accordance with Catholic teachings.
176. Christian Brothers Services is likewise operated in accordance with these Catholic teachings, and cannot participate in the government’s program to provide access to these
38

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 39 of 65
services. As described above, the Final Mandate would require Christian Brothers Services to either violate Catholic teachings or dramatically reduce its religious exercise of administering health benefits in accordance with Catholic teachings.
177. As set forth above, refusing to comply with the Final Mandate will result in severe financial consequences for the class members (in the form of massive fines and penalties) and for Christian Brothers Trust and Christian Brothers Services (in the form of elimination of large portions of their ministries).
178. For all Plaintiffs, therefore, the Final Mandate “requires participation in an activity prohibited by a sincerely held religious belief,” prevents participation in conduct motivated by a sincerely held religious belief, and “places substantial pressure on” the class members “to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013). This is the essence of a substantial burden on religion.
B. There is No Compelling Interest for the Application of the Final Mandate to Plaintiffs
179. The government lacks any compelling interest in coercing the Plaintiffs to promote and facilitate access to contraception, sterilization, abortifacients, and related education and counseling.
180. Many of these goods or services are already widely available at non-prohibitive costs.
181. Among other things, the Departments claim that the “religious employers” exemption does not undermine its compelling interest in making contraceptive and abortifacient services available for free to women because “houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers
39

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 40 of 65

to employ people who are of the same faith and/or adhere to the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39887. Under this reasoning, the Class Action Plaintiffs should also be exempt. Because the Class Action Plaintiffs share the well-known views of the Catholic Church on sterilizations and contraceptives, including abortifacient drugs and devices, the Class Action Plaintiffs’ employees are just as likely as employees of exempt organizations to adhere to the same values, and thus are less likely than other people to use the objectionable drugs, devices, and services.
182. In one form or another, the government also provides exemptions for: (i) grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. at 41731; (ii) small employers with fewer than 50 employees, 26 U.S.C. § 4980H(c)(2)(A)2; (iii) members of certain religious sects or divisions that conscientiously objects to acceptance of public or private insurance funds, 26 U.S.C. § 5000A(d)(2)(A)(i); and (iv) members of “health care sharing ministries” that meet certain criteria, 26 U.S.C. § 5000A(d)(2)(B)(i).
183. Although there are many requirements for maintaining grandfathered status, see 26 C.F.R. § 54.9815-1251T(g), if those requirements are met a plan may be grandfathered for an indefinite period of time.
184. According to the Departments’ “mid-range estimate,” 55% of large-employer plans would remain grandfathered and 34% of small-employer plans would remain grandfathered for 2013. Defendants assumed that large-employer plans accounted for 133

2

To be clear, although small employers are exempt from the penalties under Code section

4980H if they do not provide coverage, they are subject to the penalties under Code section

4980D if they do provide coverage that does not include coverage for abortifacient

contraceptives and related services.

40

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 41 of 65

million enrollees, and small-employer plans accounted for 43 million enrollees, so their “mid-

range” projections anticipated that roughly 88 million Americans would still be covered by

grandfathered plans in 2013. 75 Fed. Reg. 34538, 34550 & 34553 (June 17, 2010); see also

http://web.archive.org/web/20130620171510/http://www.healthcare.gov/news/

factsheets/2010/06/keeping-the-health-plan-you-have-grandfathered.html (last visited Sept. 23,

2013)

(attached

as

Exhibit

F);

see

also

https://www.cms.gov/CCIIO/Resources/Files/factsheet_grandfather_amendment.html (noting

that amendment to regulations “will result in a small increase in the number of plans retaining

their grandfathered status relative to the estimates made in the grandfathering regulation”) (last

visited Sept. 23, 2013) (attached as Exhibit G).

185. In fact, these projections regarding the number of employees still covered by

grandfathered plans may be low since they were based only on ERISA-covered plans and

governmental plans, thus omitting non-ERISA church plans like the Christian Brothers Trust. 75

Fed. Reg. at 34550.

186. According to the United States Small Business Administration, in 2010, more

than 31 million individuals are employed by firms with fewer than 50 employees. See,

static_us(2).xlsx at http://www.sba.gov/advocacy/849/12162#susb (last visited September 12,

2013) (attached as Exhibit H).

187. These broad exemptions demonstrate that the government has no compelling

interest in refusing to include religious organizations like the Plaintiffs within its religious

exemption.

188. These broad exemptions also demonstrate that the Final Mandate is not a

generally applicable law entitled to judicial deference, but rather is constitutionally flawed.

41

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 42 of 65
189. The government’s willingness to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations also shows that the Final Mandate is not neutral, but rather discriminates against religious organizations because of their religious commitment to promoting the sanctity of life.
190. Indeed, the Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who hold religious beliefs regarding contraception, sterilization, and abortion that are firmly contrary to the Plaintiffs’ beliefs.
191. Defendant Sebelius, for example, has long been a staunch supporter of abortion rights and a vocal critic of religious teachings and beliefs regarding abortion and contraception. On October 5, 2011, six days after the comment period for the original Interim Final Rules 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.” See William McGurn, Op-Ed., The Church of Kathleen Sebelius, Wall St. J., Dec. 13, 2011, available at http://online.wsj.com/article/SB10001424052970203518404577094631979925326.html (last visited Sept. 23, 2013).
192. She further criticized individuals and entities whose beliefs differed from those held by her and the others at the fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.” Id.
193. On July 16, 2013, Secretary Sebelius further compared opponents of the Affordable Care Act generally to “people who opposed civil rights legislation in the 1960s,” stating that upholding the Act requires the same action as was shown “in the fight against lynching and the fight for desegregation.” See Kathleen Sebelius, U.S. Secretary of Health and
42

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 43 of 65
Human Services, Address at the 104th NAACP Annual Conference (July 16, 2013), available at http://www.hhs.gov/secretary/about/speeches/sp20130716.html (last visited Sept. 23, 2013).
C. The Final Mandate is Not the Least Restrictive Means of Providing Contraceptive Services
194. There are multiple ways in which the government could provide access to contraceptives, sterilizations and related education and counseling without requiring religious employers such as the Class Action Plaintiffs, or religious benefits providers and administrators like Christian Brothers Trust and Christian Brothers Services, to provide for such benefits through their employee benefit plans in violation of their religious beliefs.
195. For example, the government could: (i) directly provide contraceptive services to the few individuals who do not receive it under their health plans; (ii) offer grants to entities that already provide contraceptive services at free or subsidized rates and/or work with these entities to expand delivery of the services; (iii) directly offer insurance coverage for contraceptive services; or (iv) grant tax credits or deductions to women who purchase contraceptive services.
196. Plaintiffs in no way recommend these alternatives, and, indeed, oppose many or all of them as a matter of policy. But the fact that they remain available to the government demonstrates that the Final Mandate cannot survive the requirement of RFRA prohibiting the Federal Government from “substantially burden[ing] a person’s exercise of religion,” unless, among other things, it is the “least restrictive means of furthering” the government’s compelling interest. 42 U.S.C. § 2000bb-1(b)(2). VIII. CLASS ACTION ALLEGATIONS
197. The Little Sisters Homes bring this action on behalf of themselves and all others similarly situated as members of a proposed plaintiff class pursuant to Sections (a), (b)(1), and (b)(2) of Rule 23 of the Federal Rules of Civil Procedure. This action satisfies the numerosity,
43

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 44 of 65
commonality, typicality, adequacy, risk of incompatible standards, and cohesiveness requirements of those provisions.
198. The class is defined as those employers that: (i) have adopted or in the future adopt the Christian Brothers Employee Benefit Trust to provide medical coverage for their “employees” or former employees and their dependents (“employees” for purposes of this requirement has the meaning set forth in Code section 414(e)(3)(B)); (ii) are or could be reasonably construed to be “eligible organizations” within the meaning of the Final Mandate; and (iii) are not “religious employers” with the meaning of the Final Mandate. The class members are all Catholic organizations operated in accordance with Catholic religious teachings, including teachings on abortion, contraception, sterilization, and cooperation with sin.
199. Currently, there are more than 200 class member employers located in approximately 40 states. Accordingly, joinder is impracticable, and the disposition of the claims of these class members in a single class action will provide substantial benefits to all parties and to the Court.
200. The claims of the representatives Little Sisters Homes are typical of the claims of the class in that the Little Sisters Homes and all class members will be equally and similarly harmed by the Defendants’ enforcement of the Affordable Care Act and Final Mandate. Furthermore, the factual bases of Defendants’ actions are common to all class members. The class members share in the same Catholic beliefs set forth in paragraphs 38-45 and, therefore, will suffer the same impact and violation of rights.
201. Most if not all of the questions of law and fact are common to Little Sisters Homes and the class members. By definition none of the Class Action Plaintiffs are eligible for the religious employers exemption under the Final Mandate. As previously stated, the class members share in the same Catholic belief set forth in paragraphs 38-45 and will be subjected to
44

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 45 of 65
the application of the same Final Mandate. The Final Mandate forces all of the Class Action Plaintiffs to choose between incurring severe financial hardship or violating their religious beliefs by taking steps to invoke the “accommodation.”
202. The Little Sisters Homes will fairly and adequately protect the interests of the Class. The Little Sisters Homes have retained counsel with substantial experience in litigating class action cases and in litigating violations of religious and constitutional rights. Plaintiffs and their counsel are committed to prosecuting this action vigorously on behalf of the Class, and have the resources to do so. Upon information and belief, the Little Sisters Homes do not have an interest adverse to those of the class.
203. This case is maintainable as a class action under Rule 23(b)(1) of the Federal Rules of Civil Procedure. Because the Little Sisters Homes seek injunctive relief and corresponding declaratory relief for the entire class, the prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to Defendants and with respect to individual members of the class which would establish incompatible standards of conduct for Defendants. Further, separate adjudications with respect to individual class members would, as a practical matter, give rise to avoidable litigation over whether the separate adjudications are dispositive of the interests of other class members who are not parties and may impair and impede their ability to protect their interests.
204. This case is also maintainable as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure because Defendants have acted and refused to act on grounds generally applicable to the entire class under the same statute and regulations. All members of the class are entitled to a declaration that the Final Mandate violates the Class Action Plaintiffs’ rights to the free exercise of religion, the freedom of speech, and expressive association under the First Amendment; violate the Establishment Clause of the First Amendment; deprive Class Action
45

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 46 of 65
Plaintiffs of the equal protection of the law guaranteed by the Fifth Amendment; and violate the Religious Freedom Restoration Act. Further, all members of the class will be entitled to an injunction prohibiting Defendants from enforcing the Final Mandate against the Class Action Plaintiffs and from charging or assessing penalties against the Class Action Plaintiffs for failure to offer or facilitate access to contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling. IX. CAUSES OF ACTION
COUNT I Violation of the Religious Freedom Restoration Act
Substantial Burden 205. The Plaintiffs incorporate by reference all preceding paragraphs. 206. Plaintiffs’ sincerely held religious beliefs prohibit them from promoting or supporting—directly or indirectly—contraception, sterilization, abortifacients, abortion, and related education and counseling, including providing a health care plan that provides access to or the means of acquiring such products or services proscribed by their religious beliefs. Plaintiffs’ compliance with these beliefs is a religious exercise. 207. The Final Mandate substantially burdens Plaintiffs’ sincerely held religious beliefs. 208. The Final Mandate does not further any compelling governmental interest. 209. The Final Mandate is not the least restrictive means to accomplish any permissible governmental interest. 210. The Final Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs. 211. The Final Mandate chills the Plaintiffs’ religious exercise.
46

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 47 of 65
212. The Final Mandate exposes the Class Action Plaintiffs to substantial fines for their religious exercise.
213. The Final Mandate forces Christian Brothers Employee Benefit Trust and Christian Brothers Services to choose between violating their religious beliefs or dramatically reducing the scope of their mission.
214. The Final Mandate exposes the Plaintiffs to substantial competitive disadvantages.
215. The Final Mandate imposes a substantial burden on the Class Action Plaintiffs’ religious exercise.
216. The Final Mandate is not the least restrictive means of furthering Defendants’ stated interests.
217. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate violate the Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
218. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden 219. The Plaintiffs incorporate by reference all preceding paragraphs. 220. The Final Mandate compels the Plaintiffs to subsidize and/or provide access to education and counseling regarding contraceptive methods, sterilization procedures, and abortifacients in violation of their sincerely held religious beliefs. Class Action Plaintiffs’ compliance with these beliefs is a religious exercise.
47

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 48 of 65
221. Neither the Affordable Care Act nor the Final Mandate is neutral. 222. Neither the Affordable Care Act nor the Final Mandate is generally applicable. 223. Defendants have created categorical and individualized exemptions to the Final Mandate. 224. The Final Mandate furthers no compelling governmental interest. 225. The Final Mandate is not the least restrictive means of furthering Defendants’ stated interests. 226. The Final Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate its religious beliefs. 227. The Final Mandate chills Plaintiffs’ religious exercise. 228. The Final Mandate exposes Class Action Plaintiffs to substantial fines for their religious exercise. 229. The Final Mandate exposes the Plaintiffs to substantial competitive disadvantages. 230. The Final Mandate imposes a substantial burden on the Plaintiffs’ religious exercise. 231. The Final Mandate is not narrowly tailored to any compelling governmental interest. 232. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate violate the Plaintiffs’ rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 233. Absent injunctive and declaratory relief against the Final Mandate, the Class Action Plaintiffs have been and will continue to be harmed.
48

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 49 of 65
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 234. The Plaintiffs incorporate by reference all preceding paragraphs. 235. The Plaintiffs’ sincerely held religious beliefs prohibit them from deliberately subsidizing and/or providing to their employees access to regarding contraceptive methods, sterilization procedures, and abortifacients. The Plaintiffs’ compliance with these beliefs is a religious exercise. 236. Despite being informed in detail of these beliefs beforehand, Defendants designed the Final Mandate and the religious employers exemption therein to target religious organizations like the Plaintiffs because of their religious beliefs. 237. Defendants promulgated both the Final Mandate and its religious employers exemption to suppress the religious exercise of the Plaintiffs and others. 238. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate thus violate the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. 239. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise and Establishment Clauses Discrimination Among Religions
240. The Plaintiffs incorporate by reference all preceding paragraphs.
49

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 50 of 65
241. The Free Exercise Clause and Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference.
242. This mandate of equal treatment protects organizations as well as individuals. 243. The Final Mandate’s narrow exemption for “religious employers” but not others discriminates among religions on the basis of religious views or religious status. 244. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate thus violate the Plaintiffs’ rights secured to them by the First Amendment of the United States Constitution. 245. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause Selective Burden/Denominational Preference (Larson v. Valente) 246. The Plaintiffs incorporate by reference all preceding paragraphs. 247. By design, Defendants imposed the Final Mandate on some religious organizations but not on others, resulting in a selective burden on the Plaintiffs. 248. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate therefore violate the Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution. 249. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
50

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 51 of 65
COUNT VI Interference in Matters of Internal Religious Governance
Free Exercise Clause and Establishment Clause 250. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 251. The Free Exercise Clause and the Establishment Clause protect the freedom of religious organizations to decide for themselves, free from state interference, matters of internal governance as well as those of faith and doctrine. 252. Under these Clauses, the government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, leadership, or doctrine. 253. Under these Clauses, the government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself. 254. Each of the Plaintiffs has made an internal decision, dictated by its Catholic faith, that the health plans it makes available to its employer members and employees may not subsidize, provide, or facilitate access to contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling. 255. The Final Mandate interferes with the Plaintiffs’ internal decisions concerning their structure and mission by requiring them to subsidize, provide, and facilitate practices that directly conflict with their Catholic beliefs. 256. The Final Mandate’s interference with the Plaintiffs’ internal decisions affects their faith and mission by requiring them to subsidize, provide, and facilitate practices that directly conflict with their religious beliefs.
51

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 52 of 65
257. Because the Final Mandate interferes with the Plaintiffs’ internal decision making in a manner that affects their faith and mission, it violates the Establishment Clause and Free Exercise Clause of the First Amendment.
258. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT VII Religious Discrimination Violation of the First and Fifth Amendments to the United States Constitution Establishment Clause and Due Process 259. The Plaintiffs incorporate by reference all preceding paragraphs. 260. By design, Defendants imposed the Final Mandate on some religious organizations but not on others, resulting in discrimination among religious objectors. 261. Religious liberty is a fundamental right. 262. The “religious employer” exemption in the Final Mandate protects many religious objectors, but not the Plaintiffs. 263. The “accommodation” in the Final Mandate provides no meaningful protection for the Plaintiffs. 264. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate therefore violate the Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitution. 265. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
52

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 53 of 65
COUNT VIII Violation of the Fifth Amendment to the United States Constitution
Due Process and Equal Protection 266. The Plaintiffs incorporate by reference all preceding paragraphs. 267. The Due Process Clause of the Fifth Amendment mandates the equal treatment of all religious faiths and institutions without discrimination or preference. 268. This mandate of equal treatment protects organizations as well as individuals. 269. The Final Mandate’s narrow exemption for “religious employers” but not others discriminates among religions on the basis of religious views or religious status. 270. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate thus violate the Plaintiffs’ rights secured to them by the Fifth Amendment of the United States Constitution. 271. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT IX Violation of the First Amendment to the United States Constitution
Freedom of Speech 272. The Plaintiffs incorporate by reference all preceding paragraphs. 273. The Plaintiffs believe that that contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling violate their religious beliefs. 274. The Final Mandate would compel the Plaintiffs to facilitate activities that the Plaintiffs sincerely believe would violate their religious beliefs.
53

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 54 of 65
275. The Final Mandate would compel the Plaintiffs to provide self-certifications, designations, or other written or spoken statements which, by law, will trigger payments for contraceptives, sterilizations and abortion-inducing drugs.
276. The Final Mandate also forbids the Plaintiffs from speaking to third party administrators and encouraging them not to provide access to contraceptives, sterilizations, and abortion-inducing drugs.
277. The Final Mandate would compel the Plaintiffs to facilitate access to governmentdictated education and counseling related to contraception, abortifacients and sterilizations.
278. Defendants’ actions thus violate the Plaintiffs’ right to speak, and the Plaintiffs’ right to be free from compelled speech, as secured to them by the First Amendment of the United States Constitution.
279. The Final Mandate’s speech restrictions are not narrowly tailored to a compelling governmental interest.
280. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT X Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 281. The Plaintiffs incorporate by reference all preceding paragraphs. 282. The Plaintiffs sincerely believe that contraception, abortifacients and sterilization violate their religious beliefs. 283. The Final Mandate would compel the Plaintiffs to facilitate activities that they sincerely believe are violations of their religious beliefs.
54

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 55 of 65
284. The Final Mandate would compel the Plaintiffs to facilitate access to governmentdictated education and counseling related to contraception, abortifacients and sterilizations.
285. Defendants’ actions thus violate the Plaintiffs’ right of expressive association as secured to them by the First Amendment of the United States Constitution.
286. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT XI Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
287. The Plaintiffs incorporate by reference all preceding paragraphs. 288. By stating that HHS, through the Health Resources and Services Administration, “may” grant an exemption to certain religious groups, the Final Mandate purports to vest HHS with unbridled discretion over which organizations can have their First Amendment interests accommodated. 289. Defendants have ignored federal religious liberty law and have instead exercised unbridled discretion in a discriminatory manner by granting an exemption via footnote in a website for a narrowly defined group of “religious employers” but not for other religious organizations like the Plaintiffs. 290. Defendants have further exercised unbridled discretion by indiscriminately waiving enforcement of some provisions of the Affordable Care Act while refusing to waive enforcement of the Final Mandate, despite its conflict with the free exercise of religion. 291. Defendants’ actions therefore violate the 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 them by the First Amendment of the United States Constitution.
55

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 56 of 65
292. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act Lack of Good Cause and Improper Delegation 293. The Plaintiffs incorporate by reference all preceding paragraphs. 294. The Affordable Care Act expressly delegates to HHS, through its agency Health Resources and Services Administration, the authority to establish guidelines concerning the “preventive care” that a group health plan and health insurance issuer must provide. 295. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. 296. Defendants promulgated the “preventive care” guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law. Defendants, instead, wholly delegated their responsibilities for issuing preventive care guidelines to a nongovernmental entity, the IOM. 297. The IOM did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. The dissent to the IOM report noted both that the IOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency. Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, 231 (2011), available at http://www.nap.edu/openbook.php?record_id=13181&page=231 (last visited Sept. 23, 2013).
56

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 57 of 65
298. Within two weeks of the IOM issuing its guidelines, Defendant HHS issued a press release announcing that the IOM’s guidelines were required under the Affordable Care Act. See 77 Fed. Reg. at 8725; see also Ex. A, http://www.hrsa.gov/womensguidelines.
299. Defendants have never adequately explained why they failed to enact these “preventive care” guidelines through notice-and-comment rulemaking as required by the APA.
300. 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.”
301. 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.”
302. Thereafter, Defendants did not consider or respond to the voluminous subsequent comments they received in opposition to the Interim Final Rules or the NPRM.
303. Therefore, Defendants have taken agency action not in observance with procedures required by law, and the Class Action Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
304. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT XIII Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 305. The Plaintiffs incorporate by reference all preceding paragraphs. 306. In promulgating the Final Mandate, Defendants failed to consider the constitutional and statutory implications of the Final Mandate on the Plaintiffs and similar organizations.
57

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 58 of 65
307. Defendants’ explanation for their decision not to exempt the Plaintiffs and similar religious organizations from the Final Mandate runs counter to the evidence submitted by religious organizations during the comment periods.
308. Defendant Secretary Sebelius, in remarks made at Harvard University on April 8, 2013, essentially conceded that the Defendants completely disregarded the religious liberty concerns submitted by thousands of religious organizations and individuals. See Kathleen Sebelius, Remarks at The Forum at Harvard School of Public Health (Apr. 8, 2013), available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (starting at 51:20) (last visited Sept. 23, 2013).
309. Thus, Defendants’ issuance of the Final Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because they failed to consider the full implications of the Final Mandate and they did not take into consideration the evidence against it.
310. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT XIV Violation of the Administrative Procedure Act Agency Action Without Statutory Authority 311. The Plaintiffs incorporate by reference all preceding paragraphs. 312. Defendant’s authority to enact regulations under the Affordable Care Act is limited to the authority expressly granted them by Congress. 313. Defendants lack statutory authority to coerce third party administrators, including entities such as Christian Brothers Services, to pay or provide for contraceptive and abortifacient services for individuals with whom they have no contractual or fiduciary relationship.
58

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 59 of 65
314. Defendants lack statutory authority to prevent insurance issuers and third party administrators from passing on the costs of providing contraceptive and abortifacient services via higher premiums or other charges that are not “cost sharing.”
315. Defendants lack statutory authority to allow user fees from the federal exchanges to be used to purchase contraceptive and abortifacient services for employees not participating in the exchanges.
316. Because the Final Mandate’s “accommodation” for non-exempt, nonprofit religious organizations lacks legal authority, it is arbitrary and capricious and provides no legitimate protection of Plaintiffs’ First Amendment rights.
317. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT XV Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 318. The Plaintiffs incorporate by reference all preceding paragraphs. 319. The Final Mandate is contrary to Weldon amendment, which has been included in every federal appropriations law since 2004. Section 507 of the most recent Appropriations Act provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and HHS] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act, Pub. L. No. 112-74, Division F, Title V, 125 Stat. 786, 1111 (2012).
59

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 60 of 65
320. The Final Mandate requires certain employers, including the Class Action Plaintiffs, to deliberately provide health benefits for their employees that facilitates access to all Federal Drug Administration-approved contraceptives, and as a possible result requires Christian Brothers Trust and Christian Brothers Services to elect whether they must also facilitate those acts.
321. Some FDA-approved contraceptives required to be provided by the Final Mandate cause abortions.
322. As set forth above, the Final Mandate violates RFRA and the First Amendment. 323. Under 5 U.S.C. § 706(2)(A), the Final Mandate is contrary to existing law, and is in violation of the APA. 324. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT XVI Violation of the Administrative Procedure Act Agency Action Not in Accordance with the Affordable Care Act 325. The Plaintiffs incorporate by reference all preceding paragraphs. 326. The Final Mandate is contrary to the provisions of the Affordable Care Act. 327. Section 1303(b)(1)(A) 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.” 328. Section 1303 of the Affordable Care Act further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services.
60

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 61 of 65
329. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; rather, only the issuer has that authority.
330. The Final Mandate requires certain employers, including the Class Action Plaintiffs, to deliberately provide health benefits for their employers that would facilitate access to coverage of all Federal Drug Administration-approved contraceptives, and as a possible result requires Christian Brothers Trust and Christian Brothers Services to elect whether they must also facilitate those acts.
331. Some FDA-approved contraceptives cause abortions. 332. Under 5 U.S.C. § 706(2)(A), the Final Mandate is contrary to existing law, and is in violation of the APA. 333. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
Request for Preliminary Injunction 334. Plaintiffs repeat and reallege the allegations contained in the paragraphs above as if fully set forth herein. 335. Plaintiffs request a preliminary injunction prohibiting Defendants while this lawsuit is pending from enforcing the Final Mandate against the Plaintiffs, including Class Action Plaintiffs, Christian Brothers Services and the Christian Brothers Trust and any of its third party administrators, and prohibiting the Defendants from charging or assessing penalties against the Class Action Plaintiffs for failure to offer or facilitate access to contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling, including those found in 26 U.S.C. §§ 4980D and 4980H, because (a) Plaintiffs and Class Action Plaintiffs will suffer immediate and irreparable injury, (b) other remedies available at law, such as monetary damages, are inadequate to fully compensate them for that injury, (c)
61

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 62 of 65 there is a substantial likelihood that Plaintiffs and Class Action Plaintiffs will prevail on the merits, (d) the harm faced by Plaintiffs and Class Action Plaintiffs outweighs the harm that would be sustained by Defendants if a preliminary injunction were granted; (e) the issuance of a preliminary injunction will not adversely affect the public interest and public policy, and (f) Plaintiffs are willing to post a bond in an amount the Court deems appropriate FED. R. CIV. P. 65.
336. Plaintiffs respectfully request that the Court set a hearing on this request for a preliminary injunction at the earliest possible time and, after hearing, grant Plaintiffs’ request for preliminary injunction.
62

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 63 of 65
PRAYER FOR RELIEF Wherefore, the Plaintiffs, on behalf of themselves and all others similarly situated, request that the Court: a. Enter an order certifying the proposed plaintiff class, designating Little Sisters of
the Poor Home for the Aged, Denver, Colorado, and Little Sisters of the Poor, Baltimore, Inc. as named representatives of the Class, and designating the undersigned as Class Counsel; b. Declare that the Final Mandate and Defendants’ enforcement of the Final Mandate against the Plaintiffs violate the Religious Freedom Restoration Act, and that no penalties can be charged or assessed against the Plaintiffs for failure to offer or facilitate access to contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling, including any penalties under 26 U.S.C. §§ 4980D and 4980H; c. Declare that the Final Mandate and Defendants’ enforcement of the Final Mandate against the Plaintiffs violate the First Amendment of the United States Constitution, and that no penalties can be charged or assessed against the Plaintiffs for failure to offer or facilitate access to contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling, including any penalties under 26 U.S.C. §§ 4980D and 4980H; d. Declare that the Final Mandate and Defendants’ enforcement of the Final Mandate against the Plaintiffs violate the Fifth Amendment of the United States Constitution, and that no penalties can be charged or assessed against the Plaintiffs for failure to offer or facilitate access to contraceptives (including abortifacient contraceptives), sterilization procedures that are or could be
63

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 64 of 65
abortifacients and related education and counseling, including penalties under 26 U.S.C. §§ 4980D and 4980H; e. Declare that the Final Mandate was issued in violation of the Administrative Procedure Act, and that no penalties can be charged or assessed against the Plaintiffs for failure to offer or facilitate access to contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling, including any penalties under 26 U.S.C. §§ 4980D and 4980H; f. Issue a preliminary injunction and permanent injunction prohibiting Defendants from enforcing the Final Mandate against the Plaintiffs, including Class Action Plaintiffs, and prohibiting the Defendants from charging or assessing penalties against the Plaintiffs for failure to offer or facilitate access to contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling; g. Award the Plaintiffs the costs of this action and reasonable attorney’s fees; and h. Award such other and further relief as it deems equitable and just.
Respectfully submitted this 24th day of September, 2013.
64

Case 1:13-cv-02611 Document 1 Filed 09/24/13 USDC Colorado Page 65 of 65

/s/ Mark Rienzi Mark Rienzi D.C. Bar No. 494336 mrienzi@becketfund.org Daniel Blomberg Kansas Bar No. 23723 dblomberg@becketfund.org Adele Keim Virginia Bar No. 76476 akeim@becketfund.org THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street NW, Suite 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090
Carl C. Scherz Texas Bar No. 00791609 cscherz@lockelord.com Seth Roberts Texas Bar No. 24051255 sroberts@lockelord.com Locke Lord LLP 2200 Ross Avenue, Suite 2200 Dallas, TX 75201 Tel.: (214) 740-8583 Fax: (214) 756-8583
COUNSEL FOR PLAINTIFFS LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO; LITTLE SISTERS OF THE POOR, BALTIMORE, INC.; CHRISTIAN BROTHERS SERVICES; AND CHRISTIAN BROTHERS EMPLOYEE BENEFIT TRUST

Kevin C. Walsh Virginia Bar No. 70340 kwalsh@richmond.edu University of Richmond School of Law 28 Westhampton Way Richmond, VA 23173 Tel.: (804) 287-6018
COUNSEL FOR PLAINTIFFS LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO; AND LITTLE SISTERS OF THE POOR, BALTIMORE, INC.

 
 Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 1 of 34
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge William J. Martínez
Civil Action No. 13-cv-2611-WJM-BNB
LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation, LITTLE SISTERS OF THE POOR, BALTIMORE, INC., a Maryland non-profit corporation, by themselves and on behalf of all others similarly situated, along with CHRISTIAN BROTHERS SERVICES, a New Mexico non-profit corporation, and CHRISTIAN BROTHERS EMPLOYEE BENEFIT TRUST,
Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, THOMAS E. PEREZ, Secretary of the United States of Department of Labor, UNITED STATES DEPARTMENT OF LABOR, JACOB J. LEW, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
ORDER DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
In this case, Catholic religious organizations challenge the regulations
implementing the Patient Protection and Affordable Care Act, Pub. L. 111-148,
specifically the requirement that group health care plans provide all women coverage
for certain preventative contraception services without a co-payment or deductible.
Before the Court are the following: (1) Plaintiffs’ Motion for Preliminary Injunction
(ECF No. 15); and (2) Defendants’ Motion to Dismiss or, in the alternative, for Summary
Judgment (ECF No. 30). For the reasons set forth below, the Court finds that Plaintiffs

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 2 of 34
have standing to bring this action and, therefore, the standing portion of the Motion to Dismiss is denied. The remainder of the issues raised in the Motion to Dismiss remain pending and will be ruled on by way of subsequent order. The Court also denies Plaintiffs’ Motion for Preliminary Injunction.
I. BACKGROUND A. History of the Challenged Regulations
The Patient Protection and Affordable Care Act (the “ACA”) requires that group health insurance plans cover certain preventative medical services without cost-sharing, i.e., a co-payment or a deductible. Among the preventative services that must be covered are contraception, sterilization, and related counseling (the “Mandate”). As set forth in more detail below, the Mandate results from extensive and complex Congressional legislation and agency rulemaking by the Department of Labor (“DOL”), the Department of the Treasury (“DOT”), and the Department of Health and Human Services (“HHS”) (collectively, the “Departments”).
In March 2010, Congress enacted the ACA along with the Health Care and Education Reconciliation Act. These acts placed a variety of new requirements on “group health plans,” a term which encompasses both insured and self-insured employer plans that provide health care coverage to employees. See 42 U.S.C. § 300gg-91(a)(1) (defining “group health plan”); Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,727 (July 19, 2010) (“Interim Final Rules”) (“The term ‘group health plan’ includes both
2

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 3 of 34
insured and self-insured group health plans.”). The portion of these acts that is relevant to this action is the requirement that group health plans provide coverage—at no charge to the patient—for women’s “preventative care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration[.]” See 42 U.S.C. § 300gg-13(a)(4).
Because there were no existing guidelines concerning preventative care and screenings for women at the time of the Interim Final Rules, the Health Resources and Services Administration (“HRSA”) commissioned the Institute of Medicine (“IOM”), a Congressionally-funded body, to conduct a study on preventive services necessary to women’s health. The IOM, in a report entitled “Clinical Preventive Services for Women: Closing the Gaps,” recommended that “preventative care and screenings” include “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Women’s Preventive Services: Required Health Plan Coverage Guidelines, health resources and services administration, http://www.hrsa.gov/womensguidelines/ (last visited December 19, 2013). Among the FDA-approved contraceptive methods are diaphragms, oral contraceptive pills, emergency contraceptives, and intrauterine devices.
HRSA adopted the IOM's recommendations on August 1, 2011. Two days later, the Interim Final Rules were amended to “provide HRSA additional discretion to exempt certain religious employers from the [HRSA] Guidelines where contraceptive services are concerned.” Group Health Plan and Health Insurance Issuers Relating to Coverage of Preventative Services under the Patient Protection and Affordable Care Act, 76 Fed.
3

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 4 of 34
Reg. 46,623 (Aug. 3, 2011); see also 45 C.F.R. § 147.130(a)(1)(iv)(A). The amended Interim Final Rules permitted HRSA to exempt a religious organization that: “(1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” Id.
The Departments received over 200,000 comments on the amended Interim Final Rules, including many submitted by religiously-affiliated institutions asserting that the religious employer exemption was too narrow, and that the limited scope of the exemption raised religious liberty concerns. Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8,725, 8,726-27 (Feb. 15, 2012). Despite these comments, the Departments adopted the definition of religious employer set forth in the Interim Final Rules. Id. at 8,727. However, the Departments created a “temporary enforcement safe harbor” of one year during which they intended to “develop and propose changes to these final regulations that would meet two goals—providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempt, non-profit organizations’ religious objections to covering contraceptive services[.]” Id.
On March 21, 2012, the Departments published an advance notice of proposed rule-making (“Advance Notice”) outlining alternative plans to accommodate religious organizations’ objections to the Mandate. See Certain Preventative Services under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). The Departments received
4

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 5 of 34
over 400,000 comments in response to the proposals set forth in the Advance Notice and, in July 2013, issued rules finalizing the Mandate. See Coverage of Certain Services under the Affordable Care Act, 78 Fed. Reg. 39,870, 39,871 (July 2, 2013) (the “Final Rules”).
The Final Rules provide that they accommodate for employers with religious objections to the Mandate in two ways. First, the Final Rules revise the definition of “religious employer” by eliminating the first three requirements contained in the Interim Final Rules. The Final Rules define “religious employer” as simply any non-profit referred to in 26 U.S.C. § 6033(a)(3)(A)(i) or (iii), which includes churches, their integrated auxiliaries, associations of churches, and the exclusively religious activities of religious orders. See 78 Fed. Reg. at 39,874.
Second, the Final Rules provide for an accommodation for “eligible organizations” that do not meet the definition of “religious employer”. An “eligible organization” is one that meets the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this 5

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 6 of 34
section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974 [“ERISA”]. 45 C.F.R. § 147.131(b). The Final Rules state that an eligible organization is not required to “contract, arrange, pay, or refer for contraceptive coverage” to which it has a religious objection. 78 Fed. Reg. at 39,874. Instead, the eligible organization must complete a self-certification form stating that it is an eligible organization, and provide a copy of that form to its issuer (if the employer participates in an insured group health plan) or to its third party administrator (if the employer participates in a self-insured health plan). Id. Upon receipt of the self-certification form, a third party administrator for a selfinsured group health plan is required to provide or arrange for payments for contraceptive services, a requirement imposed through the Department of Labor’s ERISA enforcement authority. See id. at 39,879-80. The Final Rules state that an eligible organization’s self-certification “will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” Id. at 39,879. B. The Parties and the Procedural History of this Case Plaintiff Little Sisters of the Poor Home for Aged, Denver, Colorado is a Colorado non-profit corporation that was founded in 1916. (Compl. (ECF No. 1) ¶ 11.) Plaintiff Little Sisters of the Poor, Baltimore, Inc. is a Maryland non-profit corporation that was
6

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 7 of 34
founded in 1869. (Id. ¶ 12.) Both homes are controlled by and associated with the Little Sisters of the Poor, an international Congregation of Catholic Sisters who serve needy elderly people. (Id. ¶ 13.) The Court will refer to these Plaintiffs together as “Little Sisters”.
Little Sisters has adopted the Christian Brothers Employee Benefit Trust (“Trust”) to provide medical coverage to their employees. (Id. ¶ 15.) Each Little Sisters home employs more than fifty employees who are covered, along with their dependents, under the Trust. (Id. ¶ 16.)
The Trust is a “church plan” within the meaning of section 414(e) of the Internal Revenue Code. (Id. ¶ 21.) The Trust is not subject to ERISA because it has not made an election under section 410(d) of the Internal Revenue Code. (Id. ¶ 22.) The Trust is a self-insured health plan and, therefore, does not contract with an insurance company to provide health benefits to its beneficiaries. (Id. ¶ 23.) Consistent with Catholic teachings, the Trust does not provide, and has never provided coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling. (Id. ¶ 25.) The Trust is administered by Plaintiff Christian Brothers Services, a New Mexico non-profit corporation affiliated with The Brothers of The Christian Schools, a male religious order of the Catholic Church. (Id. ¶ 28.) Christian Brothers Services is a third party administrator for the Trust. (ECF No. 37-1 ¶ 5.)
Defendants are all appointed officials of the United States government and its agencies charged with issuing and enforcing the regulations implementing the ACA. (Compl. ¶ 31.) Defendant Kathleen Sebelius is the Secretary of HHS; Defendant
7

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 8 of 34
Thomas E. Perez is Secretary of the DOL; and Defendant Jacob J. Lew is Secretary of the DOT. (Id. ¶¶ 32-36.)
On September 24, 2013, Plaintiffs filed the instant action, which brings the following causes of action: (1) Violation of the Religious Freedom Restoration Act; (2) Violation of the First Amendment—Free Exercise Clause, Substantial Burden; (3) Violation of the First Amendment—Free Exercise Clause, Intentional Discrimination; (4) Violation of the First Amendment—Free Exercise and Establishments Clauses, Discrimination Among Religions; (5) Violation of the First Amendment—Establishment Clause, Selective Burden/Denominational Preference (Larson v. Valente); (6) Interference in Matters of Internal Religious Governance—Free Exercise and Establishment Clauses; (7) Violation of the First and Fifth Amendments—Establishment Clause and Due Process, Religious Discrimination; (8) Violation of the Fifth Amendment—Due Process and Equal Protection; (9) Violation of the First Amendment—Freedom of Speech; (10) Violation of the First Amendment—Freedom of Speech, Expressive Association; (11) Violation of the First Amendment—Free Exercise Clause and Freedom of Speech, Unbridled Discretion; (12) Violation of the Administrative Procedure Act—Lack of Good Cause and Improper Delegation; (13) Administrative Procedure Act—Arbitrary and Capricious Action; (14) Administrative Procedure Act—Agency Action without Statutory Authority; (15) Administrative Procedure Act—Agency Action Not in Accordance with the Law, Weldon Amendment/Religious Freedom Restoration Act/First Amendment to the United States Constitution; and (16) Administrative Procedure Act—Agency Action Not in Accordance with the Affordable Care Act. (Compl. pp. 46-61.)
8

