ETERNAL WORD TELEVISION NETWORK, INC., and..., 2013 WL 5785974...
2013 WL 5785974 (S.D.Ala.) (Trial Pleading) United States District Court, S.D. Alabama.
ETERNAL WORD TELEVISION NETWORK, INC., and State of Alabama, Plaintiffs, v.
Kathleen SEBELIUS, Secretary of the United States Department of Health and Human Services, United States Department of health and Human Services, Thomas perez, Secretary of the United States Department of Labor, United States department of Labor, Jacob Lew, Secretary of the United States Department of the Treasury, and
United States department of the Treasury, Defendants.
No. 13-CV-521. October 28, 2013.
Jury Trial Demanded
Complaint
S. Kyle Duncan, LA Bar No. 25038, Lori H. Windham, VA Bar No. 71050, Daniel Blomberg, KS Bar No. 23723, The Becket Fund for Religious Liberty, 3000 K Street Nw, Suite 220, Washington, DC 20007, Tel.: (202) 955-0095, Fax: (202) 955-0090, kduncan@becketfund.org, lwindham@becketfund.org, dblomberg @becketfund.org, Counsel for Plaintiff Ewtn, Inc.
Luther Strange, (ASB-0036-G42l), Alabama Attorney General, Andrew L. Brasher (ASB-4325-W73B), Alabama Deputy Solicitor General, William G. Parker, Jr. (ASB-5142-I72P), Assistant Attorney General, Office Of the Attorney General, 501 Washington Avenue, Montgomery, Alabama 36130, Telephone: (334) 242-7300, Facsimile: (334) 353-8440, abrasher@ago.state.al.us, wparker @ago.state.al.us, Attorneys for Plaintiff the State of Alabama.
COMPLAINT
Come now Plaintiffs Eternal Word Television Network, Inc., (“EWTN”), and the State of Alabama, by and through their attorneys, and state as follows:
NATURE OF THE ACTION
1. This is a challenge to regulations (the “Mandate”) issued under the Patient Protection and Affordable Care Act which seek to encourage the use of contraception and sterilization by requiring employer health insurance to cover these services for free. The mandated coverage includes “emergency contraceptives” which cause early abortions.
2. Plaintiff EWTN was founded 32 years ago by a cloistered nun and has become the largest Catholic media network in the world. In obedience to Catholic teaching, EWTN cannot facilitate contraception, sterilization, or abortion. Indeed, EWTN believes these procedures-far from constituting “health care” or “preventive services”-instead involve gravely immoral practices, including the intentional destruction of innocent human life. Consequently, EWTN cannot participate in the Mandate’s scheme without violating its beliefs and publicly contradicting its mission of “communicat[ing] the teachings and beauty of the Catholic Church.”
3. EWTN qualifies for no exemption from the Mandate. While “religious employers” are exempt, Defendants have limited that term only to churches, their integrated auxiliaries, and religious orders.
4. The final version of the Mandate does offer EWTN-and other non-exempt organizations--a so-called “accommodation.” 1

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This is a mere fig leaf. It would still require EWTN to play a central role in the government’s scheme by “designating” a fiduciary to pay for the objectionable services on EWTN’s behalf. This would do nothing to assuage EWTN’s objections to the Mandate.
5. The so-called “accommodation” also continues to treat EWTN as a second-class religious organization, not entitled to the same religious freedom rights as the Church it exists to serve. It also creates administrative hurdles and other difficulties for EWTN, forcing it to seek out and contract with companies willing to provide the very drugs and services that EWTN speaks out against.
6. If EWTN does not compromise its religious convictions and comply with the Mandate, however, it faces severe penalties that could exceed $12 million per year.
7. The State of Alabama has a sovereign prerogative to regulate its insurance market in accordance with its own law and policy, without being contradicted by unlawful federal regulations. The Mandate imposes immediate and continuing burdens on the State of Alabama and its citizens. The Mandate-if it were lawful-would preempt Alabama’s comprehensive body of regulation of the benefits that health insurance plans must provide.
8. Defendants have violated the Religious Freedom Restoration Act, as well as the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment of the United States Constitution, the Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act. Plaintiffs therefore respectfully request declaratory and permanent injunctive relief.
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).
IDENTIFICATION OF PARTIES
11. Plaintiff EWTN is a non-profit corporation organized under section 501(c)(3) of the Internal Revenue Code and is principally located in Jefferson County, Alabama.
12. Plaintiff State of Alabama is a sovereign State of the United States of America by and through Attorney General Luther Strange, who may bring this action on behalf of the State. SeeAla. Code § 36-15-12.
13. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the challenged regulations.
14. 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. Sebelius is sued in her official capacity only.
15. Defendant 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.
16. Defendant Thomas 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. Perez is sued in his official capacity only.
17. Defendant 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.
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18. Defendant Jacob Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Lew is sued in his official capacity only.
19. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations.
FACTUAL ALLEGATIONS
I. EWTN’s Religious Beliefs and Practices Related to Contraception, Sterilization, and Abortion.
20. In 1981, Mother M. Angelica, a cloistered nun of the Poor Clares of Perpetual Adoration order, founded EWTN on the property of Our Lady of Angels Monastery in Irondale, Alabama. Since then, EWTN has become the largest Catholic media network in the world, transmitting programming twenty-four hours a day in English, Spanish, German, and other language channels on over eleven full-time television feeds to more than 230 million homes in 144 countries and territories on more than 5,000 multichannel video programming distribution systems, two distinct twenty-four hour radio services broadcast worldwide on shortwave radio, satellite radio, direct over internet, and through more than 230 affiliated broadcast stations in the United States as well as other communications media, such as its principal website which receives approximately 3 million visits per month.
21. EWTN airs family and religious programming from a Catholic point of view that presents the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church. Additionally, it provides spiritual devotions based on Catholic religious practice, and airs daily live Masses and prayers. Providing more than 80% original programming, EWTN also offers talk shows, children’s animation, teaching series, documentaries, and live coverage of Catholic Church events. EWTN also has an internal printing press, which it uses to mail out newsletters that feature Catholic teaching.
22. A deep devotion to the Catholic faith is central to EWTN’s mission. In the network’s own words: Eternal Word Television Network is dedicated to the advancement of truth as defined by the Magisterium of the Roman Catholic Church. The mission of the Eternal Word Television Network is to serve the orthodox belief and teaching of the Church as proclaimed by the Supreme Pontiff and his predecessors. The goal of the Eternal Word Television Network is to provide the means by which the various organizations within the Church will have a nation-wide vehicle of expression. This will be provided for them without charge as long as their spirituality remains within the theological context of Mother Church. This is best evidenced by the acceptance of the Dogmas, Rules and Regulations of the Church in all matters, but especially as they relate to the topics on which their television presentation is based. As the Eternal Word Television Network exists to provide a media for orthodox endeavors, this mission statement should be viewed as the basis of or foundation for this essential spiritual growth ministry, not as an attempt to censor any organization or individual[.]
Indeed, above and beyond EWTN’s religious programming, the network’s religious centers themselves are visited daily by pilgrims who travel to worship at the daily Masses held at the chapel on EWTN’s campus in Irondale, Alabama. The chapel is open every day from 6:00 AM to 9:00 PM. EWTN’s principal campus houses an order of Franciscan friars near the EWTN chapel, who work closely with EWTN in a number of its activities, including celebrating Mass at the chapel.
23. The EWTN grounds highlight religious devotion and include an outdoor shrine, a Stations of the Cross devotional area, private prayer areas, and religious statues throughout.
24. Almost every room within EWTN buildings features religious images and icons, including crucifixes, depictions of the Pietà, paintings of saints, and Bible verses and prayers.
25. This is also generally true of employee-controlled spaces. Employees are permitted to decorate their own work places, 3

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and a large number have heavily adorned the spaces with pictures of Catholic saints, prayers, and religious icons.
26. EWTN holds and actively professes religious beliefs that include traditional Christian teachings on the sanctity of life. It believes and teaches that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious from the moment of conception. EWTN therefore believes and teaches that abortion ends a human life and is a grave sin.
27. EWTN’s religious beliefs also include traditional Christian teaching on the nature and purpose of human sexuality, beliefs which exclude the use of contraceptive drugs and devices as well as voluntary sterilization methods. In particular, EWTN believes, in accordance with traditional Catholic doctrine as articulated and confirmed by Pope Paul VI’s 1968 encyclical Humanae Vitae, that human sexuality has two primary purposes: to “most closely unit[e] husband and wife” and “for the generation of new lives.” Accordingly, EWTN believes and actively professes, with the Catholic Church, that “[t]o use this divine gift destroying, even if only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to contradict also the plan of God and His Will.” Therefore, EWTN believes and teaches that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”-including contraception and sterilization-is a grave sin.
28. Furthermore, EWTN subscribes to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, EWTN believes, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “ ‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.” EWTN likewise believes and teaches that sterilization and contraceptives are not properly understood as health care, since pregnancy and the natural process of human reproduction are not diseases to be cured.
29. On numerous occasions, EWTN has publicly proclaimed the foregoing moral precepts as authentic and binding Catholic doctrine through its television, radio, and internest transmissions. EWTN will continue to do so.
30. EWTN has approximately 350 employees.
31. As part of its commitment to Catholic social teaching, EWTN promotes the well-being and health of its employees and their families. In furtherance of these beliefs, EWTN has striven over the years to provide employee health coverage superior to coverage generally available in the Alabama market.
32. Moreover, as part of its religious commitment to the authoritative teachings of the Catholic Church, EWTN cannot facilitate access to health care insurance-or any form of payment, whether or not denominated “insurance coverage”-that covers artificial contraception, sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs and without publicly contradicting the same Catholic doctrine that EWTN routinely proclaims through its television, radio, and internet transmissions.
33. EWTN ensures that its insurance plan does not cover or otherwise facilitate access to drugs, devices, services or procedures inconsistent with its faith. In particular, EWTN has taken great pains through the years to ensure that its insurance plans do not cover, or in any way facilitate access to, sterilization, contraception, or abortion.
34. EWTN cannot provide information or guidance to its employees about other locations or means through which they can access artificial contraception, sterilization, abortion, or related education and counseling, without violating its deeply held religious beliefs and without publicly contradicting its own mission. Many of EWTN’s employees choose to work at EWTN because they share its religious beliefs and wish to help EWTN further its mission of sharing Catholic teaching. EWTN would violate their implicit trust in the organization and detrimentally alter its relationship with its employees if it were to violate its religious beliefs regarding abortion, sterilization and contraception.
35. Furthermore, EWTN exists on donations from the public. EWTN does not generate revenue from carriage fees and advertising, and indeed prohibits any form of commercial advertising on its television services. Donors who give to EWTN do so with an understanding of EWTN’s mission and with the assurance that EWTN will continue to adhere to, disseminate,
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and report reliable Catholic teachings on morality and practices, as its Mission Statement has declared since its inception.
36. Therefore EWTN cannot operate in a manner known to be morally repugnant to its donors and in ways that violate the implicit trust of the purpose of their donations.
II. The State of Alabama’s regulation of health insurance plans
37. The State of Alabama regulates health insurance plans through a comprehensive system of laws, which requires that plans cover certain services, such as mammograms, and not others, such as abortifacients. For example, any health benefit plan that offers prescription drug benefits must comply with Ala. Code Sections 27-1-21 and 27-1-22 and Section 27-45-1, et seq., which expressly provide that those plans do not have to cover any contraceptive or abortifacient drugs and devices, or any counseling or education associated with them. All health policies providing coverage on an expense-incurred basis shall provide benefits for newborn children per Section 27-19-38. Every health insurance benefit plan which provides coverage for surgical services for a mastectomy must comply with Section 27-50-1, et seq. Every health insurance benefit plan that provides maternity coverage must comply with Section 27-48-1, et seq. Certain health benefit plans shall offer coverage for annual screening for the early detection of prostate cancer in men over age forty per Section 27-58-1, et seq. Certain health benefit plans shall offer to cover chiropractic services per Section 27-59-1, et seq. These mandates strike an intentional balance between the cost and availability of health insurance; each new mandate requires a cost-benefit calculation because, in the aggregate, mandates drive up the cost of health insurance and make it less affordable.
38. The State of Alabama imposes the second least number of health insurance mandates of any State and has chosen not to impose a contraception mandate on otherwise heavily-regulated insurance plans. See 4 Compensation and Benefits § 56:32 (July 2012) (list of mandates in Alabama); Victoria Craig Bunce, 2011 Health Insurance Mandates in the States, Executive Summary, Tables 1 & 3. The pharmaceutical insurance coverage article of the Alabama Code expressly “do[es] not mandate that any type of benefits for pharmaceutical services, including without limitation, prescription drugs, be provided by a health insurance policy or an employee benefit plan.” Ala. Code § 27-45-5.
39. Alabama’s government and people also have a long tradition of respect for religious freedom and the right to conscience. For the State’s roughly 200-year history, Alabama’s Constitution has declared-in every iteration-“that the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles.” Ala. Const. art. I, sec. 3 (1901); Ala. Const. art. I, sec. 4 (1875); Ala. Const. art. I, sec. 4 (1865); Ala. Const. art I, sec. 6 (1861); Ala. Const. art. I, sec. 6 (1819). And, in the 1998 election, Alabama voters ratified the Alabama Religious Freedom Amendment (“ARFA”) to the Constitution, which tracks the language and intent of the federal RFRA. See Ala. Const., amend. 622. Alabama is one of only a dozen states that have enacted such a law, and it is the only state to have done so by an amendment to its constitution.
40. In November 2012, the people of Alabama voted to adopt an amendment to the Alabama Constitution to prohibit any person or employer, such as EWTN, from being compelled to participate in a health care system. Amendment 864 to the Alabama Constitution provides in relevant part: “In order to preserve the freedom of all residents of Alabama to provide for their own health care, a law or rule shall not compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” Ala. Const. Amend. No. 864.
41. If lawful, the Mandate would displace Alabama’s regulatory choice and strike a new and different balance between the cost and availability of health insurance.
III. The Affordable Care Act and Preventive Care Mandate
42. In March 2010, Congress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the “Affordable Care Act.”
43. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
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44. One provision of the Act mandates that any “group health plan” or “health insurance issuer offering group or individual health insurance coverage” must “provide coverage” for certain preventive care services. 42 U.S.C. § 300gg-13(a).
45. The services required to be covered include medications, screenings, and counseling given an “A” or “B” rating by the United States Preventive Services Task Force;1 immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention; and “preventive care and screenings” specific to infants, children, adolescents, and women, as to be “provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(1)-(4).