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 9 of 34
As preliminary relief, Plaintiffs request a preliminary injunction “prohibiting Defendants while this lawsuit is pending from enforcing the Final Mandate against the Plaintiffs . . . and prohibiting Defendants from charging or assessing penalties against the . . . Plaintiffs for failure to offer or facilitate access to contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling.” (Id. p. 61.) As final relief, Plaintiffs seek a declaration that the Final Mandate violates the Religious Freedom Restoration Act, the First Amendment, the Fifth Amendment, and the Administrative Procedures Act, and therefore no penalties can be assessed against Plaintiffs for failure to offer or facilitate access to contraceptives, sterilization, or abortifacients. (Id. p. 63-4.)
On October 24, 2013, Plaintiffs filed a Motion for Preliminary Injunction asking the Court to grant the preliminary relief sought in their Complaint. (ECF No. 15.) The Court set an abbreviated briefing schedule on the Motion for Preliminary Injunction to permit the Court the opportunity to address the issues by January 1, 2014, the date by which Plaintiffs must comply with the Mandate. (ECF No. 18.) Defendants filed their response on November 8, 2013 (ECF No. 29), and Plaintiffs filed their reply on November 15, 2013 (ECF No. 37). Thus, Plaintiff’s Motion for Preliminary Injunction is ripe for review. No party requested a hearing on the Motion for Preliminary Injunction1,
1 Plaintiffs’ Complaint states that they “respectfully request that the Court set a hearing on this request for a preliminary injunction at the earliest possible time and, after hearing, grant Plaintiffs’ request for preliminary injunction.” (Compl. ¶ 336.) However, this request, buried in the middle of a sixty-five page Complaint violates WJM Revised Practice Standard III.B., which requires that “[a]ll requests for the Court to take any action, make any type of ruling, or provide any type of relief must be contained in a separate, written motion. A request of this nature contained within a brief, notice, status report or other written filing does not fulfill this Practice Standard.” Plaintiffs’ actual Motion for Preliminary Injunction (ECF No. 15) does not request a hearing.
9

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 10 of 34
and the Court finds that a hearing is not necessary to resolve the issues raised therein. Contemporaneous with their Response to the Motion for Preliminary Injunction,
Defendants filed a Motion to Dismiss or, in the alternative, for Summary Judgment. (ECF No. 30.) The Motion to Dismiss contends that Plaintiffs lack standing to bring this action, and also moves to dismiss or for summary judgment on all of the substantive claims. (Id.) Because the Court must ordinarily address issues such as standing before ruling on the merits of an action, the Court ordered an abbreviated briefing scheduled on the Motion to Dismiss. (ECF No. 33.) Plaintiffs filed their response on November 22, 2013 (ECF No. 42), and Defendants filed their reply on November 27, 2013 (ECF No. 44.) Thus, Defendants’ Motion to Dismiss is ripe for review.2
II. STANDING Defendants move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject matter jurisdiction because Plaintiffs have failed to demonstrate that they will suffer an injury in fact.3 A. Legal Standard Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction over the subject matter.” Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not
2 Plaintiffs have filed a Rule 56(d) Motion arguing that, if the Court construes Defendants’ Motion as one for summary judgment, Plaintiffs should be permitted to conduct discovery before the Court makes any substantive ruling. (ECF No. 41.) Because the Court only considers the standing argument in this Order, and rules in Plaintiffs’ favor, the Court need not address Plaintiffs’ Rule 56(d) Motion at this time.
3 In the interest of addressing Plaintiffs’ Motion for Preliminary Injunction before the regulations take effect on January 1, 2014, this standing argument is the only portion of Defendants’ Motion to Dismiss that will be addressed in this Order.
10

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 11 of 34
a judgment on the merits of a plaintiff’s case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” See id.
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint’s “factual allegations . . . [and] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. B. Analysis
Article III of the United States Constitution limits the jurisdiction of federal courts to “[c]ases” and “[c]ontrovers[ies].” U.S. Const. art. III, § 2. “No principle is more
11

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 12 of 34
fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976).
“[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also Allen v. Wright, 468 U.S. 737, 750 (1984) (holding that standing “is perhaps the most important of the [Article III] doctrines”). “The gist of the question of standing” is whether the plaintiffs have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962).
“[T]he irreducible constitutional minimum of standing contains three elements”: (1) the plaintiff must have suffered a “concrete and particularized” injury that is “actual or imminent” (i.e., an “injury in fact”); (2) there must be “a causal connection between the injury and the conduct complained of,”; and (3) it must be “likely . . . that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61 (quotation marks omitted); see also Allen, 468 U.S. at 751 (“A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”).
In evaluating a plaintiff’s standing at the motion to dismiss stage, a court may consider not only the allegations in the complaint, but also factual averments made by declaration or affidavit. In Warth v. Seldin, the United States Supreme Court stated,
12

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 13 of 34
[In] ruling on a motion to dismiss for want of standing, [courts] must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. At the same time, it is within the trial court’s power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff’s standing. If, after this opportunity, the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed. 422 U.S. at 501-02 (emphasis added). Subsequent decisions by the Supreme Court and lower courts have reinforced this rule. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay, 484 U.S. 49, 65 (1987) (“[A] suit will not be dismissed for lack of standing if there are sufficient allegations of fact—not proof—in the complaint or supporting affidavits.”) (emphasis added) (internal quotations omitted); Sac & Fox Nation of Mo. v. Pierce, 213 F.3d 566, 573 (10th Cir. 2000) (“The Tribes’ uncontroverted affidavits, albeit conclusory, support their allegations of injury. . . . [A] plaintiff may submit affidavits to particularize allegations of fact in support of its standing.”). In this case, Defendants argue that Plaintiffs have failed to meet their burden on the “injury in fact” prong of the standing analysis. (ECF No. 30 at 11-12.) Plaintiffs contend that they have standing “based on the simple fact that compliance with the rules will require an expenditure of time and money.” (ECF No. 42 at 27.) The Tenth Circuit has held that “out-of-pocket cost to a business of obeying a new rule of government” is sufficient to constitute an injury in fact. Nat’l Collegiate Athletic Ass’n v. Califano, 622 F.2d 1382, 1386 (10th Cir. 1980); see also Hydro Res. Inc. v. EPA, 608 F.3d 1131, 1144-45 (10th Cir. 2010) (business costs of undertaking permitting process are injury in fact). The cost need not be large; all that is required is some concrete and
13

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 14 of 34
particularized injury. See, e.g., Cressman v. Thompson, 719 F.3d 1139, 1145 (10th Cir. 2013) (cost of $16.50 for specialized license plate was a “concrete, actual monetary injury” which established an injury in fact).
The self-certification form created by Defendants in accordance with the Final Rules states that it will take an average of fifty minutes for an employer to fill out the required information. (ECF No. 37-3.) The basis for this statement comes from the Administrative Record, which provides that “an organization will need approximately 50 minutes (30 minutes of clerical labor at a cost of $30.64 per hour, 10 minutes for a manager at a cost of $55.22 per hour, 5 minutes for legal counsel at a cost of $83.10 per hour, and 5 minutes for a senior executive at a cost of $112.43 per hour) to execute the self-certification.” 78 Fed. Reg. 39,890. “[T]he total annual burden for preparing and providing the information in the self-certification is estimated to be approximately $41 for each eligible organization.” Id.
Additionally, with regard to the burden imposed on any third party administrator that receives a self-certification form, the Administrative Record states that: “It is estimated that each issuer or third party administrator will need approximately 1 hour of clerical labor (at $31.64 per hour) and 15 minutes of management review (at $55.22 per hour) to prepare the notices for a total cost of approximately $44.” 78 Fed. Reg. 39,890. As the third party administrator for the Little Sisters and the Trust, Christian Brothers Services is likely to incur this cost upon receipt of these entities’ selfcertification forms.
Defendants insist that, to avoid incurring substantial fines, Little Sisters and the Trust will be required to complete the self-certification forms and deliver these forms to
14

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 15 of 34
Christian Brothers Services. (ECF No. 44 at 10-11.) In fact, the Defendants base the standing portion of their Motion to Dismiss on the fact that execution of the form is all that is required of Plaintiffs, and that this is not sufficient injury for purposes of standing. (Id.) However, Defendants utterly fail to address the real, actual costs that Plaintiffs will incur by completing and processing the self-certification forms. (Id.) The Court finds that Plaintiffs will incur the costs set forth above, and that these costs constitute an injury in fact for purposes of standing. See Califano, 622 F.2d at 1386. Therefore, Defendants’ Motion to Dismiss is denied to the extent that it seeks dismissal of this action based on lack of standing.
III. INJUNCTIVE RELIEF Plaintiffs ask the Court to enter an injunction that “prohibit[s] Defendants from enforcing the Mandate against Plaintiffs and class members, including their third party administrators, and from charging or assessing penalties against them for failure to offer or facilitate access to contraceptives.” (ECF No. 15 at 16.) “A party seeking a preliminary injunction must prove that all four of the equitable factors weigh in its favor: specifically, prove that ‘(1) it is substantially likely to succeed on the merits; (2) it will suffer irreparable injury if the injunction is denied; (3) its threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.’” Sierra Club v. Bostick, __ F. App’x __, 2013 WL 5539633, *2 (10th Cir. Oct. 9, 2013) (emphasis in original) (quoting Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)). “[C]ourts have consistently noted that ‘because a
15

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 16 of 34
showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for issuance of an injunction will be considered.’” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (quoting Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990)). Because, as set forth below, the Court finds that Plaintiffs have failed to show that they will suffer an irreparable injury if the proposed injunction is not granted, the Court’s analysis begins and ends with this prong.
Plaintiffs contend that they have satisfied the irreparable harm prong because they have shown that the Final Rules likely violate the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1(a). (ECF No. 15 at 13.) The Tenth Circuit has held that “establishing a likely RFRA violation satisfies the irreparable harm factor.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1146 (10th Cir. 2013). Thus, to determine whether Plaintiffs have shown an irreparable harm sufficient to warrant injunctive relief, the Court must examine whether Plaintiffs have shown that they are likely to suffer a RFRA violation in the absence of an injunction.
RFRA provides that the “Government shall not substantially burden a person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). To prevail on their RFRA claim, Plaintiffs must show that they wish “to engage in (1) a religious exercise (2) motivated by a sincerely held belief, which exercise (3) is subject to a substantial burden imposed by the government.” See Abdulhaseeb v. Calbone,4 600 F.3d 1301, 1312-13 (10th Cir.
4 The Court recognizes that Abdulhaseeb involved the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1(a) (“RLUIPA”), which is a different statute
16

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 17 of 34
2010). Thus, in evaluating Plaintiffs’ RFRA claim, the Court must first identify the religious belief, then determine whether such belief is sincere, and finally decide whether the government has placed “substantial pressure on the religious believer.” Hobby Lobby, 723 F.3d at 1140.
As set forth below, the parties here do not dispute Plaintiffs’ sincere religious beliefs and, therefore, only the third prong of the RFRA claim merits significant discussion. Plaintiffs contend that the Court’s analysis of whether the Final Rules “substantially burden” their religious beliefs is governed by the Tenth Circuit’s recent decision in Hobby Lobby. (ECF No. 37 at 6.) The Court agrees that Plaintiffs in this case share many of the same religious beliefs with the Hobby Lobby plaintiffs, at least the beliefs of the individual plaintiffs in that case. However, as Defendants point out, Hobby Lobby operates on a “for-profit” basis, and is therefore neither a religious employer nor an eligible organization under the Final Rules. See Hobby Lobby, 723 F.3d at 1140. Thus, the Mandate required the Hobby Lobby plaintiffs to either provide contraceptive coverage for their employees, or face fines ranging between $26 million and $475 million dollars. Id. This “Hobson’s choice” was sufficient to establish a substantial burden on their religious beliefs. Id.
In this case, it is undisputed that Plaintiffs qualify as “eligible organizations” under the Final Rules. Plaintiffs are not similarly situated to the Hobby Lobby plaintiffs because Little Sisters and the Trust can avoid the fines levied upon non-compliance
than RFRA. However, the Tenth Circuit has applied the same legal standard to both RFRA and RLUIPA, and Abdulhaseeb was heavily relied upon by the Tenth Circuit in Hobby Lobby, which is a RFRA case. See Hobby Lobby, 723 F.3d at 1140.
17

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 18 of 34
with the Mandate by signing the self-certification form and providing it to Christian Brothers Services, their third party administrator. The Hobby Lobby court had no occasion to consider the accommodation for “eligible organizations” in the Final Rules or to decide whether such accommodation violates RFRA. Thus, while Hobby Lobby is instructive on a number of issues in this case, it is not dispositive of the issue of whether, under the specific facts of this case, the Final Rules substantially burden these Plaintiffs’ religious beliefs. The Court must therefore look at this issue anew.
In support of the Motion, Little Sisters has submitted multiple affidavits from Mother Loraine Marie Claire Maguire, the Provincial Superior of the Province of Baltimore for the Little Sisters of the Poor (“Mother Maguire”) (ECF Nos. 15-1 & 37-1) and Brother Michael Quirk, President of Plaintiff Christian Brothers Services (“Brother Quirk”) (ECF Nos. 15-2 & 37-2). Mother Maguire attests that Little Sisters follows Catholic religious teachings which affirm that life begins at conception, and that abortion and post-conception contraception are “gravely contrary to moral law”. (Maguire Decl. (ECF No. 15-1) ¶¶ 29-32 (quoting Sections 2270 and 2271 of the Catechism of the Catholic Church (1994)).) She states that church doctrine teaches that contraception and sterilization are “intrinsic evils”, and that “programs of ‘economic assistance aimed at financing campaigns of sterilization and contraception’ are ‘affronts to the dignity of the person and the family.’” (Id. ¶¶ 33-34 (quoting Section 234 of the Compendium of the Social Doctrine of the Church (2004).) Citing Section 91 of the Evangulium Vitae, Mother Maguire attests that “Catholics may never ‘encourage’ the use of ‘contraception, sterilization, and abortion.’” (Id. ¶ 35.) She relates that directives issued by the United States Conference of Catholic Bishops “prohibit providing, promoting, or condoning
18

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 19 of 34
abortions, abortion-inducing drugs, contraceptives, and sterilization”, and specifically warn against partnering with other entities in a manner that would involve the provision of such “intrinsically immoral” services. (Id. ¶ 36.) Brother Quirk’s declarations echo these beliefs. (Quirk Decl. (ECF No. 15-2) ¶¶ 15-26.)
Little Sisters and the Trust contend that the Final Rules burden their religious beliefs by requiring that they: • “participate in the provision of insurance coverage” or “provide health benefits to
[their] employees” that include access to contraception, abortion, and sterilization; (Maguire Decl. ¶¶ 45-47; see also Quirk Decl. ¶ 31.) • “designate any third party” or “make” or “facilitate” the “government-required certifications to a third party” that require the third party to provide their employees with access to sterilization, contraception, and abortion-inducing drugs and device; (Maguire Decl. ¶¶ 48-49; see also Quirk Decl. ¶¶ 32-33.) • “authorize anyone to arrange or make payments for contraceptives, sterilization, and abortifacients; take action that triggers the provision of contraceptive, sterilization, and abortifacients; or is the but-for cause of the provision of contraceptives, sterilization, and abortifacients.” (Maguire Supp. Decl. (ECF No. 37-1) ¶ 9; see also Quirk Supp. Decl. (ECF No. 37-2) ¶ 8.) • “[s]ign the self-certification form that on its face authorizes another organization to deliver contraceptives, sterilization, and abortifacients to the Little Sisters’ employees and other beneficiaries now.” (Maguire Supp. Decl. ¶ 9(A); see also Quirk Supp. Decl. ¶ 8.) • “[d]eliver the self-certification form to another organization that could then rely on
19

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 20 of 34
it as an authorization to deliver those contraceptives, sterilization, and abortifacients to the Little Sisters’ employees and beneficiaries, now or in the future.” (Maguire Supp. Decl. ¶ 9(B); see also Quirk Supp. Decl. ¶ 8.) • “[c]reate a provider-insured relationship (between the Little Sisters and Christian Brothers Services or any other third-party administrator), the sole purpose of which would be to provide contraceptives, sterilization, and abortifacients.” (Maguire Supp. Decl. ¶ 9(D); see also Quirk Supp. Decl. ¶ 8.) • “[p]articipate in a scheme, the sole purpose of which is to provide contraceptives, sterilization, and abortifacients to the Little Sisters’ plan employees and other beneficiaries.” (Maguire Suppl. Decl. ¶ 9(E); see also Quirk Supp. Decl. ¶ 8.) Additionally, Christian Brothers Services contends that its religious beliefs are violated if it is required to “act as a ‘third party administrator’ under the Mandate because it would have to contract for, arrange for or otherwise facilitate the provision of abortifacients, sterilizations and contraception in violation of Catholic teachings.” (Quirk Supp. Decl. ¶ 8.) Defendants do not dispute that Plaintiffs hold the religious beliefs set forth above and that such beliefs are sincere. (ECF No. 29 at 8-9.) Rather, Defendants take issue with Plaintiffs’ interpretation of how these religious beliefs will be impacted by the Mandate and the Final Rules. (Id.) Specifically, Defendants contend that “[t]he Little Sisters Plaintiffs are eligible for the accommodation, and thus, they need not contract, arrange, pay, or refer for contraceptive coverage.” (Id. at 8.) Additionally, Defendants argue that, because Little Sisters participates in a self-funded “church plan”, execution of the self-certification form does not trigger, facilitate, or provide access to care that
20

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 21 of 34
would violate Plaintiffs’ religious beliefs. (Id. at 8-9.) In response, Plaintiffs argue that the Court cannot question Mother Maguire’s
and Brother Quirk’s affirmations regarding the impact that compliance with the Final Rules would have on their religious beliefs. (ECF No. 37 at 6.) It is well-settled that “it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct.” Hobby Lobby, 723 F.3d at 1153-54; see also Korte v. Sebelius, 735 F.3d 654, 685 (7th Cir. 2013) (holding “[n]o civil authority can decide” whether providing contraceptive coverage impermissibly assists the commission of a wrongful act under the moral doctrines of the Catholic Church).
Thus, Plaintiff’s contention that the Court cannot look behind their statements about what offends their religious beliefs is well-supported. However, the Court is under no such restriction with regard to Plaintiffs’ construction of how the Final Rules operate, including the administrative burdens imposed on the parties by these regulations. Statutory and regulatory interpretation is a question of law, and is a joint effort of the courts and the government agency charged with administering a law. See Negusie v. Holder, 555 U.S. 511, 531 (2009). Thus, it is true that this Court cannot question whether a particular act or conduct, allegedly caused by a challenged regulation, violates a party’s religious belief. This Court can, however, most certainly analyze the challenged regulations to determine whether their implementation will cause the allegedly harmful act to in fact occur. See O’Brien v. Health and Human
21

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 22 of 34
Servs., 894 F. Supp. 2d 1149, 1159 (E.D. Mo. 2012) (looking past plaintiff’s contentions about how their religious beliefs would be affected by the challenged regulations and interpreting the regulations to discern what demands were placed on plaintiff). Accordingly, in the discussion below, the Court will examine each of the ways in which Plaintiffs contend their religious beliefs are substantially burdened by the Final Rules. A. Direct Provision of Coverage for Contraceptive Care
Mother Maguire states that, based on Little Sisters’ religious beliefs, they cannot not participate in the provision of insurance coverage for contraception, abortion and sterilization, and cannot provide health benefits that will include access to these services. (ECF No. 15-1 ¶¶ 45-47.) Brother Quirk echoes this statement on behalf of the Trust. (ECF No. 15-2 ¶ 31.) The Court accepts these religious beliefs as sincere, but does not find that the challenged regulatory scheme will substantially burden these beliefs.
Under the “eligible organizations” accommodation in the Final Rules, once Little Sisters and the Trust complete the self-certification form and deliver it to their third party administrator, they have satisfied the Mandate’s requirements, and have no further obligations under the Mandate. 26 C.F.R. § 54.9815-2713A (stating that a self-insured group health plan complies with Mandate by contracting with a third party administrator and providing the third party administrator with the self-certification form). Thus, by their very terms, the regulations do not require Little Sisters or the Trust to participate in the provision of contraceptive coverage or provide health benefits that include contraceptive coverage.
Christian Brothers Services contends that it cannot “act as a ‘third party 22

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 23 of 34
administrator’ under the Mandate because it would have to contract for, arrange for or otherwise facilitate the provision of abortifacients, sterilizations and contraception in violation of Catholic teachings.” (Quirk Supp. Decl. ¶ 8.) However, Defendants’ purported basis for the requirement that third party administrators for eligible organizations provide separate payments for contraceptive services arises from ERISA. See 78 Fed. Reg. 39,879-80. It is undisputed that the Trust is a self-insured “church” plan under 26 U.S.C. § 414(e), and as a consequence is not subject to ERISA, because it has not made an election under 26 U.S.C. § 410(d). (ECF No. 15-2 ¶¶ 8-10.) Because the Trust is not subject to ERISA, Defendants candidly admit that they lack the regulatory authority to require Christian Brothers Services, as the third party administrator for Little Sisters and the Trust, to administer or pay for contraceptive care. (ECF No. 40 at 10-12 (citing 29 U.S.C. § 1003(b)(2) (exempting “church plans” from ERISA).) Thus, the Final Rules do not in fact require Christian Brothers Services to contract, arrange for, or otherwise facilitate the provision of contraceptives, sterilization, or abortifacients.
Because the Final Rules do not require any of the Plaintiffs to provide, participate in, contract or arrange for, or otherwise facilitate the provision of contraceptives, sterilization, or abortifacients, the Court concludes that the Final Rules do not substantially burden Plaintiffs’ religious beliefs which forbid such actions. B. Authorization of Third-Party to Provide Coverage
Mother Maguire also states that it would violate Little Sisters’ religious beliefs to designate or authorize any third party to provide their employees with access to sterilization, contraception, and abortion-inducing drugs and services. (ECF No. 15-1 ¶
23

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 24 of 34
48; 37-1 ¶ 9.) She avers that Little Sisters cannot “[c]reate a provider-insured relationship . . . the sole purpose of which would be to provide contraceptives, sterilization, and abortifacients.” (ECF No. 37-1 ¶ 9(D).) Brother Quirk makes the same statements on behalf of the Trust. (ECF No. 15-2 ¶ 33; ECF No. 37-2 ¶ 8.) Again, the Court does not question the sincerity of these religious beliefs. However, as set forth below, the Court finds that the Final Rules do not substantially burden such beliefs on this separate basis as well.
To comply with the Mandate (and avoid the significant penalties that come with non-compliance), an “eligible organization” must contract with a third party administrator and provide that third party administrator with the completed self-certification form. See 26 C.F.R. § 54.9815-2713A. These are the only two acts required for an eligible organization to comply with the Mandate. Id. Under Defendants’ interpretation of the regulations, whether this third party administrator is subject to ERISA is irrelevant to whether an eligible organization has complied with the Mandate. (See ECF No. 44 at 10-12.)
It is undisputed that Christian Brothers Services is the third party administrator for the Trust. (ECF No. 37-1 ¶ 5.) Christian Brothers Services does not currently provide the Trust’s beneficiaries with access to sterilization, contraception, and abortion-inducing drugs and services, and it does not intend to do so in the future. (ECF No. 15-2 ¶ 27.) Defendants concede that they have no regulatory authority to require Little Sisters or the Trust to contract with a different third party administrator. (ECF No. 44 at 11.) Thus, the Final Rules do not require Little Sisters or the Trust to designate, authorize, or create a provider-insured relationship with any third party that
24

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 25 of 34
will provide their employees with access to contraception, sterilization, or abortifacients. The Court notes that the Final Rules could be construed to require an eligible
organization to contract with a third party administrator that is willing to act as an ERISA plan administrator and claim administrator and take on all of the obligations set forth in 29 C.F.R. § 2510.3-16 and 26 C.F.R. § 54.9815-2713A. The Final Rules state that an eligible organization must: (1) “contract[] with one or more third party administrator” and (2) “provide each third party administrator that will process claims for any contraceptive services required to be covered under [the Mandate] with a copy of the self-certification” form. See 26 C.F.R. § 54.9815-2713A(b)(i) & (ii). The self-certification form must provide notice that: (1) the eligible organization “will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services”; and (2) the “[o]bligations of the third party administrator are set forth in 29 C.F.R. § 2510.3-16 and 26 C.F.R. § 54.9815-2713A.” Id. at § 54.9815-2713A(b)(ii)(A) & (B). Reading these provisions together, an eligible organization could conclude that, to comply with the Mandate, it is required to contract with a third party administrator who is willing to take on the obligations set forth in 29 C.F.R. § 2510.3-16 and 26 C.F.R. § 54.9815-2713A.
However, in this litigation, Defendants have plainly taken the position that, under 26 C.F.R. § 54.9815-2713A, an eligible organization satisfies the Mandate by providing the self-certification form to their third party administrator, irrespective of whether that third party administrator is governed by ERISA, will act as a plan and claims administrator for contraceptive care, or will provide payments for contraceptive services. (ECF No. 44 at 10-12.) As Defendants are the governmental authorities tasked with
25

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 26 of 34
issuing and enforcing the regulations implementing the ACA (ECF No. 1 ¶ 31), the Court must defer to their reasonable interpretation of such regulations.5 See Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 395 (2008) (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-845 (1984)). Defendants’ position that an eligible organization satisfies the Mandate by providing the self-certification form to its third party administrator, even if that third party administrator is not governed by ERISA, is a reasonable construction of the Final Rules. As such, the Court is bound by this interpretation.
Thus, under Defendants’ interpretation of the regulations, to satisfy the Mandate and avoid fines, Little Sisters and the Trust are required only to complete the selfcertification form and provide it to their third party administrator. Whether this third party administrator is subject to ERISA or willing to provide their employees with access to contraceptive care is irrelevant to whether they have complied with the Mandate. Accordingly, the Court finds that the challenged regulations do not require Little Sisters or the Trust to designate, authorize, or contract with a third party administrator that will provide their employees with access to sterilization, contraception, and abortioninducing drugs and services.
5 Plaintiffs’ contention that this interpretation is not entitled to deference because it is just Defendants’ litigation position finds no support in the record. Defendants are offering their interpretation of a regulation that has yet to come into effect and, therefore, such interpretation is not a post hoc rationalization. Defendants’ interpretation is also their first interpretation of these regulations, and does not appear to simply be a convenient litigation position. Therefore, the Court sees no reason that such interpretation should not be entitled to an appropriate level of deference. See Chase Bank USA, N.A. v. McCoy, 131 S.Ct. 871, 880 (2011) (stating that the courts must defer to an agency’s interpretation of its own regulation even when “advanced in a legal brief”); see also Christoper v. SmithKline Beecham Corp., 132 S.Ct. 2156, 2166 (2012) (listing examples of when an agency’s interpretation brought forth during litigation would not be entitled to deference).
26

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 27 of 34
C. Completion and Distribution of the Self-Certification Form Plaintiffs next contend that the requirement that they complete the self-
certification form and deliver it to their third party administrator violates their religious beliefs. (ECF No. 37 at 6.)
The self-certification form (“Form”) provides that it is “to be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.98152713A6, 29 CFR 2590.715-2713A7, and 45 CFR 147.1318.” (ECF No. 37-3 at 1.) An organization completing the Form must list its name, the name and title of the person authorized to make the certification on behalf of the organization, and provide identifying information for the person completing the certification. (Id.) The person who signs the Form must “certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would
6 Part 54 of Title 26 contains regulations related to pension excises taxes implemented by the Internal Revenue Service. As discussed in detail above, 26 CFR 54.9815-2713A defines the entities that qualify as “eligible organizations” and outlines what eligible organizations must do to comply with the Mandate. This regulation does not specifically state that it applies to church plans, but also does not specifically exempt church plans.
7 This provision is identical to 26 CFR 54.9815-2713A but appears in part 54 of Title 29, which contains regulations related to group health plans implemented by the Employee Benefits Security Administration within the Department of Labor.
8 This provision defines an “eligible organization” (using the same definition contained in both 26 CFR 54.9815-2713A and 29 CFR 2590.715-2713A) and sets forth how an eligible organization who is insured under a group health plan complies with the Mandate. It does not mention self-insured group health plans or church plans.
27

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 28 of 34
otherwise be required to be covered; the organization is organized and operates as a non-profit entity; and the organization holds itself out as a religious organization.” (Id.) This person must also attest to the fact that all representations made on the Form are true, correct, and complete, to the best of her knowledge and belief. (Id.)
On the back of the Form, there is a notice to third party administrators which states:
In the case of a group health plan that provides benefits on a self-insured basis, the provision this certification to a thirdparty administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.98152713(a)(1)(iv) or 29 CFR 2713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization: (1) Will not act as the plan administrator or claims
administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and (2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A. This certification is an instrument under which the plan is operated. (ECF No. 37-3 at 2.) In her Supplemental Declaration, Mother Maguire states that, because of their religious beliefs, Little Sisters cannot “[s]ign the self-certification form that on its face authorizes another organization to deliver contraceptives, sterilization, and abortifacients to the Little Sisters’ employees and other beneficiaries”. (ECF No. 37-1 ¶ 9(A).) The Court finds that this contention reads too much into the language of the Form, which requires only that the individual signing it certify that her organization
28

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 29 of 34
opposes providing contraceptive coverage and otherwise qualifies as an eligible organization. (ECF No. 37-3 at 1.) The Form contains a notice outlining the duties of third party administrators that receive the Form, but nothing on the face of the Form expressly authorizes the provision of contraceptive care, particularly with regard to church plans.
Additionally, as applied to the facts of this case, Little Sisters’ execution of the Form does not authorize any organization to deliver contraceptive coverage to Little Sisters’ employees. The regulations cited in the notice direct the third party administrator to ERISA regulations outlining the obligations of a plan administrator under ERISA. See 26 C.F.R. § 54.9815-2713A(b)(ii)(B) (“Obligations of the third party administrator are set forth in 29 CFR 2510.3-16 and 26 CFR 54.9815-2713A.”); 29 C.F.R. § 2510.3-16 (an ERISA regulation which states that a third party administrator that receives a copy of a self-certification form from an eligible organization becomes “the plan administrator under section 3(16) of ERISA for any contraceptive services.”).
Plaintiffs contend that, on its face, the Form does not make clear that only third party administrators governed by ERISA are responsible for making payments for contraceptive care. (ECF No. 42 at 27-28.) Plaintiffs also contend that the regulations make no exception for third party administrators of church plans. (ECF No. 37-2 ¶ 12.) However, as Plaintiffs also acknowledge, church plans are categorically exempt from ERISA altogether. (ECF No. 15-2 ¶ 9.) Given this blanket exemption, it would be unreasonable to require Defendants to specifically exempt church plans each time they promulgate a new regulation under their ERISA authority. Clearly, therefore, given this regulatory framework, the fact that church plans are not specifically exempted from the
29

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 30 of 34
requirements levied on third party administrators by the Final Rules does not mean that church plan third party administrators are bound to comply with these regulations.
Mother Maguire and Brother Quirk are aware that the Trust is a self-funded church plan, and that Christian Brothers Services is the third party administrator for the Trust. (ECF No. 37-1 ¶ 5; ECF No. 15-2 ¶¶ 4, 8.) Because a church plan and its third party administrator are not subject to ERISA, if these individuals complete the Form on behalf of their respective organizations, they know that they are not “authoriz[ing] another organization to deliver contraceptives, sterilization, and abortifacients to the Little Sisters’ employees and other beneficiaries”.
Mother Maguire also states that Little Sisters also cannot “[d]eliver the selfcertification form to another organization that could then rely on it as an authorization to deliver these contraceptives, sterilization, and abortifacients to the Little Sisters’ employees”. (Id. ¶ 9(B).) However, as discussed above, Little Sisters is not required to deliver the Form to any organization other than its current third party administrator, Christian Brothers Services. The record is clear that Christian Brothers Services has no intention of delivering contraceptive, sterilization, and abortifacients to Little Sisters’ employees, and no intention of contracting with another entity that will provide such services. (ECF No. 15-2 ¶¶ 27 & 32.) Defendants have explicitly stated that they have no authority to require that Little Sisters and/or Christian Brothers Services contract with a third party provider who is subject to ERISA, or who is willing to provide contraceptive coverage to Little Sisters’ employees. (ECF No. 44 at 10-12.) Thus, Plaintiffs’ contention that their religious beliefs are substantially burdened because the Form executed by the Little Sisters’ could be relied on by another organization to provide
30

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 31 of 34
contraceptive services to Little Sisters’ employees is pure conjecture, one that ignores the factual and legal realities of this case.9
Finally, Mother Maguire contends that it would violate Little Sisters’ religious beliefs if they are required to “[p]articipate in a scheme, the sole purpose of which is to provide contraceptives, sterilization, and abortifacients to the Little Sisters’ plan employees or other beneficiaries.” (ECF No. 37-1 ¶ 9(E).) Brother Quirk echoes these thoughts exactly. (ECF No. 37-2 ¶ 8.) Again, this statement ignores the realities of this case. Christian Brothers Services has plainly stated that it has not and does not intend to facilitate the provision of contraceptives, sterilization, or abortifacients. (ECF No. 372 ¶ 8.) Therefore, if Mother Maguire executes the Form and delivers it to Christian Brothers Services—the only acts required of her under the “scheme” set forth in the Final Rules—Little Sisters’ employees will not be provided contraceptives, sterilization, or abortifacients through their employer-sponsored health plan. Similarly, if Brother Quirk executes the Form on behalf of the Trust and delivers it to Christian Brothers Services, as he is required to do, no beneficiary of health care through the Trust will be provided contraceptives, sterilization or abortifacients through the employer-sponsored health plan.
The purpose of Little Sisters and the Trust executing and delivering the Form to
9 Were Little Sisters required to deliver the completed Form to a major health insurance company, such as Blue Cross Blue Shield or Kaiser Permanente, then the situation would be vastly different, as these insurance companies could rely on the Form as authorization to deliver contraceptive care to Little Sisters’ employees. More likely, because these entities are subject to ERISA, they would be required to rely on the Form and act as plan and claims administrator for purposes of contraceptive care. But, because the Trust is a church plan and Defendants lack the authority to require it to contract with an entity subject to ERISA, the Court need not consider these hypotheticals, as they relate to facts not before the Court in this case.
31

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 32 of 34
their third party administrator is not to provide contraceptives, sterilization, and abortifacients to the Little Sisters’ plan employees or other beneficiaries. It is clear that these services will not be offered to the employees regardless of whether the Form is executed and delivered to Christian Brothers Services. Instead, on the facts of this case, the “sole purpose” of the execution and delivery of the Form is to comply with the Mandate and avoid the substantial penalties for non-compliance.
Accordingly, on the facts of this case, the Court finds it will not substantially burden Plaintiffs’ religious beliefs for an authorized representative of these organizations to execute the self-certification form and deliver it to their third party administrator. Nor are Plaintiffs being required to buy into a scheme that substantially burdens their religious beliefs. D. Irreparable Harm Conclusion
To satisfy their burden of showing irreparable harm, the only argument Plaintiffs make is that a RFRA violation is always irreparable harm. (ECF No. 15 at 16.) As set forth in detail above, the Court finds that Plaintiffs have not demonstrated a likely RFRA violation. While the Court does not question the sincerity of Plaintiffs’ beliefs, the Court finds that the Final Rules will not function in a manner that substantially burden these beliefs. Because Little Sisters’ employees receive their health care coverage through the Trust, which is a self-insured church plan with a Catholic third party administrator, these employees will not be provided access to contraception, sterilization, or abortifacients through this health plan. Defendants have freely admitted that they lack the regulatory authority at this time to force a different result.
Plaintiffs repeatedly emphasize that the Defendants have only conceded that 32

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 33 of 34
they lack the authority “at this time” to require third party administrators of church plans to administer claims for contraceptive services. (See ECF No. 15-2 ¶ 4.) The Court acknowledges that the regulations implementing the ACA are in flux, and that Congress may, at some point in the future, grant Defendants some authority outside of ERISA to enforce the Mandate, and/or promulgate new regulations that apply to church plans. Indeed, there is a story on the news almost daily about changes being made to the ACA regulations. However, the Court cannot and will not hypothesize or speculate about how such future changes may impact Plaintiffs.
“To constitute irreparable harm, an injury must be certain, great, actual ‘and not theoretical.’” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)); see also Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931) (“Injunction issues to prevent existing or presently threatened injuries. One will not be granted against something merely feared as liable to occur at some indefinite time in the future.”). “[T]he party seeking injunctive relief must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001). Id.
The Court finds that Plaintiffs have failed to meet this burden. Plaintiffs ignore the fact that, as participants in a church plan, they fall outside of Defendants’ current enforcement authority. Plaintiffs would have the Court surmise that their selfcertification form could be relied on by a hypothetical third party administrator to facilitate the provision of contraception, sterilization, and abortifacients to their
33

Case 1:13-cv-02611-WJM-BNB Document 52 Filed 12/27/13 USDC Colorado Page 34 of 34

employees at some point in the future. However, the Court is tasked with determining only whether the regulations, as they currently stand, substantially burden Plaintiffs’ religious beliefs. Given the current version of the regulations, as applied to the facts of and parties to this case, the Court finds that Plaintiffs have failed to show that any injunction is necessary to prevent an imminent harm.
IV. CONCLUSION It is well settled that a preliminary injunction is an extraordinary remedy, and that it should not be issued unless the movant’s right to relief is “clear and unequivocal.” Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). For the reasons set forth above, the Court finds that Plaintiffs have failed to show a clear and unequivocal right to injunctive relief. As such, the Court ORDERS as follows: 1. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 15) is DENIED; 2. Defendants’ Motion to Dismiss, or in the alternative, for Summary Judgment (ECF No. 30) is DENIED to the extent it seeks dismissal of this case for lack of standing. The Court RESERVES RULING on the remainder of the issues raised in the Motion to Dismiss.

Dated this 27th day of December, 2013.

BY THE COURT:

William J. Martínez United States District Judge

34

 
 Appellate Case: 13-1540 Document: 01019179611 Date Filed: 12/31/2013 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

Tenth Circuit

FOR THE TENTH CIRCUIT

December 31, 2013

LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation, et al.,
Plaintiffs-Appellants,
v.

Elisabeth A. Shumaker Clerk of Court
No. 13-1540 (D.C. No. 1:13-CV-02611-WJM-BNB)
(D. Colo.)

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al.,

Defendants-Appellees.

ORDER

Before KELLY and LUCERO, Circuit Judges.

Plaintiffs-Appellants seek an injunction pending appeal after the district court denied their motion for a preliminary injunction. They seek to avoid, on religious grounds, the provisions of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act that pertain to insurance coverage for sterilization, contraceptives, and abortifacients. Those Acts require group health insurance plans to cover certain preventative medical services without cost-sharing, including contraception, sterilization, and related counseling, known as the Mandate. Defendants-Appellees represent that (1) Plaintiffs Little Sisters of the Poor, who

Appellate Case: 13-1540 Document: 01019179611 Date Filed: 12/31/2013 Page: 2
provide health insurance for their employees through the Christian Brothers Employee Benefit Trust, may opt out from the Mandate by completing a selfcertification form and providing it to the third-party administrator, Christian Brothers Services, and (2) in addition, because the Trust is a self-insured “church plan” exempt from ERISA, the third-party administrator, Christian Brothers Services, would not be subject to fines or penalties. Therefore, there is no enforceable obligation—through ERISA or otherwise—for any of the Plaintiffs to provide any of the objectionable coverage.
A stay or injunction pending appeal is governed by the following factors: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay or injunction is not granted; (3) the absence of harm to opposing parties if the stay or injunction is granted; and (4) any risk of harm to the public interest. Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001); 10th Cir. R. 8.1. We make the same inquiry as we would when reviewing a district court’s grant or denial of a preliminary injunction. See McClendon v. City of Albuquerque, 100 F.3d 863, 868 n.1 (10th Cir. 1996) (citing Walker v. Lockhart, 678 F.2d 68, 70 (8th Cir. 1982)). Thus, we must consider, based on a preliminary record, whether the district court abused its discretion and whether the movants have demonstrated a clear and unequivocal right to relief. Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061, 1065-66 (10th Cir. 2001). We have considered the district court’s decision and the parties’ arguments concerning the above factors. Under the unique factual
- 2 -

Appellate Case: 13-1540 Document: 01019179611 Date Filed: 12/31/2013 Page: 3 circumstances of this case, we conclude that an injunction pending appeal at this stage is not warranted. Accordingly, we deny Plaintiffs-Appellants’ emergency motion for an injunction pending appeal. Entered for the Court ELISABETH A. SHUMAKER, Clerk
- 3 -

 
 Appellate Case: 13-1540

Document: 01019459253
PUBLISH

Date Filed: 07/14/2015 Page: 1
FILED United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

July 14, 2015

FOR THE TENTH CIRCUIT _________________________________

Elisabeth A. Shumaker Clerk of Court

LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation; LITTLE SISTERS OF THE POOR, BALTIMORE, INC., a Maryland non-profit corporation, by themselves and on behalf of all others similarly situated; CHRISTIAN BROTHERS SERVICES, a New Mexico non-profit corporation; CHRISTIAN BROTHERS EMPLOYEE BENEFIT TRUST,

Plaintiffs - Appellants,

v.

No. 13-1540

SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; THOMAS E. PEREZ, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY,

Defendants - Appellees. ––––––––––––––––––––––––––––––––––– SOUTHERN NAZARENE UNIVERSITY; OKLAHOMA WESLEYAN UNIVERSITY; OKLAHOMA BAPTIST UNIVERSITY; MID-AMERICA CHRISTIAN UNIVERSITY; REACHING SOULS INTERNATIONAL, INC., an Oklahoma not
- i -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 2

for profit corporation; TRUETTMCCONNELL COLLEGE, INC., a Georgia nonprofit corporation, by themselves and on behalf of all others similarly situated; GUIDESTONE FINANCIAL RESOURCES OF THE SOUTHERN BAPTIST CONVENTION, a Texas nonprofit corporation,
Plaintiffs - Appellees.
v.
SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; THOMAS E. PEREZ, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants - Appellants. -----------------------------67 CATHOLIC THEOLOGIANS AND ETHICISTS; ALABAMA PHYSICIANS FOR LIFE; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS & GYNECOLOGISTS; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN BIBLE SOCIETY; AMERICAN CENTER FOR LAW AND JUSTICE; AMERICAN CIVIL LIBERTIES UNION OF COLORADO; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA; AMERICAN CIVIL LIBERTIES UNION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME);
- ii -

Nos. 14-6026 & 14-6028

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 3
AMERICAN PUBLIC HEALTH ASSOCIATION; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; ASIAN & PACIFIC ISLANDER AMERICAN HEALTH FORUM; ASIAN AMERICANS ADVANCING JUSTICE | AAJC; ASIAN AMERICANS ADVANCING JUSTICE | LOS ANGELES; ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; ASSOCIATION OF GOSPEL RESCUE MISSIONS; BLACK WOMEN'S HEALTH IMPERATIVE; CALIFORNIA WOMEN'S LAW CENTER, NATIONAL WOMEN'S LAW CENTER; CALIFORNIA WOMEN'S LAW CENTER; CATHOLIC MEDICAL ASSOCIATION; CHRISTIAN LEGAL SOCIETY; CHRISTIAN MEDICAL ASSOCIATION; CHRISTIE'S PLACE; CONCERNED WOMEN FOR AMERICA; DR. R. ALBERT MOHLER, JR.; ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; FEMINIST MAJORITY FOUNDATION; FORWARD TOGETHER; HIV LAW PROJECT; IBIS REPRODUCTIVE HEALTH; INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE AND CHRISTIAN LEGAL SOCIETY; INTERNATIONAL MISSION BOARD OF THE SOUTHERN BAPTIST CONVENTION; IPAS; LEGAL MOMENTUM; LIBERTY COUNSEL; LIBERTY UNIVERSITY; LIBERTY, LIFE, AND LAW FOUNDATION; LUTHERAN CHURCH - MISSOURI SYNOD; MERGER WATCH; NARAL PRO-CHOICE AMERICA; NARAL PRO-CHOICE COLORADO; NARAL PRO-CHOICE WYOMING; NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM;
- iii -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 4
NATIONAL ASSOCIATION OF CATHOLIC NURSES; NATIONAL ASSOCIATION OF EVANGELICALS; NATIONAL ASSOCIATION OF PRO LIFE NURSES; NATIONAL CATHOLIC BIOETHICS CENTER; NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOCIATION; NATIONAL HEALTH LAW PROGRAM; NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL ORGANIZATION FOR WOMEN (NOW) FOUNDATION; NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES; NATIONAL WOMEN AND AIDS COLLECTIVE; NATIONAL WOMEN'S HEALTH NETWORK; NATIONAL WOMEN'S LAW CENTER; PLANNED PARENTHOOD ASSOCIATION OF UTAH; PLANNED PARENTHOOD OF KANSAS AND MIDMISSOURI; PLANNED PARENTHOOD OF THE HEARTLAND; PLANNED PARENTHOOD OF THE ROCKY MOUNTAINS, INC.; POPULATION CONNECTION; PRISON FELLOWSHIP MINISTRIES; RAISING WOMEN'S VOICES FOR THE HEALTH CARE WE NEED; SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU); SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE U.S. (SIECUS); SOUTHERN BAPTIST THEOLOGICAL SEMINARY; UNITED STATES CONFERENCE OF CATHOLIC BISHOPS,
Amici Curiae. _________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:13-CV-02611-WJM-BNB) &
- iv -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 5
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. Nos. 5:13-CV-01015-F & 5:13-CV-01092-D) _________________________________
Mark L. Rienzi, Becket Fund for Religious Liberty, Washington, DC (Daniel Blomberg and AdPle Auxier Keim, Becket Fund for Religious Liberty, Washington, DC; Carl C. Scherz and Seth Roberts, Locke Lord LLP, Dallas, Texas; and Kevin C. Walsh, University of Richmond Law School, Richmond, Virginia, with him on the briefs), appearing for Little Sisters of the Poor Home for the Aged, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Services, Christian Brothers Employee Benefit Trust, Reaching Souls International, Inc., Truett-McConnell College, Inc., and GuideStone Financial Resources of the Southern Baptist Convention.
Adam C. Jed, Attorney, Appellate Staff, Civil Division (Stuart F. Delery, Assistant Attorney General; Sanford C. Coats and John F. Walsh, United States Attorneys; Beth S. Brinkmann, Deputy Assistant Attorney General; Mark B. Stern, Alisa B. Klein, Patrick G. Nemeroff, and Megan Barbero, Attorneys, Appellate Staff Civil Division, with him on the briefs), United States Department of Justice, Washington, DC, appearing for Sylvia Mathews Burwell, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, and United States Department of the Treasury.
Gregory S. Baylor, Alliance Defending Freedom, Washington, DC (Matthew W. Bowman, Alliance Defending Freedom, Washington, DC, David A. Cortman, Alliance Defending Freedom, Lawrenceville, Georgia, and Kevin H. Theriot, Alliance Defending Freedom, Leawood, Kansas, with him on the briefs), appearing for Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and MidAmerica Christian University.
_________________________________
Before MATHESON, McKAY, and BALDOCK, Circuit Judges. _________________________________
MATHESON, Circuit Judge. _________________________________
TABLE OF CONTENTS
Glossary ........................................................................................................................................ vii I. Introduction.......................................................................................................................... 1
- v -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 6

II. Hobby Lobby and this case .................................................................................................. 3

III. Background .......................................................................................................................... 4

A.

Regulatory Background ................................................................................................ 4

1. The ACA Mandate and the Religious Employer Exemption............................................... 4

2. The Accommodation Scheme for Religious Non-Profit Organizations .............................. 7

a. EBSA Form 700 ................................................................................................................... 9

b. Alternative notice ............................................................................................................... 11

3. The Mechanics of the Accommodation for Insured Plans, Self-Insured Plans, and SelfInsured Church Plans .............................................................................................................. 13

a. Insured plans...................................................................................................................... 14

b. Self-insured plans............................................................................................................... 15

c. Self-insured church plans .................................................................................................. 17

d. Legal obligation to provide coverage after the accommodation ....................................... 17

B.

The Plaintiffs .............................................................................................................. 18

1. Little Sisters of the Poor .................................................................................................... 18

2. Southern Nazarene............................................................................................................. 20

3. Reaching Souls................................................................................................................... 22

C.

Procedural History ...................................................................................................... 23

1. Little Sisters of the Poor .................................................................................................... 23

2. Southern Nazarene............................................................................................................. 25

3. Reaching Souls................................................................................................................... 26

IV. Unusual Nature of Plaintiffs’ Claim .................................................................................. 27

V. RFRA ................................................................................................................................. 30

A.

Legal Background....................................................................................................... 33

1. Standard of Review............................................................................................................ 33

2. RFRA and Free Exercise ................................................................................................... 34

3. Elements of RFRA Analysis .............................................................................................. 35

4. Courts Determine Substantial Burden ............................................................................... 36

5. Accommodations Can Lessen or Eliminate Burden .......................................................... 40

B.

Substantial Burden Analysis....................................................................................... 41

1. Plaintiffs’ RFRA Arguments ............................................................................................. 41

2. The Accommodation Scheme Eliminates Burdens on Religious Exercise ....................... 43

3. The Accommodation Scheme Does Not Impose a Substantial Burden............................. 45

a. Opting out does not cause contraceptive coverage. .......................................................... 45

- vi -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 7

b. No substantial burden from complicity.............................................................................. 66

c. No burden from ongoing requirements.............................................................................. 72

C.

Strict Scrutiny ............................................................................................................. 75

D.

Conclusion .................................................................................................................. 75

VI. First Amendment ............................................................................................................... 75

A.

Free Exercise Clause .................................................................................................. 77

1. Legal Background .............................................................................................................. 78

2. The Mandate and Accommodation Scheme are Neutral ................................................... 79

3. The Mandate and Accommodation Scheme are Generally Applicable ............................. 79

4. The Mandate and Accommodation Scheme Have a Rational Basis.................................. 81

B.

Establishment Clause.................................................................................................. 83

1. Organizational Distinctions Well-Established in Federal Law.......................................... 83

2. Organizational Distinctions and Respecting the Religion Clauses.................................... 85

3. Organizational Distinctions Compatible with Larson and Colorado Christian ................ 86

4. Plaintiffs’ Argument Based on the Departments’ Rationale.............................................. 88

C.

Free Speech Clause..................................................................................................... 90

1. Compelled Speech ............................................................................................................. 91

2. Compelled Silence ............................................................................................................. 95

VII. Conclusion ......................................................................................................................... 95