1

The list of services that currently have an “A” or “B” rating include medications like aspirin for preventing cardiovascular disease,

vitamin D, and folic acid; screenings for a wide range of conditions such as depression, certain cancers and sexually-transmitted

diseases, intimate partner violence, obesity, and osteoporitis; and various counseling services, including for breastfeeding,

sexually-transmitted diseases, smoking, obesity, healthy dieting, cancer, and so forth. See http://

www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm (last visited Aug. 25, 2013); see also75 Fed. Reg. 41726, 41740

(2010).

46. The statute specifies that all of these services must be provided without “any cost sharing.” 42 U.S.C. § 300gg-13(a).

The Interim Final Rule
47. On July 19, 2010, HHS2, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726, 41728 (2010). The interim final rule required providers of group health insurance to cover preventive services without cost sharing. 75 Fed. Reg. 41759 (2010).

2

For ease of reading, references to “HHS” in this Complaint refer to all Defendants, unless context indicates otherwise.

48. The interim final rule was enacted without prior notice of rulemaking or opportunity for public comment, because Defendants determined for themselves that “it would be impracticable and contrary to the public interest to delay putting the provisions ... in place until a full public notice and comment process was completed.” 75 Fed. Reg. at 41730.
49. Although Defendants suggested in the Interim Final Rule that they would solicit public comments after implementation, they stressed that “provisions of the Affordable Care Act protect significant rights” and therefore it was expedient that “participants, beneficiaries, insureds, plan sponsors, and issuers have certainty about their rights and responsibilities.” Id.
50. 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.
51. In addition to reiterating the Affordable Care Act’s preventive services coverage requirements, the Interim Final Rule provided further guidance concerning the Act’s restriction on cost sharing.
52. The Interim Final Rule makes clear that “cost sharing” refers to “out-of-pocket” expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41730.
53. The Interim Final Rule acknowledges 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.”)
54. In other words, the prohibition on cost-sharing was simply a way “to distribute the cost of preventive services more equitably across the broad insured population.” 75 Fed. Reg. at 41730.
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55. After the Interim Final Rule was issued, a number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to cover certain kinds of services-specifically, contraception, sterilization, and abortion-in their health care plans.
56. HHS directed a private health policy organization, the Institute of Medicine (“IOM”), to make recommendations regarding which drugs, procedures, and services should be covered by all health plans as preventive care for women. See http://www.hrsa.gov/womensguidelines (attached as Exhibit A) (last visited Oct. 24, 2013).
57. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
58. No religious groups or other groups that oppose government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
59. One year after the first interim final rule was published, on July 19, 2011, the IOM published its preventive care guidelines for women. It recommended that the required preventive services include sterilization procedures and “[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendations 5.5 (July 19, 2011).
60. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B (also known as the “morning-after pill”); and ulipristal (also known as “ella” or the “week-after pill”); and other drugs, devices, and procedures.
61. “Emergency contraceptives” such as Plan B, ella, and certain IUDs can cause the death of an embryo by preventing it from implanting in the wall of the uterus.
62. Indeed, the FDA’s own Birth Control Guide states that both Plan B, ella, and certain IUDs can work by “preventing attachment (implantation) to the womb (uterus).” FDA, Office of Women’s Health, Birth Control Guide at 11-12, http:// www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm (last visited Oct. 24, 2013) (attached as Exhibit B).
63. EWTN has a sincere religious objection to providing coverage for emergency contraceptive drugs such as Plan B, ella, and certain IUDs since those drugs and devices risk preventing a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, thereby causing the death of a human person.
64. EWTN believes that artificially preventing the implantation of a human embryo constitutes an abortion.
65. EWTN believes that Plan B, ella, and certain IUDs can cause the death of the embryo, which EWTN believes to be a person.
66. Plan B, ella, and certain IUDs can prevent the implantation of a human embryo in the wall of the uterus.
67. Thus, Plan B, ella, and certain IUDs can cause the death of the embryo.
68. On August 1, 2011, just thirteen days after the IOM published its recommendations, HRSA issued guidelines adopting the IOM recommendations in full. See Exhibit A, http://www.hrsa.gov/womensguidelines.
The “Religious Employers” Exemption
69. That same day, HHS promulgated an additional Interim Final Rule. 76 Fed. Reg. 46621 (published Aug. 3, 2011). 7

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70. This Second Interim Final Rule granted HRSA “discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed. Reg. 46621, 46623 (emphasis added). The term “religious employer” was restrictively defined as one that (1) has as its purpose the “inculcation of religious values”; (2) “primarily employs persons who share the religious tenets of the organization”; (3) “serves primarily persons who share the religious tenets of the organization”; and (4) “is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46626.
71. The fourth of these requirements refers to “churches, their integrated auxiliaries, and conventions or associations of churches” and the “exclusively religious activities of any religious order.” 26 U.S.C.A. § 6033.
72. Thus, the “religious employers” exemption was severely limited to formal churches and religious orders whose purpose is to inculcate faith and who hire and serve primarily people of their own faith tradition.
73. HRSA exercised its discretion to grant an exemption for religious employers via a footnote on its website listing the Women’s Preventive Services Guideline. 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 Exhibit A at n.**, http://www.hrsa.gov/womensguidelines.
74. Although religious organizations like EWTN share the same religious beliefs and concerns as objecting churches, their integrated auxiliaries, and objecting religious orders, HHS deliberately ignored the regulation’s impact on their religious liberty, stating that the exemption sought only “to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46621, 46623.
75. Thus, the vast majority of religious organizations with conscientious objections to providing contraceptive or abortifacient services were excluded from the “religious employers” exemption.
76. Like the original Interim Final Rule, the Second Interim Final Rule was made effective immediately, without prior notice or opportunity for public comment.
77. Defendants acknowledged that “while a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations,” they had “good cause” to conclude that public comment was “impracticable, unnecessary, or contrary to the public interest” in this instance. 76 Fed. Reg. at 46624.
78. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted opposing the narrow scope of the “religious employers” exemption and protesting the contraception mandate’s gross infringement on the rights of religious individuals and organizations.
79. HHS did not take into account the concerns of religious organizations in the comments submitted before the Second Interim Rule was issued.
80. Instead the Second Interim Rule was unresponsive to the concerns, including claims of statutory and constitutional conscience rights, stated in the comments submitted by religious organizations.3

3

EWTN filed suit against this early version of the Mandate as a sole plaintiff in February 2012. The suit was dismissed without

prejudice on ripeness grounds since the final Mandate had not yet been issued. See EWTN v. Sebelius, Case No. 2:12-cv-501, Dkt.

No. 79 (N.D. Ala. March 25, 2013).

The Safe Harbor 81. The public outcry for a broader religious employers exemption continued for many months and, on January 20, 2012,
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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 Jan. 20, 2012 Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http:// www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited Oct. 24, 2013) (attached as Exhibit C).
82. On February 10, 2012, HHS formally announced a “safe harbor” for non-exempt non-profit religious organizations that objected to covering free contraceptive and abortifacient services.
83. Under the safe harbor, HHS agreed it would not take any enforcement action against an eligible organization during the safe harbor, which would remain in effect until the first plan year beginning after August 1, 2013.
84. HHS also indicated it would develop and propose changes to the regulations to accommodate the objections of non-exempt, non-profit religious organizations following August 1, 2013.
85. Despite the safe harbor and HHS’s accompanying promises, on February 15, 2012, HHS published a final rule “finalizing, without change,” the contraception and abortifacient mandate and the narrow religious employers exemption. 77 Fed. Reg. 8725-01 (published Feb. 15, 2012).
The Advance Notice of Proposed Rulemaking
86. On March 21, 2012, HHS 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. 77 Fed. Reg. 16501, 16503 (2012).
87. The ANPRM conceded that forcing religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient services would infringe the objecting employers’ “religious liberty interests.” Id. (emphasis added).
88. In vague terms, the ANPRM proposed that the “health insurance issuers” for objecting religious employers could be required to “assume the responsibility for the provision of contraceptive coverage without cost sharing.” Id.
89. For self-insured plans, the ANPRM suggested that third party plan administrators “assume this responsibility.” Id.
90. For the first time, and contrary to the earlier definition of “cost sharing,” Defendants suggested in the ANPRM that insurers and third party administrators could be prohibited from passing along their costs to the objecting religious organizations via increased premiums. See id.
91. “[A]pproximately 200,000 comments” were submitted in response to the ANPRM, 78 Fed. Reg. 8456, 8459, largely reiterating previous comments that the ANPRM’s proposals would not resolve conscientious objections because the objecting religious organizations, by providing a health care plan in the first instance, would still be coerced to arrange for and facilitate access to abortifacient services.
The Notice of Proposed Rulemaking
92. On February 1, 2013, HHS issued a Notice of Proposed Rulemaking (NPRM) purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456 (published Feb. 6, 2013).The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8456, 8458-59. First, it proposed revising the religious employers exemption by eliminating the requirements that religious employers have the purpose of inculcating religious values and that they primarily employ and serve only persons of the same faith. 78 Fed. Reg. at 8461.
93. Under this proposal a “religious employer” would be one “that is organized and operates as a nonprofit entity and is
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referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 8461. HHS 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 2012 final rules.” 78 Fed. Reg. 8456, 8461.
94. In other words, religious organizations like EWTN that are not formal churches or religious orders would continue to be excluded from the exemption.
95. Second, the NPRM reiterated HHS’s intention to “accommodate” non-exempt non-profit religious organizations by requiring their insurers and third party administrators to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs and services.
96. The proposed “accommodation” did not resolve the concerns of religious organizations like EWTN because it would continue to force them to deliberately provide health insurance that would trigger access to contraceptives, abortion-inducing drugs, and related education and counseling.
97. In issuing the NPRM, HHS requested comments from the public by April 8, 2013. 78 Fed. Reg. 8457.
98. “[O]ver 400,000 comments” were submitted in response to the NPRM, 78 Fed. Reg. 39870, 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.
99. EWTN submitted comments on the NPRM that stated many of the same objections stated in this complaint.
100. On April 8, 2013, the same day the notice-and-comment period ended, Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University.
101. 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 The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (from 51:20 to 53:56) (last visited Oct. 24, 2013) (emphases added).
102. It is clear from the timing of these remarks that Defendants gave no consideration to the comments submitted in response to the NPRM’s proposed “accommodation.”
The Mandate
103. On June 28, 2013, Defendants issued a final rule (the “Mandate”), which ignores the objections repeatedly raised by religious organizations-including objections raised by EWTN--and continues to co-opt objecting religious employers into the government’s scheme of expanding free access to contraception, sterilization, and abortifacient drugs and devices. 78 Fed. Reg. 39870.
104. Under the Mandate, the discretionary “religious employers” exemption, which is still implemented via footnote on the HRSA website, see Ex. A, http:// www.hrsa.gov/womensguidelines, remains limited to formal churches and religious orders
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“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 39874.
105. All other religious organizations, including EWTN, are excluded from the exemption.
106. The Mandate creates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39874.
107. An organization is eligible for the accommodation if it (1) “opposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a non-profit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874.
108. The self-certification must be executed “prior to the beginning of the first plan year to which the accommodation is to apply.” 78 Fed. Reg. at 39875.
109. The Final Rule extends the current safe harbor through the end of 2013. 78 Fed. Reg. at 39889.
110. 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, and deliver it to the organization’s insurer or, if the organization has a self-insured plan, to the plan’s third party administrator. 78 Fed. Reg. at 39875.
111. By the terms of the accommodation, EWTN will be required to execute the self-certification and deliver it to its plan’s third party administrator before July 1, 2014.
112. The self-certification must instruct the third party administrator of its “obligations set forth in the[] final regulations,” and by delivering this self-certification to its third party administrator, EWTN would “designat[e]” the third party administrator as the “plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed. Reg. at 39879. This triggers the third party administrator’s obligation to make “separate payments for contraceptive services directly for plan participants and beneficiaries.” Id. at 39875-76.
113. EWTN would have to identify its employees to its third party administrator for the distinct purpose of enabling the government’s scheme of facilitating free access to contraceptive and abortifacient services and related education and counseling.
114. The insurer’s and third party administrator’s obligation to make direct payments for contraceptive and abortion services would continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. at 39876.
115. Thus, EWTN would have to coordinate with its 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.
116. The third party administrators would be required to notify 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. 78 Fed. Reg. at 39876.
117. This would also require EWTN to coordinate the notices with its third-party administrator.
118. The third-party administrators would be required to provide the contraceptive benefits “in a manner consistent” with the provision of other covered services. 78 Fed. Reg. at 39876-77.
119. Therefore, any payment or coverage disputes presumably would be resolved under the terms of EWTN’s existing plan documents.
120. Under the accommodation, issuers “may not impose any cost-sharing requirements (such as a copayment, coinsurance,
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or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization.” 78 Fed. Reg. at 39896 (emphasis added).
121. For all other preventive services, including non-contraceptive preventive services for women, only cost-sharing (i.e., out-of-pocket expense) is prohibited. There is no restriction on passing along costs via premiums or other charges.
122. 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.
123. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
124. Further, 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.
125. Thus, the burden remains on the objecting religious organization to find a third party administrator that will agree to provide free access to the same contraceptive and abortifacient services the religious organization cannot directly provide.
126. EWTN’s religious beliefs preclude it from soliciting, contracting with, or designating a third party to provide these services, whether expressly or impliedly.
127. Moreover, the Mandate requires that, even if the third party administrator consents, the religious organization-via its self-certification-must expressly designate the third party administrator as “an ERISA section 3(16) plan administrator and claims administrator solely for the purpose of providing payments for contraceptive services for participants and beneficiaries.” 78 Fed. Reg. at 39879.
128. 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.”78 Fed. Reg. at 39879.
129. Because the designation makes the third-party administrator a plan administrator with fiduciary duties, the payments for contraceptive and abortifacient services would be payments made under the objecting religious organization’s plan.
130. Because EWTN would be required to identify and designate a third-party administrator willing to administer the contraceptive and abortifacient services, EWTN’s religious beliefs preclude it from complying with the accommodation.
131. 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.
132. 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.
133. 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.
134. 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.
135. These machinations, ostensibly employed to shift the cost of the Mandate, are severely flawed.
136. There is no way to ensure that the cost of administering the contraceptive and abortifacient services would not be passed on to EWTN through future increases to the third party administrator’s fees.
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137. 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. See78 Fed. Reg. at 15412; 31 U.S.C. § 9701.
138. In sum, for both insured and self-insured organizations, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for expanding access to and the use of contraceptive and abortifacient services and related education and counseling.
139. Despite the accommodation’s convoluted machinations, the religious organization’s health insurance continues to serve as the trigger for creating access to free contraceptive and abortifacient services.
140. EWTN cannot participate in or facilitate the government’s scheme in this manner without violating its religious convictions.
EWTN’s Health Care Plan and Religious Objection
141. The plan year for EWTN’s healthcare plan begins on July 1 of each year.
142. EWTN’s employee health care plan is self-insured.
143. Thus, beginning on or about July 1, 2014, EWTN faces the choice either of including free coverage for contraceptive and abortifacient services, and related education and counseling, in its employee healthcare plan or else of “designating” its third party administrator as its agent to provide free coverage for exactly the same services.
144. EWTN’s religious convictions equally forbid it from choosing either one of these options. That is, EWTN cannot include free coverage for contraceptive and abortifacient services, and related education and counseling, in its employee healthcare plans. Nor can EWTN “designate” its third party administrator as a plan administrator with obligations to provide free access to the same services.
145. From EWTN’s perspective, “designating” its third party administrator as its agent to provide access to contraceptive and abortifacient services is no different than directly providing that access.
146. EWTN is not eligible for the religious employers exemption because it is not an organization “described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. 46621, 46626.
147. Nor does EWTN’s employee healthcare plan meet the definition of a “grandfathered” plan.
148. Thus, EWTN’s employee healthcare plans do not include the notices required to claim grandfathered status.
149. The Mandate imposes government pressure and coercion on EWTN to change or violate its religious beliefs.
150. Because EWTN refuses to comply with the Mandate and refuses to designate its third party administrator to carry out the Mandate, it faces crippling fines of $100 each day, “for each individual to whom such failure relates.” 26 U.S.C. § 4980D(b)(1).
151. Dropping its employee insurance is not a realistic option, however, because doing so would place EWTN at a severe competitive disadvantage in its efforts to recruit and retain employees.
152. EWTN would also face fines of $2000 per year for each of its employees for dropping its insurance plans.
153. Although the government has recently announced that it will postpone implementing the annual fine of $2000 per 13