GLOSSARY
This opinion is heavily laden with terms from the applicable statute and
regulations, types of health insurance arrangements, and names of numerous entities. We
appreciate the challenge this presents to the reader and provide this glossary to help
navigate the opinion.
Legal and Regulatory Terms: ACA: The Affordable Care Act, which encompasses the Patient Protection and
Affordable Care Act, enacted on March 23, 2010, and the Health Care and Education Reconciliation Act, enacted on March 30, 2010.
Accommodation scheme: A regulatory mechanism that allows religious non-profit organizations to relieve themselves of their obligation to provide contraceptive
- vii -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 8
coverage for employees by either (a) sending a form to their health insurance issuer or third-party administrator or (b) sending a notification to the Department of Health and Human Services.
ANPRM: Advance Notice of Proposed Rulemaking, which an administrative agency may issue to notify the public it is contemplating rulemaking and to invite comments.
Departments: The Department of Health and Human Services, Department of Labor, and Department of the Treasury, which collectively implement the ACA.
EBSA: The Employee Benefits Security Administration, an agency within the Department of Labor.
ERISA: The Employee Retirement Income Security Act, codified at 29 U.S.C. § 1001 et seq., which is a federal law that sets minimum standards for certain employersponsored benefit plans.
Form 700: A standardized notification that religious non-profit organizations may send to their health insurance issuer or third party administrator under the accommodation scheme to self-certify they object to providing contraceptive coverage.
HHS: The Department of Health and Human Services, which is one of the three departments tasked with implementing the ACA and contraceptive coverage requirement.
HRSA: The Health Resources and Services Administration, an agency within HHS, which issued guidelines requiring coverage of all FDA-approved contraceptive methods under the ACA.
IOM: The Institute of Medicine, an independent body that reviewed evidence on women’s preventive services and issued a report used by the HRSA in formulating its guidelines.
IRC: The Internal Revenue Code, codified at 26 U.S.C. § 1 et seq., which is a comprehensive compilation of the federal tax laws.
Mandate: Regulations enacted under the ACA requiring employer-sponsored group health plans to cover contraceptive services for women as a form of preventive care.
RFRA: The Religious Freedom Restoration Act, codified at 42 U.S.C. § 2000bb-1 et seq., which states that laws that substantially burden a person’s exercise of religion are only permissible if they are the least restrictive means of furthering a compelling governmental interest.
- viii -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 9
RLUIPA: The Religious Land Use and Institutionalized Persons Act, codified at 42 U.S.C. § 2000cc et seq., which states that laws that substantially burden religious exercise through land use restrictions or restrictions on prisoners are only permissible if they are the least restrictive means of furthering a compelling governmental interest.
Religious employers: As defined by reference to §§ 6033(a)(3)(A)(i) or (iii) of the IRC, employers that are organized and operate as non-profit entities and are churches, their integrated auxiliaries, conventions or associations of churches, or the exclusively religious activities of any religious order.
Religious non-profit organizations: Organizations that do not qualify as religious employers but are eligible for an accommodation from the contraceptive coverage requirement because they have religious objections to providing contraceptive coverage, are organized and operate as non-profit entities, hold themselves out as religious organizations, and self-certify that they satisfy these criteria. The Plaintiffs in these cases are religious non-profit organizations.
Health Insurance Terms:
Group health plan: A benefit plan established or maintained by an employer that provides health insurance to employees and their dependents either directly—a selfinsured group health plan—or through a health insurance issuer—an insured group health plan.
Health insurance issuer: A health insurance company, service, or organization that must be licensed to engage in the insurance business and is subject to state laws regulating insurance.
Insured group health plan: A benefit plan in which the employer employs a health insurance issuer to assume the risk of providing health insurance.
Plan participants and beneficiaries: Individuals who are covered by a group health plan.
Self-insured group health plan: A benefit plan in which the employer assumes the risk of providing health insurance.
Self-insured church plan: A self-insured group health plan established by a church or association of churches covering the church or association’s employees, which is not subject to regulation under ERISA unless it has elected to opt in to ERISA’s provisions.
TPA: A third-party administrator, which is an entity that processes insurance claims and provides administrative services for employers with self-insured group health plans.
- ix -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 10
Plaintiffs and Related Entities:
Little Sisters of the Poor:
Little Sisters of the Poor: A religious non-profit organization that provides health care to employees through the Christian Brothers Employee Benefit Trust.
Christian Brothers Employee Benefit Trust: A self-insured church plan that is not subject to ERISA and uses Christian Brothers Services as its TPA.
Christian Brothers Services: The TPA for the Christian Brothers Employee Benefit Trust.
Southern Nazarene:
Southern Nazarene University: A religious non-profit organization that is self-insured up to $100,000 and provides health care to employees through Blue Cross Blue Shield for claims above $100,000.
Oklahoma Baptist University: A religious non-profit organization insured by Blue Cross Blue Shield of Oklahoma.
Oklahoma Wesleyan University: A religious non-profit organization insured by Community Care of Oklahoma.
Mid-America Christian University: A religious non-profit organization that provides health care to employees through plans provided by GuideStone Financial Resources.
Reaching Souls:
Reaching Souls: A religious non-profit organization that provides health care to employees through the GuideStone Plan.
Truett-McConnell College: A religious non-profit organization that provides health care to employees through the GuideStone Plan.
GuideStone Financial Resources: A religious non-profit organization that sponsors the GuideStone Plan and has arranged for TPAs to provide claims administration under that plan.
GuideStone Plan: A self-insured church plan that is not subject to ERISA and uses entities like Connecticut General Life Insurance Company, Highmark Health Services, and Express Scripts, Inc. as its TPAs.
- x -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 11
I. INTRODUCTION When Congress passed the Affordable Care Act (“ACA”) in 2010, it built upon the widespread use of employer-based health insurance in the United States.1 The ACA
and its implementing regulations require employers who provide health insurance
coverage to their employees to include coverage for certain types of preventive care
without cost to the insured. The appeals before us concern the regulations that require
group health plans to cover contraceptive services for women as a form of preventive care (“Mandate”).2
In response to religious concerns, the Departments implementing the ACA—
Health and Human Services (“HHS”), Labor, and Treasury—adopted a regulation that
exempts religious employers—churches and their integrated auxiliaries—from covering
contraceptives. When religious non-profit organizations complained about their omission
from this exemption, the Departments adopted a regulation that allows them to opt out of
1 A majority of the nonelderly population in the United States receives health insurance as a job benefit through an employer. See Melissa Majerol, Vann Newkirk & Rachel Garfield, The Uninsured: A Primer – Key Facts About Health Insurance and the Uninsured in America, The Kaiser Commission on Medicaid and the Uninsured, 1 (Jan. 2015), http://files.kff.org/attachment/the-uninsured-a-primer-key-facts-about-healthinsurance-and-the-uninsured-in-america-primer.
2 We use “Mandate” as shorthand for the ACA’s employer mandate, which requires employers who offer health benefits to comply with the coverage requirements detailed in the ACA and its implementing regulations. This Mandate is distinct from the individual mandate at issue in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), which generally requires individuals to maintain health insurance.
- 1 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 12
providing, paying for, or facilitating contraceptive coverage.3 Under this regulation, a
religious non-profit organization can opt out by delivering a form to their group health
plan’s health insurance issuer or third-party administrator (“TPA”) or by sending a
notification to HHS.
The Plaintiffs in the cases before us are religious non-profit organizations. They
contend that complying with the Mandate or the accommodation scheme imposes a
substantial burden on their religious exercise. The Plaintiffs argue the Mandate and the
accommodation scheme violate the Religious Freedom Restoration Act (“RFRA”) and the Religion and Speech Clauses of the First Amendment.4
Although we recognize and respect the sincerity of Plaintiffs’ beliefs and
arguments, we conclude the accommodation scheme relieves Plaintiffs of their
obligations under the Mandate and does not substantially burden their religious exercise
under RFRA or infringe upon their First Amendment rights. Exercising jurisdiction
3 Plaintiffs object to the term “opt out” because their accommodation from the Mandate involves an act on their part—self-certification—that they deem objectionable. We believe “opt out” is accurate. Self-certifying for the accommodation expressly relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise. Under these conditions, the self-certification is accurately characterized as an “opt out.” By definition, all opt-out mechanisms require some affirmative act by objecting parties.
4 RFRA applies to all subsequent federal statutes absent a specific exemption by Congress. See 42 U.S.C. § 2000bb-3(b) (“Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.”). The ACA, enacted in 2010, did not contain a specific exemption and is subject to RFRA. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1157 (10th Cir. 2013).
- 2 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 13
under 28 U.S.C. § 1292(a), we affirm the district court’s denial of a preliminary injunction to the plaintiffs in Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F. Supp. 3d 1225 (D. Colo. 2013), and reverse the district courts’ grants of a preliminary injunction to the plaintiffs in Southern Nazarene University v. Sebelius, No. CIV-131015-F, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013), and Reaching Souls International, Inc. v. Burwell, No. CIV-13-1092-D, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013).
II. HOBBY LOBBY AND THIS CASE Last year, the Supreme Court decided Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), in which closely-held for-profit corporations challenged the Mandate under RFRA. The difference between Hobby Lobby and this case is significant and frames the issue here. In Hobby Lobby, the plaintiff for-profit corporations objected on religious grounds to providing contraceptive coverage and could choose only between (1) complying with the ACA by providing the coverage or (2) not complying and paying significant penalties. Id. at 2759-60. In the cases before us, the plaintiff religious nonprofit organizations can avail themselves of an accommodation that allows them to opt out of providing contraceptive coverage without penalty. Plaintiffs contend the process to opt out substantially burdens their religious exercise. In other words, unlike in Hobby Lobby, the Plaintiffs do not challenge the general obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with that obligation. The Plaintiffs do
- 3 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 14
not claim the Departments have not tried to accommodate their religious concerns. They claim the Departments’ attempt is inadequate because the acts required to opt out of the Mandate substantially burden their religious exercise. As we discuss more fully below, however, the accommodation relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise.
III. BACKGROUND We begin by providing background information on the ACA and its implementing regulations, the Plaintiffs objecting to the accommodation scheme, and the procedural history of the three cases before us.
A. Regulatory Background The regulations at issue in these cases have evolved in significant ways since their initial promulgation. We review: (1) the exemption from the ACA’s contraceptive coverage requirement for churches and integrated auxiliaries, (2) the accommodation scheme for religious non-profit organizations, and (3) the mechanics of the accommodation scheme for different types of group health plans. 1. The ACA Mandate and the Religious Employer Exemption Under the ACA, employer-sponsored group health plans must meet minimum coverage requirements. As part of these requirements, both group health plans and health insurance issuers must cover preventive health care services and cannot require plan participants and beneficiaries to share the costs of these services through co-payments,
- 4 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 15
deductibles, or co-insurance. 42 U.S.C. § 300gg-13. On July 19, 2010, the Departments issued interim final rules implementing the ACA’s requirements for preventive services. Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726 (July 19, 2010).
Among the services required by the ACA are preventive care and screenings for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” (“HRSA”), a federal agency within HHS. 42 U.S.C. § 300gg-13(a)(4). On August 1, 2011, after receiving recommendations from the Institute of Medicine (“IOM”), the HRSA issued its guidelines for women’s preventive health services. The guidelines include coverage of “[a]ll Food and Drug Administration [(“FDA”)] approved contraceptives, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. HRSA, Women’s Preventive Services Guidelines, http://www.hrsa.gov/womensguidelines (last visited Mar. 25, 2015).
In accordance with the HRSA’s guidelines, the Departments require coverage of the full range of FDA-approved contraceptive services. See 26 C.F.R. § 54.98152713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv). Not all employers, however, are required to comply with the Mandate.
First, employers with 50 or fewer employees are exempt from the Mandate because they are not required to offer insurance under the ACA. See 26 U.S.C.
- 5 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 16
§§ 4980H(c)(2)(A), 4980D(d). Second, “grandfathered” plans are exempt from the Mandate because the ACA
allows individuals to temporarily maintain the health coverage they possessed before the ACA was enacted. See 42 U.S.C. § 18011.5
Third, and the most relevant here, is the exemption for religious employers. In response to concerns from religious organizations, the Departments amended the interim final regulations to give the HRSA authority to exempt group health plans established or maintained by religious employers. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). The Departments defined a “religious employer” as one that: “(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” Id. The cited sections “refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as the exclusively religious activities of
5 The exception for grandfathered plans is temporary and transitional. A health plan loses its grandfathered status—and is subject to the Mandate—when it eliminates benefits, increases cost sharing requirements, or changes the terms of employer contributions. See 45 C.F.R. § 147.140(g). In 2011, 56 percent of individuals who receive health care from their employer were covered by grandfathered plans; in 2014, only 26 percent were covered by grandfathered plans. See Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits: 2014 Annual Survey, 7 (2014), http://files.kff.org/attachment/2014-employer-health-benefits-survey-full-report.
- 6 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 17
any religious order.” Id. The Departments noted the definition was intended “to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.” Id.6 They invited comments on the proposed definition of “religious employer” and potential alternatives. Id.
The Departments received more than 200,000 responses to their request for comments from a variety of entities both supporting and opposing expansion of the proposed exemption. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012). After reviewing these comments, they published final regulations on February 15, 2012, adopting their proposed definition of “religious employer.” Id. at 8727. They also created a one-year safe harbor for religious non-profit organizations, during which the Departments would not enforce the Mandate against them. Id. at 8728. 2. The Accommodation Scheme for Religious Non-Profit Organizations
In response to religious groups that were dissatisfied with the scope of the proposed religious employer exemption, the Departments issued an advance notice of
6 A number of states have laws that require employers to cover contraceptive services but excuse some religious employers from complying. The Departments developed their definition to accord with these existing state laws. See 76 Fed. Reg. at 46,623.
- 7 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 18
proposed rulemaking (“ANPRM”) in anticipation of creating additional accommodations for non-exempt religious non-profit organizations. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). After reviewing the comments received from the ANPRM, the Departments published proposed rules creating an accommodation for a wider range of religious non-profit organizations. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8456 (Feb. 6, 2013).
The Departments received over 400,000 comments on the proposed rules, and finalized two notable changes. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870, 39,871 (July 2, 2013). First, the Departments simplified and clarified the existing exemption for religious employers by eliminating the first three elements of the definition, thereby defining “religious employer” as “an employer that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code [(“IRC”)].” Id. at 39,874. Second, they created an accommodation for religious non-profit organizations that did not meet this simplified definition of a religious employer. Id.
The regulations state a religious non-profit organization can receive this accommodation if it: (1) has religious objections to “providing coverage for some or all of the contraceptive services required to be covered” under the Mandate, (2) “is organized and operates as a nonprofit entity,” (3) “holds itself out as a religious organization,” and (4) “self-certifies that it satisfies the first three criteria.” Id. The
- 8 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 19
accommodation is available for both (1) insured group health plans, under which an employer contracts with a health insurance issuer to assume the risk of providing benefits to employees, and (2) self-insured group health plans, under which the employer itself assumes the risk of providing benefits to employees. Id. at 39,875-80.7 As we explain below, religious non-profit organizations can self-certify their religious objection and receive the accommodation either by notifying their health insurance issuer or TPA or by notifying HHS directly.
a. EBSA Form 700 To self-certify under the accommodation scheme, the Departments initially required religious non-profit organizations to use the Employee Benefits Security Administration’s (“EBSA”) Form 700 (“Form”).8 Objecting organizations are relieved from complying with the Mandate by delivering the executed Form to their health insurance issuer or TPA. The Form notifies the health insurance issuer or TPA that the organization self-certifies as exempt from the Mandate because it has a religious objection to providing coverage for some or all contraceptive services to its employees, and identifies the relevant federal regulations under which the organization is permitted to opt out of that obligation. See Dep’t of Labor, EBSA Form 700 (Aug. 2014),
7 Employers with self-insured group health plans typically employ a TPA to coordinate logistics and deliver benefits. Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals, 6 (Dec. 2008), http://www.cbo.gov/sites/default/files/12-18-keyissues.pdf.
8 A copy of the Form appears at the end of this opinion.
- 9 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 20
http://www.dol.gov/ebsa/preventiveserviceseligibleorganizationcertificationform.doc (citing 26 C.F.R. § 54.9815-2713A(a); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R. § 147.131(b)).
The back of the Form notifies TPAs of their obligations.9 Form at 2. It informs the TPA that the eligible organization “[w]ill not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services.” Form at 2. It identifies regulations requiring the TPA to provide contraceptive coverage without cost sharing to plan participants and beneficiaries if the TPA agrees to continue providing administrative services for a group health plan. Id. (citing 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2510.3-16; 29 C.F.R. § 2590.715-2713A). A TPA that receives the Form from an objecting employer is eligible for a government payment to cover the costs of providing contraceptive coverage. See 45 C.F.R. § 156.50(d)(5).
As part of this scheme, the regulations initially included a non-interference provision, which specified that objecting religious non-profit organizations “must not, directly or indirectly, seek to influence the third party administrator’s decision” whether to provide coverage for contraceptives. 26 C.F.R. § 54.9815-2713A(b)(iii) (2013). When the Plaintiffs filed their suits, they sought a preliminary injunction relieving them
9 The notice of regulatory requirements on the back of the Form is specifically addressed to TPAs. See Form at 2. The legal obligations of health insurance issuers are evident from the text of the ACA itself. See 42 U.S.C. § 300gg-13.
- 10 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 21
from complying with this version of the accommodation scheme, arguing delivery of the Form to their health insurance issuer or TPA constituted a substantial burden on their religious exercise in violation of RFRA and the First Amendment.
b. Alternative notice In response to litigation by Plaintiffs and others, the Departments have since expanded the accommodation scheme.10 The Supreme Court granted injunctions pending appeal in two suits brought by religious non-profit organizations, including the Little Sisters, that objected to the accommodation scheme. See Wheaton Coll. v. Burwell, 134 S. Ct. 2806 (2014); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Sebelius, 134 S. Ct. 1022 (2014). In a third suit, the Court declined to recall or stay a circuit court mandate in favor of the Government, but granted an injunction to religious non-profit organizations pending final disposition of their petition for certiorari. See Zubik v. Burwell, Nos. 14A1065, 14-1418, 2015 WL 3947586, at *1 (U.S. June 29, 2015). The injunctions allowed the organizations to notify HHS directly of their religious objection to the Mandate rather than sending the Form to their health insurance issuers or TPAs. In response to the injunction in Wheaton College, the Departments issued an interim final rule on August 27, 2014, creating an alternative accommodation for religious non-profit organizations. Coverage of Certain Preventive Services Under the
10 As we explain in this section, the Departments did not expand the pool of actors who could claim an accommodation and obtain relief from the Mandate. They expanded the accommodation scheme by offering objecting organizations an alternative method of self-certification.
- 11 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 22
Affordable Care Act, 79 Fed. Reg. 51,092, 51,092 (Aug. 27, 2014).11
These regulations relieve a religious non-profit organization from complying with
the Mandate if it notifies HHS in writing of its religious objection to the provision of
some or all contraceptive services. Id. at 51,094. The notice may be sent by letter or
email, and must contain (1) “the name of the eligible organization and the basis on which
it qualifies for an accommodation,” (2) “its objection based on sincerely held religious
beliefs to providing coverage of some or all contraceptive services,” including any
particular subset to which it objects; (3) the name and type of the group health plan; and
(4) the name and contact information for any of the plan’s TPAs and/or health insurance
issuers. Id. at 51,094-95. According to the Departments, these requirements constitute
“the minimum information necessary for the Departments to determine which entities are
covered by the accommodation, to administer the accommodation, and to implement the
11 We discuss the procedural history of the cases before us below, but note that this alternative accommodation is akin to the accommodation granted by the Supreme Court in the cases mentioned above—Little Sisters, 134 S. Ct. 1022; Wheaton College, 134 S. Ct. 2806; and Zubik, 2015 WL 3947586:
If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators. Wheaton Coll., 134 S. Ct. at 2807.
- 12 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 23
policies in the July 2013 final regulations.” Id. at 51,095.
The revised regulations also repeal the non-interference provision by deleting
language prohibiting organizations from interfering with or seeking to influence their TPA’s decision to cover contraception. Id.12
We note again that the entirety of this accommodation scheme for religious non-
profit organizations—using either the Form or the alternative notice to HHS—was not
available to the for-profit corporate plaintiff in Hobby Lobby. Here, an accommodation is
available to Plaintiffs. In the cases before us, we consider whether their taking advantage
of that accommodation to opt out of the Mandate is itself a substantial burden on their
religious exercise.
3. The Mechanics of the Accommodation for Insured Plans, Self-Insured Plans, and Self-Insured Church Plans The Plaintiffs use different types of employer-sponsored group health plans, which
the Departments treat differently within the accommodation scheme. By its own terms,
12 The regulations explain the rationale for this change: The Departments interpret the July 2013 final regulations solely as prohibiting the use of bribery, threats, or other forms of economic coercion in an attempt to prevent a third party administrator from fulfilling its independent legal obligations to provide or arrange separate payments for contraceptive services. Because such conduct is generally unlawful and is prohibited under other state and federal laws, and to reduce unnecessary confusion, these interim final regulations delete the language prohibiting an eligible organization from interfering with or seeking to influence a third party administrator’s decision or efforts to provide separate payments for contraceptive services. 79 Fed. Reg. at 51,095.
- 13 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 24
the ACA obligates both group health plans and health insurance issuers to provide contraceptive coverage. 42 U.S.C. § 300gg-13 (“A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”); 26 C.F.R. § 54.98152713(a)(1); 29 C.F.R. § 2590.715-2713(a)(1); 45 C.F.R. § 147.130(a)(1). Because the differences among these arrangements are relevant to our discussion of the merits of Plaintiffs’ claims, we consider it helpful to explain how the Mandate and accommodation scheme affect insured plans, self-insured plans, and self-insured church plans.
a. Insured plans When a religious non-profit organization offers its employees an insured plan, the statutory language not only requires the group health plan to cover contraception, but also obligates the plan’s health insurance issuer to ensure plan participants and beneficiaries receive contraceptive coverage. See 42 U.S.C. §§ 300gg-13; 300gg-22. Thus, even if a religious non-profit organization does not self-certify that it has an objection, its health insurance issuer is obligated to provide contraceptive coverage to plan participants and beneficiaries and charge the organization for the cost. See Priests for Life v. U.S. Dep’t of Health & Hum. Servs., 7 F. Supp. 3d 88, 95-96 & n.2 (D.D.C. 2013). The organization can free itself from complying with the Mandate and paying for that coverage, however,
- 14 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 25
“if the eligible organization or group health plan provides either a copy of the selfcertification to each issuer providing coverage in connection with the plan or a notice to the Secretary of Health and Human Services.” 26 C.F.R. § 54.9815-2713AT(c)(1); 29 C.F.R. § 2590.715-2713A(c)(1); 45 C.F.R. § 147.131(c)(1). When an organization submits the Form expressing an objection to providing contraceptive coverage, “the issuer has sole responsibility for providing such coverage in accordance with § 147.130.” 45 C.F.R. § 147.131(c)(1)(i); see also 26 C.F.R. § 54.9815-2713AT(c)(1)(i) (requiring coverage in accordance with § 54.9815-2713); 29 C.F.R. § 2590.715-2713A(c)(1)(i) (requiring coverage in accordance with § 2590.715-2713). Similarly, when an organization notifies HHS, the Department of Labor will send a separate notification to the organization’s issuer informing it of that notice and describing its regulatory obligations. 45 C.F.R. § 147.131(c)(1)(ii); see also 26 C.F.R. § 54.98152713AT(c)(1)(ii); 29 C.F.R. § 2590.715-2713A(c)(1)(ii).
In the context of insured plans, health insurance issuers are generally responsible for paying for contraceptive coverage when a religious non-profit organization opts out. See 45 C.F.R. § 156.50. The Departments expect this will be cost-neutral for issuers because of the cost savings that accompany improvements in women’s health and lower pregnancy rates. See 78 Fed. Reg. at 39,877.
b. Self-insured plans When a religious non-profit organization offers its employees a self-insured plan, the accommodation works in a slightly different fashion. A self-insured group health
- 15 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 26
plan complies with the regulatory requirements and is excused from providing contraceptive coverage if “[t]he eligible organization or its plan contracts with one or more third party administrators” and “[t]he eligible organization provides either a copy of the self-certification to each third party administrator or a notice to the Secretary of Health and Human Services that it is an eligible organization and of its religious objection to coverage of all or a subset of contraceptive services.” 26 C.F.R. § 54.98152713AT(b)(1); 29 C.F.R. § 2590.715-2713A(b)(1).
Although the text of the ACA does not specify a role for TPAs, it expressly requires group health plans to include contraceptive coverage, and federal regulations impose obligations on TPAs that administer self-insured group health plans. See 42 U.S.C. § 300gg-13; 26 C.F.R. § 54.9815-2713AT(b); 29 C.F.R. § 2590.715-2713A(b). The regulations require a TPA administering a group health plan to provide or arrange for contraceptive coverage without cost sharing with the organization or its beneficiaries when it: (1) receives a notification that an eligible employer has opted out of providing coverage and (2) decides to remain in a relationship with that employer or its plan to provide administrative services for the plan. 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The TPA’s obligations are enforceable under the Employee Retirement Income Security Act (“ERISA”). See 78 Fed. Reg. at 39,879-80.
In the context of self-insured plans, a TPA may seek reimbursement if it has received the Form or a notification from the government and “provides or arranges payments for contraceptive services.” See 26 C.F.R. § 54.9815-2713AT(b)(3); 29 C.F.R.
- 16 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 27
§ 2590.715-2713A(b)(3); 45 C.F.R. § 156.50(d)(2)(ii)-(iii). TPAs do so by working through health insurance issuers, who receive adjustments to fees they pay to the government under the ACA and pass along the reimbursements to TPAs. See 45 C.F.R. § 156.50(d).
c. Self-insured church plans Although federal regulations impose certain requirements on TPAs, the Departments concede they lack authority to enforce those requirements as to self-insured “church plans,” which are group health plans established by a church or association of churches covering the church’s or association’s employees. 29 U.S.C. § 1002(33). Organizations that provide health care coverage for employees through self-insured church plans are exempt from regulation under ERISA. 29 U.S.C. § 1003(b)(2). Unless a church plan has made an election under 26 U.S.C. § 410(d), which opts plans into provisions of ERISA, the Departments concede they lack authority to compel church plan TPAs to provide contraceptive coverage, and may not levy fines against those TPAs for failing to provide it.
d. Legal obligation to provide coverage after the accommodation Although the accommodation is available for both insured and self-insured group health plans, the source of the legal obligation to provide contraceptive coverage after a religious non-profit organization has opted out differs based on the type of insurance arrangement the organization uses. When an organization takes advantage of the accommodation, the ACA requires health insurance issuers to provide coverage for
- 17 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 28
insured group health plans, while federal regulations adopted pursuant to the ACA require TPAs to arrange coverage for self-insured group plans that are subject to ERISA. As we discuss below, these distinctions shape the claims advanced by different Plaintiffs in the cases before us.
B. The Plaintiffs The Plaintiffs13 in this litigation object to both means to receive an accommodation—sending the Form to their health insurance issuer or TPA or sending a notification to HHS. The Plaintiffs differ from each other in ways that are relevant to the Departments’ authority to require employers to provide contraceptive coverage and relieve objecting religious non-profit organizations from the Mandate when they use the accommodation scheme. 1. Little Sisters of the Poor The Little Sisters of the Poor Home for the Aged, Denver, Colorado and Little Sisters of the Poor, Baltimore (“Little Sisters”) belong to an order of Catholic nuns who devote their lives to care for the elderly. The Little Sisters provide health insurance coverage to their employees through the Christian Brothers Employee Benefit Trust (“Trust”), a self-insured church plan that is not subject to ERISA. The Trust uses Christian Brothers Services (“Christian Brothers”), another Catholic organization, as its TPA.
13 When we refer to the plaintiffs in all three cases collectively, we use “Plaintiffs.” When we refer to a subset of the plaintiffs, we use “plaintiffs.”
- 18 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 29
The Little Sisters have always excluded coverage of sterilization, contraception, and abortifacients from their health care plan in accordance with their religious belief that deliberately avoiding reproduction through medical means is immoral. The Little Sisters “believe that it is wrong for them to intentionally facilitate the provision of these medical procedures, drugs, devices, and related counseling and services.” LS Br. at 10. They cite “well-established Catholic teaching that prohibits encouraging, supporting, or partnering with others in the provision of sterilization, contraception, and abortion.” LS Br. at 9-10. The Little Sisters contend they “cannot provide these things, take actions that directly cause others to provide them, or otherwise appear to participate in the government’s delivery scheme,” as the mere appearance of condoning these services “would violate their public witness to the sanctity of human life and human dignity and could mislead other Catholics and the public.” LS Br. at 10.
The Little Sisters are subject to the Mandate unless they take advantage of the accommodation scheme by delivering the Form to the Christian Brothers, their TPA, or notifying HHS of their religious objection. If they do not take one of these steps and do not provide contraceptive coverage, they estimate a single Little Sisters home could incur penalties of up to $2.5 million per year, and allege the Trust could lose up to $130 million in plan contributions. The Little Sisters plaintiffs object that the accommodation scheme violates their sincerely held religious beliefs because they cannot take actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.
- 19 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 30
2. Southern Nazarene
Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist
University, and Mid-America Christian University are “Christ-centered institutions of
higher learning.” SN Br. at 1-2. Southern Nazarene is partially self-insured; it generally
assumes the risks of providing coverage but contracts with a health insurance issuer to
pay all claims over $100,000. For its insured employee coverage, it uses Blue Cross Blue
Shield of Oklahoma. It offers separate coverage to students through an insured plan.
Oklahoma Baptist is an insured university. It uses Blue Cross Blue Shield of Oklahoma,
and offers separate coverage to students through an insured plan. Oklahoma Wesleyan is
an insured university. It uses Community Care of Oklahoma. Mid-America Christian is
a self-insured university on a church plan that is not subject to ERISA. It uses plans
provided by GuideStone Financial Resources.14
14 The descriptions of Mid-America Christian’s insurance arrangements in the record before us are inconsistent. Before the district court, counsel described MidAmerica Christian’s plan as “insured by GuideStone,” App. in SN at A32, and suggested it would be obligated, like Oklahoma Baptist and Oklahoma Wesleyan, to deliver the Form to its health insurance issuer to opt out of the Mandate. In its opening brief on appeal, counsel described Mid-America Christian’s plan as “self-insured,” and suggested it would be obligated, like Southern Nazarene, to deliver the Form to its TPA. SN Br. at 2, 18. In a supplemental brief and at oral argument, counsel now indicates Mid-America Christian has a self-insured church plan and is more akin to the Reaching Souls plaintiffs. SN Supp. Br. II at 9 n.2; Oral Arg. in SN at 20:24-20:32.
We treat Mid-America Christian’s plan as a self-insured church plan. The parties in Southern Nazarene stipulated as fact that Mid-America Christian’s group health plan is provided by GuideStone Financial Resources. Southern Nazarene, 2013 WL 6804265, at *2. Because we understand GuideStone Financial Resources to be a sponsor of selfinsured church plans and not an insurer, we assume the latest characterization on appeal
Continued . . .
- 20 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 31
The universities have brought suit collectively, but they are in slightly different positions insofar as Mid-America Christian University uses a church plan and contracts with a TPA, Oklahoma Baptist University and Oklahoma Wesleyan use health insurance issuers, and Southern Nazarene contracts with a TPA but uses a health insurance issuer for student coverage and employee claims above $100,000.
The universities believe “it would be sinful and immoral for them to participate in, pay for, facilitate, enable, or otherwise support access to abortion, abortion-inducing drugs and devices, and related counseling.” SN Br. at 1-2. They object to the provision of contraceptives they consider abortifacients. The universities currently offer health plans to students and employees that do not cover the contraceptives the universities find objectionable.
The universities are subject to the Mandate, but they may take advantage of the accommodation scheme by delivering the Form or notifying HHS of their religious objections to relieve themselves of the obligation to provide contraceptive coverage. They object to the accommodation, however, because they believe it requires them to expressly or functionally offer contraceptive coverage through their group health plan, interferes with the spiritual development of their communities, and requires them to facilitate behavior they consider sinful. If they do not take advantage of the
______________________________________ Cont.
is correct and treat Mid-America Christian’s group health plan as a self-insured church plan that is not subject to ERISA.
- 21 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 32
accommodation, each university must either provide coverage or incur penalties of $100 per employee per day. 3. Reaching Souls
Reaching Souls is a non-profit corporation founded by a Southern Baptist minister and based in Oklahoma. The organization trains pastors and evangelists and provides care to orphans in Africa, India, and Cuba. Truett-McConnell College is a private liberal arts college based in Georgia. Both Reaching Souls and Truett-McConnell use the GuideStone Plan, a self-insured church plan that is not subject to ERISA. GuideStone Financial Resources, a Texas non-profit corporation, established the GuideStone Plan and holds the assets funding it in trust. GuideStone Financial Resources has entered into agreements with other entities to provide claims administration as TPAs under the GuideStone Plan, including Connecticut General Life Insurance Company, Highmark Health Services, and Express Scripts, Inc.
Reaching Souls believes life begins at conception and objects to four of the twenty FDA-approved methods of contraception that Reaching Souls characterizes as abortifacients. Truett-McConnell has adopted the Southern Baptist Convention’s statement of faith and objects to the same four methods of contraception. GuideStone Financial Resources, as an arm of the Southern Baptist Convention, also opposes coverage of contraception methods it believes to be abortifacients. The organizations ground their beliefs in the sanctity of human life and opposition to elective abortion in the religious teachings of the Southern Baptist Convention.
- 22 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 33
Both Reaching Souls and Truett-McConnell College are subject to the Mandate, but they may take advantage of the accommodation scheme by delivering the Form or notifying HHS of their religious objections. If they do, GuideStone Financial Resources would have to pass the information to the TPAs of the GuideStone Plan to effectuate the coverage. The plaintiffs believe this would violate their religious beliefs “by making them complicit in the government’s scheme to provide abortifacients.” RS Br. at 4. If the organizations do not take advantage of the accommodation scheme or provide coverage, they contend they will incur millions of dollars in fines, which “would crush the ministries and force a mass exodus from GuideStone.” RS Br. at 3.
C. Procedural History The district courts reached different results in the three cases before us, denying a preliminary injunction to the plaintiffs in Little Sisters but granting a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls. Reviewing the reasoning behind their determinations clarifies the claims before us on appeal. 1. Little Sisters of the Poor In Little Sisters, the district court determined that complying with the accommodation scheme would not impose a substantial burden on the Little Sisters’ or Christian Brothers’ religious exercise. 6 F. Supp. 3d at 1239-45. The court’s analysis of the preliminary injunction factors began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied. Id. at 1236. After determining it was the court’s duty to determine how the regulations operate as a matter
- 23 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 34
of law, id. at 1239, the court concluded the accommodation scheme does not require the Little Sisters to provide contraceptive coverage or to participate in the provision of contraceptive coverage, id. at 1239-42.
The court noted that the Little Sisters—unlike the plaintiffs in Hobby Lobby— could be relieved of the obligation to provide coverage by signing and delivering the Form to their TPA, the Christian Brothers. Id. at 1237.15 The court underscored that, while the Departments could require the Little Sisters to sign and deliver the Form to their TPA to avoid the Mandate, the Departments lacked enforcement authority under ERISA to levy fines or otherwise force the Christian Brothers to provide contraceptive coverage as the TPA for a self-insured, ERISA-exempt church plan. Id. at 1243-44. The court concluded that requiring the Little Sisters to sign and deliver the Form to opt out did not constitute a substantial burden on their religious exercise and declined to issue a preliminary injunction. Id. at 1242-45.
The Little Sisters next asked the Tenth Circuit for an injunction pending appeal, which this court denied. The Supreme Court subsequently granted their request for an injunction pending appeal, allowing the Little Sisters to notify HHS of their religious objection instead of sending the Form to their TPA as the regulations at the time required.
15 At the time the district courts decided all three of the cases before us, the interim final rules allowing Plaintiffs to opt out by notifying HHS of their religious objection had not yet been issued. The district court decisions therefore focus on the Form and do not consider the expanded accommodation scheme in August 2014’s interim final rules. In supplemental briefing to this court, the Plaintiffs argue the expanded scheme does not adequately address the religious liberty concerns they have raised in this litigation.
- 24 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 35
See Little Sisters, 134 S. Ct. 1022. The Little Sisters now appeal the district court’s
denial of a preliminary injunction.
2. Southern Nazarene
In Southern Nazarene, the district court granted a preliminary injunction to the
plaintiffs. 2013 WL 6804265, at *11. The court’s analysis focused mainly on the plaintiffs’ likelihood of success on the merits.16 Id. at *7-10. The court characterized the
Form as “in effect, a permission slip which must be signed by the institution to enable the
plan beneficiary to get access, free of charge, from the institution’s insurer or third party
administrator, to the products to which the institution objects.” Id. at *8. It determined
the Form imposed a substantial burden on the plaintiffs’ sincere religious exercise and the
Government had not articulated a compelling state interest or argued its approach was the
least restrictive means of advancing that interest. Id. at *7-10.
16 The district court noted that, unlike in the recently decided Priests for Life, 7 F. Supp. 3d 88, the parties in Southern Nazarene “stipulated that the act of signing the certification is contrary to the religious beliefs to which these institutions subscribe.” Southern Nazarene, 2013 WL 6804265, at *8. The court’s characterization paraphrases the stipulation, which addresses only the litigation position taken by the Southern Nazarene plaintiffs. The parties specifically stipulated: “The Universities believe that, within the operation of the regulations, completing and delivering the self-certification to their issuers or third party administrators would violate the Universities’ sincere religious beliefs.” Id. at *5. The Government accepts that the Southern Nazarene plaintiffs take the position that completing the self-certification would violate their religious beliefs—a fairly straightforward characterization of their litigation position—but has never conceded that completing the self-certification actually would violate their religious beliefs.
- 25 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 36
The court concluded the plaintiffs had shown they were likely to succeed on the merits. Id. After reaching this conclusion, it briefly reviewed the other preliminary injunction factors and entered a preliminary injunction that prevented the Departments from enforcing the Mandate, requiring self-certification to opt out, or levying penalties. Id. at *10-11. The Government now appeals the district court’s ruling. 3. Reaching Souls
Like the district court in Southern Nazarene, the district court in Reaching Souls granted a preliminary injunction to the plaintiffs. 2013 WL 6804259, at *8. The court primarily analyzed the likelihood of plaintiffs’ success on the merits. Id. at *6-8. It characterized the Government’s substantial burden argument as “simply another variation of a proposition rejected by the court of appeals in Hobby Lobby,” likening it to the argument that the Mandate was not a substantial burden on for-profit employers because it required intervening acts by third parties—employees deciding whether to acquire contraception. Id. at *7. It emphasized that regardless of whether the Form actually triggers the provision of contraceptive services, the plaintiffs believe that signing it would signal their tacit support or cooperation. Id.
The court thus determined “the accommodation scheme applies substantial pressure on Plaintiffs to violate their belief that participating in or facilitating the accommodation is the moral equivalent of directly complying with the contraceptive mandate.” Id. at *8. It briefly reviewed the other preliminary injunction factors and enjoined the Government from requiring the plaintiffs to comply with the Mandate and
- 26 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 37
accommodation scheme or penalizing the plaintiffs for noncompliance. Id. The Government now appeals the district court’s ruling.
IV. UNUSUAL NATURE OF PLAINTIFFS’ CLAIM Before we present our analysis of the issues, we wish to highlight the unusual nature of Plaintiffs’ central claim, which attacks the Government’s attempt to accommodate religious exercise by providing a means to opt out of compliance with a generally applicable law. Most religious liberty claimants allege that a generally applicable law or policy without a religious exception burdens religious exercise, and they ask courts to strike down the law or policy or excuse them from compliance. Our circuit’s three most recent RFRA cases fall into this category. In Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), aff’d sub nom. Hobby Lobby, 134 S. Ct. 2751, the ACA required the plaintiffs to provide their employees with health insurance coverage of contraceptives against their religious beliefs. In Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014), a prison policy denied the plaintiff access to a sweat lodge, where he wished to exercise his Native American religion. In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), a prison policy denied the plaintiff a halal diet, which is necessary to his Muslim religious exercise. In each instance, the law or policy failed to provide an exemption or accommodation to the plaintiff(s). The Supreme Court’s recent ruling in Holt v. Hobbs, 135 S. Ct. 853 (2015), which concerned a prison ban on inmates’ growing beards, is another recent example of the
- 27 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 38
more common RFRA claim. The plaintiff in Holt sought to grow a beard in accordance
with his Muslim faith. In Holt, like in Hobby Lobby, the government defendants insisted
on a complete restriction and did not attempt to accommodate the plaintiff’s religious
exercise. The plaintiff in Holt proposed a compromise—he would be allowed to grow
only a half-inch beard—which the prison refused. 135 S. Ct. at 861. The Court
ultimately approved this compromise in its ruling. Id. at 867.
In the cases before us, by contrast, the Departments have developed a religious
accommodation rather than leaving it for the courts to fashion judicial relief. Plaintiffs
not only challenge a law that requires them to provide contraceptive coverage against
their religious beliefs, they challenge the exception that the law affords to them. The
precedents Plaintiffs cite are instructive in some respects, but none of them involve a situation where the government offers religious objectors an accommodation.17 The
Supreme Court and this circuit have suggested such accommodations might have
eliminated or lessened burdens we otherwise deemed substantial. See, e.g., Hobby
Lobby, 134 S. Ct. at 2759 (observing the accommodation scheme “constitutes an
17 The accommodation adds an additional consideration that makes this unlike the typical RFRA case. In Hobby Lobby, Yellowbear, Abdulhaseeb, and Holt, the government either required or prohibited acts of religious significance to the plaintiffs. In the cases before us, the government has freed Plaintiffs from the responsibility to perform the act they consider religiously objectionable—namely, providing contraceptive coverage. Nonetheless, the Plaintiffs argue an act they do not consider objectionable in itself—completing a form or writing to HHS—becomes objectionable because it either causes the provision of contraceptive coverage or renders them complicit in the provision of contraceptive coverage. Therefore, unlike the aforementioned cases, we are in the slightly different position of considering whether an otherwise unobjectionable act, understood in context, constitutes a substantial burden on Plaintiffs’ religious exercise.
- 28 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 39
alternative that achieves all of the Government’s aims while providing greater respect for religious liberty”); Yellowbear, 741 F.3d at 56 (underscoring that the case “isn’t a situation where the claimant is left with some degree of choice in the matter and we have to inquire into the degree of the government’s coercive influence on that choice”). Until now, however, we have not squarely considered a RFRA challenge to a religious accommodation.
The closest Tenth Circuit case we have found is United States v. Friday, 525 F.3d 938 (10th Cir. 2008), in which defendant Winslow Friday argued his conviction for shooting a bald eagle without a permit violated RFRA because he shot the eagle for use in a tribal religious ceremony. The Bald and Golden Eagle Protection Act forbids killing a bald eagle, but an applicant can obtain a permit to “take” a live eagle for a religious ceremony. See 16 U.S.C. §§ 668, 668a. We recognized the potential question of “whether it substantially burdens Mr. Friday’s religion to require him to obtain a permit in advance of taking an eagle.” Friday, 525 F.3d at 947. We said we were “skeptical that the bare requirement of obtaining a permit can be regarded as a ‘substantial burden’ under RFRA,” id., but Mr. Friday did not make that specific argument, and we decided the permit accommodation otherwise met RFRA’s strict scrutiny element, id. at 948.
We spoke favorably of the government’s accommodation scheme in Friday, even though “[t]hat accommodation may be more burdensome than the [religious objectors] would prefer, and may sometimes subordinate their interests to other policies not of their choosing.” Id. at 960. As we noted in conclusion: “Law accommodates religion; it
- 29 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 40
cannot wholly exempt religion from the reach of the law.” Id. We therefore turn to uncharted Tenth Circuit terrain.
* * * * The Plaintiffs in the three cases before us assert claims against the Mandate and accommodation scheme under RFRA and the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses.18 Because we determine the accommodation scheme relieves Plaintiffs from complying with the Mandate and does not substantially burden their religious exercise under RFRA or infringe upon their First Amendment rights, we affirm the district court’s denial of a preliminary injunction to the plaintiffs in Little Sisters and reverse the district courts’ grants of a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls.
V. RFRA Under RFRA, the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. Plaintiffs argue the ACA and its implementing regulations violate RFRA because
18 We refer to “Plaintiffs” throughout the discussion, but in the First Amendment context, “Plaintiffs” refers only to the plaintiffs in Little Sisters and Reaching Souls. See infra note 51.
- 30 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 41
they substantially burden their religious exercise by forcing them to do one of three
things: (a) comply with the Mandate and provide contraceptive coverage, (b) take
advantage of the accommodation scheme, or (c) pay steep fines for non-compliance.19
We conclude that the accommodation scheme relieves Plaintiffs of complying with the
Mandate or paying fines and does not impose a substantial burden on Plaintiffs’ religious
exercise for the purposes of RFRA.
To explain why the accommodation is permissible under RFRA, we first review
the RFRA framework and consider how religious accommodations may lessen or
eliminate the substantiality of a burden on religious exercise. We then apply this
framework to the accommodation scheme before us, which exempts religious non-profits
19 The Government identifies a fourth option: by declining to sponsor a group health plan, Plaintiffs could avoid complying with the Mandate, using the accommodation, or paying the fines. The Government frames the Plaintiffs’ provision of health insurance as an economic expenditure, and notes that regulations may make a business activity more expensive or onerous without violating the freedom of religion. See Tony & Susan Alamo Found. v. Sec. of Labor, 471 U.S. 290, 303-05 (1985); Braunfeld v. Brown, 366 U.S. 599, 605-06 (1961); but see Hobby Lobby, 134 S. Ct. at 2777. Plaintiffs respond that they consider the provision of health insurance a religious obligation, not merely an economic expenditure. Plaintiffs “believe they have a religious obligation to care for the employees who join in their ministry, and they cannot throw those people off their insurance policies without violating that obligation and harming their ministry.” LS Reply Br. at 8.
Because we determine the accommodation scheme is not a substantial burden, we need not decide whether this fourth option constitutes a substantial burden on religious exercise—or, if it does, whether it survives strict scrutiny.
For similar reasons, we need not address the safe harbor provision detailed in the June 2013 regulations, which indicates organizations with self-insured group health plans that bring administration of their plans in-house and thereby do not use third-party administrators currently are not subject to enforcement of the contraceptive coverage requirement. 78 Fed. Reg. at 39,880-81.
- 31 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 42
from providing contraceptive coverage and instead assigns that task to health insurance issuers and TPAs.
We conclude the accommodation does not substantially burden Plaintiffs’ religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious exercise for the purposes of RFRA.
The dissent parts ways with our majority opinion on the self-insured plaintiffs’ RFRA claims. It stresses that, by opting out, the self-insured plaintiffs would cause the legal responsibility to provide contraceptive coverage to shift to their TPAs.20 We agree. As we observe below, the regulations are clear on that point.21 But shifting legal
20 Plaintiffs make causation the centerpiece of their RFRA claim. They allege that opting out of the Mandate would cause or make them complicit in providing contraceptive coverage, and thus substantially burdens their religious exercise. Much of our opinion assesses and ultimately rejects the merits of this claim.