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employee for organizations that drop their insurance altogether, the postponement is only for one year, until 2015. This postponement does not delay the crippling daily fines under 26 U.S.C. § 4980D.
154. EWTN’s Catholic faith compels it to promote the spiritual and physical well-being of its employees by providing them with generous health services.
155. It would violate EWTN’s sincere religious beliefs to drop coverage for its employees and force them to buy insurance that is not only less generous, but also covers contraceptive and abortifacient drugs and devices.
The Government Cannot Satisfy Its Burden Under Strict Scrutiny
156. The government lacks any compelling interest in coercing EWTN to facilitate access to contraceptive and abortifacient services.
157. The required contraceptive and abortifacient drugs, devices, and related services are already widely available at little cost.
158. There are multiple ways in which the government could provide access without co-opting religious employers and their insurance plans in violation of their religious beliefs.
159. For example, it could pay for the objectionable services through its existing network of family planning services funded under Title X, through direct government payments, or through tax deductions, refunds, or credits.
160. The government could also simply exempt all religious organizations, just as it has already exempted nonprofit religious employers referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
161. The government could also use its own newly established healthcare exchanges to provide the additional insurance coverage it believes is needed, rather than forcing EWTN to do so.
162. HHS claims that its “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 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.
163. Because of EWTN’s express mission of promoting the sanctity of life, opposing abortion, and promoting God’s purpose for human sexuality, EWTN’s employees are just as likely as-if not more likely than-employees of many exempt organizations to adhere to the same values with respect to use of the objectionable drugs, devices, and services.
164. In one form or another, the government also provides exemptions for grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. 41,726, 41,731 (2010), small employers with fewer than 50 employees, 26 U.S.C. § 4980H(c)(2)(A), and certain religious denominations, 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
165. These broad exemptions further demonstrate that the government has no compelling interest in refusing to include religious organizations like EWTN within its religious employers exemption.
166. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
167. Indeed, HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of medium-sized employers with between 50 and 100
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employees may do likewise. 75 Fed. Reg. 34538 (June 17, 2010); see also75 Fed. Reg. 34540, 34552 Tbl.3; http:// web.archive.org/web/20130620171510/http:// www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-have-grandfathered.html at 4-5 (archived version) (last visited Oct. 24, 2013) (attached as Exhibit D); 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 Oct. 24, 2013) (attached as Exhibit E).
168. Further, the government recently admitted that exempted small businesses constitute 96% of all the businesses in the United States. See http:// www.whitehouse.gov/files/documents/health_reform_for_small_businesses.pdf at 1 (stating that “5.8 million out of the 6 million total firms” in the U.S. are exempt from the Mandate under the small employer exemption) (last visited Oct. 24, 2013) (attached as Exhibit F).
169. According to the government’s own estimates, “nearly 34 million workers” are employed by small businesses exempt from the Mandate. See id.
170. The government’s recent decision to postpone the employer mandate-i.e., the annual fine of $2000 per employee for not offering any insurance-also demonstrates that there is no compelling interest in coercing universal compliance with the Mandate concerning contraceptive and abortifacient services, since employers can now simply drop their insurance without any penalty, at least for one additional year.
171. These broad exemptions also demonstrate that the Mandate is not a generally applicable law entitled to judicial deference, but rather is constitutionally flawed.
172. 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 Mandate is not neutral, but rather discriminates against religious organizations because of their religious commitment to promoting the sanctity of life and God’s vision for human sexuality.
173. Indeed, the Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose religious teachings and beliefs regarding human life, marriage, and family.
174. 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.
175. On October 5, 2011, six days after the comment period for the original interim final rule 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.”
176. She further criticized individuals and entities whose beliefs differed from those held by her and 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.”
177. Consequently, on information and belief, EWTN alleges that the purpose of the Mandate, including the restrictively narrow scope of the religious employers exemption, is to discriminate against religious organizations that oppose contraception and abortion.
CLAIMS
COUNT I
Violation of the Religious Freedom Restoration Act
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178. Plaintiffs incorporate by reference all preceding paragraphs. 179. EWTN’s sincerely held religious beliefs prohibit it from deliberately providing health insurance that would facilitate access to contraception, sterilization, abortion, or related education and counseling. EWTN’s compliance with these beliefs is a religious exercise. 180. The Mandate creates government-imposed coercive pressure on EWTN to change or violate its religious beliefs. 181. The Mandate chills EWTN’s religious exercise. 182. The Mandate exposes EWTN to substantial fines for its religious exercise. 183. The Mandate exposes EWTN to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 184. The Mandate imposes a substantial burden on EWTN’s religious exercise. 185. The Mandate furthers no compelling governmental interest. 186. The Mandate is not narrowly tailored to any compelling governmental interest. 187. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 188. The Mandate and Defendants’ threatened enforcement of the Final Mandate violate EWTN’s rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 189. Absent injunctive and declaratory relief against the Defendants, EWTN has been and will continue to be harmed.
COUNT II
Violation of the First Amendment to the United States Constitution Free Exercise Clause Substantial Burden 190. Plaintiffs incorporate by reference all preceding paragraphs. 191. EWTN’s sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. EWTN’s compliance with these beliefs is a religious exercise. 192. Neither the Affordable Care Act nor the Mandate is neutral. 193. Neither the Affordable Care Act nor the Mandate is generally applicable. 194. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 195. The Mandate furthers no compelling governmental interest. 196. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 197. The Mandate creates government-imposed coercive pressure on EWTN to change or violate its religious beliefs. 198. The Mandate chills EWTN’s religious exercise. 199. The Mandate exposes EWTN to substantial fines for its religious exercise.
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200. The Mandate exposes EWTN to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 201. The Mandate imposes a substantial burden on EWTN’s religious exercise. 202. The Mandate is not narrowly tailored to any compelling governmental interest. 203. The Mandate and Defendants’ threatened enforcement of the Mandate violate EWTN’s rights secured to it by the Free Exercise Clause of the First Amendment to the United States Constitution. 204. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT III
Violation of the First Amendment to the United States Constitution Free Exercise Clause Intentional Discrimination 205. Plaintiffs incorporate by reference all preceding paragraphs. 206. EWTN’s sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. EWTN’s compliance with these beliefs is a religious exercise. 207. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate to target religious organizations such as EWTN because of their religious beliefs. 208. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of EWTN and others. 209. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate EWTN’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 210. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT IV
Violation of the First Amendment to the United States Constitution Free Exercise Clause Discrimination Among Religions
211. Plaintiffs incorporate by reference all preceding paragraphs. 212. 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. 213. This mandate of equal treatment protects organizations as well as individuals. 214. The Mandate’s narrow exemption for “religious employers” but not others discriminates among religions on the basis of religious views or religious status. 215. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate EWTN’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
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216. Absent injunctive and declaratory relief against the Mandate, EWTN has 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)
217. Plaintiffs incorporate by reference all preceding paragraphs. 218. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on EWTN. 219. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violate EWTN’s rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution. 220. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT VI
Interference in Matters of Internal Religious Governance Free Exercise Clause and Establishment Clause 221. Plaintiffs incorporate by reference all preceding paragraphs. 222. 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. 223. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, leadership, or doctrine. 224. 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. 225. EWTN has made an internal decision, dictated by its Catholic faith, that the health plans it makes available to its employees may not subsidize, provide, or facilitate access to abortifacient drugs, devices, or related services. 226. The Mandate interferes with EWTN’s internal decisions concerning its structure and mission by requiring it to subsidize, provide, and facilitate practices that directly conflict with its Catholic beliefs. 227. The Mandate’s interference with EWTN’s internal decisions affects its faith and mission by requiring it to subsidize, provide, and facilitate practices that directly conflict with its religious beliefs. 228. Because the Mandate interferes with EWTN’s internal decision making in a manner that affects its faith and mission, it violates the Establishment Clause and Free Exercise Clause of the First Amendment. 229. Plaintiffs have no adequate remedy at law. 230. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
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COUNT VII
Religious Discrimination Violation of the First and Fifth Amendments to the United States Constitution Establishment Clause and Due Process
231. Plaintiffs incorporate by reference all preceding paragraphs. 232. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religious objectors. 233. Religious liberty is a fundamental right. 234. The “religious employer” exemption protects many religious objectors, but not EWTN. 235. The “accommodation” provides no meaningful protection for EWTN. 236. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violate EWTN’s rights secured to it by the Establishment Clause of the First Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitution. 237. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT VIII
Violation of the Fifth Amendment to the United States Constitution Due Process and Equal Protection 238. Plaintiffs incorporate by reference all preceding paragraphs. 239. The Due Process Clause of the Fifth Amendment mandates the equal treatment of all religious faiths and institutions without discrimination or preference. 240. This mandate of equal treatment protects organizations as well as individuals. 241. The Mandate’s narrow exemption for “religious employers” but not others discriminates among religions on the basis of religious views or religious status. 242. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate EWTN’s rights secured to it by the Fifth Amendment of the United States Constitution. 243. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT IX
Violation of the First Amendment to the United States Constitution Freedom of Speech Compelled Speech 244. Plaintiffs incorporate by reference all preceding paragraphs. 245. EWTN teaches, and expresses daily to millions of people around the world, that contraception, sterilization, and abortion violate its religious beliefs.
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246. The Mandate would compel EWTN to facilitate activities that EWTN teaches are violations of its religious beliefs. 247. The Mandate would compel EWTN to facilitate access to education and counseling related to contraception, sterilization, and abortion. 248. Defendants’ actions thus violate EWTN’s right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 249. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest. 250. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT X
Violation of the First Amendment to the United States Constitution Freedom of Speech Expressive Association 251. Plaintiffs incorporate by reference all preceding paragraphs. 252. EWTN teaches, and expresses daily to millions of people around the world, that contraception, sterilization, and abortion violate its religious beliefs. 253. The Mandate would compel EWTN to facilitate activities that EWTN teaches are violations of EWTN religious beliefs. 254. The Mandate would compel EWTN to facilitate access to government-dictated education and counseling related to contraception, sterilization, and abortion. 255. Defendants’ actions thus violate EWTN’s right of expressive association as secured to it by the First Amendment of the United States Constitution. 256. Absent injunctive and declaratory relief against the Mandate, EWTN has 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
257. Plaintiffs incorporate by reference all preceding paragraphs. 258. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations can have its First Amendment interests accommodated. 259. Defendants have exercised unbridled discretion in a discriminatory manner by granting an exemption for a narrowly defined group of “religious employers” but not for other religious organizations like EWTN. 260. 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 Mandate, despite its conflict with the free exercise of religion. 261. Defendants’ actions therefore violate EWTN’s right not to be subjected to a system of unbridled discretion when
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engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution.
262. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT XII
Violation of the Administrative Procedure Act Lack of Good Cause and Improper Delegation 263. Plaintiffs incorporate by reference all preceding paragraphs.
264. The Affordable Care Act expressly delegates to HRSA, an agency within Defendant HHS, the authority to establish guidelines concerning the “preventive care” that a group health plan and health insurance issuer must provide.
265. 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.
266. 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 non-governmental entity, the IOM.
267. 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.
268. 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.
269. Defendants have never explained why they failed to enact these “preventive care” guidelines through notice-and-comment rulemaking, as required by the APA.
270. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute “good cause.”
271. 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.”
272. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule or the NPRM, including comments by EWTN.
273. Therefore, Defendants have taken agency action not in accordance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
274. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XIII
Violation of the Administrative Procedure Act Arbitrary and Capricious Action 21

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275. Plaintiffs incorporate by reference all preceding paragraphs. 276. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the Mandate on EWTN and similar organizations. 277. Defendants’ explanation for its decision not to exempt EWTN and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. 278. Defendant Secretary Sebelius, in remarks made at Harvard University on April 8, 2013, essentially admitted that Defendants completely disregarded the religious liberty concerns submitted by thousands of religious organizations and individuals. 279. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them. 280. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XIV
Violation of the Administrative Procedure Act Agency Action Without Statutory Authority 281. Plaintiffs incorporate by reference all preceding paragraphs. 282. Defendant’s authority to enact regulations under the Affordable Care Act is limited to the authority expressly granted them by Congress. 283. Defendants lack statutory authority to include contraceptive and abortifacient services among the “preventative care” services that a group health plan and health insurance issuer must provide. 284. Defendants lack statutory authority to coerce insurance issuers and third party administrators to pay for contraceptive and abortifacient services for individuals with whom they have no contractual or fiduciary relationship, and in violation of their contractual agreements with EWTN. 285. 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.” 286. 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. 287. Because the Mandate’s “accommodation” for non-exempt, nonprofit religious organizations lacks legal authority, it is arbitrary and capricious and provides no legitimate protection of objecting organizations’ First Amendment rights. 288. Absent injunctive and declaratory relief against the Mandate, 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
22

ETERNAL WORD TELEVISION NETWORK, INC., and..., 2013 WL 5785974...
289. Plaintiffs incorporate by reference all preceding paragraphs. 290. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110-329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008). 291. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” 292. The Mandate requires issuers, including EWTN, to provide coverage of all Federal Drug Administration-approved contraceptives. 293. Some FDA-approved contraceptives cause abortions. 294. As set forth above, the Mandate violates RFRA and the First Amendment. 295. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 296. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XVI
Violation of the Administrative Procedure Act Agency Action Not in Accordance with Law Affordable Care Act 297. Plaintiffs incorporate by reference all preceding paragraphs. 298. The Mandate is contrary to the provisions of the Affordable Care Act. 299. 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.” 300. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services. 301. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does. 302. The Mandate requires issuers, including EWTN, to provide coverage of all Federal Drug Administration-approved contraceptives. 303. Some FDA-approved contraceptives cause abortions. 304. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 305. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XVII
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ETERNAL WORD TELEVISION NETWORK, INC., and..., 2013 WL 5785974...
Declaration that Mandate Does Not Preempt Alabama Law 306. Plaintiffs incorporate by reference all proceeding paragraphs. 307. The Mandate is unlawful because it violates the First and Fifth Amendments, the Religious Freedom Restoration Act, and the Administrative Procedure Act as identified in the foregoing counts. 308. Alabama law provides that health insurance plans, employers, and employees may refuse to participate in health insurance systems and may refuse to provide coverage for contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling. 309. Alabama laws that are contrary to the Mandate, including Ala. Code § 27-45-5 and Ala. Const. Amend. No. 864, are valid and enforceable despite the Supremacy Clause of the United States Constitution because the Mandate is unlawful and does not preempt or displace Alabama law.
PRAYER FOR RELIEF Wherefore, Plaintiffs request that the Court: a. Declare that the Mandate and Defendants’ enforcement of the Mandate against EWTN violate the Religious Freedom Restoration Act; b. Declare that the Mandate and Defendants’ enforcement of the Mandate against EWTN violate the First Amendment to the United States Constitution; c. Declare that the Mandate and Defendants’ enforcement of the Mandate against EWTN violate the Fifth Amendment of the United States Constitution; d. Declare that the Mandate was issued in violation of the Administrative Procedure Act; e. Declare that the Mandate does not preempt or displace Alabama law; f. Issue a permanent injunction prohibiting Defendants from enforcing the Mandate against EWTN and other religious organizations that object to providing insurance coverage for contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling; g. Award 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.
JURY DEMAND The Plaintiffs request a trial by jury on all issues so triable. Respectfully submitted this 28th day of October, 2013. /s/ S. Kyle Duncan S. Kyle Duncan, LA Bar No. 25038* Lori H. Windham, VA Bar No. 71050*
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ETERNAL WORD TELEVISION NETWORK, INC., and..., 2013 WL 5785974...
Daniel Blomberg, KS Bar No. 23723* THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street NW, Suite 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090 kduncan@becketfund.org lwindham@becketfund.org dblomberg@becketfund.org Counsel for Plaintiff EWTN, Inc. *Motion for admission pro hac vice pending LUTHER STRANGE (ASB-0036-G42L) Alabama Attorney General /s/ Andrew L. Brasher Andrew L. Brasher (ASB-4325-W73B) Alabama Deputy Solicitor General William G. Parker, Jr. (ASB-5142-I72P) Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130 Telephone: (334) 242-7300 Facsimile: (334) 353-8440 abrasher@ago.state.al.us wparker@ago.state.al.us Attorneys for Plaintiff the State of Alabama
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ETERNAL WORLD TELEVISION )

NETWORK, INC., et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 13-0521-CG-C

)

SYLVIA M. BURWELL, Secretary )

of the United States Department )

of Health and Human Services, et )

al.,

)

)

Defendants.

)

ORDER This matter is before the court on the motions for summary judgment filed by Plaintiff Eternal World Television Network, Inc. (Doc. 29) and the State of Alabama (Doc. 27). Also before the court is a portion of the motion for summary judgment filed by Defendants1 the U.S. Department of Health and Human Services, the U.S. Department of Labor, the U.S. Department of the Treasury, and the secretaries of those departments in their official capacities. (Doc. 34.) For the reasons that follow, Plaintiffs’ motions for summary judgment are due to be denied and Defendants’ motion for summary judgment is due to be granted in part.

1 Pursuant to Federal Rule of Civil Procedure 25(d), Sylvia M. Burwell has been substituted in her official capacity for Kathleen Sebelius as Secretary of Health and Human Services.

I. BACKGROUND Under federal law, group health plans are generally required to cover women’s health services “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. § 300gg–13(a)(4). Those services “include all Food and Drug Administration (FDA)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider.” 78 Fed. Reg. 39870-01, 39870. The court will refer to those services generally as “contraceptives” and to the contraceptive-coverage requirement as “the mandate.” Plaintiff Eternal World Television Network, Inc. (“EWTN”), has a problem with the mandate. As an organization whose “mission is to serve the orthodox belief and teaching of the [Roman Catholic] Church” (Doc. 29-9 ¶ 4), EWTN opposes the use of contraceptives in any form. That belief has led EWTN to take “great pains through the years to ensure that its insurance plans do not cover, or in any way facilitate access to, sterilization, contraception, or abortion.” (Doc. 29-9 ¶ 20.) As a result, EWTN does not believe that it can comply with the mandate without violating its religious beliefs. The mandate is not insensitive to such concerns. Instead, the mandate includes an exemption for religious employers2 and an accommodation for
2 The term “religious employer” includes churches, integrated auxiliaries of
2

religious nonprofits that do not qualify for the religious-employer exemption. Under the accommodation, eligible religious nonprofits that do not qualify as religious employers (EWTN falls under this category) can opt out of the mandate by signing a short form objecting to the use of contraceptives and delivering that form to an appropriate third-party—in EWTN’s case, to its health plan’s third-party administrator—who would then be responsible for ensuring that the objecting organization’s employees would receive contraceptive coverage at no cost to the organization.3
EWTN, not satisfied with the accommodation, filed this lawsuit last October against the federal agencies and officials responsible for implementing the mandate. Since then, EWTN and the State have filed partial motions for summary judgment, and Defendants have responded with a motion seeking either dismissal of or summary judgment on all counts of the complaint. Although all of those motions are ripe, EWTN seeks expedited consideration of its motion for summary judgment in order to meet a looming deadline for compliance with the mandate.4 Because the court finds that
churches, conventions or associations of churches, and the exclusively religious activities of religious orders. 78 Fed. Reg. 39870-01, 39874. 3 If EWTN’s third-party administrator did not want to take on this responsibility, it would have the option of terminating its relationship with EWTN. See 78 FR 39870-01, 39879. But there’s no evidence that that might happen here. 4 In the same motion, EWTN requests that the court set a hearing for oral arguments. The court finds that the briefs adequately frame the issues, so no oral arguments are necessary.
3

expedited consideration of that motion is appropriate, this order will focus on EWTN’s motion for summary judgment and will address the other pending motions only to the extent that they are intertwined with EWTN’s motion.
II. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). On a motion for summary judgment, the movant bears the initial burden of proving that no genuine issue of material fact exists. O’Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the movant’s arguments, the court must view all evidence and resolve all doubts in the light most favorable to the nonmovant. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds might differ on the inferences arising from undisputed facts, then [the court] should deny summary judgment.” Hinesville Bank v. Pony Exp. Courier Corp., 868 F.2d 1532, 1535 (11th Cir.1989).
4

III. DISCUSSION A. EWTN’s Motion for Summary Judgment
EWTN’s motion for summary judgment5 addresses four counts of the complaint: (1) Count I, which alleges that the mandate violates the Religious Freedom and Restoration Act; (2) Count II, which alleges that the mandate violates the Free Exercise Clause; (3) Count V, which alleges that the mandate violates the Establishment Clause; (4) and Count IX, which alleges that the mandate violates the Free Speech Clause. For the reasons that follow, all of those claims fail as a matter of law.
1. Count I—The Religious Freedom and Restoration Act EWTN’s first and most substantial attack on the mandate is mounted under the Religious Freedom and Restoration Act (“RFRA”). RFRA provides that the government may not “substantially burden” a person’s religious exercise unless it can justify that burden as the “least restrictive means” of furthering a “compelling governmental interest.” 42 U.S.C. §§ 2000bb-1(a), (b). To determine whether a law places a “substantial burden” on religious exercise, the court looks for “substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd. of Ind. Employment Sec. Division, 450 U.S. 707, 718 (1981). EWTN says that the
5 Although EWTN alternatively moves for a preliminary injunction, a separate ruling on that motion is unnecessary because the parties agree that “there are no material disputes of fact and the legal issues for either summary judgment or a preliminary injunction are essentially identical.” (Doc. 30 at 36.)
5

mandate “easily qualifies as a substantial burden under this test because it directly coerces EWTN to conform its behavior by engaging in conduct it believes is immoral.” (Doc. 30 at 16 (quotations and alterations omitted).)
According to EWTN, the problem stems from Form 700, which EWTN must sign in order to receive the accommodation. Or more accurately, the problem is with the consequences that will follow after EWTN signs and delivers Form 700. The form itself is innocuous, containing only one operative provision, which does not conflict with EWTN’s religious beliefs:
I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity, and the organization holds itself out as a religious organization. (Form 700 (Doc. 29-11 at 2).) But after EWTN signs and delivers that form, the mandate will require EWTN’s third-party administrator to take on those responsibilities that EWTN has cast off. As EWTN sees it, signing Form 700 is morally equivalent to providing contraceptive coverage directly because “by executing [Form 700] and thereby designating its administrator to provide contraceptive payments to its employees, EWTN would facilitate and encourage the use of products and services in violation of its sincere religious beliefs.” (Doc. 30 at 16.) Thus, by requiring EWTN to sign Form 700 as a condition of the accommodation, the mandate places a substantial burden on EWTN’s religious practice. Or so the argument goes. But EWTN’s argument misunderstands the nature of RFRA’s
6

substantial-burden inquiry. The question is not whether anything in the mandate will offend EWTN’s religious beliefs. Instead, the focus of RFRA’s substantial-burden inquiry is on the particular actions that the mandate requires EWTN to perform.
On that point, the decision of Kaemmerling v. Lappin, 553 F.3d 669, 678–79 (D.C. Cir. 2008), is instructive. In Kaemmerling, the court found that a law requiring inmates to submit to the collection of tissue samples for DNA testing did not substantially burden an inmate’s religious practice despite the inmate’s belief that “the collection and retention of his DNA information was tantamount to laying the foundation for the rise of the anti-Christ.” Id. at 674. In reaching that conclusion, the court accepted “as true the factual allegations that [the inmate’s] beliefs [were] sincere and of a religious nature—but not the legal conclusion, cast as a factual allegation, that his religious exercise [was] substantially burdened.” Id. at 250. The only thing the inmate was actually required to do was cooperate when prison authorities took a tissue sample, and because he did “not allege that his religion require[d] him not to cooperate with collection of a fluid or tissue sample,” id., the court found that there was no substantial burden on his religious practice. And the court reached that conclusion despite the inmate’s insistence that the very act of “submitting to DNA sampling . . . [was] repugnant to his strongly held religious beliefs,” id. at 245. Federal officers, not the inmate, would perform the DNA analysis, so the court would not let
7

that action determine whether there was a substantial burden on the inmate’s religious exercise. See id. at 679.
The Supreme Court applied a similar line of reasoning in Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147 (1986), when it decided that the government could use a Native American child’s Social Security number despite her father’s objection that doing so would rob her spirit and “prevent her from attaining greater spiritual power.” Id. at 696. In so holding, the Court balked at the notion that the father’s religious beliefs could dictate the government’s actions, noting that such a claim held no more merit than one founded upon “a sincere religious objection to the size or color of the Government’s filing cabinets.” Id. at 700. Because the government’s use of the child’s social security number did not impair the father’s “freedom to believe, express, and exercise his religion,” Id. at 701, the Court found that his religious practice was unimpaired.
Taken together, Kaemmerling and Bowen show that the duties the mandate imposes on other parties are irrelevant to EWTN’s RFRA claim. All that matters here is the action that EWTN itself is under pressure to take, which consists solely of signing and delivering Form 700. Thus, the question is whether that act, standing alone, substantially burdens EWTN’s religious practice.
This court finds that it does not. As far as Form 700’s substance goes, there’s nothing in it that is contrary to EWTN’s religious beliefs. EWTN does,
8

after all, vocally “oppose[ ] providing coverage for some or all of” the contraceptive services required under the mandate. (Doc. 29-11 at 2). And as for the act of delivering Form 700 to its third-party administrator, EWTN cannot explain how that act violates its religion without reference to the obligation that the mandate will impose upon others after EWTN delivers the form. As discussed above, the burdens that the mandate imposes upon other parties cannot amount to a substantial burden on EWTN’s religious practice.
EWTN tries to avoid that conclusion by arguing that by signing Form 700, it would “‘designat[e]’ [its third-party] administrator as the ‘plan administrator and claims administrator for contraceptive benefits’” (Doc. 29-9 ¶ 17 (quoting 78 Fed. Reg. 39870-01, 39879 (first alteration in original))), an act that would directly violate its religious beliefs. A number of district courts have found that basic reasoning persuasive. See, e.g., S. Nazarene Univ. v. Sebelius, No. CIV–13–1015–F, 2013 WL 6804265, at *8 (W.D. Okla. Dec. 23, 2013) (“The self certification is, 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.”) But that argument attributes far too great a legal effect to Form 700, which serves only to provide notice of EWTN’s decision to opt out of the mandate’s contraceptive coverage requirement. To the extent that EWTN’s third-party administrator is under compulsion to act, that compulsion comes from the law, not from Form 700.
9