21 Indeed, this is an unremarkable feature of the accommodation scheme. An opt out religious accommodation typically contemplates that a non-objector will replace the religious objector and take over any legal responsibilities.
- 32 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 43
responsibility to provide coverage away from the plaintiffs relieves rather than burdens their religious exercise. The ACA and its implementing regulations entitle plan participants and beneficiaries to coverage whether or not the plaintiffs opt out. And the government has established a scheme where, if the law is followed, self-insured plaintiffs that opt out are relieved of providing, paying for, and facilitating coverage; the government assigns that responsibility to their TPAs; and plan participants and beneficiaries receive the coverage to which they are entitled by federal law. Such an arrangement is among the common and permissible methods of religious accommodation in a pluralist society, and does not constitute a substantial burden under RFRA.
A. Legal Background 1. Standard of Review
Each appeal before us seeks review of a district court order granting or denying a preliminary injunction. We review orders granting or denying a preliminary injunction for abuse of discretion. See Hobby Lobby, 723 F.3d at 1128; Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006).
A preliminary injunction may be granted if the party seeking it shows: “(1) a likelihood of success on the merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the movant outweighs any harm to the non-moving party; and (4) an injunction is in the public interest.” Hobby Lobby, 723 F.3d at 1128. A district court abuses its discretion by granting or denying a preliminary injunction based on an error of law. See id.; Aid for Women, 441 F.3d at 1115.
- 33 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 44
2. RFRA and Free Exercise RFRA was enacted in 1993 in response to Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), in which the Supreme Court held that burdens on religious exercise are constitutional under the Free Exercise Clause if they result from a neutral law of general application and have a rational basis. Id. at 878-80; United States v. Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002). Congress enacted RFRA to restore the pre-Smith standard, which permitted legal burdens on an individual’s religious exercise only if the government could show a compelling need to apply the law to that person and that the law did so in the least restrictive way. Smith, 494 U.S. at 882-84; see also Hobby Lobby, 134 S. Ct. at 2792-93 (Ginsburg, J., dissenting). Congress specified the purpose of RFRA was to restore this compelling interest test as it had been recognized in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). See 42 U.S.C. § 2000bb(b)(1).
By restoring the pre-Smith compelling interest standard, Congress did not express any intent to alter other aspects of Free Exercise jurisprudence. See id.; Hobby Lobby, 723 F.3d at 1133 (“Congress, through RFRA, intended to bring Free Exercise jurisprudence back to the test established before Smith. There is no indication Congress meant to alter any other aspect of pre-Smith jurisprudence . . . .”). Notably, pre-Smith jurisprudence allowed the government “wide latitude” to administer large administrative programs, and rejected the imposition of strict scrutiny in that context. As the Supreme Court indicated in Bowen v. Roy,
- 34 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 45
In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest.
476 U.S. 693, 707 (1986). As we discuss at greater length below, the pre-Smith standards
restored by RFRA permitted the Government to impose de minimis administrative
burdens on religious actors without running afoul of religious liberty guarantees.
3. Elements of RFRA Analysis
RFRA analysis follows a burden-shifting framework. “[A] plaintiff establishes a
prima facie claim under RFRA by proving the following three elements: (1) a substantial
burden imposed by the federal government on a (2) sincere (3) exercise of religion.” Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001); see 42 U.S.C. § 2000bb-1(a).22
The burden then shifts to the government to demonstrate its law or policy advances “a
compelling interest implemented through the least restrictive means available.” Hobby
Lobby, 723 F.3d at 1142-43. The government must show that the “compelling interest
test is satisfied through application of the challenged law ‘to the person’—the particular
22 RFRA originally defined “exercise of religion” as “the exercise of religion under the First Amendment to the Constitution.” In 1999, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) amended RFRA, and redefined “exercise of religion” by reference to 42 U.S.C. § 2000cc-5(7)(A). 42 U.S.C. § 2000bb-2(4). Section 2000cc-5(7)(A) expanded the phrase to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); see Kikumura, 242 F.3d at 960.
- 35 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 46
claimant whose sincere exercise of religion is being substantially burdened.” Id. at 1126 (quotations and citation omitted). “This burden-shifting approach applies even at the preliminary injunction stage.” Id.
We have previously stated “a government act imposes a ‘substantial burden’ on religious exercise if it: (1) requires participation in an activity prohibited by a sincerely held religious belief, (2) prevents participation in conduct motivated by a sincerely held religious belief, or (3) places substantial pressure on an adherent to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby, 723 F.3d at 1125-26 (quotations and alterations omitted); see also Yellowbear, 741 F.3d at 55 (applying this framework to RLUIPA); Abdulhaseeb, 600 F.3d at 1315 (same). As we discuss in the next section, whether a law substantially burdens religious exercise in one or more of these ways is a matter for courts—not plaintiffs—to decide. 4. Courts Determine Substantial Burden
To determine whether plaintiffs have made a prima facie RFRA claim, courts do not question “whether the petitioner . . . correctly perceived the commands of [his or her] faith.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716 (1981); see Hobby Lobby, 723 F.3d at 1138-40. But courts do determine whether a challenged law or policy substantially burdens plaintiffs’ religious exercise. RFRA’s statutory text and religious liberty case law demonstrate that courts—not plaintiffs—must determine if a law or policy substantially burdens religious exercise.
RFRA states the federal government “shall not substantially burden a person’s
- 36 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 47
exercise of religion.” 42 U.S.C. § 2000bb-1(a). We must “give effect . . . to every clause and word” of a statute when possible. United States v. Menasche, 348 U.S. 528, 538-39 (1955). Drafts of RFRA prohibited the government from placing a “burden” on religious exercise. Congress added the word “substantially” before passage to clarify that only some burdens would violate the act. 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statements of Sen. Kennedy and Sen. Hatch).
We therefore consider not only whether a law or policy burdens religious exercise, but whether that burden is substantial. If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning. See Menasche, 348 U.S. at 53839. Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.
Every circuit that has addressed a RFRA challenge to the accommodation scheme at issue here has concluded that whether the government has imposed a “substantial burden” is a legal determination. See E. Tex. Baptist Univ. v. Burwell, Nos. 14-20112, 14-10241, 14-40212, 14-10661, 2015 WL 3852811, at *3-5 & n.33 (5th Cir. June 22, 2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 612 (7th Cir. 2015); Geneva Coll. v. Sec’y of U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 436 (3d Cir. 2015); Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247-49 (D.C. Cir. 2014); Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372, 385 (6th
- 37 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 48
Cir. 2014), vacated and remanded, 135 S. Ct. 1914 (2015). This is consistent with our
determination that we review de novo “what constitutes [a] substantial burden . . . and the
ultimate determination as to whether the RFRA has been violated.” United States v.
Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996); see also Yellowbear, 741 F.3d at 56
(determining “a reasonable finder of fact could conclude the prison has substantially
burdened Mr. Yellowbear’s religious exercise”). Thus, we “accept[] as true the factual
allegations that [Plaintiffs’] beliefs are sincere and of a religious nature—but not the legal
conclusion, cast as a factual allegation, that [their] religious exercise is substantially
burdened.” Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008); see Mahoney v.
Doe, 642 F.3d at 1112, 1121 (D.C. Cir. 2011); Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001).23
We have cautioned that substantiality does not permit us to scrutinize the
“theological merit” of a plaintiff’s religious beliefs—instead, we analyze “the intensity of
23 Plaintiffs cite Thomas to argue we must accept their belief that they cannot participate in the accommodation whether or not that belief is “acceptable, logical, consistent, or comprehensible.” LS Br. at 47; RS Br. at 39 (quoting Thomas, 450 U.S. at 714). Thomas concerned the denial of unemployment benefits to a claimant who quit his job because his religious beliefs prohibited him from producing armaments to be used for war. Thomas prevents courts from scrutinizing the theological merit of a plaintiff’s sincere religious belief, but not from assessing whether a challenged law or policy amounts to a substantial burden on religious exercise. See Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds. We do, however, have doubts whether the alleged burden imposed by the deduction disallowance on the Scientologists’ practices is a substantial one.” (citing Thomas, 450 U.S. at 716)).
- 38 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 49
the coercion applied by the government to act contrary to those beliefs.” Hobby Lobby, 723 F.3d at 1137 (emphasis omitted). “Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.” Id.24 In determining whether a law or policy applies substantial pressure on a claimant to violate his or her beliefs, we consider how the law or policy being challenged actually operates and affects religious exercise. See Geneva Coll., 778 F.3d at 436 (“We may consider the nature of the action required of the appellees, the connection between that action and the appellees’ beliefs, and the extent to which that action interferes with or otherwise affects the appellees’ exercise of religion—all without delving into the appellees’ beliefs.”); see also 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy) (observing that RFRA would not impose strict scrutiny for “governmental actions that have an incidental effect on religious institutions”).
When evaluating RFRA claims, we have therefore recognized that not all burdens alleged by plaintiffs amount to substantial burdens. See Abdulhaseeb, 600 F.3d at 1321 (“We are not willing to conclude, however, that every single presentation of a meal an inmate considers impermissible constitutes a substantial burden on an inmate’s religious exercise.”); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 654 (10th Cir. 2006) (“[W]e are not persuaded by Grace United’s assertion that the Board’s
24 The Government does not dispute the sincerity of Plaintiffs’ religious beliefs. See Little Sisters, 6 F. Supp. 3d at 1237; Southern Nazarene, 2013 WL 6804265, at *5; Reaching Souls, 2013 WL 6804259, at *4.
- 39 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 50
denial of a zoning variance for its proposed daycare operation constitutes more than an incidental burden on religious conduct.”); Kikumura, 242 F.3d at 961 (requiring evidentiary proof from the plaintiff that an alleged burden was “substantial” and remanding to the district court). Furthermore, as we discuss in the following section, the existence of an accommodation may affect whether a law or policy burdens religious exercise and whether that burden is substantial. 5. Accommodations Can Lessen or Eliminate Burden
We finally note that accommodations function to lessen or eliminate the burden of a generally applicable law. In Hobby Lobby, this court said the stark choice between providing contraceptive coverage and paying steep fines constitutes a sufficiently substantial burden to warrant relief under RFRA. Hobby Lobby, 723 F.3d 1114. Religious objectors are not always put to such a stark choice. When, as here, plaintiffs are offered an accommodation to a law or policy that would otherwise constitute a substantial burden, we must analyze whether the accommodation renders the potential burden on religious exercise insubstantial or nonexistent such that the law or policy that includes the accommodation satisfies RFRA.
Accommodations may eliminate burdens on religious exercise or reduce those burdens to de minimis acts of administrative compliance that are not substantial for RFRA purposes. The Supreme Court recognized this point in Hobby Lobby when it suggested an accommodation to exempt the plaintiff corporations from complying with the Mandate could satisfy RFRA concerns. Hobby Lobby, 134 S. Ct. at 2782 (“At a
- 40 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 51
minimum, [the accommodation] 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.”); see also id. at 2786-87 (Kennedy, J., concurring). The D.C. Circuit observed that “[a] burden does not rise to the level of being substantial when it places an inconsequential or de minimis burden on an adherent’s religious exercise.” Priests for Life, 772 F.3d at 246 (quotations, citations, and alterations omitted). Were it otherwise, our substantial burden inquiry would become a blunt tool incapable of recognizing the meaningful difference between forcing organizations to provide or pay for contraceptives and allowing them to opt out of that requirement. To determine whether the accommodation scheme in these cases renders the alleged burden on Plaintiffs’ religious exercise nonexistent or insubstantial, we turn to the merits of Plaintiffs’ RFRA arguments.
B. Substantial Burden Analysis 1. Plaintiffs’ RFRA Arguments
The cases before us turn on whether complying with the accommodation constitutes a substantial burden. The Government does not dispute the sincerity of Plaintiffs’ religious belief that they may not provide, pay for, or facilitate contraceptive coverage. The parties dispute whether the accommodation scheme substantially burdens the Plaintiffs’ exercise of religion.
Plaintiffs oppose completing the Form or notifying HHS because they believe they are being asked to play a causal role in the delivery of contraceptive coverage and would
- 41 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 52
be complicit or perceived to be complicit in the overall contraceptive delivery scheme by
virtue of their opting out. They also allege their continuing involvement in the regulatory
scheme is a substantial burden.25
The Government responds that completing the Form or notification does not
involve Plaintiffs in the delivery of contraceptive coverage. The accommodation relieves
Plaintiffs of their obligations under the Mandate, and when that occurs, federal law
authorizes and obligates a health insurance issuer or TPA to provide or arrange for the
delivery of contraceptive coverage to plan participants and beneficiaries who are entitled
to that coverage under the ACA. The Government therefore argues the accommodation
25 The Little Sisters and Reaching Souls plaintiffs clarify that they “have never objected to merely identifying themselves so that the government can leave them alone.” LS Supp. Br. II at 2 n.2; RS Supp. Br. II at 2 n.2. They have expressed satisfaction with the Supreme Court’s injunctions pending appeal in Little Sisters and Wheaton College. LS Supp. Br. II at 1-2; RS Supp. Br. II at 2, 12; Oral Arg. in LS at 12:10-12:40. They nevertheless object to the recent modified accommodation promulgated by the Departments—the opt out letter to HHS—both because the self-certification requires more information about their group health plan than the aforementioned notice the Supreme Court proposed, and because of the “collateral consequences” that follow after they opt out. Oral Arg. in LS at 12:10-13:53.
The Little Sisters and Reaching Souls plaintiffs have not convincingly explained how the notice to HHS promulgated by the Departments would substantially burden their religious exercise but the notice crafted by the Supreme Court does not. In Wheaton College, the Supreme Court emphasized the plaintiffs had functionally notified the Departments they met the necessary requirements to obtain an accommodation, and said “[n]othing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” 134 S. Ct. at 2807; see also Zubik, 2015 WL 3947586.
The Southern Nazarene plaintiffs object to affirmatively voicing a religious objection, including the type of notice described in Wheaton College. See Oral Arg. in SN at 24:30-25:20. They appear to believe that exemption from the Mandate—like the exemption for religious employers—is the only proper result under RFRA.
- 42 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 53
does not substantially burden Plaintiffs’ religious exercise as a matter of law. 2. The Accommodation Scheme Eliminates Burdens on Religious Exercise
Under the accommodation scheme, the act of opting out relieves objecting religious non-profit organizations from complying with the Mandate and excuses them from participating in the provision of contraceptive coverage. The Departments designed the accommodation so that, upon receipt of the Form or a notification from the government, health insurance issuers and TPAs—not the objecting religious non-profit organization—provide contraceptive coverage and ensure the organization will not be required to provide, pay for, or otherwise facilitate that coverage. See Mich. Catholic Conf., 755 F.3d at 391. We review this feature of the accommodation scheme to show how it eliminates burdens Plaintiffs otherwise would face, similar to the burdens the forprofit plaintiffs faced in Hobby Lobby.
First, the regulations specify a health insurance issuer must handle contraceptive coverage separately from the insurance provided under the religious non-profit organization’s plan.
A group health insurance issuer that receives a copy of the self-certification or notification . . . must (A) Expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan; and (B) Provide separate payments for any contraceptive services required to be covered under § 147.130(a)(1)(iv) for plan participants and beneficiaries for so long as they remain enrolled in the plan.
- 43 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 54
45 C.F.R. § 147.131(c)(2)(i).26
Second, after a religious non-profit organization opts out, a health insurance issuer
may not share the costs of providing contraception with the employer or employees.
With respect to payments for contraceptive services, the [health insurance] issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries. The issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.
45 C.F.R. § 147.131(c)(2)(ii); see also 26 C.F.R. § 54.9815-2713A(c)(2)(ii); 29 C.F.R.
§ 2590.715-2713A(c)(2)(ii). TPAs are subject to similar requirements. See 26 C.F.R.
§ 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
Finally, a health insurance issuer or TPA must, in communicating with plan
participants or beneficiaries, send separate notice regarding contraceptive coverage from
other plan notifications and make clear the employer neither administers nor funds
contraceptive benefits. A health insurance issuer or TPA
must provide to plan participants and beneficiaries written notice of the availability of separate payments for contraceptive services contemporaneous with (to the extent possible), but separate from, any application materials distributed in connection with enrollment (or reenrollment) in group health coverage that is effective beginning on the first day of each applicable plan year. The notice must specify that the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate
26 TPAs are not subject to this provision. Instead, a TPA that receives the Form or a notification from the government must provide or arrange for contraceptive coverage for plan participants and beneficiaries if it wishes to remain the TPA for the group health plan. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
- 44 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 55
payments for contraceptive services, and must provide contact information for questions and complaints. 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d); see also 45 C.F.R. § 147.131(d). All of the foregoing remove the objecting religious non-profit organizations from providing contraceptive coverage, but Plaintiffs argue these protections of their religious liberty are insufficient because they still must deliver a Form or notify HHS to opt out of the Mandate. They contend this act substantially burdens their religious exercise because it “triggers” the provision of contraceptive coverage, makes them complicit in the larger delivery scheme, and demands their ongoing involvement. We disagree. The accommodation relieves Plaintiffs of their statutory obligation to provide contraceptive coverage to their plan participants and beneficiaries, and as we discuss below, taking advantage of that accommodation is not a substantial burden on religious exercise. 3. The Accommodation Scheme Does Not Impose a Substantial Burden To explain why the accommodation scheme does not substantially burden Plaintiffs’ religious exercise, we look at the theories argued by the Plaintiffs and why they fail. a. Opting out does not cause contraceptive coverage. Although the accommodation scheme frees Plaintiffs from providing, paying for, or facilitating contraceptive coverage, they contend that, by delivering the Form or notifying HHS, they nevertheless “trigger” or cause contraceptive coverage. They do not. As we explain below, Plaintiffs’ causation argument misconstrues the statutory and
- 45 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 56
regulatory framework. Federal law, not the Form or notification to HHS, provides for contraceptive coverage without cost sharing to plan participants and beneficiaries. Because the mechanics of the accommodation scheme differ slightly for different types of plans, we examine how the regulations work for insured plans, self-insured plans, and self-insured church plans. But in each circumstance, Plaintiffs’ causation argument fails to establish any burden on Plaintiffs’ religious exercise.
i. Insured Plans The plaintiffs with insured plans deal directly with a health insurance issuer and do not use a TPA.27 They argue the accommodation scheme levies a substantial burden on their religious exercise because “insurance issuers will sell [them] plans that either (a) expressly include abortifacients; or (b) functionally include abortifacients by guaranteeing separate payments for them upon [their] execution and conveyance of the selfcertification to the issuer.” SN Br. at 18. We disagree. The regulations do not burden the religious exercise of employers using insured plans. The ACA obligates both group health plans and health insurance issuers to provide contraceptive coverage. A religious non-profit organization may comply with the Mandate and provide coverage to its employees, opt out using the accommodation, or not comply with the law and pay fines. But in each instance, the health insurance issuer
27 The plaintiffs with insured plans are Oklahoma Wesleyan University and Oklahoma Baptist University. Southern Nazarene also has an insured plan for students and claims above $100,000.
- 46 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 57
must ensure the organization’s employees receive contraceptive coverage. By delivering the Form or notifying HHS, an organization with an insured plan
does not enable coverage—to the contrary, it simply notifies its health insurance issuer the organization will not be providing coverage. The health insurance issuer then has an independent and exclusive obligation to provide that coverage without cost sharing. The relevant regulation states: “When a self-certification is provided directly to an issuer, the issuer has sole responsibility for providing such coverage in accordance with § 147.130.” 45 C.F.R. § 147.131(c)(1)(i). Because the ACA obligates health insurance issuers to provide contraceptive coverage, they must meet this obligation independently and irrespective of the notification. The self-certification does not impose any responsibility; it merely makes it the issuer’s sole responsibility rather than one shared with the group health plan itself.
Because federal law requires the health insurance issuer to provide coverage and the accommodation process removes an objecting organization from participating, plaintiffs with insured plans fail to show the accommodation burdens their religious exercise. The insured plaintiffs are not burdened when they are relieved of their responsibility and their insurers provide coverage as required by independent obligations set out in the ACA.
ii. Self-Insured Plans The accommodation scheme permits religious non-profit organizations with selfinsured plans to opt out by delivering the Form to their TPA or notifying HHS that they
- 47 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 58
have a religious objection and will not comply with the Mandate. When the objecting organization opts out, the TPA that administers its group health plan is responsible for providing contraceptive coverage if it wishes to remain a TPA for the plan. In this section, we address this self-insured arrangement. In the next section, we consider the subset of self-insured plaintiffs having church plans over which the government lacks enforcement authority under ERISA to compel the TPA to comply with its legal obligations.
1) Plaintiffs’ argument The only plaintiff with a self-insured plan subject to ERISA is Southern Nazarene. Southern Nazarene argues the accommodation scheme substantially burdens its religious exercise because the scheme requires it to “comply with the Mandate by either (a) setting up a self-insured plan that includes abortifacients; or (b) setting up a self-insured plan that functionally includes abortifacients by guaranteeing separate payments for them by the TPA upon the entity’s execution of the self-certification.” SN Br. at 18. Self-insured plaintiffs with ERISA-exempt church plans make similar claims. Plaintiffs and the dissent emphasize that the TPA may arrange or provide coverage only after a religious non-profit organization opts out.28 We consider this to be an
28 In University of Notre Dame, Judge Posner said: “By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be required to provide the services to the university’s students and employees.” Univ. of Notre Dame, 786 F.3d at 614.
We understand the mechanics of the accommodation to work differently. Aetna, as a health insurance issuer for Notre Dame’s students, would be obligated to provide
Continued . . .
- 48 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 59
uncontested and unremarkable feature of the accommodation scheme.29 The regulations
state that when a religious non-profit organization opts out of providing contraceptive
coverage, the TPA is notified that the organization will not administer or pay for
contraceptive coverage, and that it must provide or arrange for contraceptive coverage
without cost sharing if it wishes to continue administering the plan. 26 C.F.R. § 54.9815-
2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The TPA is authorized and obligated
to provide the coverage guaranteed by the ACA only if the religious non-profit
organization that has primary responsibility for contraceptive coverage opts out of
providing it.
Plaintiffs suggest this shift in legal responsibility for contraceptive coverage
substantially burdens their religious exercise under RFRA. They argue their opting out
would trigger, cause, or offer a “permission slip” for the delivery of contraception by
allowing their TPA to provide the coverage. Southern Nazarene, 2013 WL 6804265, at
______________________________________ Cont.
contraceptive coverage under the ACA whether or not Notre Dame delivered the Form or notification to HHS. See 42 U.S.C. § 300gg-13. Meritain, a TPA, would be obligated to provide contraceptive coverage only after Notre Dame delivered the Form or notification to HHS and opted out of the Mandate. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
29 Even the dissent in Wheaton College recognized that a TPA need only provide the legally required contraceptive coverage when a religious non-profit organization takes advantage of the accommodation scheme. As Justice Sotomayor observed, “a third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification.” Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting from grant of injunction pending appeal).
- 49 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 60
*8. We disagree. 2) Opting out does not cause coverage
The ACA requires all group health plans to cover preventive services, including contraception, without cost sharing. Because a group health plan must include contraceptive coverage under the ACA, the accommodation scheme requires a TPA that administers a self-insured religious non-profit organization’s group health plan to provide coverage if the organization opts out. The TPA must then arrange coverage for plan participants and beneficiaries if it wishes to continue functioning as the TPA for the objecting organization. This arrangement allows religious non-profit organizations to opt out and ensures plan participants and beneficiaries will receive the contraceptive coverage to which they are entitled by law.
Under this framework, the plaintiffs’ argument does not identify a substantial burden on religious exercise. The opt out does not “cause” contraceptive coverage; it relieves objectors of their coverage responsibility, at which point federal law shifts that responsibility to a different actor. The ACA and its implementing regulations have already required that group health plans will include contraceptive coverage and have assigned legal responsibilities to ensure such coverage will be provided when the religious non-profit organization opts out. See Wheaton College v. Burwell, No. 14-2396, 2015 WL 3988356, at *4 (7th Cir. July 1, 2015); E. Tex. Baptist Univ., 2015 WL 3852811, at *5-6; Univ. of Notre Dame, 786 F.3d at 613-14; Geneva Coll., 778 F.3d at
- 50 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 61
437-38; Priests for Life, 772 F.3d at 254-55.30 This arrangement is typical of religious
objection accommodations that shift responsibility to non-objecting entities only after an
objector declines to perform a task on religious grounds.31 Although a religious non-
profit organization may opt out from providing contraceptive coverage, it cannot preclude
30 To the extent Plaintiffs are specifically concerned about the language on the Form, that concern can be alleviated by taking advantage of the expanded accommodation and notifying HHS in writing. Plaintiffs need not use any terms they consider morally charged, like “certify,” in their letter or email to HHS.
We further note the notification to HHS requires self-insured plaintiffs only to register their objection and identify their TPA—it does not require them to inform their TPA of any legal responsibilities to provide contraceptive coverage. When the opt out is submitted to HHS, the plaintiffs are relieved of their responsibilities. The government then takes steps to ensure that coverage is provided—HHS notifies the Department of Labor of the objection, and the Department of Labor then contacts the TPA to inform it of its duties under the ACA.
31 Analogizing the opt out to conscientious objections to war, see, e.g., Priests for Life, 772 F.3d at 245-46; Univ. of Notre Dame, 786 F.3d at 623-24 (Hamilton, J., concurring), should not overshadow the diverse array of mechanisms that federal, state, and local governments have used to accommodate objectors. Many religious objection schemes require an affirmative opt out before another person is required to step in and assume responsibility, and may require the objector to identify a replacement in the process. See, e.g., 2015 Utah Laws Ch. 46 (accommodating religious objections to samesex marriage of those working in county clerks’ offices by requiring that “[a] county clerk shall . . . establish policies to ensure that the county clerk, or a designee of the county clerk who is willing, is available during business hours to solemnize a legal marriage for which a marriage license has been issued”); Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. Feb. 22, 2012) (reinstating a “refuse and refer” approach where pharmacies need not provide contraception so long as they refer patients to alternative providers); Conn. Agencies Regs. § 19a-580d-9 (requiring health care providers who object to implementing a do-not-resuscitate order to “turn over care of the patient without delay to another provider who will implement the DNR order”); Internal Revenue Service, Tax Guide for Churches & Religious Organizations 18 (2013), www.irs.gov/pub/irs-pdf/p1828.pdf (explaining that a church may opt out of paying Social Security and Medicare taxes for religious reasons, shifting that responsibility to their employees to pay those taxes as though they were self-employed).
- 51 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 62
the government from requiring others to provide the legally required coverage in its
stead.32 In short, the framework established by federal law, not the actions of the
religious objector, ensures that plan participants and beneficiaries will receive
contraceptive coverage.33
32 Plaintiffs argue that, under the accommodation scheme, organizations with selfinsured plans participate in the delivery of contraceptive coverage because their TPAs cannot arrange for that coverage unless and until plaintiffs deliver the Form or notification to HHS. We discuss above why this characterization of the accommodation scheme is incorrect, but we note here that this concern is specific to self-insured plans subject to ERISA. Plaintiffs could avoid the situation they deem objectionable by employing an insured plan, employing a self-insured church plan where the Departments lack authority to enforce the Mandate against their TPA, or administering the self-insured plan on their own in-house without using a TPA. Although the dissent notes that inhouse administration is complex, Dissent at 22-23, Plaintiffs have not demonstrated it would be a substantial burden under RFRA. The fact that this alternative may be more expensive or difficult for plaintiffs does not necessarily make it a substantial burden. See Braunfeld, 366 U.S. at 605-06.
33 In this regard, the accommodation scheme here is comparable to a conscientious objector accommodation scheme, which provides for someone to replace the objector when he opts out of military service. See Priests for Life, 772 F.3d at 245-46; see also Univ. of Notre Dame, 786 F.3d at 623-24 (Hamilton, J., concurring). Indeed, the conscientious objector scheme is administratively more burdensome than filing the Form or notifying HHS to opt out of the Mandate. A conscientious objector must register in the Selective Service System before being able to apply for an exemption, must complete an application and appear for an in-person interview, and, if the exemption is granted, must perform two years of service for the government in lieu of military service. See 50 U.S.C. § 456j.
The dissent points to differences between the religious accommodation here and the conscientious objector scheme. But the comparison is apt. Courts have recognized that, to opt out of military service for religious reasons, a conscientious objector must notify the government of his objection knowing that someone else will take his place. See Trans World Airlines v. Hardison, 432 U.S. 63, 96 n.13 (1977) (Marshall, J., dissenting) (recognizing that “the effect of excusing conscientious objectors from military conscription is to require a nonobjector to serve instead, yet we have repeatedly upheld this exemption”); Sheridan v. United States, 483 F.2d 169, 174 (8th Cir. 1973)
Continued . . .
- 52 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 63
3) Response to dissent
The dissent argues that our reasoning fails to appreciate the difference between
insured and self-insured plans. With insured plans, the health insurance issuer bears legal
responsibility to provide contraceptive coverage whether or not the religious non-profit
has opted out. With self-insured plans, the TPA shoulders legal responsibility for
coverage only after the religious non-profit has opted out.
______________________________________ Cont.
(acknowledging that when the plaintiff evaded induction, “another person had to be called in his place”); McKenzie v. Schuppener, 415 F.2d 1056, 1058 (5th Cir. 1969) (characterizing a conscientious objection application as “the situation where appellant must go to Vietnam or someone else go in his place”). Similarly, to opt out of the Mandate, the self-insured religious objector must notify the government knowing that a TPA will take its place.
And historically, it is not unprecedented to require an objector to identify a substitute for military service. To the contrary, the first federal draft statute permitted a draftee to avoid service only by either providing a substitute or paying $300. See Act of March 3, 1863, ch. 75, § 13, 12 Stat. 731, 733 (1863). As the dissent observes, the Civil War Enrollment Act sparked riots, Dissent at 14-15 n.7, but these were triggered by opposition to the draft itself, the inability of working class people to pay the $300 exemption, and anxiety about freed slaves entering the labor market after the war—not the fact that the draft law allowed draftees to name a substitute in their place. See Leslie M. Harris, In the Shadow of Slavery: African Americans in New York City, 1626-1863, at 279-88 (2003). Although Congress later eliminated the $300 commutation fee (except for conscientious objectors), it retained the provision allowing enrollees to supply a substitute. See Act of July 4, 1864, ch. 237, §§ 2, 10, 11, 13 Stat. 379, 379-80 (1864). To the extent the dissent suggests Chief Justice Taney’s thoughts on the topic are relevant, Dissent at 14-15 n.7, we note that he considered conscription itself unconstitutional, not the substitution provision. See Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich. L. Rev. 1493, 1546-48 (1969). In fact, Chief Justice Taney paid $100 to excuse his “body servant” from the draft. See Bernard C. Steiner, Life of Roger Brooke Taney: Chief Justice of the United States Supreme Court 511-12 (1922).
- 53 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 64
We agree this is a distinction between these types of plans, but the dissent overplays its importance. See Dissent at 5 (deeming the difference between insured and self-insured plans “the critical distinction”).34 In both contexts, the ACA requires that group health plans cover contraceptive services, and a plaintiff knows coverage will be provided when it opts out. Plaintiffs do not dispute plan participants and beneficiaries’ right to contraceptive coverage, nor do they contest the government’s ability to require TPAs and health insurance issuers to arrange for such coverage when a religious nonprofit organization opts out. The only question before us is whether the plaintiffs are substantially burdened when they notify the government of their objection with the knowledge that another party will be required to provide coverage in their stead. The answer is no.
A religious accommodation tries to reconcile religious liberty with the rule of law. When faced with an unavoidable conflict between following the law or religious belief, RFRA provides a religious objector a means to challenge a generally applicable law and seek an exception to avoid following that law without having to break it. A statutory accommodation, as we have here, serves the same purpose. As noted above, this case is
34 Although the Mandate in the insured plan context assigns responsibility to provide contraceptive coverage to both the religious non-profit organization and its health insurance issuer, we do not believe this is the only permissible arrangement to permit religious accommodation. Requiring all accommodations to follow this model would be duplicative, costly, and impractical, and would foreclose a wide range of pragmatic arrangements that bring in substitutes when and only when a religious objector opts out of performing a task. See, e.g., supra note 31.
- 54 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 65
unusual because the Plaintiffs do not seek an accommodation where none exists, but
instead challenge a statutory accommodation and argue that the process for seeking
refuge in it substantially burdens their religious exercise. As to the self-insured plaintiffs,
the dissent contends that if they opt out and transfer their duty to provide contraceptive
coverage to the TPA, they necessarily cause such coverage. We disagree.
By opting out, the self-insured plaintiffs shift their duty to provide coverage to a
TPA, but they do not change their plan participants and beneficiaries’ entitlement to contraceptive coverage under federal law.35 The dissent suggests, however, that because
the plaintiffs can stymie coverage to their employees by breaking the law and incurring
fines, and because opting out ultimately results in the TPAs’ providing coverage, the
plaintiffs’ opting out therefore would cause contraceptive coverage. But this
misconstrues the purpose of religious accommodation: to permit the religious objector
both to avoid a religious burden and to comply with the law. If the plaintiffs wish to
avail themselves of a legal means—an accommodation—to be excused from compliance
35 The dissent attempts to distinguish between health plan beneficiaries’ entitlement to coverage and their actual receipt of coverage. This distinction breaks down under inspection. If a religious non-profit complies with the law by providing coverage, the beneficiaries are entitled to and receive coverage. If the non-profit opts out as the law allows, the beneficiaries likewise are entitled to and receive coverage, they just do not receive it from the non-profit. Only if the non-profit disobeys the law and refuses either to provide coverage or opt out would the beneficiaries not receive coverage (though they would still be entitled to it). If the opt out were not part of the law, the plaintiffs would be in the same position as the for-profits in Hobby Lobby—without a legal option to avoid providing coverage. But the accommodation scheme gives the plaintiffs a legal avenue to avoid providing coverage as opposed to non-compliance with the law with the attendant financial penalties.
- 55 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 66
with a law, they cannot rely on the possibility of their violating that very same law to
challenge the accommodation.
In making this argument, the dissent focuses almost exclusively on whether the
plaintiffs’ opt out is a but-for cause of the TPAs’ authority to provide contraceptive coverage.36 It does, but this approach misses the mark. Although opting out is
necessarily a but-for cause of someone else—the TPA—providing contraceptive
coverage, that is the point of an accommodation—shifting a responsibility from an
objector to a non-objector. That is how a legislative policy choice—here, to afford
women contraceptive coverage—can be reconciled with religious objections to that
policy. We do not “den[y] the existence of any causation.” Dissent at 10. We instead
correctly identify the effect of opting out. The effect is to shift legal responsibility from
the self-insured plaintiff to its TPA and relieve the plaintiff of the duty it considers
objectionable. The effect is not the provision of contraceptive coverage, which would be
afforded under the law whether or not the plaintiff opts out.
36 Plaintiffs and the dissent characterize the self-certification as giving the TPA “permission” to provide contraceptive coverage. Dissent at 9. This characterization ignores that the self-certification specifically registers an objection to providing coverage, relieves the plaintiffs of their obligation to provide it, and affirmatively distances the plaintiffs in numerous ways from providing coverage to plan participants and beneficiaries. See supra Section V.B.2. Equating the opt out to a permission slip is akin to “disregard[ing] the difference between a ‘No Trespassing’ sign and a welcome mat.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 245 (1995) (Stevens, J., dissenting). The government is not compelling the plaintiffs to endorse or license something they consider objectionable; instead, the government is allowing them to decline a legal responsibility while requiring another party to perform it in their stead.
- 56 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 67
The ACA requires that either the religious non-profit organization or the TPA must provide contraceptive coverage for a self-insured group health plan, and the accommodation must be evaluated with that provision in mind. The scheme allows the religious non-profit organization to opt out of the responsibility of providing coverage and assigns that duty to the TPA administering the group health plan. Crucially, it does not change or expand contraceptive coverage beyond what federal law has already guaranteed. As the Supreme Court said in Hobby Lobby, the effect of the accommodation on employees “would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.” 134 S. Ct. at 2760.
The government has designed the accommodation so plaintiffs that opt out are freed from providing, paying for, or facilitating contraception, and the TPA’s responsibility to provide coverage in their stead stems from federal law. Because this arrangement does not substantially burden the plaintiffs when they comply with the law, it does not matter whether the plaintiffs could prevent plan participants and beneficiaries from receiving coverage by violating the law. The dissent seems to suggest the ACA and its implementing regulations give self-insured plaintiffs discretion to decide whether their employees receive contraceptive coverage. The ACA and its implementing regulations do not, and the plaintiffs do not contend that they do. To the contrary, federal law generally requires that all people must have health insurance and that all health insurance must include preventive services, including contraceptive coverage. See 42 U.S.C.
- 57 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 68
§ 300gg-13.37 And “although [the ACA] does not specifically mention third-party administrators, they administer ‘group health plans,’ which must include coverage. Nothing suggests the insurers’ or third-party administrators’ obligations would be waived if the plaintiffs refused to apply for the accommodation.” E. Tex. Baptist Univ., 2015 WL 3852811, at *5 (alterations omitted). The accommodation scheme does not give plaintiffs discretion to thwart their employees’ right to contraceptive coverage by refusing to provide coverage and also refusing to register their objection so the government can make alternative arrangements to free them from providing coverage.38 Because Congress has created a federal entitlement to contraceptive coverage and formulated a framework to guarantee that coverage will be provided even if plaintiffs decline to provide it, self-insured plaintiffs do not “cause” contraceptive coverage by exercising their ability to opt out.
4) No cause of substantial burden In sum, the self-insured plaintiffs’ causal analysis falters regarding the effect of opting out, which is to shift legal responsibility to provide contraceptive coverage from
37 The dissent asks, “if the self-insured plaintiffs do not opt out, who will provide the coverage for their plan participants and beneficiaries?” Dissent at 8. The answer is the self-insured plaintiffs, if they comply with the law. But this is the reason for the opt out: to allow the plaintiffs a legal means to avoid providing coverage.
38 In the absence of any such discretionary power or responsibility, plaintiffs are not faced with the Hobson’s choice the dissent describes. Dissent at 7-8, 12, 23. To the contrary, the accommodation eliminates any Hobson’s choice by allowing plaintiffs to opt out of providing coverage.
- 58 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 69
plaintiffs to their TPAs. When the government establishes a scheme that anticipates
religious concerns by allowing objectors to opt out but ensuring that others will take up
their responsibilities, plaintiffs are not substantially burdened merely because their
decision to opt out cannot prevent the responsibility from being met.
To establish a claim under RFRA, about which the dissent says little, a plaintiff
must show the government substantially burdens its sincere religious exercise. The ACA
states group health plans must cover contraception, and the regulations state that if a
religious non-profit organization opts out, that coverage will be provided by a TPA.
Opting out does not cause the coverage itself; federal law does, by establishing a scheme
that permits plaintiffs to opt out of their legal responsibility while simultaneously
ensuring that plan participants and beneficiaries receive the coverage to which they are
legally entitled. Allowing plaintiffs to opt out is not a substantial burden under RFRA.39
39 The dissent’s theory of causation is not viable for the reasons discussed above. We also fail to see how it comports with the Supreme Court’s orders in Wheaton College, 134 S. Ct. 2806, and Zubik, 2015 WL 3947586. In Part II.B.1, the dissent objects that “a third party’s legal authority (i.e. permission) to provide the coverage is wholly dependent upon (i.e. caused by) the self-insured non-profit opting out.” Dissent at 9. But that would be equally true of the arrangement proposed in the Supreme Court’s orders in Zubik, which enjoined the Mandate only “[i]f the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a) or 29 CFR §2590.715-2713A(a) or 45 CFR §147.131(b) (as applicable),” 2015 WL 3947586, at *1, and Wheaton College, which enjoined the Mandate only “[i]f the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services,” 134 S. Ct. at 2807. (The plaintiffs in Zubik are self-insured and use TPAs. See Geneva College, 778 F.3d at 433. Wheaton College employs various insurance arrangements, but uses a TPA to deliver a portion of its coverage—specifically, its prescription drug
Continued . . .
- 59 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 70
iii. Self-Insured Church Plans
The foregoing analysis of self-insured plans applies to the subset of self-insured
church plans. We address additional reasons here to reject the church plan plaintiffs’
RFRA claims. The plaintiffs with self-insured church plans are in a unique position.40 A TPA
cannot be compelled to provide or arrange for contraceptive coverage if it administers a
church plan under 26 U.S.C. § 414(e) that has not elected to comply with provisions of
ERISA under 26 U.S.C. § 410(d)—which describes the self-insured church plans in the
cases before us. The Departments concede they lack authority under ERISA to force
these church plan TPAs to perform their regulatory responsibility. See 29 U.S.C.
§ 1003(b)(2). As a result, the Government can require the plaintiffs with self-insured
church plans to use the Form or notify HHS to register their objection and opt out, but it
has no enforcement authority to compel or penalize those plaintiffs’ TPAs if they decline
______________________________________ Cont.
coverage. See Wheaton College v. Burwell, 50 F. Supp. 3d. 939, 944 (N.D. Ill. 2014).) Wheaton College had already submitted a notice of its objection to the government, but the Supreme Court did not limit the injunction to that factual scenario. As Justice Sotomayor observed, “because Wheaton is materially indistinguishable from other nonprofits that object to the Government’s accommodation, the issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy.” Wheaton College, 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).
40 The plaintiffs with self-insured church plans include the Little Sisters, Reaching Souls, Truett-McConnell, and Mid-America Christian. The analysis in this section also applies to the plaintiffs that operate or administer self-insured church plans, which include the Christian Brothers Employee Benefit Trust, Christian Brothers Services, and GuideStone Financial Resources.
- 60 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 71
to provide or arrange for contraceptive coverage.41
The lack of enforcement authority makes any burden on plaintiffs with church
plans even less substantial than the burden on plaintiffs with self-insured plans that are
subject to ERISA. Nonetheless, plaintiffs with church plans offer the following
arguments as to why the accommodation scheme might still burden their religious
exercise. First, the Departments could decide to alter the regulations and assert authority
over church plans under ERISA. Second, the mere act of signing the Form or delivering
the notification may involve them in the provision of contraception, either by cooperating
with the Departments or by providing authorization to a TPA, which then decides it
wants to provide contraceptive coverage after all. Third, their opting out incentivizes
TPAs to provide coverage even if they are exempt from ERISA. Fourth, the Government
has not demonstrated why the plaintiffs must complete the self-certification if their TPAs
can decline to provide contraceptive coverage. In addition to the reasons self-insured
plans in general are not substantially burdened by the accommodation scheme, we
41 If TPAs for self-insured church plans decide not to provide contraceptive coverage, plan participants and beneficiaries would not get the coverage to which they are otherwise entitled under the ACA. The dissent suggests it is paradoxical to maintain the ACA ensures plan participants and beneficiaries will receive contraceptive coverage and also acknowledge TPAs for self-insured church plans may in fact decline to provide that coverage. Dissent at 11 n.4. The positions are consistent. The ACA requires all group health plans to provide contraceptive coverage, but because it can only enforce that requirement through ERISA, church plans that are exempt from ERISA do not face any consequences if they fail to meet it. Put differently, the ACA creates a legal duty for all group health plans, but the Government cannot enforce that duty against a narrow subset of self-insured church plans. The inability to enforce that duty does not mean the duty does not exist.
- 61 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 72
conclude the plaintiffs with self-insured church plans have failed to identify a substantial burden on religious exercise.
1) Hypothetical regulation The plaintiffs argue the Departments could assert authority over church plans under ERISA at some point in the future. We assess the regulations as they currently exist, not amendments to ERISA’s implementing regulations the Department of Labor may hypothetically promulgate. An “[i]njunction issues to prevent existing or presently threatened injuries. One will not be granted against something merely feared as liable to occur at some indefinite time in the future.” Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931). Should the Departments assert ERISA authority over church plans at some later date, plaintiffs may then seek a preliminary injunction to prevent the Departments from enforcing the Mandate. Unless and until the Departments change their position, however, plaintiffs’ speculative argument does not warrant a preliminary injunction. See Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10th Cir. 2011).
2) No causation from church plan TPA notification The plaintiffs contend completing the self-certification would be a substantial burden because it would allow TPAs to provide coverage to their group health plan participants and beneficiaries, even if the Departments cannot compel the TPA to do so under ERISA. But plaintiffs with self-insured church plans are not substantially burdened by the requirement that they complete the Form or notification to HHS. As we explained in the previous section on self-insured plans, when a religious non-profit
- 62 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 73
organization opts out of the Mandate, the requirement that the group health plan include contraceptive coverage is a product of federal law, not the product of the organization’s opting out. Opting out frees plaintiffs from their obligation to provide contraceptive coverage under the ACA. The lack of substantial burden is especially evident when the group health plan is administered by a TPA that has made clear it will not provide contraceptive coverage on religious grounds. The Little Sisters’ TPA, for example, is Christian Brothers, their co-plaintiff in this case. It is clear Christian Brothers need not, and will not, provide contraceptive coverage if the Little Sisters opt out of the Mandate.42
3) No incentive from church plan TPA notification Even when TPAs for self-insured church plans indicate they may comply with the Mandate, the TPAs make that decision, and the objecting religious non-profit organization is not substantially burdened. The plaintiffs in Reaching Souls argue one of their TPAs, Highmark, has indicated it will provide contraceptive coverage if they opt out of the Mandate. The Reaching Souls plaintiffs argue their act of opting out would not only provide Highmark with permission to provide contraceptive coverage, but would incentivize it to do so because Highmark could then seek reimbursement from the government. Plaintiffs fail to demonstrate the reimbursement provision actually gives TPAs an incentive to provide coverage. They claim a TPA that receives the Form or a letter from
42 Plaintiff TPAs that administer church plans are not substantially burdened for similar reasons. In the absence of any enforcement power, the Government cannot levy fines against them for declining to provide contraceptive coverage.
- 63 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 74
the government “becomes eligible for government payments that will both cover the
TPA’s costs and include an additional payment (equal to at least 10% of costs) for the
TPA’s margin and overhead.” LS Br. at 16. At a hearing in Reaching Souls, counsel for
the Government seemed to accept this characterization. But the regulations themselves
expressly contradict this reading. They state the payment for margin and overhead goes
to health insurance issuers who act as intermediaries for the reimbursement, and need not go to TPAs.43 See 45 C.F.R. § 156.50(d)(5) (specifying health insurance issuers must
reimburse TPAs for “the portion of the adjustment attributable to the total dollar amount
of the payments for contraceptive services submitted by the third party administrator” but
that “[n]o such payment is required with respect to the allowance for administrative costs
and margin”).
Moreover, even if TPAs were to receive a payment for margin and overhead—set
at 15% of costs for 2014—plaintiffs do not demonstrate this allowance actually functions
as an incentive to provide contraceptive coverage rather than repayment for the
administrative costs TPAs incur by stepping in to arrange for or provide coverage.
Plaintiffs have not demonstrated the allowance for administrative overhead actually
43 The Departments credit the health insurance issuer for (1) the total dollar amount of the TPA’s payments for contraceptive coverage, and (2) an allowance of at least 10% for administrative costs and margin. See 45 C.F.R. § 156.50(d)(3). The health insurance issuer then pays the TPA for the total dollar amount of the TPA’s payments for contraceptive coverage, but is not required to pay the TPA the allowance for administrative costs and margin. See 45 C.F.R. § 156.50(d)(5). As a result, the regulations require only that a TPA receive repayment for what it has actually spent providing contraceptive coverage. A reimbursement solely for costs incurred would not generate a profit or offer any incentive to provide contraceptive coverage.
- 64 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 75
generates a profit for TPAs, nor have they demonstrated that the allowance would incentivize TPAs to provide coverage where they otherwise would not.
4) The Government may require affirmative objection Plaintiffs finally argue that if the Departments lack ERISA enforcement authority against TPAs of self-insured church plans, the Government has no reason to require religious non-profit organizations to comply with the accommodation scheme and deliver the Form or notify HHS. It is the plaintiffs’ burden, however, to state a prima facie case under RFRA. Because they cannot establish that signing the Form or notifying HHS constitutes a substantial burden on their religious exercise, we do not question the Departments’ interest in requiring them to opt out of the Mandate to avoid penalties for failure to provide contraceptive coverage.44
* * * * We conclude the Plaintiffs’ causation arguments do not establish a burden on their religious exercise, much less a substantial burden, because opting out would not trigger,
44 The Departments have a sound reason to require an affirmative opt out—not all religious organizations share the beliefs of the Little Sisters, Reaching Souls, TruettMcConnell, and Mid-America Christian. The parties agree that the Departments can require non-objecting employers to provide contraceptive coverage under their group health plans. To enforce that general requirement, the Departments may require objecting employers to affirmatively voice their objection instead of assuming all religious non-profit organizations share the plaintiffs’ beliefs.
- 65 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 76
incentivize, or otherwise cause the provision of contraceptive coverage.45 We therefore turn to Plaintiffs’ argument that the act of opting out and the administrative requirements associated with the accommodation make them feel or appear complicit in the overall contraceptive coverage scheme.
e. No substantial burden from complicity The accommodation relieves Plaintiffs from providing, paying for, or facilitating contraceptive coverage, and federal law requires health insurance issuers and TPAs to provide contraceptive coverage when religious non-profit organizations take advantage of the accommodation. Plaintiffs argue the act of opting out would nevertheless substantially burden their religious exercise because they believe delivering the Form or notification to HHS would make them complicit in the overall scheme to deliver contraceptive coverage. They wish to play no part in it. We find this argument unconvincing for a number of reasons. First, the purpose and design of the accommodation scheme is to ensure that Plaintiffs are not complicit—that they do not have to provide, pay for, or facilitate contraception. Plaintiffs’ concern that others may believe they condone the Mandate is unfounded. Opting out sends the unambiguous message that they oppose contraceptive coverage and refuse to provide it, and does not foreclose them from objecting both to
45 Under these circumstances, as the Third Circuit observed, “the burden is not merely attenuated at the outset but totally disconnected from the appellees.” Geneva Coll., 778 F.3d at 442.
- 66 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 77
contraception and the Mandate in the strongest possible terms.
Second, to the extent Plaintiffs assert that completing the Form or notification
violates their religious beliefs, they state a necessary but not a sufficient predicate for a
RFRA claim. Under RFRA, they must establish that completing the Form or notification
substantially burdens their religious exercise; otherwise, this argument could be used to
avoid almost any legal obligation that involves a form. Plaintiffs do not object to signing
forms and paperwork generally—they object to the Form or notification to HHS, and they
do so because they believe it involves them in directly or indirectly providing, paying for,
or facilitating contraceptive coverage, which they oppose as a matter of religious
conviction. As we have explained, the Plaintiffs misstate their role in the accommodation
scheme. RFRA does not require us to defer to their erroneous view about the operation
of the ACA and its implementing regulations.46
46 Plaintiffs cite Thomas for the proposition that we cannot question the theological merit of their religious beliefs. See Thomas, 450 U.S. at 715 (“We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.”). We agree with that proposition, but we may—indeed, we must— determine whether the accommodation scheme substantially burdens their religious exercise.
In Thomas, Mr. Thomas believed he could not participate in the production of war materials. Id. at 709. The government argued Mr. Thomas’s beliefs did not warrant protection by suggesting those beliefs were inconsistent and not shared by his coreligionists. Id. at 714-15. The Supreme Court specifically rejected these attempts to impeach Mr. Thomas’s religious beliefs, id. at 715-16, but the Court was not confronted with the question of whether those beliefs were substantially burdened. Both the Supreme Court and the Tenth Circuit have indicated that accepting a plaintiff’s religious belief does not foreclose an inquiry into whether religious exercise has been substantially burdened. See, e.g., Hernandez, 490 U.S. at 699; Kikumura, 242 F.3d at 961.
Continued . . .
- 67 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 78
Third, because the accommodation does not involve them in providing, paying for,
facilitating, or causing contraceptive coverage, Plaintiffs’ only involvement in the scheme
is the act of opting out. Plaintiffs are not substantially burdened solely by the de minimis
administrative tasks this involves. All opt-out schemes require some affirmative act to
free objectors from the obligations they would otherwise face. The Plaintiffs’ logic
would undermine conscientious objection schemes that require the objection to be made,
relieve objectors of their obligations, but assign those obligations to other, non-objecting
actors in their stead. See, e.g., Gillette v. United States, 401 U.S. 437 (1971)
(acknowledging a petitioner must complete an exemption application to obtain
______________________________________ Cont.
The Government does not question Plaintiffs’ religious beliefs that contraception is sinful and they cannot be involved in providing, paying for, or facilitating contraceptive coverage. But Plaintiffs go beyond Thomas when they insist that we cannot question whether opting out makes them complicit in providing contraceptive coverage. We may properly consider that opting out excuses them from providing coverage, does not cause that coverage to be extended to plan participants and beneficiaries, and involves only routine administrative tasks that are not substantial burdens under RFRA. See Little Sisters, 6 F. Supp. 3d at 1239 (“Thus, Plaintiff’s contention that the Court cannot look behind their statements about what offends their religious beliefs is well-supported. However, the Court is under no such restriction with regard to Plaintiffs’ construction of how the Final Rules operate, including the administrative burdens imposed on the parties by these regulations.”).
For these reasons, Thomas is inapposite when the inquiry focuses on whether a burden is substantial. It does not preclude courts from examining the relationship between a sincerely held religious belief and the alleged burden imposed by the Government. This important distinction prevents the Government from having to survive strict scrutiny whenever a plaintiff misunderstands the burden being placed upon them— for example, if Mr. Thomas had been required to produce equipment for farming and sincerely, but incorrectly, believed that equipment was being produced for war. See, e.g., Priests for Life, 772 F.3d at 249 n.14.
- 68 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 79
conscientious objector status in wartime); Welsh v. United States, 398 U.S. 333 (1970) (same).47 Having to file paperwork or otherwise register a religious objection, even if one
disagrees with the ultimate aim of the law at issue, does not alone substantially burden
religious exercise.
The Government may therefore require religious objectors to complete de minimis
administrative tasks to opt out. Filing the Form or notifying HHS easily fits within this
category. The Departments have made opting out of the Mandate at least as easy as
obtaining a parade permit, filing a simple tax form, or registering to vote—in other
words, a routine, brief administrative task. The purpose of the Form or notification to
HHS is to extricate Plaintiffs from their legal obligation to provide contraceptive
coverage. Opting out ensures they will play no part in the provision of contraceptive
coverage, prohibits TPAs and health insurance issuers from sharing the costs of providing
coverage with them, and requires notice to employees that they do not administer or fund
contraceptive services.
47 As other courts have observed, invalidating the accommodation scheme would run contrary to many other laws allowing objectors to opt out of government programs and requirements. See Priests for Life, 772 F.3d at 245 (deeming Plaintiffs’ argument against the accommodation scheme “extraordinary and potentially far reaching”); Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 557 (7th Cir. 2014), vacated and remanded sub nom., Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015) (“The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. . . . What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths.”).
- 69 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 80
The notification to HHS is especially minimal, as it requires Plaintiffs only to
register their objection with HHS and does not require any contact with their health
insurance issuers or TPAs. Although Plaintiffs must tell HHS which health insurance
issuer or TPA they use to opt out of the Mandate, this is not a substantial burden on religious exercise.48 It is the kind of administrative task the Departments can require of
religious believers in the administration of governmental programs. See Priests for Life,
772 F.3d at 246; Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 305-06
(1985); see also Jimmy Swaggart Ministries v. Bd. of Equaliz. of Cal., 493 U.S. 378, 395
(1990); Hernandez, 490 U.S. at 696-97. When understood in light of the ACA’s
requirement that group health plans and health insurance issuers provide contraceptive
coverage and the manner in which the accommodation relieves Plaintiffs of providing
48 Plaintiffs using the Form need only enter the name of the objecting organization, name and title of the individual authorized to make the certification on behalf of the organization, and the mailing address, email address, and phone number of that individual. That person signs, dates, and sends the form to their TPA or health insurance issuer. Employers are required to keep the Form on file for six years. The Plaintiffs have leeway in drafting a notification to HHS, which need only include
the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type (i.e., whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of ERISA section 3(33)); and the name and contact information for any of the plan’s third party administrators and health insurance issuers. 79 Fed. Reg. at 51,094-95.
- 70 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 81
that coverage, identifying one’s TPA in a letter to HHS is at most a minimal burden and certainly not a substantial one.
Finally, Plaintiffs are not substantially burdened when, after they opt out and are relieved of their obligations under the Mandate, health insurance issuers or TPAs must provide contraception to plan participants and beneficiaries. Plaintiffs sincerely oppose contraception, but their religious objection cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled under the ACA. “Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out.” Priests for Life, 772 F.3d at 246. Pre-Smith case law and RFRA’s legislative history underscore that religious exercise is not substantially burdened merely because the Government spends its money or arranges its own affairs in ways that plaintiffs find objectionable. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450-54 (1988); Bowen, 476 U.S. at 699-700; Tony & Susan Alamo Found., 471 U.S. at 303; S. Rep. No. 103-111, at 9 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898 (“[P]re-Smith case law makes it clear that strict scrutiny does not apply to government actions involving only management of internal Government affairs or the use of the Government’s own property or resources.”). RFRA does not prevent the Government from reassigning obligations after an objector opts out simply because the objector strongly opposes the ultimate goal of the generally applicable law.
- 71 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 82
Plaintiffs’ complicity argument therefore fails. Opting out would eliminate their complicity with the Mandate and require only routine and minimal administrative paperwork, and they are not substantially burdened by the Government’s subsequent efforts to deliver contraceptive coverage in their stead.
f. No burden from ongoing requirements As a final argument, Plaintiffs deny the act of opting out would free them from further involvement in the provision of contraceptive coverage. They argue the accommodation scheme would require their ongoing participation, and give two examples to support this claim. First, Plaintiffs argue they would remain involved because the Departments are commandeering their group health plans to provide contraceptive coverage to their employees. They note their TPA or health insurance issuer can provide coverage only as long as plan participants and beneficiaries remain employed with the religious non-profit organization. Plaintiffs have not shown, assuming they opt out, how the provision of coverage to plan participants and beneficiaries through the health insurance issuer or TPA would substantially burden their religious exercise. Plaintiffs’ plan participants and beneficiaries are not guaranteed contraceptive coverage without cost sharing because they work for the Plaintiffs; they are guaranteed contraceptive coverage under the ACA. The ACA mandates health insurance that includes contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). Plaintiffs’ theory would not only relieve them of complying with the
- 72 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 83
Mandate, it would prevent health insurance issuers and TPAs from stepping in under the ACA to provide plan participants and beneficiaries with the coverage they are entitled to receive under federal law.
Second, Plaintiffs object that they must (a) notify their TPA or health insurance issuer when employees join or leave their broader health insurance scheme, and (b) complete the self-certification or notification to HHS when they create or terminate a relationship with a TPA or health insurance issuer. As to the first requirement, employers already must notify their TPA or health insurance issuer when they hire or fire employees. The communication with the TPA or health insurance issuer regarding general health insurance coverage for entering or exiting plan participants and beneficiaries would occur regardless of any legal obligation under the accommodation scheme. The latter requirement, however, is an obligation specific to the accommodation scheme. An insured or self-insured employer using the Form must send it to “each” TPA or health insurance issuer as the employer forms contractual relationships with them. 26 C.F.R. § 54.9815-2713AT(b)(1)(ii); 29 C.F.R. § 2590.715-2713A(b)(1)(ii). If the employer instead uses the notification process, the regulations state: “If there is a change in any of the information required to be included in the notice, the organization must provide updated information to the Secretary of Health and Human Services.” 26 C.F.R. § 54.9815-2713AT(b)(1)(ii)(B); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B).
Once again, this does not constitute a substantial burden. The only new requirement is that employers must complete the Form or notify HHS of their objection
- 73 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 84
when they contract with a new health insurance issuer or TPA. Plaintiffs do not argue the time, cost, or energy required to comply with this requirement constitutes a substantial burden; they argue it is the moral significance of their involvement which burdens their religious exercise.49 If the first self-certification is not a substantial burden, a second or third self-certification would not be substantially burdensome given the extremely minimal administrative requirements of the Form or notification. As we have discussed above, de minimis administrative requirements do not themselves amount to substantial burdens on religious liberty. See Tony & Susan Alamo Found., 471 U.S. at 305-06; see also Jimmy Swaggart Ministries, 493 U.S. at 394-95; Hernandez, 490 U.S. at 696-97. If the actual delivery of the Form or notification is not a substantial burden, a contingent administrative requirement to update the Form or notification is not either.
The regulations require the Plaintiffs to complete the Form or deliver the notification if they wish to opt out. But this ministerial act to opt out is not a substantial burden on religious exercise, nor are the collateral requirements of the scheme. The Departments have allowed Plaintiffs to opt out of a neutral and generally applicable requirement imposed by federal law, and have done so in a manner that affirmatively distances those organizations from the provision of contraceptive coverage that other employers must provide. It is not a substantial burden to require organizations to provide
49 The interim final rules estimate “the total annual burden for preparing and providing the information in the self-certification or notice to HHS will require approximately 50 minutes for each eligible organization with an equivalent cost burden of approximately $53.” 79 Fed. Reg. at 51,097.
- 74 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 85
minimal information for administrative purposes to take advantage of that
accommodation.
C. Strict Scrutiny Because we determine Plaintiffs have failed to demonstrate a substantial burden
on their religious exercise, we need not address whether the Departments have shown a
compelling state interest and adopted the least restrictive means of advancing that interest.50
D. Conclusion
In the absence of a substantial burden, Plaintiffs have not demonstrated a strong
likelihood of success on the merits of their RFRA claim, nor have they demonstrated they
will suffer irreparable injury if an injunction is denied. Accordingly, a preliminary
injunction on RFRA grounds is inappropriate.
VI. FIRST AMENDMENT
Although the district courts focused almost exclusively on RFRA, Plaintiffs also
50 We recognize third-party rights and interests are at stake in this litigation— namely, that plan participants and beneficiaries are entitled by law to contraceptive coverage without cost sharing. When evaluating RFRA and Free Exercise claims, courts properly consider the impact of religious liberty claims on pre-existing rights holders. Hobby Lobby, 134 S. Ct. at 2760 (emphasizing “[t]he 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”); see Cutter v. Wilkinson, 544 U.S. 709, 720 (2005); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709-10 (1985); Yoder, 406 U.S. at 230; Sherbert, 374 U.S. at 409; Braunfeld, 366 U.S. at 604-05. Because we determine Plaintiffs have not demonstrated a substantial burden on their religious exercise, we do not reach the strict scrutiny analysis where the rights and interests of third parties are properly weighed.
- 75 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 86
raised constitutional claims. They argue the accommodation scheme violates the Free
Exercise and Establishment Clauses of the First Amendment by exempting religious
employers from the Mandate but requiring religious non-profit organizations to seek an
accommodation.51 Plaintiffs also argue the accommodation scheme simultaneously
51 In this discussion of First Amendment claims, “Plaintiffs” refers only to the plaintiffs in Little Sisters and Reaching Souls, and not Southern Nazarene. All of the plaintiffs raised First Amendment claims in their complaints, but only the Little Sisters and Reaching Souls plaintiffs preserved these claims in their subsequent motions for a preliminary injunction and briefs on appeal. App. in LS at 57a-66a, 136a-38a; App. in RS at A65-74, A145-49.
The district courts in Little Sisters and Reaching Souls did not reach the First Amendment claims. In Little Sisters, the court found the plaintiffs’ assertion of irreparable harm—which they were required to show to obtain a preliminary injunction, see Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)—was based only on RFRA. See Little Sisters, 6 F. Supp. 3d at 1245. In Reaching Souls, the court determined it did not need to reach First Amendment claims because it granted a preliminary injunction on RFRA grounds. See Reaching Souls, 2013 WL 6804259, at *8 n.9.
On appeal, we consider the First Amendment claims in both cases. First, the Little Sisters plaintiffs made a sufficient argument before the district court. They expressly sought a preliminary injunction on First Amendment as well as RFRA grounds. App. in LS at 136a-138a. They did not elaborate on their First Amendment claims in the irreparable harm analysis, but “[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Kikumura, 242 F.3d at 963 (quotations omitted). Second, although we reverse the district court’s grant of a preliminary injunction on RFRA grounds in Reaching Souls, plaintiffs there raised the question whether that preliminary injunction is appropriate on First Amendment grounds. “If the district court fails to analyze the factors necessary to justify a preliminary injunction, this court may do so if the record is sufficiently developed.” Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009); see also Hobby Lobby, 723 F.3d at1145 (“The record we have is the record the parties chose to create below—it is the record they deemed sufficient for the district court to decide the preliminary injunction question. For each element, we believe this record suffices for us to resolve each of the remaining preliminary injunction factors.”). Because the First Amendment claims in both Little Sisters and Reaching Souls are legal questions that have
Continued . . .
- 76 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 87
compels and silences their speech in violation of the Free Speech Clause of the First
Amendment. We disagree and conclude the accommodation scheme comports with the
First Amendment. We note that the same standard of review we identified for the RFRA
claim applies to the First Amendment claims.
A. Free Exercise Clause
Plaintiffs contend the ACA and its implementing regulations violate the Free
Exercise Clause by exempting some religious objectors—churches and their “integrated
auxiliaries”—from the Mandate, while requiring others—specifically, religious non-
profit organizations—to comply with the Mandate, seek an accommodation, or pay
substantial fines. They have not explained how their Free Exercise claim differs from
their Establishment Clause claim, nor do they explain how they could prevail under the
standard in Smith if they are unlikely to succeed under RFRA. Because we conclude the
______________________________________ Cont.
been fully briefed on appeal, we resolve those questions in this opinion rather than remanding them to the district courts and prolonging this litigation.
By contrast, the Southern Nazarene plaintiffs included First Amendment claims in their complaint, but did not assert them in their motion for a preliminary injunction or accompanying memorandum of law. As a result, the district court did not reach any First Amendment claims in its decision. See Southern Nazarene, 2013 WL 6804265. Moreover, the Southern Nazarene plaintiffs do not make First Amendment claims in their opening brief on appeal.
Although we believe our First Amendment analysis applies to all group health plans and does not depend on whether they are insured, self-insured, or self-insured church plans, we note Little Sisters and Reaching Souls involve only self-insured church plans that are not subject to ERISA, and the insured and self-insured plans discussed in Southern Nazarene are not before us.
- 77 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 88
Mandate and accommodation scheme are neutral and generally applicable laws, they are subject only to rational basis review, which they survive. 1. Legal Background
The First Amendment’s religion clauses state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. 1. To resolve challenges under the Free Exercise Clause, we use a wellestablished framework. If a law is neutral and generally applicable, it does not violate the Free Exercise Clause “even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); see Smith, 494 U.S. at 878-80. “A law is neutral so long as its object is something other than the infringement or restriction of religious practices.” Grace United, 451 F.3d at 649-50. A law that is facially neutral may nevertheless fail the neutrality test if it covertly targets religious conduct for adverse treatment. Lukumi Babalu, 508 U.S. at 534.
To determine whether a law is generally applicable, we ask if the “legislature decide[d] that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.” Id. at 542-43. “[A] law that is both neutral and generally applicable need only be rationally related to a legitimate governmental interest to survive a constitutional challenge.” Grace United, 451 F.3d at 649.
- 78 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 89
2. The Mandate and Accommodation Scheme are Neutral The Mandate and the accommodation scheme are neutral laws. See Priests for
Life, 772 F.3d at 267-69; Mich. Catholic Conf., 755 F.3d at 393-94. The Mandate is facially neutral with regard to employers, and neither the history nor the text of the ACA and its implementing regulations suggest the Mandate was targeted at a particular religion or religious practice. Plaintiffs cannot show Congress or HHS “had as their object the suppression of religion.” Lukumi Babalu, 508 U.S. at 542. To the contrary, the Mandate arose from concerns about the personal and social costs of barriers preventing women from receiving preventive care, including reproductive health care. See IOM, Clinical Preventive Services for Women: Closing the Gaps 102-03 (2011), available at www.nap.edu/catalog.php?record_id=13181. The accommodation scheme was developed to facilitate the free exercise of religion, not to target religious groups or burden religious practice. To that end, the Departments expanded the religious employer exemption and religious non-profit organization accommodation to respond to the concerns of religious groups. The Plaintiffs’ apparent dissatisfaction with the accommodation offered to them does not mean the Mandate or the accommodation scheme is non-neutral. 3. The Mandate and Accommodation Scheme are Generally Applicable
The Mandate and the accommodation scheme are also generally applicable. See Priests for Life, 772 F.3d at 267-69; Mich. Catholic Conf., 755 F.3d at 393-94. Plaintiffs cannot show Congress or the Departments sought to impose the Mandate only against
- 79 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 90
religious groups; to the contrary, the Mandate applies to all employers with more than
fifty employees using non-grandfathered health plans.52 “The exemptions do not render
the law so under-inclusive as to belie the government’s interest in protecting public
health and promoting women’s well-being or to suggest that disfavoring Catholic or other
pro-life employers was its objective.” Priests for Life, 772 F.3d at 268. Plaintiffs fail to
demonstrate the accommodation scheme targets religious conduct or was created with the
objective of disfavoring particular faiths. Lukumi Babalu, 508 U.S. at 542-43. To the
contrary, the Mandate was enacted as part of a larger program of health care reform, and
both the exemption for religious employers and the accommodation for religious non-
profit organizations demonstrate federal deference to religious liberty concerns and were
promulgated to facilitate rather than inhibit the free exercise of religion.
52 Smith stated that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason.” Smith, 494 U.S. at 884 (quotations and citation omitted). But as we noted in Grace United, “we have already refused to interpret Smith as standing for the proposition that a secular exemption automatically creates a claim for a religious exemption.” Grace United, 451 F.3d at 651. We have instead held:
a system of individualized exemptions is one that gives rise to the application of a subjective test. Such a system is one in which case-by-case inquiries are routinely made, such that there is an individualized governmental assessment of the reasons for the relevant conduct that invites considerations of the particular circumstances involved in the particular case.
Axson-Flynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir. 2004) (quotations and citations omitted). None of the categorical exemptions enacted by the ACA and its implementing regulations establish a system of individualized objections. And for the reasons detailed above, we believe the accommodation scheme effectively relieves objecting religious non-profit organizations of their obligations.
- 80 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 91
4. The Mandate and Accommodation Scheme Have a Rational Basis Rather than make an argument based on the rational relationship standard,
Plaintiffs instead contend our decision in Hobby Lobby precludes us from finding that public health and gender equality, without greater specificity, constitute compelling governmental interests. But, as we have explained, the compelling interest test does not apply; the rational basis test does. Grace United, 451 F.3d at 649. The Government observes that in the cases before us, the accommodation scheme rationally serves the twin interests of facilitating religious exercise and filling coverage gaps resulting from accommodating that religious exercise.
On rational basis review, these interests are sufficient. Alleviating governmental interference with religious exercise, which the accommodation scheme does, is a permissible legislative purpose. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987). And we need not scrutinize whether the Government’s interest in public health and gender equality is more compelling in this case than in Hobby Lobby. We need only determine that public health and gender equality are legitimate state interests. We believe they meet this more permissive standard, which is not foreclosed by our compelling interest analysis in Hobby Lobby. See, e.g., Hobby Lobby, 723 F.3d at 1143 (determining public health and gender equality are too broad to satisfy the compelling interest test but noting “[w]e recognize
- 81 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 92
the importance of these interests”).53 The accommodation scheme advances both the free
exercise of religion and the Government’s legitimate interests in public health and gender
equality. See Hobby Lobby, 134 S. Ct. at 2759 (“We therefore conclude that [the
accommodation] system constitutes an alternative that achieves all of the Government’s
aims while providing greater respect for religious liberty.”).
Furthermore, when applying the rational basis test, we are not limited to interests
specifically articulated by the Departments. We may look to any conceivable legitimate
governmental interest, and “the burden is upon the challenging party to negative any
reasonably conceivable state of facts that could provide a rational basis.” Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (citations and internal quotations
omitted). The more specific governmental interest in health by ensuring access to
contraception without cost sharing, which we did not specifically address in Hobby
Lobby, would constitute a legitimate interest conceivably advanced by the
accommodation scheme. See Hobby Lobby, 723 F.3d at 1160 (Bacharach, J., concurring)
(“[T]he plurality does not mention the public interest that the government had relied on at
53 See also Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (identifying “a compelling interest in eliminating discrimination against women”); Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984) (“Assuring women equal access to such goods, privileges, and advantages clearly furthers compelling state interests.”); Prince v. Massachusetts, 321 U.S. 158, 165-67 (1944) (upholding child labor laws against a free exercise challenge on health and welfare grounds); Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (upholding a mass vaccination program against a liberty challenge on health and welfare grounds); see also Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (determining a compelling interest in eradicating racial discrimination “substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs”).
- 82 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 93
the preliminary-injunction hearing: the health reasons for promoting employee access to emergency contraceptives.”). The Departments’ recognized interest in the uniformity and ease of administration of its programs would also meet this standard. See, e.g., Bowen, 476 U.S. at 707; Hernandez, 490 U.S. at 682; United States v. Lee, 455 U.S. 252, 258-59 (1982).
The Mandate and accommodation scheme easily pass the rational basis test. Because the Mandate is both neutral and generally applicable and supported by a rational basis, Plaintiffs fail to make out a plausible claim under the Free Exercise Clause.
B. Establishment Clause Plaintiffs contend that exempting churches and integrated auxiliaries from the Mandate but requiring religious non-profit organizations to seek an accommodation violates the Establishment Clause. We disagree. Because the Departments have chosen to distinguish between entities based on neutral, objective organizational criteria and not by denominational preference or religiosity, the distinction does not run afoul of the Establishment Clause. 1. Organizational Distinctions Well-Established in Federal Law Federal law distinguishes between different types of religious organizations, and as we discuss below, this differentiation is constitutionally permissible. Under the ACA and its implementing regulations, a religious employer “is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). The regulations
- 83 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 94
at issue in this case draw on the tax code’s distinction between houses of worship and religious non-profits, a “longstanding and familiar” distinction in federal law. Priests for Life, 772 F.3d at 238; see also Geneva Coll., 778 F.3d at 443 (determining it was permissible for the Departments to base the exemption on the IRC’s provision “because that provision was a bright line that was already statutorily codified and frequently applied”).
Exempting churches while requiring other religious objectors to seek an accommodation is standard practice under the tax code. The IRC and other regulations award benefits to some religious organizations—typically, houses of worship—based on articulable criteria that other religious organizations do not meet. See 26 U.S.C. § 6033(a)(3)(A)(i), (iii). Churches, their integrated auxiliaries, and conventions or associations of churches are automatically considered tax exempt and need not notify the government they are applying for recognition, but other religious non-profit organizations must apply for tax-exempt status if their annual gross receipts are more than $5,000. See id. § 508(a), (c)(1)(A). Similarly, churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order need not file tax returns, but religious non-profit organizations with gross receipts above $5,000—even if they are tax-exempt—must file annually. Id. § 6033(a). Congress has placed special limitations on tax inquiries and examinations of churches, but not integrated auxiliaries, church-operated schools, or religious non-profit organizations. See id. § 7611.
- 84 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 95
Congress has used similar organizational distinctions in the realm of religious accommodations. Churches and qualified church-controlled organizations that object to paying Social Security and Medicare taxes for religious reasons may opt out of paying them by filing a form with the IRS, but other religious non-profit organizations may not. See id. § 3121(w). 2. Organizational Distinctions and Respecting the Religion Clauses
Distinctions based on organizational form enable the government to simultaneously respect both the Free Exercise Clause and Establishment Clause and permit the construction of accommodation schemes that pass constitutional muster. The Supreme Court has concluded
[t]he general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 669 (1970); see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 469 (N.Y. 2006) (observing the Plaintiffs’ argument here “would call into question any limitations placed by the Legislature on the scope of any religious exemption—and thus would discourage the Legislature from creating any such exemptions at all,” and thus concluding “[a] legislative decision not to extend an accommodation to all kinds of religious organizations does not violate the Establishment Clause”). We recognize the
- 85 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 96
Government enjoys some discretion in fashioning religious accommodations, and believe doing so on the basis of organizational form comports with the Establishment Clause. 3. Organizational Distinctions Compatible with Larson and Colorado Christian
The Departments have offered the accommodation to Plaintiffs based on their organizational form. Plaintiffs rely on the decisions in Larson v. Valente, 456 U.S. 228 (1982), and Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), to support their Establishment Clause claim. But those cases do not hold that distinctions based on organizational type are impermissible.
Larson involved an Establishment Clause challenge to a Minnesota law that imposed registration and reporting requirements on religious organizations that received less than half of their contributions from members or affiliated organizations. Larson, 456 U.S. at 231. The legislature drew this distinction to discriminate against particular religions, which was evident in the legislative history. Id. at 253-54 (“[T]he history of [the challenged law] demonstrates that the provision was drafted with the explicit intention of including particular religious denominations and excluding others.”). Colorado Christian differentiated institutions based on intrusive inquiries into their degree of religiosity. 534 F.3d 1259. In Colorado Christian, we concluded Colorado’s exclusion of “pervasively sectarian” institutions from state scholarship programs violated the First Amendment “for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice.” Id. at 1250.
- 86 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 97
Neither of these two concerns in Colorado Christian is applicable here. Larson and Colorado Christian prohibit preferences based on denomination (e.g.,
Catholic, Jewish, Islamic, etc.) and religiosity (e.g., pervasively sectarian, moderately sectarian, non-sectarian, etc.), but do not prohibit distinctions based on organizational type (e.g., church, non-profit, university, etc.). As Larson noted: “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” 456 U.S. at 244. In Colorado Christian, we determined that “defendants supply no reason to think that the government may discriminate between ‘types of institution’ on the basis of the nature of the religious practice these institutions are moved to engage in.” 534 F.3d at 1259. As a result, Establishment Clause jurisprudence clearly indicates denominational preferences expressed by the government are subject to strict scrutiny. See id. Religiosity distinctions are subject to strict scrutiny as well because they involve the government in scrutinizing and making decisions based on particular expressions of religious belief. See id. at 1256 (invalidating Colorado law because it “expressly discriminates among religions, allowing aid to ‘sectarian’ but not ‘pervasively sectarian’ institutions, and it does so on the basis of criteria that entail intrusive governmental judgments regarding matters of religious belief and practice”).
Plaintiffs cite no case holding that organizational distinctions, as opposed to those based on denomination or religiosity, run afoul of the Establishment Clause. Unlike Awad v. Ziriax, 670 F.3d 1111, 1128-29 (10th Cir. 2012), which concerned a state constitutional amendment forbidding courts from considering or using Sharia law,
- 87 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 98
evidence of animus or favoritism aimed at a denomination or degree of religiosity is absent here. “Because the law’s distinction does not favor a certain denomination and does not cause excessive entanglement between government and religion, the framework does not violate the Establishment Clause.” Mich. Catholic Conf., 755 F.3d at 395; see also Priests for Life, 772 F.3d at 272-74.
Neither Larson nor Colorado Christian supports Plaintiffs’ claim that distinctions between churches and other religious entities is impermissible. As we concluded in Colorado Christian, “if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices.” 534 F.3d at 1266. This is what the Departments have done with the accommodation scheme in compliance with the First Amendment’s Establishment Clause. 4. Plaintiffs’ Argument Based on the Departments’ Rationale
Plaintiffs seize on the Departments’ rationale for the distinction that religious nonprofit organizations are more likely than churches to employ individuals who do not share their employers’ beliefs but are nevertheless entitled to contraceptive coverage under the ACA. See 78 Fed. Reg. at 39,874 (“Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.”). Plaintiffs argue some denominations are
- 88 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 99
less likely to carry out ministry functions through a church or integrated auxiliary than others, and that the workforces of some non-profit institutions may be more religiously homogenous than the workforces of some established churches.
The Departments’ rationale may not be perfectly accurate, but it does not make the accommodation scheme unconstitutional. The class of religious non-profit organizations encompasses a vast array of religiously affiliated universities, hospitals, service providers, and charities, some of them employing thousands of people. Of course, some religious non-profit organizations may be more likely than some churches to employ coreligionists, but the Departments may reasonably recognize that, on the whole, churches are more likely to employ those who share their beliefs. Priests for Life, 772 F.3d at 272. The Departments originally exempted religious employers to “respect[] the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. at 46,623. We recognize that relationship between houses of worship and ministerial employees has been given special solicitude under the First Amendment. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 712-13 (2012). The Departments must avoid inquiries that involve them in “excessive entanglement” between religion and government, see Colorado Christian, 534 F.3d at 1261-62, and the general notion that houses of worship are more likely than religious non-profit organizations to employ people of the same faith avoids impermissible
- 89 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 100
scrutiny into the beliefs of religious entities and their employees.54 * * * *
Drawing a distinction between religious employers and religious non-profit organizations is a neutral and reasonable way for the Departments to pursue their legitimate goals in a constitutional manner. It gives special solicitude to churches to facilitate the liberties guaranteed by the Free Exercise Clause, and offers the accommodation scheme to relieve religious non-profit organizations of their obligation to provide contraceptive coverage under the Mandate without imposing a substantial burden on their religious exercise. The accommodation scheme does not violate the Establishment Clause.
C. Free Speech Clause Plaintiffs finally contend the accommodation scheme violates the Free Speech Clause of the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech,” U.S. Const. amend. 1, by compelling them both to speak and remain silent, see Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796-97 (1988). First, they argue that requiring them to sign and deliver the Form or the notification to HHS constitutes compelled speech. Second, they argue that prohibiting
54 The original definition of “religious employer” required that the employer “primarily employs persons who share its religious tenets [and] primarily serves persons who share its religious tenets.” 76 Fed. Reg. at 46,623. In response to religious entities that argued these requirements might involve excessive entanglement with religion, the Departments eliminated three of the four criteria and based the definition solely on organizational form. 78 Fed. Reg. at 8459. Plaintiffs now contend that simplified definition makes unfounded assumptions about who religious employers employ.
- 90 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 101
them from influencing their TPAs’ provision of contraceptive coverage compels them to be silent. Both arguments fail. 1. Compelled Speech
The compelled speech claim fails. To the extent such a claim requires government interference with the plaintiff’s own message, see Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005) (stating a compelled speech claim arises when “an individual is obliged personally to express a message he disagrees with, imposed by the government”), the regulations do not require an organization seeking an accommodation to engage in speech it finds objectionable or would not otherwise express. The only act the accommodation scheme requires is for religious non-profit organizations with group health plans to sign and deliver the Form or notification expressing their religious objection to providing contraceptive coverage. The Sixth Circuit reasoned: “Even assuming the government is compelling this speech, it is not speech that the appellants disagree with and so cannot be the basis of a First Amendment claim.” Mich. Catholic Conf., 755 F.3d at 392; see also Geneva Coll., 778 F.3d at 438-39 (“If anything, because the appellees specifically state on the self-certification form that they object on religious grounds to providing such coverage, it is a declaration that they will not be complicit in providing coverage.”). Plaintiffs cannot point to speech they are required to express and find objectionable.55
55 In Axson-Flynn, we recognized that a compelled speech claim may apply to non-ideological speech. We held a University of Utah theater student had alleged a
Continued . . .
- 91 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 102
Indeed, Plaintiffs have not shown any likelihood that their sending in the Form or the notification would convey a message of support for contraception. Plaintiffs do not demonstrate their TPA, their health insurance issuer, or HHS—any one of which would be the sole recipient of the Form or notification—would view it as anything other than an objection to providing contraception. Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47 (2006), is instructive. In FAIR, a group of law schools challenged the Solomon Amendment, a federal statute that denied federal funding to universities that barred military recruiters from their campuses. At that time, the military did not permit gay, lesbian, and bisexual individuals to serve. The schools claimed a First Amendment compelled speech violation, arguing their compliance with the Solomon Amendment would signal their agreement with this policy. The Supreme Court rejected the argument, noting compliance did not signal agreement with the military’s positions, and the Solomon Amendment did not prevent the schools from making their own position clear. FAIR, 547 U.S. at 65.
This point is even stronger in the instant case, where Plaintiffs would send the Form or notification to convey their opposition to providing contraception, and the ACA and implementing regulations do not prevent them from expressing that opposition widely. Plaintiffs remain free to express opposition to contraception; “[n]othing in the[]
______________________________________ Cont.
compelled speech violation because she was required to utter certain swear words as part of a script and objected to doing so on religious grounds. 356 F.3d at 1284 n.4.
- 92 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 103
final regulations prohibits an eligible organization from expressing its opposition to the use of contraceptives.” 78 Fed. Reg. at 39,880 n.41. With the passage of the interim final rule, Plaintiffs also have the option to send a letter or email to HHS expressly objecting to any provision of contraception. They can fully explain their position in that notification. We are especially unconvinced that this option, freed from the text of the Form and permitting greater self-expression, forces Plaintiffs to engage in unwanted speech. Plaintiffs have not suggested the notification must be conveyed or communicated to any third parties or wider audience aside from the Departments themselves.
Even if Plaintiffs could identify speech they disagreed with—for example, identifying the name of their TPA or health insurance issuer—the argument that they are forced to send a message they do not wish to send is unavailing. The First Amendment does not—and cannot—protect organizations from having to make any and all statements “they wish to avoid.” The cases cited by Plaintiffs are not about routine administrative burdens akin to complying with the accommodation scheme. These cases instead concern compelled ideological expression such as salutes to the flag, W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943); messages on license plates, Wooley v. Maynard, 430 U.S. 705, 715 (1977), Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir. 2013); wearing school slogans, Frudden v. Pilling, 742 F.3d 1199, 1203-04 (9th Cir. 2014); and taking a political stance on commercial sex, Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331 (2013).
- 93 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 104
“Compelling an organization to send a form to a third party to claim eligibility for an exemption ‘is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.’” Priests for Life, 772 F.3d at 271 (quoting FAIR, 547 U.S. at 62). “That would be the equivalent of entitling a tax protester to refuse on First Amendment grounds to fill out a 1099 form and mail it to the Internal Revenue Service.” Wheaton College, 2015 WL 3988356, at *8. None of the cases cited by Plaintiffs involve compliance with the administrative requirements of a government program, and especially not a government program designed to exempt and distance an organization from activity it finds objectionable.
We finally note that Plaintiffs’ signature and delivery of the Form or notification to HHS is “plainly incidental to the . . . regulation of conduct” and thus is not protected speech. FAIR, 547 U.S. at 62. The act of signing and delivering the Form or notification to HHS is required to opt out of the Mandate. The Supreme Court has “rejected the view that ‘conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.’ Instead, we have extended First Amendment protection only to conduct that is inherently expressive.” Id. at 65-66 (quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)). The fact that Plaintiffs must complete the Form or notification to HHS to opt out of coverage does not render the act inherently expressive. See id. at 62.
For the foregoing reasons, we reject Plaintiffs’ compelled speech claim.
- 94 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 105
2. Compelled Silence We further reject the claim that the accommodation scheme compels Plaintiffs’
silence. Like the Sixth and Seventh Circuits, we note Plaintiffs have made only general claims objecting to the non-interference regulation and have failed to indicate how it precludes speech in which they wish to engage. Mich. Catholic Conf., 755 F.3d at 39293; Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 561 (7th Cir. 2014), vacated and remanded sub nom., Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015). After the issuance of the interim final rule repealing the non-interference regulation, we do not believe this question is before us. We agree with the Government and the D.C. Circuit that the repeal of the non-interference rule renders Plaintiffs’ claims regarding compelled silence moot. See Priests for Life, 772 F.3d at 242 n.8.
VII. CONCLUSION We have reviewed the district courts’ decisions to grant or deny a preliminary injunction to Plaintiffs in the three cases before us. Because we determine the ACA and its implementing regulations do not substantially burden Plaintiffs’ religious exercise or violate the Plaintiffs’ First Amendment rights, Plaintiffs have not established a likelihood of success on the merits or a likely threat of irreparable harm as required for a preliminary injunction. See Hobby Lobby, 723 F.3d at 1128. We therefore affirm the district court’s denial of a preliminary injunction in Little Sisters, 6 F. Supp. 3d 1225, and reverse the district courts’ grant of a preliminary
- 95 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 106
injunction in Southern Nazarene, 2013 WL 6804265, and Reaching Souls, 2013 WL
6804259.
EBSA FORM 700-- CERTIFICATION (revised August 2014)
This form may be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131. Alternatively, an eligible organization may also provide notice to the Secretary of Health and Human Services.
Please fill out this form completely. This form should be made available for examination upon request and maintained on file for at least 6 years following the end of the last applicable plan year. Name of the objecting organization
Name and title of the individual who is authorized to make, and makes, this certification on behalf of the organization
Mailing and email addresses and phone number for the individual listed above
I certify the organization is an eligible organization (as described in 26 CFR 54.9815-2713A(a), 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)) that has a religious objection to providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.
Note: An organization that offers coverage through the same group health plan as a religious employer (as defined in 45 CFR 147.131(a)) and/or an eligible organization (as defined in 26 CFR 54.9815-2713A(a); 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)), and that is part of the same controlled group of corporations as, or under common control with, such employer and/or organization (within the meaning of section 52(a) or (b) of the Internal Revenue Code), is considered to meet the requirements of 26 CFR 54.9815-2713A(a)(3), 29 CFR 2590.715-2713A(a)(3), and 45 CFR 147.131(b)(3).
I declare that I have made this certification, and that, to the best of my knowledge and belief, it is true and correct. I also declare that this certification is complete.
______________________________________ Signature of the individual listed above
- 96 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 107
______________________________________ Date
The organization or its plan using this form must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.
Notice to Third Party Administrators of Self-Insured Health Plans
In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.7152713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization:
(1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and
(2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A.
As an alternative to using this form, an eligible organization may provide notice to the Secretary of Health and Human Services that the eligible organization has a religious objection to providing coverage for all or a subset of contraceptive services, pursuant to 26 CFR 54.98152713A(b)(1)(ii)(B) and (c)(1)(ii), 29 CFR 2590.715-2713A(b)(1)(ii)(B) and (c)(1)(ii), and 45 CFR 147.131(c)(1)(ii). A model notice is available at: http://www.cms.gov/cciio/resources/Regulationsand-Guidance/index.html#Prevention.
This form or a notice to the Secretary is an instrument under which the plan is operated.
PRA Disclosure Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 1210-0150. An organization that seeks to be recognized as an eligible organization that qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing may complete this self-certification form, or provide notice to the Secretary of Health and Human Services, in order to obtain or retain the benefit of the exemption from covering certain contraceptive services. The self-certification form or notice to the Secretary of Health and Human Services must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974, which generally requires records to be retained for six years. The time required
- 97 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 108 to complete this information collection is estimated to average 50 minutes per response, including the time to review instructions, gather the necessary data, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of Labor, Employee Benefits Security Administration, Office of Policy and Research, 200 Constitution Avenue, N.W., Room N-5718, Washington, DC 20210 or email ebsa.opr@dol.gov and reference the OMB Control Number 12100150.
- 98 -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 109
Little Sisters et al. v. Burwell, Nos. 13-1540, 14-6026, 14-6028 BALDOCK, Circuit Judge, dissenting in part.
Today the Court holds, among other things, that the ACA contraceptive Mandate’s accommodation scheme does not substantially burden religious non-profits that object to facilitating contraceptive or abortifacient coverage because opting out does not cause, authorize, or otherwise facilitate such coverage.1 The Court’s opinion provides perhaps the most thorough explanation of the accommodation scheme’s nuanced mechanics that I have yet read. And for argument’s sake, I follow its holding as to the insured plaintiffs’ and Little Sisters plaintiffs’ RFRA claims.2 But I cannot join the Court’s holding as to the other self-insured plaintiffs’ RFRA claims, as that holding contradicts the Court’s own reasoning and thorough explanation of the accommodation scheme.
In reality, the accommodation scheme forces the self-insured plaintiffs to perform an act that causes their beneficiaries to receive religiously objected-to coverage. The fines the government uses to compel this act thus impose a substantial burden on the selfinsured plaintiffs’ religious exercise. Moreover, less restrictive means exist to achieve the government’s contraceptive coverage goals here. I must therefore dissent in part.
1 For consistency, I adopt the Court’s glossary. 2 As I explain below, the Little Sisters plaintiffs, though self-insured, have not shown that their opting out will necessarily cause their plan participants and beneficiaries to receive contraceptive coverage. Accordingly, my use of the term “self-insured plaintiffs” does not refer to the Little Sisters unless otherwise stated.