The Seventh Circuit explained that point in a challenge to the mandate filed by the University of Notre Dame:
Federal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services. By refusing to fill out the form Notre Dame would subject itself to penalties, but [its third-party administrator] would still be required by federal law to provide the services to the university’s students and employees unless and until their contractual relation with Notre Dame terminated. Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 554 (7th Cir. 2014). See also Michigan Catholic Conference and Catholic Family Services, et al v. Burwell, Nos. 13-2723, 13-6640, 2014 WL 2596753, at *9 - *11 (6th Cir. June 11, 2014). The court agrees with that conclusion. Legally (if not morally) speaking, there is a world of difference between a law that compels EWTN to provide contraceptive coverage directly and one in which the government places that burden on someone else after EWTN opts out. Because EWTN’s only religious objection to the mandate hinges upon the effect it will have on other parties after EWTN signs Form 700 rather than anything inherent to the act of signing and delivering Form 700 itself, the court finds that the mandate does not impose a substantial burden on EWTN’s religious practice within the meaning of RFRA. As a result, EWTN’s RFRA claim fails as a matter of law. 2. Count II—Free Exercise EWTN’s next claim is that the mandate violates the First
10

Amendment’s Free Exercise Clause, which provides that Congress shall make no law “prohibiting the free exercise” of religion, U.S. Const. amend. I. Specifically, EWTN claims that the mandate unlawfully burdens religious exercise because it “allows massive categorical exemptions for secular conduct that undermine the Mandate’s purposes while denying religious exemptions to organizations like EWTN” (Doc. 30 at 29) and that the mandate “expressly discriminates among religious objectors” (Doc. 30 at 30). EWTN makes those claims in an effort to show that the mandate is neither neutral nor generally applicable, which would mean the mandate would be subject to strict scrutiny. Otherwise, the law would be subject only rationalbasis review, because laws that are “neutral and of general applicability need not be justified by a compelling governmental interest even if [they have] 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). EWTN’s argument fails, however, because the mandate is both neutral and generally applicable.
Beginning with neutrality, the court rejects EWTN’s claim that the mandate is non-neutral. For a law to be non-neutral within the meaning of the Establishment Clause, there has to be evidence of a purpose to “infringe upon or restrict practices because of their religious motivation.” Lukumi, 508 U.S. at 533. There’s nothing in the mandate that shows an attempt to restrict EWTN’s religious practices “because of their religious motivation.” Lukumi,
11

508 U.S. at 533. To the contrary, to the extent that the mandate imposes an incidental burden on EWTN’s religious practices, the accommodation serves as evidence that the government made a determined effort to mitigate that burden. EWTN also argues that the mandate is non-neutral because it provides a total exemption for some religious employers while others are only eligible for the accommodation. EWTN calls this “open discrimination among religious institutions.” (Doc. 30.) But that argument misses the mark; to the extent that the mandate treats some religious organizations differently than others, the difference has nothing to do with the organization’s religious beliefs or practices; it turns upon whether the organization qualifies for taxexempt status under the Internal Revenue Code. 78 Fed. Reg. 39870-01, 39874 (defining a religious employer as an organization that is “organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code”). That is a legitimate basis for differential treatment, see Walz v. Tax Commission of City of New York, 397 U.S. 664, 680 (1970) (holding that the government may grant special tax benefits to churches without running afoul of the Establishment Clause), so the court concludes that the mandate is religiously neutral.
EWTN’s arguments about the mandate’s general applicability also fail to persuade. To determine whether the mandate is generally applicable, the court looks to see whether the mandate includes secular exemptions intended to ensure that it “impose[s] burdens only on conduct motivated by religious
12

belief.” See Lukumi, 508 U.S. at 543; accord Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295, 1309 (11th Cir. 2006). According to EWTN, the contraceptive-coverage regulations are not generally applicable because they allow “massive categorical exemptions for secular conduct . . . while denying religious exemptions to organizations like EWTN.” (Doc. 30 at 29.)
To be fair, EWTN’s premise is factually accurate, if somewhat overstated: the rules that apply to grandfathered health plans and small businesses function as limited exemptions to the mandate’s contraceptivecoverage requirement. But that fact does not necessarily undermine the mandate’s general applicability. Lawmakers are free to carve out exceptions from a general rule without running afoul of the Establishment Clause so long as those exceptions are equally available to secular and religious organizations. See Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 1256373, at *24 (N.D. Ga. March 26, 2014) (“Specific exemptions to a law that are equally available to the adherents of a religious belief do not affect the law’s general applicability.”) The rules applicable to grandfathered health plans and small employers are equally available to religious and secular employers, so they do not undermine the mandate’s general applicability.
Because the regulations are neutral and generally applicable, they are subject only to rational-basis review. See GeorgiaCarry.Org, Inc. v. Georgia,
13

687 F.3d 1244, 1256 (11th Cir. 2012) (“If a law is one that is neutral and generally applicable, then rational basis scrutiny should be applied . . . .”). That means the mandate is presumptively valid, and EWTN bears the burden of proving that it is not “rationally related to a legitimate government interest.” Keeton v. Anderson-Wiley, 664 F.3d 865, 880 (11th 2011).
Here, there’s no doubt that “[e]nsuring access to affordable healthcare is a legitimate legislative objective.” Deen v. Egleston, 597 F.3d 1223, 1231 (11th Cir. 2010) (quotations omitted). And EWTN makes no attempt to prove that the regulations are not rationally related to that objective. Because EWTN does not even come close to shouldering its burden of “negat[ing] every conceivable basis that might support” the mandate, Leib v. Hillsborough Cnty. Pub. Transp. Com’n, 558 F.3d 1301, 1306 (11th Cir. 2009), its Free Exercise claim fails as a matter of law.
3. Count V—Establishment Clause EWTN’s final religious-liberty claim is that the regulations violate the Establishment Clause because some religious employers are totally exempt from the mandate while other nonprofits like EWTN are only eligible for an accommodation. According to EWTN, that arrangement amounts to “‘discrimination . . . expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations.’” (Doc. 30 at 32 (quoting Colorado Christian University v. Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008)).
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But that argument fails because the mandate does not treat religious organizations differently based on their degree of religiosity. Instead, the distinction between an organization that qualifies for the religious-employer exemption and one that does not has solely to do with the organization’s tax structure. 78 Fed. Reg. 39870-01, 39874. That is a valid basis of differentiation, and it doesn’t implicate the establishment clause. See Roman Catholic Archdiocese of Atlanta, 2014 WL 1256373 at *30 (“Line drawing by the Government based on the structure and purpose of religious organizations is permissible under the Establishment Clause.”). As a result, EWTN’s Establishment Clause claim fails as a matter of law.
4. Count IX—Compelled Speech EWTN’s final claim accuses the mandate of violating the First Amendment right to be free from compelled speech, which prohibits the government from “telling people what they must say.” Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47, 61 (2006). According to EWTN, the regulations amount to compelled speech because the accommodation is only available to an organization after it makes “certifications about its religious objections to its insurer in a form and manner specified by” the government. (Doc. 30 at 34 (quotations omitted).) But EWTN’s argument rests on an overly broad understanding of the compelled-speech doctrine. Properly understood, the right to be free from compelled speech “prohibits the government from compelling citizens to
15

express beliefs that they do not hold,” Foley v. Orange County, No. 6:12–cv– 269–Orl–37KRS, 2013 WL 4110414, at *12 (M.D. Fla. Aug. 13, 2013) (emphasis removed). But when the government sets out to regulate conduct, the fact that “the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed,” is not sufficient to show a compelled-speech violation. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). When compelled speech is purely incidental to the government’s regulation of conduct, there is no First Amendment problem.
Here the accommodation’s certification requirement does not compel EWTN to express any opinions or beliefs that it does not hold. To the contrary, EWTN is not even allowed to sign Form 700 unless it believes that the form’s contents are “true and correct.” (Doc. 29-11 at 2.) And to the extent the accommodation requires EWTN to certify its beliefs in a particular form, that requirement is meant only to facilitate appropriate notice of EWTN’s decision to opt out of the mandate’s requirements. That notice requirement is a regulation of conduct, not speech, and the fact that Form 700 uses written words to facilitate that notice is purely incidental. See, e.g., Univ. of Notre Dame, 2013 WL 6804773, at *20 (“[T]he certification requirement regulates conduct, not speech.”); Roman Catholic Archdiocese of Atlanta v. Sebelius, 2014 WL 1256373, at *29 (N.D. Ga. March 26, 2014) (“The compulsion to fill out a form and express statements that are consistent with Plaintiffs’ beliefs is merely incidental to the regulation of conduct . . . .”). As a result, EWTN’s
16

compelled-speech claim fails as a matter of law. Before moving on, the court notes that EWTN raised a new First
Amendment claim in its reply brief. Under the heading “Compelled Silence,” EWTN argues that the accommodation’s so-called gag order violates the First Amendment by prohibiting organizations that seek the accommodation from interfering with or influencing their third-party administrator’s arrangements for contraceptive coverage, 26 C.F.R. 54.9815-2713A(b)(iii). That argument has succeeded in other lawsuits challenging the mandate. See, e.g., Roman Catholic Archdiocese of Atlanta, 2014 WL 1256373, at *29 (granting summary judgment in favor of a Free Speech challenge to the gag order). But it is not properly at issue in this lawsuit. The only Free Speech claim in EWTN’s complaint is the compelled-speech claim addressed above, and EWTN has not amended its complaint to add a challenge to the gag order. As a result, despite EWTN’s effort to raise the issue in its reply brief, there is no compelled-silence claim properly before the court at this time. See Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen, 815 F.2d 1435, 1446 (11th Cir. 1987) (“It is well settled that a party cannot argue an issue in its reply brief that was not preserved in its initial brief.”); Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.”). B. The State’s Motion for Summary Judgment
As the State points out, Defendants give “no real response to the
17

State’s claims or its motion for summary judgment.” (Doc. 48.) But that’s only because the State made no real arguments. Instead, the State’s motion for summary judgment does little more than incorporate EWTN’s arguments by reference and ask for an additional form of relief. (Doc. 28 at 7.) As a result, the success of the State’s motion depends on the merits of EWTN’s. And because EWTN’s motion for summary judgment is due to be denied, the State’s is, too. C. Defendants’ Motion for Summary Judgment.
As discussed above, there are no genuine issues of material fact on Counts I, II, V, and IX, and all of those claims fail as a matter of law. As a result, Defendants’ motion for summary judgment is due to be granted on those counts. The court will address the remainder of Defendants’ motion in a separate order.
IV. CONCLUSION It is therefore ORDERED as follows: (1) EWTN’s motion to expedite summary judgment proceedings
(Doc. 55) is GRANTED; (2) EWTN’s motion for summary judgment (Doc. 29) is DENIED; (3) Defendants’ motion for summary judgment (Doc. 34) is
GRANTED with respect to Counts I, II, V, and IX of the complaint. The court will address EWTN’s motion for discovery under 56(d) and the
18

remainder of Defendants’ dispositive motion in a separate order. DONE and ORDERED this 17th day of June, 2014. /s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
19

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ETERNAL WORLD TELEVISION )

NETWORK, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

SYLVIA MATTHEWS BURWELL, )

Secretary of the United States

)

Department of Health and Human )

Services, et al.,

)

)

Defendants.

)

Civil Action No. 13-0521-CG-C

ORDER This matter is before the court on Defendants’1 Motion to Dismiss, or in the Alternative, for Summary Judgment. (Doc. 34.) Also before the court is the Rule 56(d) Motion (Doc. 51) filed by Plaintiff Eternal World Television Network, Inc. (“EWTN”). For the reasons that follow, Defendants’ motion to dismiss is due to be granted in part, Defendants’ motion for summary judgment is due to be denied, and EWTN’s 56(d) motion is due to be denied as moot.
I. BACKGROUND This lawsuit concerns federal regulations that require most health plans to cover contraceptive services that “include all Food and Drug

1 Pursuant to Federal Rule of Civil Procedure 25(d), Sylvia M. Burwell has been substituted in her official capacity for Kathleen Sebelius as Secretary of Health and Human Services.

Administration (FDA)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider.” 78 Fed. Reg. 39870-01, 39870. The court will refer to those services generally as “contraceptives” and to the contraceptive-coverage requirement as “the mandate.”
EWTN, joined by the State of Alabama, filed this lawsuit to challenge the mandate on constitutional and statutory grounds. As an organization whose “mission is to serve the orthodox belief and teaching of the [Roman Catholic] Church” (Doc. 29-9 ¶ 4), EWTN opposes the use of contraceptives in any form. That belief has led EWTN to take “great pains through the years to ensure that its insurance plans do not cover, or in any way facilitate access to, sterilization, contraception, or abortion.” (Doc. 29-9 ¶ 20.) As a result, EWTN does not believe that it can comply with the mandate without violating its religious beliefs.
But as the court noted in a previous order (Doc. 61), EWTN doesn’t have to comply with the mandate. All it has to do is sign a form certifying its opposition to the use of contraceptives and then deliver that form to its thirdparty administrator. Given that accommodation, the court’s earlier order held that four counts of the complaint failed as a matter of law. That order did not, however, express any opinion on the complaint’s thirteen remaining claims. The matter comes before the court on Defendants’ motion seeking either
2

dismissal of, or summary judgment on0, those thirteen claims.2 II. LEGAL STANDARDS
A. Motion to Dismiss “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 663 (alteration in original) (citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). To satisfy this standard, a complaint must include “enough facts to raise a reasonable expectation that discovery will reveal evidence” in support of its claims. Twombly, 550 U.S. at 556. B. Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” The basic issue before the court on a motion for summary judgment is
2 EWTN’s Rule 56(d) motion (Doc. 51) is also before the court. But for reasons discussed below, the court’s ruling on Defendants’ motion for summary judgment renders EWTN’s Rule 56(d) motion moot.
3

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
On a motion for summary judgment, the movant bears the initial burden of proving that no genuine issue of material fact exists. O’Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the movant’s arguments, the court must view all evidence and resolve all doubts in the light most favorable to the nonmovant. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.1999). “If reasonable minds might differ on the inferences arising from undisputed facts, then [the court] should deny summary judgment.” Hinesville Bank v. Pony Exp. Courier Corp., 868 F.2d 1532, 1535 (11th Cir.1989).
III. DISCUSSION A. Defendants’ Motion to Dismiss
The court turns first to Defendants’ motion to dismiss. According to EWTN, the court must not rule on this motion because Defendants “cite to and rely on a voluminous appendix, styled as an Administrative Record,” which means EWTN “must be given an opportunity to conduct discovery” under Federal Rule of Civil Procedure 12(d). (Doc. 51 (quotations omitted).) That argument misstates the rule, however, and the materials Defendants offer in support of their motion for summary judgment pose no impediment to
4

the court’s ruling on their motion to dismiss so long as “matters outside of the pleadings are . . . excluded by the court.” (Doc. 51.) And as the following discussion will show, all of the complaint’s remaining constitutional claims and some of its claims under the Administrative Procedure Act (the “APA”) are due to be dismissed without reference to matters outside of the pleadings.
1. Plaintiffs’ Constitutional Claims Plaintiffs’ weakest constitutional claim is Count VI, which alleges that the mandate unlawfully interferes with matters of internal religious governance. Defendants cast that claim as a mere “restatement of EWTN’s substantial burden theory” (Doc. 36 at 32), which theory the court rejected in its earlier order. (Doc. 61 at 10 (“[T]he court finds that the mandate does not impose a substantial burden on EWTN’s religious practice . . . .”).) EWTN did not respond to that argument, nor did it even mention Count VI in its opposition to Defendants’ motion to dismiss. As a result, Count VI is due to be dismissed on the merits and as abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (noting that when a party “fails to offer argument on an issue, that issue is abandoned” (citations omitted)). The claims of intentional religious suppression and discrimination in Counts III, IV, VII, and VIII are also due to be dismissed. Unlike the claims the court addressed in its earlier order, these intentional-discrimination claims expressly allege that Defendants had illicit motives when they crafted
5

the mandate and its accommodation scheme. But in light of the court’s earlier order, which held that the mandate neither suppresses religious exercise nor discriminates among religions, such allegations of illicit motives are irrelevant—all that matters is that the mandate, as it was enacted, does not violate the Constitution. See United States v. O’Brien, 391 U.S. 367, 383 (1968) (“[I]t is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive.”); Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12– cv–03489–WSD, 2014 WL 1256373, at *26 (N.D. Ga. March 26, 2014) (noting that the neutrality inquiry involved in Free Exercise cases “does not turn on whether the drafters exhibited an invidious intent in enacting the law” (quotations omitted)). As a result, Counts III, IV, VII, and VIII are due to be dismissed.
Likewise, Plaintiffs’ claim in Count X that the mandate violates its First Amendment right of free association is due to be dismissed. According to that claim, the mandate “impairs [EWTN’s expressive association with its employees] by introducing a required term—coverage for sterilization, contraception, and abortifacients, both for employees and their dependents— into the relationship.” (Doc. 50 at 19.) But that argument fails even if the court assumes that the relationship between EWTN and its employees counts as expressive association because the mandate does not prevent EWTN and its employees from gathering together to express their disapproval of the use
6

of contraceptives, nor does it interfere with EWTN’s right to make decisions about whom it will associate with. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR), 547 U.S. 47, 69–70 (2006) (finding that a statute requiring law schools to allow military recruiters on campus did not violate the schools’ rights of expressive association because “[s]tudents and faculty [were] free to associate to voice their disapproval of the military’s message” and “nothing about the statute affect[ed] the composition of the group by making group membership less desirable.”). As a result, Count X is due to be dismissed.
Finally, there is Count XI, which alleges that the mandate violates “EWTN’s right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise.” (Doc. 1 ¶ 261.) But that allegation rests on Plaintiffs’ claims that the mandate discriminates among religions, burdens the free exercise of religion, and violates EWTN’s rights of free speech and free association. As discussed above and in the court’s previous order, the mandate does none of those things. Thus, Count XI is due to be dismissed.
2. Plaintiffs’ APA Claims The complaint’s first APA claim is Count XII, which accuses Defendants of failing to follow the notice-and-comment procedure set out in 5 U.S.C. § 553. Specifically, Plaintiffs claim that the 2011 Amended Interim Final Regulations, (the “2011 regulations”) 76 FR 46621-01, which adopted
7

guidelines requiring health plans to cover all FDA-approved contraceptives, should have been subject to public comment before they were promulgated. Defendants don’t deny that the 2011 regulations were promulgated without notice and comment. But according to Defendants, that does not matter because the 2011 regulations have been updated several times with amendments that were subject to appropriate notice and comment. That may be true. But those amendments don’t cure any problems with the 2011 regulations because “post-promulgation comments . . . do not rectify the lack of pre-promulgation notice and comment.” U.S. v. Dean, 604 F.3d 1275, 1281 (11th Cir. 2010). Otherwise, the APA’s notice-and-comment requirements would be essentially meaningless and agencies “that wished to dispense with pre-promulgation notice and comment could simply do so, invite post-promulgation comment, and republish the regulation before a reviewing court could act.” U.S. Steel Corp. v. U.S. E.P.A., 595 F.2d 207, 215 (5th Cir. 1979). As a result, Defendants’ only argument3 against Plaintiffs’ claim regarding improprieties with the 2011 regulations’ notice-and-comment procedure is unpersuasive, so their motion to dismiss Count XII is due to be denied.
The complaint’s next APA claim is Count XIII, which alleges that the
3 Defendants have not tried to argue that the 2011 Interim Final Rules were exempt from the APA’s notice-and-comment requirements under “the ‘good cause” exceptions contained at 5 U.S.C. §§ 553(b)(3)(B) and (d)(3).’” U.S. v. Dean, 604 F.3d 1275, 1278 (11th Cir. 2010). As a result, the court expresses no opinion on that point.
8

regulations that created the accommodation for religious nonprofits are arbitrary and capricious because Defendants’ explanation for excluding nonprofits like EWTN from the definition of the term religious employer “runs counter to the evidence that was before them.” (Doc. 50 at 23 (quotations omitted).) Defendants do not offer any real argument on this point; instead, they just assert that the regulations “are neither arbitrary nor capricious” and that Plaintiffs’ claims to the contrary are “flatly contradicted by the record.” (Doc. 36 at 26.) Those conclusory statements fall well short of the burden that Defendants must meet to properly support a motion to dismiss, so their motion to dismiss Count XIII is due to be denied.
In Count XIV, Plaintiffs allege that Defendants exceeded their statutory authority when they enacted regulations “imposing duties and costs on insurance companies, and setting up a scheme of administrative fee reductions, which were not authorized by the [Affordable Care Act].” (Doc. 50 at 24.) Defendants’ only argument for dismissal of this claim is that EWTN lacks standing to bring it. That may be the case. But it appears that the State of Alabama does have standing on Count XIV, and Defendants make no effort to argue otherwise. See Wyoming ex rel. Crank v. U.S., 539 F.3d 1236, 1242 (10th Cir. 2008) (finding that “[f]ederal regulatory action that preempts state law creates a sufficient injury-in-fact” to support Article III standing). Thus, the court need not decide whether EWTN has standing on that count “because the presence of one party with standing is sufficient to satisfy
9