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 110

I.

WHEN IS A BURDEN ON RELIGIOUS EXERCISE “SUBSTANTIAL?”

The first step of a RFRA claim requires plaintiffs to show (1) that the federal

government has imposed a substantial burden on a (2) sincere (3) exercise of religion.

See 42 U.S.C. § 2000bb-1(a). The unique threshold question we and so many other

courts are currently grappling with, however, is how to determine whether a substantial

burden exists where a law compels religious adherents to perform an act they sincerely

oppose when this opposition might be based on a faulty understanding of the law. See,

e.g., E. Tex. Baptist Univ. v. Burwell, 2015 WL 3852811, at *3 (5th Cir. June 22, 2015).

Several learned judges have argued compellingly that, under Burwell v. Hobby

Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the amount of coercion the government uses

to force a religious adherent to perform an act she sincerely believes is inconsistent with

her understanding of her religion’s requirements is the only consideration relevant to

whether a burden is “substantial” under RFRA. See, e.g., Priests For Life v. U.S. Dep’t

of Health & Human Servs., No. 13-5368, slip op. at 17–22 (D.C. Cir. May 20, 2015)

(Brown, J., dissenting from the denial of rehearing en banc); id. at 35 (Kavanaugh, J.,

dissenting from the denial of rehearing en banc); Univ. of Notre Dame v. Burwell, 786

F.3d 606, 628 (7th Cir. 2015) (Flaum, J., dissenting); Eternal Word Television Network,

Inc. v. Sec’y, Dep’t of Health & Human Servs., 756 F.3d 1339, 1340 (11th Cir. 2014)

(Pryor, J. specially concurring); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d

1114, 1137 (10th Cir. 2013) (“Our only task is to determine whether the claimant’s belief

is sincere, and if so, whether the government has applied substantial pressure on the

claimant to violate that belief.”); cf. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. 2

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 111
Ct. 2028, 2031–33 (2015) (analyzing a plaintiff’s exercise as a “religious practice” under Title VII where the act was motivated by “her understanding of her religion’s requirements”).
These judges assert that whether religious objectors properly understand the legal significance of the compelled act has no bearing on the substantial burden analysis. E.g. Priests For Life., No. 13-5368, slip op. at 35 (Kavanaugh, J., dissenting) (“But what if the religious organizations are misguided in thinking that this scheme . . . makes them complicit in facilitating contraception or abortion? That is not our call to make under the first prong of RFRA.”). And Hobby Lobby supports this position well, as questioning a religious adherent’s understanding of the significance of a compelled action comes dangerously close to questioning “whether the religious belief asserted in a RFRA case is reasonable”—a “question that the federal courts have no business addressing.” Hobby Lobby, 134 S. Ct. at 2778.
Under this understanding of RFRA, the accommodation scheme substantially burdens any religious non-profit that objects to performing an act that would cause or otherwise make it complicit in providing contraceptive coverage simply because the scheme uses substantial fines to compel an act that the non-profit sincerely believes would have that effect. The actual legal significance of the compelled act is irrelevant to the substantial burden analysis. And because the government has conceded (2) the sincerity of (3) the religious exercise at issue, the only issue left to address is whether the government has shown that the accommodation scheme survives strict scrutiny. The judges who take this position, so far, all agree that the government has not made this
3

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 112
showing. Priests For Life., No. 13-5368, slip op. at 22–25 (Brown, J., dissenting); id. at 46–51 (Kavanaugh, J., dissenting); Notre Dame, 786 F.3d at 629–30 (Flaum, J., dissenting); Eternal Word Television Network, 756 F.3d at 1348–49 (Pryor, J. specially concurring).
Notwithstanding the strength of those positions, I will proceed under the following assumptions to highlight an even deeper problem lurking within the self-insured accommodation scheme: First, I will assume that whether a burden on religious exercise is “substantial” turns not only on the amount of coercion the government uses to compel an act (no one disputes the substantiality of the fines at issue here), but also on “how the law or policy being challenged actually operates and affects religious exercise.” Slip Op. at 39. Second, I will assume this Court may tell a religious adherent she does not face a substantial burden on her religious exercise if her understanding of the law is flawed. Third, I will assume that any burden the accommodation scheme imposes on Plaintiffs— who object to performing any act that would cause or otherwise make them complicit in providing various forms of contraceptive coverage—cannot be substantial unless they show, for example, how their compelled act causes that coverage. See Slip Op. at 45–66.
The Court tells Plaintiffs they cannot make this showing “because opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage.” Slip Op. at 65. If showing this causation is a prerequisite to establishing a substantial burden, the Court properly rejects the insured plaintiffs’ RFRA claim, as their action or inaction will not affect whether their plan beneficiaries receive objected-to coverage. But the self-insured plaintiffs’ inaction will prevent their plan beneficiaries
4

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 113
from receiving the coverage. If their beneficiaries receive this coverage, it is only because the self-insured plaintiffs, by opting out, caused that effect. Thus, the selfinsured plaintiffs have shown how their opting out would cause the provision and receipt of objected-to coverage and established a substantial burden on their religious exercise.
II. THE CRITICAL DISTINCTION IN THIS CASE I have nothing to add to the Court’s summary of the background in these cases, and very little to add to its explanation of the detailed mechanics of the ACA accommodation scheme. But a critical distinction within scheme bears repeating. Under the ACA accommodation scheme, in the insured health plan context, “a health insurance issuer . . . would be obligated to provide contraceptive coverage under the ACA whether or not [the insured non-profit] delivered the Form or notification to HHS.” Slip Op. at 48 n.28 (citing 42 U.S.C. § 300gg-13). But in the self-insured context, a TPA would be “authorized and obligated to provide the coverage . . . only if the religious non-profit . . . opts out.” Slip Op at 49 (emphases added); see also 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The Fifth, Sixth, and Seventh Circuits failed to recognize this distinction. See E. Tex. Baptist, 2015 WL 3852811, at *5; Notre Dame, 789 F.3d at 614; Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 387 (6th Cir. 2014) cert. granted, judgment vacated 135 S. Ct. 1914 (2015). The Third and D.C. Circuits failed to appreciate its significance. See Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 438 (3d Cir. 2015); Priests For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 254–56 (D.C. Cir. 2014). This Court considers the
5

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 114
distinction “unremarkable.” Slip Op. at 49. I disagree. The distinction makes a difference, and juxtaposing the insured plaintiffs and self-insured plaintiffs forces that difference into bold relief.
A. The Insured Plaintiffs Assuming causation is key, I agree the accommodation scheme does not substantially burden the insured plaintiffs’ religious exercise. As the Court explains, even total inaction on the part of an insured non-profit still results in its plan participants and beneficiaries receiving the coverage to which they are entitled under the ACA because the government has independently obligated a third party (insurance issuers) to provide it.3 See Slip Op. at 46–47. Opting out in the insured context does not cause the receipt of contraceptive coverage; rather, it merely absolves the eligible insured nonprofit of any responsibility for the contraceptive coverage its plan participants and beneficiaries will receive whether it opts out or not. Thus, assuming Plaintiffs must show how opting out causes coverage, the accommodation scheme does not substantially burden the insured plaintiffs’ exercise of religion. The insured accommodation is more akin to traditional conscientious objector schemes: the government can and will conscript the actors it needs to achieve its goals whether objectors opt out or not. The same cannot be said of the self-insured plaintiffs, however.
3 Even the government’s proffered fourth option—declining to sponsor a group health plan—would not interfere with contraceptive coverage for the insured plaintiffs’ plan beneficiaries. Without an employer-sponsored plan, these beneficiaries would have to find other health insurance. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2664 (2012) (Scalia, J., dissenting). And that insurance would likely cover contraceptives. See 42 U.S.C. § 300gg-13.
6

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 115
B. The Self-Insured Plaintiffs Unlike the insured plaintiffs, the ACA leaves the self-insured plaintiffs in a position where, by refusing to opt out, they can prevent their plan beneficiaries from receiving the objected-to coverage the beneficiaries are entitled to and would otherwise receive under the ACA. In other words, their plan participants and beneficiaries will receive the coverage only if they opt out as the government commands. This makes their opting out a but-for cause of the receipt of the coverage. The Court views this ability to prevent contraceptive coverage by inaction as nothing more than the ability to disobey the law. See Slip Op. at 54–55 & n.35. But that is the same limited ability the plaintiffs in Hobby Lobby possessed, and it goes to the heart of the substantial burden the self-insured plaintiffs face here. “In Hobby Lobby, the plaintiff[s] . . . could choose only between (1) complying with the ACA by providing the coverage or (2) not complying and paying significant penalties.” Slip Op. at 3 (citing Hobby Lobby, 134 S. Ct. at 2759–60). Similarly, these self-insured plaintiffs must choose between (1) complying with the ACA by taking an action that ultimately causes their beneficiaries to receive this coverage or (2) not complying and paying significant penalties. This is a Hobson’s choice, which we have long held imposes a substantial burden under RFRA. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010) (“We conclude that a religious exercise is substantially burdened under [RFRA] 42 U.S.C. § 2000cc–1(a) when a government . . . presents the plaintiff with a Hobson’s choice—an illusory choice where the only realistically possible course of action trenches on an adherent’s sincerely held religious belief.”); Hobby Lobby, 723 F.3d at 1141 (10th
7

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 116
Cir. 2013) (explaining that the choice between compromising religious beliefs and paying fines under the ACA “is precisely the sort of Hobson’s choice described in Abdulhaseeb”).
1. The Obvious Causal Connection If causation is key to showing a substantial burden, see Slip Op. at 32–33, 45–66, the self-insured plaintiffs have surely shown that burden. Certainly, a shifting legal responsibility alone may not necessarily create a causal relationship. But here, the selfinsured plaintiffs’ opt out causes the coverage because (1) the government cannot force plaintiffs themselves to provide the coverage, Hobby Lobby, 134 S. Ct. at 2785, and (2) the government cannot shift the ability (let alone the responsibility) to provide the coverage to non-objectors unless the self-insured plaintiffs opt out. See 29 C.F.R. § 2590.715-2713A(b)(2); Slip Op. at 48–49. Opting out is thus the only way their plan participants and beneficiaries may receive the coverage. Put another way, if the self-insured plaintiffs do not opt out, who will provide the coverage for their plan participants and beneficiaries? The answer: no one. The selfinsured plaintiffs cannot do so per their faith; the TPAs cannot do so per the law. Thus, the self-insured accommodation renders any duty to provide, and any entitlement to receive, contraceptive coverage wholly unenforceable and thus illusory—unless and until the self-insured plaintiffs opt out. Cf. Pennington v. Northrop Grumman Space & Mission Sys. Corp., 269 F. App’x 812, 819 (10th Cir. 2008) (unpublished) (“[W]hen a promise, in reality, promises nothing—it is illusory.” (Internal marks and citation omitted)).
8

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 117
To fully understand why no one can or will provide this objected-to coverage unless the self-insured plaintiffs perform a compelled act, one must view the ACA Mandate and accommodation scheme in light of Hobby Lobby. Hobby Lobby clearly holds forcing religious employers to provide objected-to contraceptive coverage violates RFRA. 134 S. Ct. at 2785. So, if any entity is to provide the coverage, it must be a third party. The insured accommodation independently conscripts third parties to provide the coverage. But as this Court points out, the self-insured accommodation was drafted such that no third party can provide the coverage in the self-insured context unless and until the objecting religious employer opts out. Slip Op. at 48–49; see also Eternal Word Television Network, 756 F.3d at 1347 (Pryor, J., specially concurring) (explaining that, without the Form or letter, a TPA “has no legal authority to step into the shoes of the [non-profit] and provide contraceptive coverage to the employees and beneficiaries of the [non-profit]”). As such, a third party’s legal authority (i.e. permission) to provide the coverage is wholly dependent upon (i.e. caused by) the self-insured non-profit opting out.
The Court believes we should focus on the fact that the ACA “entitle[s] plan participants and beneficiaries to coverage whether or not the plaintiffs opt out” and imposes a duty on “either the religious non-profit organization or the TPA” to provide that coverage. Slip Op. at 33, 57. But this reasoning (1) fails to consider the ACA Mandate in light of the limitations Hobby Lobby already imposed, and (2) confuses legal concepts (duty and entitlement) with real-world effects (provision and receipt).
First, the Court’s focus on the ACA’s requirement that “either the religious nonprofit organization or the TPA” provide the coverage, Slip Op. at 57, ignores the fact that
9

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 118
the government cannot require the religious non-profit to provide the coverage under Hobby Lobby. By ignoring the limitation Hobby Lobby imposes on the government, the Court simultaneously acknowledges that “opting out is necessarily a but-for cause of someone else—the TPA—providing contraceptive coverage,” Slip Op. at 56, and nevertheless rejects the self-insured plaintiffs’ RFRA claims for lack of causation. Slip Op. at 64–65. But again, Hobby Lobby forbids the government from placing this requirement on the non-profits themselves. So if opting out is necessarily a but-for cause of someone else providing the coverage, it is necessarily a but-for cause of anyone providing the coverage at all. Essentially, the Court concedes but-for cause and then turns around and denies the existence of any causation. What?
Second, the Court asserts that the self-insured plaintiffs’ opt out will not cause the actual provision and receipt of objected-to coverage because the ACA creates an independent, albeit illusory, duty and entitlement related to that coverage. True, opting out does not cause entitlement to contraceptive coverage—the ACA entitles all health plan beneficiaries to contraceptive coverage. But these beneficiaries will not receive that coverage unless the self-insured plaintiffs do something to cause its provision from a third party. In other words, the ACA may independently say “someone” has a duty to provide contraceptive coverage, see 29 C.F.R. § 2590.715–2713, but no one can or will honor that duty and provide the coverage unless the self-insured plaintiffs opt out. No self-insured plaintiff will honor it because the government cannot force them to under Hobby Lobby, and no third party can honor it because no third party has authority to do so without an opt out. Based on this error, the Court concludes that “federal law, not the
10

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 119
actions of the religious objector, ensures that plan participants and beneficiaries will
receive contraceptive coverage.” Slip Op. at 52 (emphasis added). But that is simply
wrong. As explained above, federal law alone does not ensure receipt of the coverage
from the self-insured plaintiffs; and it does not even allow, let alone ensure, receipt of
that coverage from a third party unless the self-insured plaintiffs opt out. Rather, federal
law, only in conjunction with the self-insured plaintiffs’ opt out, allows plan participants
and beneficiaries to receive contraceptive coverage.4
These errors, taken together, cause the Court to reject a straw man rather than the
self-insured plaintiffs’ RFRA claims. The self-insured plaintiffs do not claim a RFRA
violation based on the fact that the ACA created an entitlement to contraceptive
coverage; they object to the causal role they must play in providing that coverage. 5
4 Even with the opt-out, federal law does not always ensure receipt of the coverage. For example, the Court asserts “the ACA ensures plan participants and beneficiaries will receive contraceptive coverage” but simultaneously contradicts itself by acknowledging that TPAs for self-insured church plans may in fact decline to provide that coverage, in which case “plan participants and beneficiaries would not get the coverage to which they are otherwise entitled.” Slip Op. at 61 & n.41 (emphases added).
The Court’s attempt to paint these contradictory positions as consistent suffers from the same logical flaw highlighted above; that is, it confuses the actual provision and receipt of coverage with a concededly unenforceable entitlement and duty to provide it. If the law cannot force an unwilling TPA to provide contraceptive coverage, the TPA will not provide it, and the plan beneficiaries will not receive it. Cf. Mach Mining, LLC v. E.E.O.C., 135 S. Ct. 1645, 1652–53 (2015) (acknowledging that even the government may violate the law, “especially so when [it faces] no consequence”). Thus, the existence of an unenforceable duty to provide contraceptive coverage does not ensure receipt, as this Court seems to believe.
5 The Court also asserts that religious non-profits “cannot preclude the government from requiring others to provide the legally required coverage in its stead,” Slip Op. at 51–52, and “cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled under the ACA,” Slip Op. at
11

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 120
A proper accommodation may relieve otherwise substantial burdens on religious exercise, but this accommodation fails to do so, at least in the self-insured context. And to be sure, “[a] burden does not rise to the level of being substantial when it places an inconsequential or de minimis burden on an adherent’s religious exercise.” Slip Op. at 41 (quoting Priests for Life, 772 F.3d at 246). But here, the accommodation scheme foists upon the self-insured plaintiffs a choice with dire consequences. Either (1) they refuse to act, which would avoid causing their plan beneficiaries to receive objected-to coverage but trigger crippling fines for violating the law or (2) they act, which would cause the receipt of this coverage and violate their faith. If “the purpose of religious accommodation” was to permit religious objectors “to avoid a religious burden and to comply with the law,” see Slip Op. at 55, it fails to achieve that purpose. Rather, the accommodation foists upon the self-insured plaintiffs a Hobson’s choice and thus a substantial burden on their exercise of religion. Abdulhaseeb, 600 F.3d at 1315.
2. This is Not a Conscientious Objector Accommodation Scheme The Court believes this accommodation scheme akin to the conscientious objector schemes used for military conscription. See Slip Op. at 52 n.33. Not so. The
71. I agree that this should not be the case but, unfortunately, the government drafted the self-insured accommodation such that the self-insured plaintiffs can, by inaction, do exactly that. As explained above, that is precisely why their opting out causes the receipt of objected-to coverage.
Moreover, to the extent this language connotes dissatisfaction with the problems created by the self-insured accommodation, such dissatisfaction is irrelevant to whether the law imposes a substantial burden under RFRA. Our job is not to “add words to the law to produce what is thought to be a desirable result.” Abercrombie & Fitch, 135 S. Ct. at 2033.
12

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 121
accommodation scheme may function like a conscientious objector scheme in some regards, but it ultimately forces objectors to play a very different and causal role.
Military conscription law generally requires male citizens to register for the draft and allows the President to draft a certain number of men from that pool of candidates into active duty in the Armed Forces.6 See, e.g., Arver v. United States, 245 U.S. 366, 375–76 (1918) (allowing the President to draft up to two groups of 500,000 men). After registering, conscientious objectors can opt out of serving in combat. 50 App. U.S.C. § 456(j). But they cannot reduce the number of men the President ultimately drafts. Whether objectors lawfully register and opt out, or register and then choose unlawfully to avoid induction, or even choose unlawfully not to register at all, the President can and will draft the same number of men needed for war. See LAWRENCE M. BASKIR & WILLIAM A. STRAUSS, CHANCE AND CIRCUMSTANCE: THE DRAFT, THE WAR, AND THE VIETNAM GENERATION 14–28 (1978) (explaining that the government’s Vietnam draft policies “did not care who was drafted as long as enough people were drafted”).
Indeed, the Court’s reliance on Sheridan v. United States, 483 F.2d 169 (8th Cir. 1973), highlights this difference. In Sheridan, the defendant registered for the draft but did not lawfully opt out. Instead, he simply refused to be inducted. Id. at 170. But the result under conscription law was the same: “another person [was] called in his place.” Id. at 174. In other words, like the insured plaintiffs, no matter what conscientious objectors do or refuse to do, the government can and will achieve its military draft goals. 6 Currently, “every male citizen of the United States . . . between the ages of eighteen and twenty-six” must register in order to facilitate any eventual conscription into the Armed Forces. 50 App. U.S.C. § 453(a).
13

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 122
The opposite result occurs under the self-insured accommodation scheme. If a self-insured plaintiff simply refuses to provide coverage and does not opt out, the government cannot call a third party in its place. The accommodation scheme thus places the self-insured plaintiffs in a very different position vis-à-vis helping the government achieve its religiously objectionable goals. Conscientious objectors cannot prevent the government from conscripting their replacements; but the self-insured plaintiffs can completely prevent the government from even authorizing their TPAs to provide objected-to coverage. Conscientious objectors also need not identify a related third party to serve in their stead; but the self-insured plaintiffs must identify a related third party through a form or letter. And this form or letter is the only means by which the government can authorize that third party to serve in their stead. Under conscientious objector schemes, the government may independently draft non-objecting Americans into combat to further its war efforts; conscientious objectors have no power to stop it. But under the self-insured accommodation scheme the government needs the self-insured plaintiffs to commit an act to further its contraceptive coverage efforts; their beneficiaries will not receive this coverage unless they commit that act and cause that result. Such a conscientious objector scheme—where the government could draft a replacement soldier only if the initial conscientious objector opted out and identified a previously ineligible relative to serve in his stead—would be immensely problematic, to say the least.7
7 The Court attempts to counter this point by referencing the Enrollment Act of 1863, which “permitted a draftee to avoid service only by either providing a substitute or paying $300.” Slip Op. at 52 n.33 (quoting Act of March 3, 1863, ch. 75, § 13, 12 Stat. 731, 733 (1863)). But this act was a short-lived experiment that did not even survive to
14

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 123
In relying on conscientious objector schemes the Court commits the same error it
levies against this dissent: it fails to appreciate the broader structures of both the
accommodation and conscientious objector schemes. In comparing the two schemes, the
Court focuses only on the acts the objector must perform to opt out, and what happens if
the objector performs those acts. The comparison totally ignores the broader and more
critical difference between the two schemes: what happens if the objector refuses to
perform those acts? Conscription law requires that “someone” go to war, and in the end
“someone” will go to war. The law is such that the government can and will shift this
legal duty to a non-objector regardless of the objector’s action or inaction. Conversely,
the ACA says “someone” must provide contraceptive coverage, but the self-insured
accommodation was drafted such that if the self-insured plaintiffs choose to do nothing
rather than opt out, no one will actually provide that coverage. Again, the government
cannot force the plaintiffs to provide the coverage, and it cannot shift the duty to provide
the coverage unless the self-insured plaintiffs choose to opt out. If the government could
independently shift this duty (as conscription law allows) or eliminate the need to shift
the duty at all (as the insured accommodation does) that might eliminate the causal role
the end of that war. Moreover, resentment over the Enrollment Act and its opt-out provision triggered the “New York City draft riot, the largest [and deadliest] civil insurrection in American history apart from the South’s rebellion itself.” ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863–1877 at 32 (1988). “No case questioning the Civil War draft was heard by the Supreme Court, but it is known that Chief Justice Roger Taney prepared a rough outline of an opinion declaring the act unconstitutional.” Leon Friedman, Conscription and the Constitution, 67 MICH. L. REV. 1493, 1546 (1969). Indeed, one eminent historian called the substitution provision a “grotesque monstrosit[y]” and stated “[t]he government could hardly have devised a worse law.” BRUCE CATTON, THE CIVIL WAR 208 (1987). I would call that problematic.
15

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 124
the self-insured plaintiffs currently face. But presently, the law forces the self-insured plaintiffs into gatekeeping positions and then uses fines to force them to open the gates.
3. The Supreme Court’s Little Sisters and Wheaton College Orders The Court also believes the accommodation scheme does not impose a substantial burden on self-insured non-profits because the government’s new alternative notice accommodation—which forces an objecting non-profit to write a letter to HHS opting out and identifying its TPAs and/or health insurance issuers—is essentially akin to the Supreme Court’s injunctions pending appeal in Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, 134 S. Ct. 1022 (2014), Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), and most recently Zubik v. Burwell, Nos. 14A1065, 141418, 2015 WL 3947586, at *1 (U.S. June 29, 2015). See Slip Op. at 42 n.25, 59 n.39. But the Court’s reliance on these interim orders appears to be based on two flawed assumptions: (1) that the notices required by these orders were sufficient to authorize a TPA to provide coverage it could not provide before, and (2) even assuming this dubious interpretation of the orders, that they approved of compelling religious non-profits to play this causal role under RFRA’s first step (no substantial burden) as opposed to approving of such compulsion only where it satisfies RFRA’s second step (strict scrutiny). As to the first assumption, the Little Sisters order nowhere contemplates allowing the government to use the Little Sisters’ interim written notice to facilitate coverage by alternative means. And the Wheaton College order did not allow the government to rely on Wheaton’s interim written notice, either. Rather, it allowed the government to rely on preexisting knowledge that Wheaton qualified for exemption and would not provide
16

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 125
certain contraceptive coverage. See Wheaton Coll., 134 S. Ct. at 2807 (“But [Wheaton] has already notified the Government—without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” (emphases added)). Moreover, as Justice Sotomayor’s dissent in Wheaton College shows, the written notices required in Wheaton College, Little Sisters, and Zubik were insufficient to authorize TPA coverage under the then-effective accommodation, and may remain insufficient even under the new alternative accommodation. See Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).8
To the extent Wheaton College allows the government to rely on its knowledge of Wheaton’s objection, this merely tracks the Supreme Court’s decision in Bowen v. Roy, where the Court rejected a Free Exercise challenge to the government’s use of a social security number it already possessed and concluded that the First Amendment does not “require the government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” 476 U.S. at 693, 699 (1986). But importantly:
8 That is, even under the new alternative notice scheme, the “information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a),” see Zubik, 2015 WL 3947586, at *1, does not contain all the information required by the regulations and thus might not qualify as a valid opt out sufficient to trigger TPA coverage, see 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B) (requiring the self-insured organization to provide, among other things “the plan name and type . . . and the name and contact information for any of the plan’s third party administrators”); Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).
17

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 126
a majority of justices [in Roy] indicated that the requirement that applicants furnish a social security number was a different matter. Five justices either concluded or strongly suggested that the government could not require an applicant to provide the number on a benefits application if the applicant had a sincere religious objection to doing so. Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 567 (7th Cir. 2014) (Flaum, J., dissenting) (emphasis in original), cert. granted, judgment vacated sub nom. Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015); see Roy, 476 U.S. at 714–16 (Blackmun, J., concurring in part), 732 (O’Connor, J., concurring in part and dissenting in part) (“The rise of the welfare state was not the fall of the Free Exercise Clause.”), 733 (White, J., dissenting). Moreover, the Court may well have expressly allowed for this reliance in Wheaton College because, unlike the Little Sisters, Wheaton provides insurance through both selfinsured plans and insured plans subject to the Mandate. See Wheaton Coll. v. Burwell, 50 F. Supp. 3d 939, 944 (N.D. Ill. 2014) (Wheaton “offers its health insurance pursuant to six plans: two insured HMO plans, a [grandfathered] PPO plan, two self-funded prescription drug plans, and an insured student health plan.” (footnote omitted)). Thus, unlike the wholly self-insured Little Sisters, the government might independently ensure that an issuer from at least one of these insured health plans provides full contraceptive coverage to at least some of Wheaton’s various plan beneficiaries under the current ACA regime without forcing Wheaton to play a causal role in the receipt of that coverage. Thus, the Little Sisters, Wheaton College, and Zubik orders allow religious nonprofits to simply notify the government that they qualify for exemption and will not provide contraceptive coverage. The government may use its knowledge of these
18

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 127
objections when choosing between independently available alternative means to ensure coverage is provided (as the conscientious objector and insured schemes do). But these orders do not allow the government to compel religious non-profits to furnish the document that is essential to cause their plan beneficiaries to receive objected-to coverage.
And yet, suppose these orders could be read to say that the written notices they required were legally sufficient to authorize a previously ineligible TPA to provide objected-to coverage. Under that dubious interpretation, the orders would indeed force self-insured religious objectors to perform an act that causes the ultimate provision of the coverage, as they would make the provision of the coverage wholly contingent upon the religious objectors’ acts of providing HHS with that notice. For all the reasons discussed above, that interpretation of the orders would impose a substantial burden on the selfinsured plaintiffs’ exercise of religion.
So, turning to the Court’s second assumption, even under its dubious interpretation of the orders, the orders nowhere say that forcing religious non-profits to play this sort of causal role avoids imposing a substantial burden on their religious exercise. Instead, assuming the Court’s interpretation of these orders is correct, these orders would impose a substantial burden under RFRA’s first step and therefore must comply with RFRA’s second step (strict scrutiny). Indeed, Judge Kavanaugh has compellingly argued that these orders simply set forth a less restrictive means of achieving the government’s compelling interest in facilitating access to contraceptive coverage. See Priests For Life, No. 13-5368, slip op. at 46–51 (Kavanaugh, J., dissenting). These orders do not require
19

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 128
religious non-profits to identify related third parties for the government to authorize and possibly conscript in their stead. Rather, they only require the non-profits to inform HHS that they qualify for exemption and will not provide objected-to coverage. As discussed above regarding conscientious objector schemes, a significant difference exists between asking a religious objector to say simply “no” and compelling that objector to identify a related entity to serve as a scapegoat where no one else can.9
4. ERISA-Bound Plans v. ERISA-Exempt Church Plans The burden the self-insured plaintiffs face is most salient with regards to Southern Nazarene, whose TPA is subject to ERISA enforcement and therefore will be not only authorized but also required to provide contraceptives to the participants and beneficiaries of Southern Nazarene’s self-insured plan only if Southern Nazarene opts out. See 29 C.F.R. § 2590.715-2713A(b)(2). Southern Nazarene’s opt out will thus clearly cause someone to provide contraceptive coverage where no one would or could before. But the lack of an enforcement mechanism as to ERISA-exempt church plans does not itself remove the causal role and substantial burden that the accommodation scheme foists upon the church-plan plaintiffs. For example, the Guidestone Plan is an ERISAexempt church plan, but at least one of its TPAs, Highmark, has indicated it will provide full contraceptive coverage for those self-insured organizations that use the Guidestone Plan and validly opt out. And plaintiffs Reaching Souls, Truett-McConnell College, and
9 Moreover, this less restrictive means of achieving the same goal necessarily dooms the current self-insured accommodation scheme under strict scrutiny. See infra Part III.
20

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 129
Mid-America Christian University are all self-insured plaintiffs that use the Guidestone Plan. Slip Op. at 21; SN Supp. Br. II at 9 n.2. So even though their opting out might not trigger an enforceable duty to provide objected-to coverage, these church plan plaintiffs have established that their opting out will actually cause Highmark to provide the coverage—coverage it cannot provide unless they opt out.
True, given the repeal of the accommodation scheme’s non-interference provision, church plans like the Guidestone Plan might try to fire TPAs like Highmark and replace them with TPAs that promise not to provide coverage for objected-to contraceptives, and those plaintiffs that use the Guidestone Plan might be able to fire Guidestone if it refuses to do so. See RS Oral at 12:57–13:10. Thus, by economic coercion, these plaintiffs might be able to ultimately stop the provision of the coverage they were initially forced to cause. But, the government maintains that “such conduct is generally unlawful and is prohibited under . . . state and federal laws.” See 79 Fed. Reg. at 51,095. And none of this changes the present fact that if plaintiffs who use the Guidestone Plan opt out, they will cause Highmark to perform a religiously objected-to act on their behalf where Highmark previously could not do so. Thus, those self-insured plaintiffs that use the Guidestone Plan have shown “presently threatened injuries” warranting injunctive relief. Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931).
The Little Sisters plaintiffs, on the other hand, have not established this causal connection. The Little Sisters’ primary TPA, Brothers Services, is not bound by ERISA and has promised not to provide contraceptive coverage even if Little Sisters opts out. Little Sisters asserts that Brothers Trust also uses other TPAs who might choose to
21

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 130
provide contraceptive coverage if they opt out, but they have not sufficiently developed this theory to bear the burden of establishing that their opting out will presently cause someone to provide contraceptive coverage to their plan beneficiaries.
The Court also suggests self-insured non-profits “could relieve themselves of any lingering doubts they may have about causation by [1] employing an insured plan, [2] employing a self-insured church plan where the Departments lack authority to enforce the Mandate against their TPA, or [3] administering the self-insured plan on their own inhouse without using a TPA.” Slip Op. at 52 n.32. But none of these options alleviate the substantial burden the accommodation scheme imposes. First, choosing to switch from a self-insured plan, where no coverage can be provided without an opt out, to an insured plan, where coverage will be provided by a third party, would simply mean choosing to cause that coverage by switching plans rather than opting out. Second, as discussed above, even in the church plan context, opting out may still cause a TPA to provide the coverage. Third, no plaintiff in this case administers its plan in-house. So to the extent the Court opines on the legal effect the ACA Mandate might have on a plan not at issue in this case, the Court impermissibly exceeds its jurisdiction by “advising what the law would be upon a hypothetical state of facts.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
Given that we do not have jurisdiction to pass on this hypothetical, the self-insured plaintiffs should not have to rebut it to prove a present substantial burden under RFRA. But, because the Court goes there, administering a self-insured plan in-house without a TPA can be prohibitively complex, limit options for managing care, and create legal
22

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 131
pitfalls that many non-profits simply cannot afford to handle. See Thomas R. McLean & Edward P. Richards, Health Care’s “Thirty Years War”: The Origins and Dissolution of Managed Care, 60 N.Y.U. ANN. SURV. AM. L. 283, 313 (2004); see generally Rhonda D. Orin and Daniel J. Healy, Self-Administering, Insuring and Funding Benefit Plans, 197– 213 in HUMAN RESOURCES (Thompson 2007 Summer Edition).
C. Summing Up the Substantial Burden On the Self-Insured Plaintiffs The Court concludes that the Plaintiffs’ causation arguments fail because “opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage.” Slip Op. at 65–66. This conclusion is correct in the insured context. But the self-insured plaintiffs, with the exception of Little Sisters, have shown exactly how their act of opting out will cause someone to provide contraceptive coverage where their refusal to act would prevent that result. Unfortunately, the Court fails to see this obvious causal relationship because it ignores the clear holding of Hobby Lobby and fails to comprehend the difference between unenforceable entitlement and actual receipt. The government has left self-insured plaintiffs in a position where they must decide whether their beneficiaries will actually receive objected-to contraceptive coverage. The accommodation does not absolve these plaintiffs of this responsibility. Instead, it forces them to either (1) violate their sincere religious beliefs by performing an action that will cause their beneficiaries to receive objected-to coverage, or (2) violate the law and incur steep fines to obey those religious beliefs. Again, this is a Hobson’s choice and thus a substantial burden on their religious exercise under RFRA. Abdulhaseeb, 600 F.3d at 1317; Hobby Lobby, 723 F.3d at 1141.
23

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 132
III. STRICT SCRUTINY Because the government has imposed a substantial burden on at least the selfinsured plaintiffs’ religious exercise, under RFRA it must demonstrate that this burden is “(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. Our precedent currently holds the government has no compelling interest in contraceptive coverage. See Hobby Lobby, 723 F.3d at 1143. But even assuming such a compelling interest, see Hobby Lobby, 134 S. Ct. at 2780 (assuming the same), 2785–86 (Kennedy, J., concurring), 2799 (Ginsburg, J., dissenting), the government cannot show this scheme is the least restrictive means of furthering that interest. As discussed above, the Supreme Court’s interim orders in Little Sisters, Wheaton College, and Zubik, even when interpreted so as to force self-insured non-profits to play a necessary causal role in contraceptive coverage, provide a less restrictive means of achieving the same goal. See Priests For Life, No. 13-5368, slip op. at 46–51 (Kavanaugh, J., dissenting). The existence of this less restrictive means dooms the current accommodation scheme under strict scrutiny. Hobby Lobby, 134 S. Ct. at 2781–82.
IV. CONCLUSION “Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty,” Hobby Lobby, 134 S. Ct. at 2760, a liberty essential to our country’s constitutional tradition, albeit with boundaries difficult to define, see id. at 2785 (Kennedy, J., concurring). The Court today makes causation one of those boundaries. Even assuming this boundary, however, the self-insured plaintiffs in this case, with the
24

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 133
exception of the Little Sisters plaintiffs, have clearly shown how their compelled act will cause their plan beneficiaries to receive objected-to coverage that they could not otherwise receive. Therefore, I dissent from the Court’s holding regarding these selfinsured plaintiffs. Even assuming a causation requirement, I would still hold these selfinsured plaintiffs have shown a substantial likelihood of success on the merits of their RFRA claim and that the other requirements for a preliminary injunction are met. I would therefore affirm the district court’s denial of a preliminary injunction in Little Sisters, 6 F. Supp. 3d 1225, affirm the district court’s grant of a preliminary injunction in Reaching Souls, 2013 WL 6804259, and affirm in part (as to the self-insured plaintiffs: Southern Nazarene University and Mid-America University) and reverse in part (as to the insured plaintiffs: Oklahoma Baptist University and Oklahoma Wesleyan University) the district court’s grant of a preliminary injunction in Southern Nazarene, 2013 WL 6804265.
25

Appellate Case: 13-1540 Document: 01019459264 Date Filed: 07/14/2015 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
July 14, 2015

Chris Wolpert Chief Deputy Clerk

Mr. Daniel Howard Blomberg Ms. Adele Auxier Keim Becket Fund for Religious Liberty 1200 New Hampshire Avenue, NW Suite 700 Washington, DC 20036
Ms. Alisa Beth Klein Mr. Adam C. Jed Mr. Patrick Nemeroff Mr. Mark B. Stern U.S. Department of Justice Appellate Staff, Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530
Mr. Mark Rienzi Becket Fund for Religious Liberty 1200 New Hampshire Avenue, NW Suite 700 Washington, DC 20036
Mr. Seth Michael Roberts Mr. Carl Christopher Scherz Locke Lord 2200 Ross Avenue, Suite 2200 Dallas, TX 75201
Mr. Kevin C. Walsh University of Richmond School of Law 28 Westhampton Way Richmond, VA 23173
RE: 13-1540, 14-6026, 14-6028, Little Sisters of the Poor, et al v. Burwell, et al

Appellate Case: 13-1540 Document: 01019459264 Date Filed: 07/14/2015 Page: 2
Dist/Ag docket: 1:13-CV-02611-WJM-BNB
Dear Counsel:
Enclosed is a copy of the opinion of the court issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 12 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing petitions for rehearing.
Please contact this office if you have questions.
Sincerely,

cc: Leila Abolfazli Kimberley K Allen Brigitte Amiri Megan Barbero Gregory Baylor Michelle Renee Bennett Gretchen Borchelt Matthew Scott Bowman Stephen Robert Clark Kimberlee Wood Colby Miles E. Coleman David Andrew Cortman John Dillon Curran Charles E. Davidow Deborah Jane Dewart Steven W. Fitschen Noel Francisco

Elisabeth A. Shumaker Clerk of the Court
2

Appellate Case: 13-1540 Document: 01019459264
Derek L. Gaubatz Jared D. Giddens Andree J. Goldsmith Marcia D. Greenberger Brady Ross Henderson Bradley Philip Humphreys Jonathan Keim Ayesha N. Khan Ovide Marc Lamontagne Francis J. Manion Emily Martin Colby M. May Mary Elizabeth McAlister Martha Jane Perkins Stuart J. Roth Jay Sekulow Jordan Sekulow Mailee R. Smith Geoffrey R. Surtees Kevin H. Theriot Jay T. Thompson Judith G. Waxman Walter Martin Weber Edward Lawrence White Erik Zimmerman

Date Filed: 07/14/2015

Page: 3

EAS/bv

3

 
 PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT _________________________________

FILED United States Court of Appeals
Tenth Circuit
September 3, 2015
Elisabeth A. Shumaker Clerk of Court

LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation, et al.,

Plaintiffs - Appellants,

v.

No. 13-1540

SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services, et al.,

Defendants - Appellees.

------------------------------

ASSOCIATION OF GOSPEL RESCUE MISSIONS, et al.,

Amici Curiae.

–––––––––––––––––––––––––––––––––––

SOUTHERN NAZARENE UNIVERSITY, et al.,

Plaintiffs - Appellees, v.

No. 14-6026

SYLVIA MATHEWS BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services, et al.,

Defendants - Appellants.

------------------------------

AMERICAN CIVIL LIBERTIES UNION, et al.,

Amici Curiae.

–––––––––––––––––––––––––––––––––––

REACHING SOULS INTERNATIONAL, INC., an Oklahoma not for profit corporation, et al.,

Plaintiffs - Appellees, v.

No. 14-6028

SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services, et al.,

Defendants - Appellants. _________________________________

ORDER _________________________________

Before BRISCOE, Chief Judge, KELLY, LUCERO, HARTZ, TYMKOVICH, GORSUCH, HOLMES, MATHESON, BACHARACH, PHILLIPS, MCHUGH, and MORITZ, Circuit Judges.
_________________________________

On July 14, 2015, the original panel opinion issued in these matters. On July 23,

2015, the Plaintiffs filed petitions for certiorari to the United States Supreme Court and

did not petition for rehearing to this court. Nonetheless, a poll was called, sua sponte, to

consider en banc rehearing. Upon that consideration, a majority of the active judges of

2

the court voted to deny. Judges Kelly, Hartz, Tymkovich, Gorsuch, and Holmes voted to grant en banc rehearing.
Judge Hartz has written separately in dissent. Judges Kelly, Tymkovich, Gorsuch and Holmes join in that dissent.
Entered for the Court ELISABETH A. SHUMAKER, Clerk
3

13-1540, 14-6026, 14-6028 – Little Sisters v. Burwell HARTZ, Circuit Judge, dissenting, in which Judges KELLY, TYMKOVICH, GORSUCH and HOLMES join:
I respectfully dissent from the denial of en banc review. The opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty. When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion? Yet the panel majority holds otherwise. Where did it go wrong? It does not doubt the sincerity of the plaintiffs’ religious belief. But it does not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution of the documents is sinful. Rather, it reframes their belief. It generalizes the belief as being only opposition to facilitating the use and delivery of certain contraceptives to which they object. Under this reframing, the plaintiffs have no religious objection to executing the forms; it is just that executing the forms burdens their religious opposition to certain contraceptives. The burden would be akin to that caused by a tax on sales of religious tracts at the church bookstore, where the church has no religious objection to

paying a tax but complains that the tax will make it harder to spread the Gospel. After so framing the plaintiffs’ belief, the panel majority then examines the particulars of the governing law and decides that executing the documents does not really implicate the plaintiffs in the use or delivery of the contraceptives. If one accepts this reframing of plaintiffs’ belief, the analysis of the panel majority may be correct; perhaps one could say that the exercise of this reframed belief was not substantially burdened. But it is not the job of the judiciary to tell people what their religious beliefs are.
Or perhaps the panel majority recognizes the plaintiffs’ belief but is simply refusing to recognize its importance because it is merely an “uninformed derivative” of their core belief. Some of its language could be read as saying the following: (1) Yes, the plaintiffs have a religious objection to executing the documents. (2) But the religious core of that objection is the plaintiffs’ opposition to certain types of contraception; their religious objection to executing documents is merely the expression of the view that being required to perform that task substantially burdens their beliefs regarding contraception. (3) To let the plaintiffs decide whether executing the documents is independently sinful in itself would be contrary to the court’s duty to determine whether the document-execution requirement substantially burdens what the plaintiffs’ religious concern is really all about—the provision and use of contraceptives. Put another way, the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that
2

executing the documents is sinful. This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative? A Christian could be required to work on December 25 because, according to a court, his core belief is that he should not work on the anniversary of the birth of Jesus but a history of the calendar and other sources show that Jesus was actually born in March; a December 25 work requirement therefore does not substantially burden his core belief. Or a Jewish prisoner could be provided only non-kosher food because the real purpose of biblical dietary laws is health, so as long as the pork is well-cooked, etc., the prisoner’s religious beliefs are not substantially burdened. The Supreme Court has refused to examine the reasonableness of a sincere religious belief—in particular, the reasonableness of where the believer draws the line between sinful and acceptable—at least since Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 715 (1981), and it emphatically reaffirmed that position in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2778 (2014).
Fortunately, the doctrine of the panel majority will not long survive. It is contrary to all precedent concerning the free exercise of religion. I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs). And the law of this circuit is clear. Chief Judge Henry expressed the point for a panel of this court in Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010): “We
3

conclude that a religious exercise is substantially burdened under [RFRA] when a government . . . requires participation in an activity prohibited by a sincerely held religious belief . . . .” The en banc court adopted that proposition in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013), aff’d, 134 S. Ct. 2751 (2014).
Resolution of the substantial-burden question does not, however, resolve this litigation. I would set aside the panel decision regarding substantial burden and then return this case to the panel to determine whether the certification requirement is the least restrictive means of furthering a compelling governmental interest.
4

 
 Little Sisters of the Poor Home for the Aged, Denver, Colorado..., --- S.Ct. ---- (2013)

2013 WL 6869391 Supreme Court of the United States
LITTLE SISTER OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, A Colorado Non–Profit Corporation, et al., applicants, v. Kathleen SEBELIUS, Secretary of Health and Human Services, et al.
No. 13A691. | Dec. 31, 2013.

Opinion
*1 Upon consideration of the application of counsel for the applicants, It is ordered that respondents are temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, 42 U.S.C.A. § 300gg–13(a)(4), and related regulations pending the receipt of a response and further order of the undersigned or of the Court. The response to the application is due Friday, January 3, 2104, by 10 a.m.

1

 
 Little Sisters of the Poor Home for the Aged, Denver, Colorado..., --- S.Ct. ---- (2014)

2014 WL 272207 Only the Westlaw citation is currently available.
Supreme Court of the United States
LITTLE SISTERS OF THE POOR, et al. v.
SEBELIUS, SEC. OF H&HS, et al.
No. 13A691. | Jan. 24, 2014.
Opinion
*1 The application for an injunction having been submitted to Justice SOTOMAYOR and by her referred to the Court, the Court orders:
If the employer applicants inform the Secretary of Health

and Human Service in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.
	  

1

 
 Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 1 of 13
U.S. District Court − District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:13−cv−02611−WJM−BNB

TERMED

Little Sisters of the Poor Home for the Aged, Denver, Colorado et al v. Kathleen Sebelius et al Assigned to: Judge William J. Martinez Referred to: Magistrate Judge Boyd N. Boland Case in other court: USCA, 13−01540 Cause: 42:2000bb Religious Freedom Restoration Act.
Plaintiff

Date Filed: 09/24/2013 Date Terminated: 05/29/2018 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Little Sisters of the Poor Home for the Aged, Denver, Colorado a Colorado non−profit corporation

represented by Mark Leonard Rienzi Becket Fund for Religious Liberty 1200 New Hampshire Ave NW Suite 700 Washington, DC 20036 202−955−0095 Fax: 202−955−0090 Email: mrienzi@becketfund.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adle Auxier Keim Becket Fund for Religious Liberty 3000 South K Street, N.W. #220 Washington, DC 20007 202−955−0095 Fax: 202−955−0090 Email: akeim@becketfund.org ATTORNEY TO BE NOTICED

Carl C. Scherz Locke Lord, LLP−Dallas 2200 Ross Avenue #2200 Dallas, TX 75201−6776 214−740−8583 Fax: 214−740−8800 Email: cscherz@lockelord.com ATTORNEY TO BE NOTICED

Daniel Howard Blomberg Becket Fund for Religious Liberty 1200 New Hampshire Ave NW Suite 700 Washington, DC 20036 202−955−0095 Fax: 202−955−0090 Email: dblomberg@becketlaw.org ATTORNEY TO BE NOTICED

Seth Michael Roberts Locke Lord, LLP−Dallas 2200 Ross Avenue #2200 Dallas, TX 75201−6776 214−740−8453 Fax: 214−740−8800 Email: sroberts@lockelord.com ATTORNEY TO BE NOTICED

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 2 of 13

Plaintiff Little Sisters of the Poor, Baltimore, Inc. a Maryland non−profit corporation, by themselves and on behalf of all others similarly situated,
Plaintiff Christian Brothers Services a New Mexico non−profit corporation
Plaintiff Christian Brothers Employee Benefit Trust

represented by Mark Leonard Rienzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adle Auxier Keim (See above for address) ATTORNEY TO BE NOTICED
Carl C. Scherz (See above for address) ATTORNEY TO BE NOTICED
Daniel Howard Blomberg (See above for address) ATTORNEY TO BE NOTICED
Seth Michael Roberts (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Leonard Rienzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adle Auxier Keim (See above for address) ATTORNEY TO BE NOTICED
Carl C. Scherz (See above for address) ATTORNEY TO BE NOTICED
Daniel Howard Blomberg (See above for address) ATTORNEY TO BE NOTICED
Seth Michael Roberts (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Leonard Rienzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adle Auxier Keim (See above for address) ATTORNEY TO BE NOTICED
Carl C. Scherz (See above for address) ATTORNEY TO BE NOTICED
Daniel Howard Blomberg (See above for address) ATTORNEY TO BE NOTICED

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 3 of 13
Seth Michael Roberts (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius Secretary of the United States Department of Health and Human Services
Defendant United States Department of Health and Human Services
Defendant Thomas E. Perez Secretary of the United States Department of Labor
Defendant United States Department of Labor
Defendant Jacob J. Lew Secretary of the United States Department of the Treasury

represented by Bradley Philip Humphreys U.S. Department of Justice−DC−Mass. Ave. 20 Massachusetts Avenue, N.W. Washington, DC 20530 202−514−3367 Email: bradley.p.humphreys@usdoj.gov ATTORNEY TO BE NOTICED
Michelle Renee Bennett U.S. Department of Justice−DC−Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20001 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 4 of 13

Defendant United States Department of the Treasury
Amicus American Civil Liberties Union

represented by Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Brigitte Adrienne Amiri American Civil Liberties Union−New York 125 Broad Street 18th Floor New York, NY 10004−2400 212−549−2633 Fax: 212−549−2650 Email: bamiri@aclu.org ATTORNEY TO BE NOTICED

Date Filed 09/24/2013
09/24/2013 09/24/2013 09/24/2013 09/24/2013 09/25/2013

# Docket Text
1 COMPLAINT against Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Filing fee $ 400, Receipt Number 1082−3547495), filed by Christian Brothers Services, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust, Little Sisters of the Poor Home for the Aged, Denver, Colorado. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Summons Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, # 11 Summons United States Department of Health and Human Services, # 12 Summons Thomas E. Perez, Secretary of the United States Department of Labor, # 13 Summons United States Department of Labor, # 14 Summons Jacob J. Lew, Secretary of the United States Department of the Treasury, # 15 Summons United States Department of the Treasury, # 16 Summons Civil Process Clerk, US Attorney's Office for the District of Colorado, # 17 Summons Eric Holder, United States Attorney General)(Scherz, Carl) (Entered: 09/24/2013)
2 CORPORATE DISCLOSURE STATEMENT. (Scherz, Carl) (Entered: 09/24/2013)
3 NOTICE of RELATED CASES by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc. (Scherz, Carl) (Entered: 09/24/2013)
4 Case assigned to Judge William J. Martinez and drawn to Magistrate Judge Boyd N. Boland. Text Only Entry (dbera, ) (Entered: 09/24/2013)
5 SUMMONS issued by Clerk. Magistrate Judge Consent Form attached. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Magistrate Judge Consent Form) (dbera, ) (Entered: 09/24/2013)
6 ORDER REFERRING CASE to Magistrate Judge Boyd N. Boland. Magistrate Judge Boland is designated to conduct NDISPO proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed.R.Civ.P. 72(a) and (b). ALSO ORDERED that unless service has otherwise been completed or arranged, Plaintiffs' counsel is directed to effect service of the summons and complaint pursuant to Rule 4 of the Federal Rules of Civil Procedure no later than 30 days from the date of this Referral Order, in order for the initial scheduling conference to be held promptly. Court sponsored alternative dispute resolution is governed by D.C.COLO.LCivR 16.6. On the recommendation or informal request of the Magistrate Judge or on the request of the parties by motion, the

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 5 of 13

10/01/2013
10/07/2013 10/15/2013 10/15/2013 10/17/2013 10/17/2013 10/21/2013 10/22/2013 10/24/2013
10/24/2013 10/24/2013 10/24/2013
10/29/2013

court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding. SO ORDERED by Judge William J. Martinez on 09/25/2013. Text Only Entry (wjmsec, ) (Entered: 09/25/2013)
7 NOTICE OF NON ADMITTED ATTORNEYS. Mark L. Rienzi has entered appearance as attorney in this case based on signing the complaint. Pursuant to D.C.COLO.LCivR 11.1A, an attorney must be a member of the court's bar to enter an appearance. The attorney records of the court do not reflect that counsel is a member of the bar. Unless an application for admission to the bar of the court or a motion to withdraw in this case is received within 20 days of the date of this entry, further action may be taken by the court. Text Only Entry (mjfsl, ) (Entered: 10/01/2013)
8 DEMAND for Trial by Jury by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Rienzi, Mark) (Entered: 10/07/2013)
9 NOTICE of Entry of Appearance by Carl C. Scherz on behalf of Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc. (Scherz, Carl) (Entered: 10/15/2013)
10 NOTICE of Entry of Appearance by Seth Michael Roberts on behalf of Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc. (Roberts, Seth) (Entered: 10/15/2013)
11 ORDER Scheduling Conference set for 1/13/2014 10:30 AM in Courtroom A 401 before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 10/16/2013. (ervsl, ) (Entered: 10/17/2013)
12 NOTICE of Entry of Appearance by Bradley Philip Humphreys on behalf of All Defendants (Humphreys, Bradley) (Entered: 10/17/2013)
13 NOTICE of Entry of Appearance by Daniel Howard Blomberg on behalf of All Plaintiffs (Blomberg, Daniel) (Entered: 10/21/2013)
14 NOTICE of Entry of Appearance by Adle Auxier Keim on behalf of All Plaintiffs (Keim, Adle) (Entered: 10/22/2013)
15 MOTION for Preliminary Injunction by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Attachments: # 1 Exhibit I_Mother Loraine Decl., # 2 Exhibit J_Brother Quirk Decl., # 3 Exhibit K_O Centro Injunction, # 4 Exhibit L_USCCB Directives)(Blomberg, Daniel) (Entered: 10/24/2013)
16 NOTICE of Delivery of Process to U.S. Attorney's Office by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc. (Roberts, Seth) (Entered: 10/24/2013)
17 SUMMONS Returned Executed by All Plaintiffs. United States Department of Health and Human Services served on 10/17/2013, answer due 11/7/2013. (Roberts, Seth) (Entered: 10/24/2013)
18 ORDER: This matter is before the Court on 15 Plaintiffs' Motion for Preliminary Injunction. To permit the Court adequate time to address the Motion in advance of the January 1, 2014 deadline, the Court SETS the following briefing schedule: Defendants shall respond to the Motion no later than November 8, 2013, and Plaintiffs may reply by November 15, 2013. After reviewing the briefing, the Court will determine whether a hearing on the Motion is necessary. SO ORDERED by Judge William J. Martinez on 10/24/2013. Text Only Entry (wjmlc1, ) (Entered: 10/24/2013)
19 MOTION to Certify Class and Memdorandum in Support by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc..

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 6 of 13

10/31/2013 10/31/2013 10/31/2013 10/31/2013 10/31/2013 10/31/2013 11/07/2013 11/07/2013
11/08/2013
11/08/2013 11/08/2013 11/08/2013 11/12/2013

(Attachments: # 1 Exhibit M, # 2 Exhibit N, # 3 Exhibit O, # 4 Exhibit P)(Roberts, Seth) (Entered: 10/29/2013)
20 SUMMONS Returned Executed by All Plaintiffs. (Roberts, Seth) (Entered: 10/31/2013)
21 SUMMONS Returned Executed by All Plaintiffs. Jacob J. Lew served on 10/10/2013, answer due 10/31/2013. (Roberts, Seth) (Entered: 10/31/2013)
22 SUMMONS Returned Executed by All Plaintiffs. Thomas E. Perez served on 10/7/2013, answer due 10/28/2013. (Roberts, Seth) (Entered: 10/31/2013)
23 SUMMONS Returned Executed by All Plaintiffs. Kathleen Sebelius served on 10/8/2013, answer due 10/29/2013. (Roberts, Seth) (Entered: 10/31/2013)
24 SUMMONS Returned Executed by All Plaintiffs. United States Department of Labor served on 10/7/2013, answer due 10/28/2013. (Roberts, Seth) (Entered: 10/31/2013)
25 NOTICE of Delivery of Process to Eric Holder, United States Attorney General by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc. (Roberts, Seth) (Entered: 10/31/2013)
26 MOTION for Leave to File Excess Pages by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 11/07/2013)
27 ORDER denying Defendants' Motion for Extension of Page Limits 26 . Defendants' Motion is DENIED. This Court's Revised Practice Standard III.B requires "All requests for the Court to take any action... must be contained in a separate, written motion[.]" Furthermore, this District's Local Rule D.C.COLO.LCivR. 7.1(c) specifically states that "A motion shall not be included in a response or reply... [and] shall be made in a separate paper." Therefore, Defendants' Motion is DENIED because the relief sought by said Motion is contrary to this Court's Revised Practice Standards as well as this District's Local Rules. SO ORDERED by Judge William J. Martinez on 11/7/2013. Text Only Entry(wjmsec, ) (Entered: 11/07/2013)
28 NOTICE of Filing of Certified Administrative Record by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Index of Administrative Record, # 2 Certification of Administrative Record)(Bennett, Michelle) (Entered: 11/08/2013)
29 BRIEF in Opposition to 15 MOTION for Preliminary Injunction filed by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 11/08/2013)
30 MOTION to Dismiss , MOTION for Summary Judgment by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 11/08/2013)
31 MOTION to File Amicus Brief by Amicus American Civil Liberties Union. (Amiri, Brigitte) (Entered: 11/08/2013)
32 ORDER: This matter is before the Court on 31 the American Civil Liberties Union and American Civil Liberties Union of Colorado's Motion to Participate as Amici Curiae and Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction 15 and in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment 30 . The Motion to Participate as Amici Curiae is GRANTED. Amici's Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction and in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment is ACCEPTED as filed. SO ORDERED by Judge William J. Martinez on 11/12/2013. Text Only Entry(wjmsec, ) (Entered: 11/12/2013)

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 7 of 13

11/12/2013 11/13/2013 11/15/2013 11/15/2013
11/15/2013 11/22/2013 11/22/2013 11/22/2013 11/22/2013

34 Conventionally Filed ADMINISTRATIVE RECORD (Text Only Entry − Available in other format at the Clerk's Office) by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury.(3 CD's placed in oversized documents) (ervsl, ) (Modified on 11/14/2013 Conventionally filed documents)(ervsl, ). (Entered: 11/13/2013)
33 ORDER: This matter is before the Court on Defendants' 30 Motion to Dismiss or, in the Alternative, for Summary Judgment. To permit the Court to consider the merits of the Motion to Dismiss in conjunction with Plaintiff's Motion for Preliminary Injunction, the Court hereby SETS the following briefing schedule: Plaintiff's response to the Motion shall be filed by November 22, 2013, Defendants may reply no later than November 29, 2013. SO ORDERED by Judge William J. Martinez on 11/13/2013. Text Only Entry (wjmlc1, ) (Entered: 11/13/2013)
35 Unopposed MOTION for Extension of Time to File Response/Reply as to 19 MOTION to Certify Class and Memdorandum in Support by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 11/15/2013)
36 ORDER granting 35 Defendants' Unopposed Motion for Extension of Time to Respond to Plaintiffs' Motion for Class Certification 19 . The Defendants' Motion is GRANTED for good cause shown. Defendants' deadline to file their Response to Plaintiffs' Motion is extended up to and including sixty days after the Court resolves Plaintiffs' pending Motion for Preliminary Injunction 15 and Defendants' pending Motion to Dismiss, or in the Alternative, for Summary Judgment 30 . SO ORDERED by Judge William J. Martinez on 11/15/2013. Text Only Entry(wjmsec, ) (Entered: 11/15/2013)
37 REPLY IN SUPPORT of 15 Motion for Preliminary Injunction by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Attachments: # 1 Exhibit M Mother Loraine Supplemental Declaration, # 2 Exhibit N Brother Quirk Supplemental Declaration, # 3 Exhibit O Self−Certification Form)(Rienzi, Mark) (Modified on 11/18/2013 edited the title of the text to reflect the title of the document filed) (ervsl, ). (Entered: 11/15/2013)
38 Motion for Leave to File Supplemental Authority in Support of re: 15 MOTION for Preliminary Injunction by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc. (Attachments: # 1 Exhibit Zubik v. Sebelius)(Rienzi, Mark) Modified on 11/22/2013 to correct event and title (dkals, ). (Entered: 11/22/2013)
39 ORDER denying without prejudice Plaintiffs' Motion for Leave to File Supplement Authority in Support of their Motion for Preliminary Injunction 38 . Plaintiffs' Motion is DENIED for failure meaningfully to comply with D.C.COLO.LCivR 7.1A. See Hoelzel v. First Select Corp., 214 F.R.D. 634 (D. Colo. 2003). SO ORDERED by Judge William J. Martinez on 11/22/2013. Text Only Entry(wjmsec, ) (Entered: 11/22/2013)
40 Unopposed MOTION for Leave to file Supplemental Authority in Support of 15 Motion for Preliminary Injunction by Plaintiffs Christiam Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc. (Attachments: # 1 Exhibit Zubik v. Sebelius)(Rienzi, Mark) (Modified on 11/25/2013 edited the title of the text to reflect that this is a motion)(ervsl, ). (Entered: 11/22/2013)
41 OBJECTIONS to 30 MOTION to Dismiss MOTION for Summary Judgment PLAINTIFFS' RULE 56(d) MOTION by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Attachments: # 1 Exhibit 1 − Declaration of Mark Rienzi, # 2 Exhibit Exh. A to Declaration of Mark Rienzi, # 3 Exhibit Exh. B to Declaration of Mark Rienzi, # 4 Exhibit Exh. C to Declaration of Mark Rienzi, # 5 Exhibit Exh. D to Declaration of Mark Rienzi, # 6 Exhibit 2 − Second Supplemental Declaration of Brother Michael Quirk, # 7 Exhibit

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 8 of 13

11/22/2013 11/25/2013 11/27/2013 12/06/2013 12/17/2013 12/18/2013 12/18/2013 12/18/2013
12/18/2013 12/20/2013

Exh. A to Second Supplemental Declaration of Brother Michael Quirk)(Scherz, Carl) (Entered: 11/22/2013)
42 BRIEF in Opposition to 30 MOTION to Dismiss MOTION for Summary Judgment filed by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Attachments: # 1 Affidavit Rienzi Authentication Decl., # 2 Exhibit P_Robertson & Collins Survey, # 3 Exhibit Q_Cohen Deposition Excerpt, # 4 Exhibit R_Brother Quirk MSJ Suppl. Decl.)(Blomberg, Daniel) (Entered: 11/22/2013)
43 ORDER granting 40 Plaintiffs' Unopposed Motion for Leave to File Supplemental Authority in Support of their Motion for Preliminary Injunction. The Plaintiffs' Motion is GRANTED for good cause shown. The Court will consider the referenced supplemental authority [40−1] when it rules on Plaintiffs' Motion for Preliminary Injunction. SO ORDERED by Judge William J. Martinez on 11/25/2013. Text Only Entry(wjmsec, ) (Entered: 11/25/2013)
44 REPLY to Response to 30 MOTION to Dismiss MOTION for Summary Judgment filed by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 11/27/2013)
45 RESPONSE to 41 Objections,,, Defendants' Opposition to Plaintiffs' Rule 56(d) Motion by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 12/06/2013)
46 MOTION for Leave to File Supplemental Authority In Support of 15 MOTION for Preliminary Injunction by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Attachments: # 1 Exhibit)(Rienzi, Mark) (Entered: 12/17/2013)
47 ORDER granting 46 Plaintiffs' Motion for Leave to File Supplemental Authority in Support of their Motion for Preliminary Injunction. The Plaintiffs' Motion is GRANTED for good cause shown. The Court will consider the referenced supplemental authority [46−1] when it rules on Plaintiffs' Motion for Preliminary Injunction. SO ORDERED by Judge William J. Martinez on 12/18/2013. Text Only Entry(wjmsec, ) (Entered: 12/18/2013)
48 MOTION for Leave to File Supplemental Authority In Support of 15 MOTION for Preliminary Injunction by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Attachments: # 1 Exhibit)(Rienzi, Mark) (Entered: 12/18/2013)
49 ORDER: This matter is before the Court sua sponte. The Court is aware that Plaintiff's counsel is challenging the ACA's exemption for "eligible organizations" in courts across the country, as evidenced by the repeated submission of supplemental authority [40−1] [46−1]. The Court has reviewed the supplemental authority received thus far and will consider it in ruling on the pending motions. However, the Court finds that additional supplemental authority is not necessary and will no longer be accepted. The parties are advised that the Court will issue a ruling on the pending motions shortly. SO ORDERED by Judge William J. Martinez on 12/18/2013. Text Only Entry (wjmlc1, ) (Entered: 12/18/2013)
50 ORDER denying Plaintiffs' 48 Motion for Leave to File Supplemental Authority. Plaintiffs' Motion is DENIED based on this Court's Order of today which states that "additional supplemental authority is not necessary and will no longer be accepted."(ECF No. 49). SO ORDERED by Judge William J. Martinez on 12/18/2013. Text Only Entry(wjmsec, ) (Entered: 12/18/2013)
51 REPLY to Response to 30 MOTION to Dismiss MOTION for Summary Judgment −−PLAINTIFFS' REPLY IN SUPPORT OF RULE 56(D) MOTION (DKT 41) filed by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 9 of 13

12/27/2013 12/27/2013 12/27/2013 12/27/2013 12/28/2013 12/28/2013 12/31/2013 12/31/2013 12/31/2013 12/31/2013 01/06/2014

Poor, Baltimore, Inc.. (Attachments: # 1 Exhibit 1)(Scherz, Carl) (Entered: 12/20/2013)
52 ORDER Plaintiffs Motion for Preliminary Injunction ECF No. 15 is DENIED; Defendants Motion to Dismiss, or in the alternative, for Summary Judgment ECF No. 30 is DENIED to the extent it seeks dismissal of this case for lack of standing. The Court RESERVES RULING on the remainder of the issues raised in the Motion to Dismiss, by Judge William J. Martinez on 12/27/2013.(ervsl, ) (Entered: 12/27/2013)
53 NOTICE OF APPEAL as to 52 Order on Motion to Dismiss,, Order on Motion for Preliminary Injunction, by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc. (Filing fee $ 505, Receipt Number 1082−3675045) (Blomberg, Daniel) (Entered: 12/27/2013)
55 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust to the U.S. Court of Appeals. (Retained Counsel, Fee paid,) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(dbrow, ) (Entered: 12/30/2013)
56 USCA Case Number 13−1540 for 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust. (dbrow, ) (Entered: 12/30/2013)
54 MOTION for Preliminary Injunction Pending Appeal by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Roberts, Seth) (Modified on 1/7/2014 Motion re−instated pursuant to the Request from the Magistrate Judge chambers)(ervsl, ). (Entered: 12/28/2013)
57 ORDER of USCA as to 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust. Appellees shall file a response to the motion no later than 12:00 P.M. (noon) MST on Monday, December 30, 2013. (USCA Case No. 13−1540) (dbrow, ) (Entered: 12/30/2013)
58 BRIEF in Opposition to 54 MOTION for Preliminary Injunction Pending Appeal filed by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 12/31/2013)
59 Unopposed MOTION for Leave to File Supplemental Authority re: 58 Brief in Opposition to Motion, by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Little Sisters of the Poor v. Sebelius (10th Cir.))(Bennett, Michelle) (Entered: 12/31/2013)
60 ORDER granting 59 Defendants' Unopposed Motion for Leave to File Supplemental Authority in Opposition to Plaintiffs' Motion for Injunction Pending Appeal 54 . The Defendants' Motion is GRANTED for good cause shown. The Court will consider the referenced supplemental authority [59−1] when it rules on Plaintiffs' Motion for Preliminary Injunction Pending Appeal. SO ORDERED by Judge William J. Martinez on 12/31/2013. Text Only Entry(wjmsec, ) (Entered: 12/31/2013)
61 USCA ORDER denying Appellate Emergency Motion for Preliminary Injunction filed in the Appellate Court pending appeal on 12/31/13.(dbrow, ) (Modified on 1/7/2014 Edited the text to reflect the Motion was filed in the Appellate Court)(ervsl, ). (Entered: 01/02/2014)
62 RESPONSE PLAINTIFFS' AND DEFENDANTS' JOINT FILING IN RESPONSE TO ORDER SETTING RULE 16(B) SCHEDULING CONFERENCE by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor,

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 10 of 13

01/07/2014 01/14/2014 01/14/2014 01/14/2014 01/29/2014 01/30/2014
01/30/2014 01/30/2014 03/31/2014
12/09/2014

Baltimore, Inc.. (Scherz, Carl) (Entered: 01/06/2014)
63 ORDER By an Order Doc. # 11 entered on October 11, 2013, I set this matter for a scheduling conference on January VACATED; The plaintiffs shall file a status report on or before the earlier of the following: (i) a ruling by the district judge on Plaintiffs Motion for Injunction Pending Appeal Doc. # 54 ; or (ii) April 7, 2014, by Magistrate Judge Boyd N. Boland on 1/7/2014. (ervsl, ) (Entered: 01/07/2014)
64 TRANSCRIPT ORDER FORM re 53 Notice of Appeal, by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc. (Blomberg, Daniel) (Entered: 01/14/2014)
65 LETTER TO USCA and all counsel certifying the record is complete as to 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust. A transcript order form was filed stating that a transcript is not necessary. (Appeal No. 13−1540) Text Only Entry (dbrow, ) (Entered: 01/14/2014)
66 REPLY to Response to 54 MOTION for Preliminary Injunction Pending Appeal PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION FOR INJUNCTION PENDING APPEAL filed by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Scherz, Carl) (Entered: 01/14/2014)
67 Letter (Order) from Supreme Court of the United States re 54 MOTION for Preliminary Injunction Pending Appeal. (evana, ) (Entered: 01/29/2014)
68 ORDER: This matter is before the Court on 54 Plaintiffs' Motion for Injunction Pending Appeal. The United States Supreme Court has ordered that Defendants are enjoined from enforcing the Mandate if Plaintiffs submit a written statement indicating that they hold themselves out as religious organizations and have religious objections to providing coverage for contraceptive services. The Supreme Court's Order explicitly states that Plaintiffs will not be required to use the form prescribed by the Government, and are not required to submit their written notice to any third party. Because the Supreme Court has effectively granted Plaintiffs the injunctive relief they seek in the instant Motion, the Court DENIES the Motion for Injunction Pending Appeal AS MOOT. SO ORDERED by Judge William J. Martinez on 1/30/2014. Text Only Entry(wjmlc1, ) (Entered: 01/30/2014)
69 ORDER: This matter is before the Court on 53 Notice of Appeal. Plaintiffs have appealed to the United States Court of Appeals for the Tenth Circuit this Court's denial of Plaintiffs' Motion for Preliminary Injunction. Pursuant to D.C.COLO.LCivR 41.2., the Court ORDERS that the above−captioned case be ADMINISTRATIVELY CLOSED. The parties may seek leave to reopen this case, for good cause shown, once the pending appeal has been resolved. SO ORDERED by Judge William J. Martinez on 1/30/2014. Text Only Entry (wjmlc1, ) (Entered: 01/30/2014)
70 Civil Case Terminated pursuant to the Order 69 Administratively Closing case on 1/30/2013. Text Only Entry (evana, ) (Entered: 01/30/2014)
71 ORDER of USCA as to 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust. ORDER denying the government's motion to consolidate appeals. Appeal numbers 14−6026 and 14−6028 will brief separately and will have separate appendices. The separate briefing will apply to the opening briefs, the response brief, and the optional reply brief. Likewise, the appeals will not be joined for a single oral argument hearing. The court will decide at a later date whether the same panel of judges will hear the matters, and will also determine how and when oral argument will proceed. Those issues remain for consideration. (USCA Case No. 13−1540) (dbrow, ) (Entered: 04/01/2014)
72 ORDER of USCA as to 53 Notice of Appeal: These matters are before the 10th Circuit, motions from two members of the media seeking access to the oral argument recording from the hearing held on 12/8/2014. Upon consideration, the motions are granted. (USCA Case No. 13−1540) (alowe) (Entered: 12/09/2014)

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 11 of 13

07/14/2015 07/14/2015 07/24/2015 11/10/2015 02/09/2016 06/17/2016
05/14/2018 05/16/2018 05/18/2018 05/29/2018

73 USCA Opinion as to 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust : Affirmed and Reversed (USCA Case No. 13−1540) (This document is not the Mandate) (cthom, ) (Entered: 07/14/2015)
74 VACATED USCA Judgment as to 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust : (USCA Case No. 13−1540) (This document is not the Mandate) (cthom, ) (Modified on 6/17/2016 Vacated pursuant to the 78 Order of 6/17/2016)(evana, ). (Entered: 07/14/2015)
75 Letter from U.S. Supreme Court regarding Petition for Writ of Certiorari re 53 Notice of Appeal, ; assigned Supreme Court No. 15−105 ( Appeal No. 13−1540) (cthom, ) (Entered: 07/24/2015)
76 Letter from U.S. Supreme Court regarding Petition for Writ of Certiorari re 53 Notice of Appeal, ; assigned Supreme Court No. 15−105 ( Appeal No. 13−1540) (cthom, ) (Entered: 11/10/2015)
77 Letter from U.S. Supreme Court regarding Petition for Writ of Certiorari re 53 Notice of Appeal, ; assigned Supreme Court No. 15−105 ( Appeal No. 13−1540) (cthom, ) (Entered: 02/09/2016)
78 ORDER of USCA as to 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust. The Supreme Court of the United States entered a judgment on May 16, 2016 reversing the judgment of this court and remanding the cause for further proceedings. Upon further consideration, the judgment of this court filed July 14, 2015 is vacated. Counsel will be notified if this court desires further briefing prior to disposition of this appeal upon remand. (USCA Case No. 13−1540) (evana, ) (Entered: 06/17/2016)
79 ORDER of USCA as to 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust. (USCA Case No. 13−1540) (angar, ) (Entered: 05/16/2018)
80 Unopposed MOTION to Reopen Case and for Entry of Permanent Injunction and Declaratory Relief by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Attachments: # 1 Proposed Order (PDF Only))(Rienzi, Mark) (Entered: 05/16/2018)
81 RESPONSE to 80 Unopposed MOTION to Reopen Case and for Entry of Permanent Injunction and Declaratory Relief filed by Defendants Jacob J. Lew, Kathleen Sebelius, Thomas E. Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 05/18/2018)
82 ORDER REOPENING CASE AND GRANTING PERMANENT INJUNCTION. ORDERED: 1. Plaintiffs' Unopposed Motion to Reopen Proceedings and for Entry of Permanent Injunction and Declaration 80 is GRANTED. 2. This case is REOPENED pursuant to D.C.COLO.LCivR 41.2. 3.The Court issues the following PERMANENT INJUNCTION: Defendants, their agents, officers, employees, and all successors in office are enjoined and restrained from any effort to apply or enforce the substantive requirements of 42 U.S.C. § 300gg−13(a)(4) and any implementing regulations as those requirements relate to the provision of sterilization or contraceptive drugs, devices, or procedures and related education and counseling to which Plaintiffs have sincerely−held religious objections, and are enjoined and restrained from pursuing, charging, or assessing penalties, fines, assessments, or other enforcement actions for noncompliance related thereto, including those in 26 U.S.C. §§ 4980D and 4980H, and 29 U.S.C. §§ 1132 and 1185d, and including, but not limited to, penalties for failure to offer or facilitate access to religiously−objectionable sterilization or contraceptive drugs, devices, or procedures, and related education and counseling, against Plaintiffs, all current and future participating employers in the Christian Brothers Employee Benefit Trust Plan, and any−third party administrators acting on behalf of these

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 12 of 13

05/29/2018 06/11/2018 06/12/2018
06/26/2018 06/26/2018
06/26/2018 06/26/2018 07/26/2018 07/27/2018 08/22/2018 08/23/2018
09/27/2018

entities with respect to the Christian Brothers Employee Benefit Trust Plan, including Christian Brothers Services. Defendants remain free to enforce 26 U.S.C. § 4980H for any purpose other than to require Plaintiffs, other employers participating in the Christian Brother Employee Benefit Trust Plan, and third−party administrators acting on their behalf, to provide or facilitate the provision of sterilization or contraceptive drugs, devices, or procedures, and related education and counseling, or to punish them for failing to do so. 4. The Clerk shall enter judgment in favor of Plaintiffs and against Defendants, and shall terminate this case. Plaintiffs shall have their costs upon compliance with D.C.COLO.LCivR 54.1., by Judge William J. Martinez on 5/29/2018. (dhans, ) (Entered: 05/29/2018)
83 FINAL JUDGMENT. re: 82 , by clerk on 5/29/2018. (dhans, ) (Entered: 05/29/2018)
84 Unopposed MOTION for Extension of Time to File a Bill of Costs and Motion for Attorney's Fees by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Rienzi, Mark) (Entered: 06/11/2018)
85 ORDER granting Plaintiffs' Unopposed Motion to Extend Deadlines for Bill of Costs and Motion for Attorney's Fees 84 . Plaintiffs are granted leave, for good cause shown, to file their Bill of Costs and Motion for Attorney's Fees on or before July 3, 2018. SO ORDERED by Judge William J. Martinez on 6/12/2018. Text Only Entry (wjmsec, ) (Entered: 06/12/2018)
86 Unopposed MOTION for Extension of Time to file Bill of Costs and Motion for Attorney's Fees by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Rienzi, Mark) (Entered: 06/26/2018)
87 ORDER granting Plaintiffs' Unopposed Motion to Extend Deadlines for Bill of Costs and Motion for Attorney's Fees 86 . Plaintiffs are granted leave, for good cause shown, to file their Bill of Costs and Motion for Attorney's Fees on or before July 31, 2018. SO ORDERED by Judge William J. Martinez on 6/26/2018. Text Only Entry (wjmsec, ) (Entered: 06/26/2018)
88 ORDER of USCA as to 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust. (USCA Case No. 13−1540) (angar, ) (Entered: 06/27/2018)
89 MANDATE of USCA as to 53 Notice of Appeal, filed by Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Employee Benefit Trust : (USCA Case No. 13−1540) (angar, ) (Entered: 06/27/2018)
90 Unopposed MOTION for Extension of Time to file Bill of Costs and motion for attorney's fees by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Rienzi, Mark) (Entered: 07/26/2018)
91 ORDER granting Unopposed Motion to Extend Deadlines for Bill of Costs and Motion for Attorney's Fees 90 . Plaintiffs are granted leave, for good cause shown, to file said Response on or before August 31, 2018. SO ORDERED by Judge William J. Martinez on 7/27/2018. Text Only Entry (wjmsec, ) (Entered: 07/27/2018)
92 Unopposed MOTION for Extension of Time to file a Bill of Costs and Motion for Attorney's Fees by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Rienzi, Mark) (Entered: 08/22/2018)
93 ORDER granting Plaintiffs' Unopposed Motion to Extend Deadlines for Bill of Costs and Motion for Attorney's Fees 92 . Plaintiffs are granted leave, for good cause shown, to file their Bill of Costs and Motion for Attorney's Fees on or before October 1, 2018. SO ORDERED by Judge William J. Martinez on 8/22/2018. Text Only Entry (wjmsec, ) (Entered: 08/23/2018)
94 Unopposed MOTION for Extension of Time to File Motion for Bill of Costs and for Attorney's Fees by Plaintiffs Christian Brothers Employee Benefit Trust, Christian

Case: 1:13-cv-2611 As of: 12/02/2019 08:19 AM MST 13 of 13

09/27/2018 11/27/2018 11/27/2018 01/28/2019

Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Rienzi, Mark) (Entered: 09/27/2018)
95 ORDER granting Plaintiffs' Unopposed Motion to Extend Deadlines for Bill of Costs and Motion for Attorney's Fees 94 . Plaintiffs are granted leave, for good cause shown, to file their Bill of Costs and Motion for Attorney's Fees on or before November 30, 2018. SO ORDERED by Judge William J. Martinez on 9/27/2018. Text Only Entry (wjmsec, ) (Entered: 09/27/2018)
96 Unopposed MOTION for Extension of Time to file Bill of Costs and Motion for Attorney's Fees by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc.. (Rienzi, Mark) (Entered: 11/27/2018)
97 ORDER granting Plaintiffs' Unopposed Motion to Extend Deadlines for Bill of Costs and Motion for Attorney's Fees 96 . Plaintiffs are granted leave, for good cause shown, to file their Bill of Costs and Motion for Attorney's Fees on or before January 29, 2019. NO FURTHER EXTENSIONS OF THESE DEADLINES WILL BE GRANTED. SO ORDERED by Judge William J. Martinez on 11/27/2018. Text Only Entry (wjmsec, ) (Entered: 11/27/2018)
98 NOTICE by Plaintiffs Christian Brothers Employee Benefit Trust, Christian Brothers Services, Little Sisters of the Poor Home for the Aged, Denver, Colorado, Little Sisters of the Poor, Baltimore, Inc. (Rienzi, Mark) (Entered: 01/28/2019)

 
 (ORDER LIST: 577 U. S.)

FRIDAY, NOVEMBER 6, 2015

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

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

1

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

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

May 16, 2016

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

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

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

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

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

(Slip Opinion)

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

1

Per Curiam

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

SUPREME COURT OF THE UNITED STATES
_________________

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

DAVID A. ZUBIK, ET AL., PETITIONERS

14–1418

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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


PRIESTS FOR LIFE, ET AL., PETITIONERS

14–1453

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.;

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


ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,

ET AL., PETITIONERS

14–1505

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.;

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


EAST TEXAS BAPTIST UNIVERSITY, ET AL., 
 PETITIONERS 


2

ZUBIK v. BURWELL

Per Curiam

15–35

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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

LITTLE SISTERS OF THE POOR HOME FOR 


THE AGED, DENVER, COLORADO, ET AL., 


PETITIONERS 


15–105

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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

SOUTHERN NAZARENE UNIVERSITY, ET AL.,

PETITIONERS

15–119

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.; AND

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

GENEVA COLLEGE, PETITIONER

15–191

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

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

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

3

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

4

ZUBIK v. BURWELL

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

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

5

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

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

1

SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

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

DAVID A. ZUBIK, ET AL., PETITIONERS

14–1418

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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


PRIESTS FOR LIFE, ET AL., PETITIONERS

14–1453

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.;

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


ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,

ET AL., PETITIONERS

14–1505

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.;

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


EAST TEXAS BAPTIST UNIVERSITY, ET AL.,

PETITIONERS

15–35

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

2

ZUBIK v. BURWELL

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


LITTLE SISTERS OF THE POOR HOME FOR 


THE AGED, DENVER, COLORADO, ET AL., 


PETITIONERS 


15–105

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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


SOUTHERN NAZARENE UNIVERSITY, ET AL.,

PETITIONERS

15–119

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.; AND

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


GENEVA COLLEGE, PETITIONER

15–191

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

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

[May 16, 2016]


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

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

3

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

4

ZUBIK v. BURWELL

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