Article III's case-or-controversy requirement.” FAIR, 547 U.S. at 53. As a result, Defendants’ motion to dismiss Count XIV is due to be denied.
In Count XV, Plaintiffs claim that the mandate violates the Weldon Amendment, an appropriations rider that withholds funding from government agencies that “subject[ ] any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub.L. No. 112–74, 125 Stat. 786, 1111. Plaintiffs say that some of the emergency contraceptives required to be covered under the mandate qualify as abortions within the meaning of the Weldon Amendment. But even if that is true (a question which the court expresses no opinion on at this time), Count XV still fails because the mandate does not discriminate against organizations like EWTN. Thanks to the accommodation that allows religious nonprofits to opt out of the mandate, EWTN is free to continue refusing to cover the allegedly abortion-inducing drugs without suffering any discrimination for making that choice. See Roman Catholic Archbishop of Wash. v. Sebelius, Civil Action No. 13–1441 (ABJ), 2013 WL 6729515, at * 46 (D.D.C. Dec. 20, 2013) (“With the elimination of the penalty for failing to provide coverage for contraceptive services, the accommodation eliminates any potential discrimination against plaintiffs for exercising their religious views and makes it irrelevant whether the word ‘abortion,’ as used in the Weldon Amendment, includes emergency contraceptives or not.”). As a
10

result, Count XV is due to be dismissed. Finally, there is Count XVI, which alleges that the mandate violates a
provision of the Affordable Care Act that ensures that health plans will not be required to provide coverage for abortion services. 42 U.S.C. § 18023(b)(1)(A)(i). Defendants say EWTN lacks prudential standing to assert this claim. But again, they make no argument regarding the State’s standing to do so, thus EWTN’s supposed lack of standing cannot provide a sufficient basis for dismissal. See FAIR, 547 U.S. at 53. Defendants’ only other argument against Count XVI is that none of the contraceptives required to be covered under the mandate qualify as “abortion services” under the Affordable Care Act. But EWTN says they do, and Defendants don’t provide a convincing argument for holding otherwise at this juncture. As a result, EWTN’s motion to dismiss is due to be denied with respect to Count XVI.
That leaves only Count XVII, captioned Declaratory Judgment, which is not so much a claim as a prayer for a specific form of relief. Defendants have not argued that such relief is inappropriate on the claims that survived the motion to dismiss, so to the extent Defendants move to dismiss that count, their motion is due to be denied. B. Defendants’ Motion for Summary Judgment
As discussed above, only Counts XII, XIII, XIV, XVI, and XVII survived Defendants’ motion to dismiss, which means they are the only counts on which the court need consider Defendants’ motion for summary
11

judgment. But in arguing for summary judgment on those counts, Defendants do not cite any evidence at all, nor do they make any legal arguments that the court has not already rejected in the portion of this order dealing with Defendants’ motion to dismiss. Because Defendants make no serious effort to show that there exists no “genuine dispute as to any material fact” or that they are “entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a), their motion for summary judgment is due to be denied on Counts XII, XIII, XIV, XVI, and XVII.
IV. CONCLUSION It is therefore ORDERED as follows: (1) Defendants’ Motion to Dismiss (Doc. 34) is DENIED with respect
to Counts XII, XIII, XIV, XVI, and XVII, and is GRANTED with respect to all remaining claims; (2) Defendants’ Motion for Summary Judgment (Doc. 34) is DENIED with respect to Counts XII, XIII, XIV, XVI, and XVII; (3) EWTN’s 56(d) motion (Doc. 51) is DENIED AS MOOT. DONE and ORDERED this 17th day of June, 2014.
/s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
12

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ETERNAL WORD TELEVISION NETWORK, INC. AND STATE OF ALABAMA,
Plaintiffs,
vs.
SYLVIA M. BURWELL, et al,
Defendants.

) ) ) ) ) ) ) Civil Action No. 13-0521-CG-C ) ) ) )

ORDER This matter is before the court on the joint motion for entry of judgment under Rule 54(b) for Counts I, II, V, and IX, and for a stay of litigation with respect to the remaining Counts (Doc. 63). Having considered the motion and the premises therefor, the court finds, pursuant to Rule 54(b), that there is no just reason for delay of final judgment on the claims under Counts I, II, V, and IX. The court therefore certifies that its order of partial summary judgment dated June 17, 2014, (Doc. 61), constitutes a final judgment as to Counts I, II, V, and IX. A separate final judgment as to those Counts will be entered on the docket. The court further ORDERS that litigation of the remaining claims in this case, including all of the constitutional and Administrative Procedure Act claims, are hereby STAYED pending the appeal of the partial summary

judgment. DONE and ORDERED this 18th day of June, 2014. /s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ETERNAL WORD TELEVISION

)

NETWORK, INC., et al,

)

)

Plaintiffs,

)

)

vs.

)

)

SYLVIA M. BURWELL, Secretary of )

the United States Department of

)

Health and Human Services, et al., )

)

Defendants.

)

Civil No. 13-0521-CG-C

FINAL JUDGMENT

In accordance with the Order granting the defendants’ motion for summary

judgment in part, it is ORDERED, ADJUDGED, and DECREED that

JUDGMENT is entered in favor of Defendants, Sylvia M. Burwell, Secretary of the

United States Department of Health and Human Services, Thomas Perez, Secretary

of the United States Department of Labor, Jacob Lew, Secretary of the United

States Department of the Treasury, and against Plaintiffs, Eternal Word Television

and the State of Alabama. It is, therefore, ORDERED that Counts I, II, V and IX

of the Plaintiff’s complaint are hereby DISMISSED with prejudice. Costs are to

be taxed against the plaintiffs.

DONE and ORDERED this 18th day of June, 2014.

/s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE

 
 Case: 14-12696 Date Filed: 02/18/2016 Page: 1 of 148
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 14-12696 ________________________
D.C. Docket No. 1:13-cv-00521-CG-C
ETERNAL WORD TELEVISION NETWORK, INC.,
Plaintiff - Appellant,
STATE OF ALABAMA,
Plaintiff,
versus
SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SECRETARY OF THE U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF LABOR, SECRETARY OF THE U.S. DEPARTMENT OF THE TREASURY, U.S. DEPARTMENT OF THE TREASURY,
Defendants - Appellees. ________________________
Appeals from the United States District Court for the Southern District of Alabama ________________________

Case: 14-12696 Date Filed: 02/18/2016 Page: 2 of 148
________________________
Nos. 14-12890; 14-13239 ________________________
D.C. Docket No. 1:12-cv-03489-WSD
THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA, an association of churches and schools, THE MOST REVEREND WILTON D. GREGORY, and his successors, Archbishop of the Roman Catholic Archdiocese of Atlanta, CATHOLIC CHARITIES OF THE ARCHDIOCESE OF ATLANTA, INC., a Georgia non-profit corporation, THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, an ecclesiastical territory, THE MOST REVEREND JOHN HARTMAYER, and his successors, Bishop of the Roman Catholic Diocese of Savannah, et al.,
Plaintiffs - Appellees,
versus
SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY, SECRETARY, U.S. DEPARTMENT OF LABOR, SECRETARY, U.S. DEPARTMENT OF TREASURY,
Defendants - Appellants.
2

Case: 14-12696 Date Filed: 02/18/2016 Page: 3 of 148
________________________
Appeals from the United States District Court for the Northern District of Georgia ________________________ (February 18, 2016)
Before TJOFLAT, JILL PRYOR and ANDERSON, Circuit Judges.
JILL PRYOR, Circuit Judge:
The plaintiffs in these consolidated appeals challenge the regulations
implementing what is known as the “contraceptive mandate” of the Affordable
Care Act (“ACA”)—the requirement that employers provide health insurance coverage for preventive care (including contraception) to women.1 Specifically,
the plaintiffs argue that the regulations’ accommodation for nonprofit
organizations with a religious objection to providing contraceptive coverage
violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et
seq. They claim that the accommodation substantially burdens their religious
exercise in violation of RFRA by forcing them to take actions that cause their
health plan administrators to provide contraceptive coverage and to maintain a
health plan that serves as a conduit for contraceptive coverage. We reject the
1 We consider in this opinion the following district court orders: Eternal World Television Network, Inc. v. Burwell, 26 F. Supp. 3d 1228 (S.D. Ala. 2014); Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 2441742 (N.D. Ga. May 30, 2014); and Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 1256373 (N.D. Ga. Mar. 26, 2014). The government filed separate appeals from the two orders in Roman Catholic Archdiocese, which were consolidated before this Court.
3

Case: 14-12696 Date Filed: 02/18/2016 Page: 4 of 148
plaintiffs’ claims because we conclude that the regulations do not substantially burden their religious exercise and, alternatively, because (1) the government has compelling interests to justify the accommodation, and (2) the accommodation is the least restrictive means of furthering those interests.
Eternal Word Television Network (“EWTN”), the plaintiff in the first appeal, also raises several First Amendment challenges to the accommodation. Because the accommodation is a neutral, generally applicable law that does not discriminate based on religious denomination, we reject EWTN’s challenges under the Establishment and Free Exercise Clauses. We also reject EWTN’s challenge under the Free Speech Clause because, as discussed below, any speech restrictions that may flow from the accommodation are justified by a compelling governmental interest and are thus constitutional.
I. BACKGROUND A. The Affordable Care Act and the Contraceptive Mandate
Enacted in 2010, the ACA requires group health insurance plans to provide a minimum floor of coverage without imposing cost sharing (such as deductibles, co-payments, or co-insurance) on plan participants and beneficiaries. 42 U.S.C. § 300gg-13(a). If an employer fails to provide such coverage in its group employee health plan, it is subject to penalties in the form of a tax of $100 per day per affected person. 26 U.S.C. § 4980D(b)(1). The Women’s Health Amendment
4

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to the ACA added to the minimum coverage requirements a mandate that group health plans provide women with coverage for preventive care and screenings. 42 U.S.C. § 300gg-13(a)(4). The requirement was intended in part to “get[] rid of, or minimiz[e], high copays and high deductibles that are often overwhelming hurdles for women to access screening programs.” 155 Cong. Rec. S11987 (Nov. 30, 2009) (statement of Sen. Mikulski). The ACA tasked the Health Resources and Services Administration (“HRSA”), an agency of the Department of Health and Human Services (“HHS”), with promulgating comprehensive guidelines determining which preventive services and screenings would be required. 42 U.S.C. § 300gg-13(a)(4). HHS commissioned the Institute of Medicine (“IOM”) to assist with HRSA’s development of the guidelines.
The IOM released a full report in 2011 detailing its study of various preventive services and its recommendations for coverage under the mandate. Inst. of Medicine, Clinical Preventive Services for Women: Closing the Gaps (2011) (“IOM Report”). The IOM Report discussed at length the positive public health outcomes associated with reducing unintended pregnancies and giving women more control over birth spacing. The United States has a much higher rate of unintended pregnancies—49 percent of pregnancies in 2001—than other developed countries. Id. at 102. Unintended pregnancies correlate with health problems both for women who experience such pregnancies and for children born
5

Case: 14-12696 Date Filed: 02/18/2016 Page: 6 of 148
as a result of them. Id. at 103. And because women may not realize immediately
that they are pregnant, “their entry into prenatal care may be delayed[;] they may
not be motivated to discontinue behaviors that present risks for the developing
fetus; and they may experience depression, anxiety, or other conditions.” Id. Unintended pregnancies also frequently end in abortion. Id. at 102.2
The IOM Report also noted the health consequences of pregnancies
occurring too closely together in time. For infants, “[s]hort interpregnancy
intervals in particular have been associated with low birth weight, prematurity, and
small for gestational age births.” Id. at 103. For women, both pregnancy spacing
and the ability to avoid pregnancy may significantly affect their health because,
among other reasons, some “women with certain chronic medical conditions (e.g.,
diabetes and obesity) may need to postpone pregnancy until appropriate weight
loss or glycemic control has been achieved.” Id. Pregnancy is also contraindicated
for some women with serious medical conditions, for example, pulmonary hypertension or Marfan syndrome.3 Id. at 103-04. The IOM Report also found
2 A 2013 report from the Centers for Disease Control and Prevention estimated that 18 percent of all pregnancies in the United States ended in abortion and noted that “unintended pregnancy precedes nearly all abortions.” Karen Pazol, et al., Centers for Disease Control & Prevention, Abortion Surveillance—United States, 2010 (Nov. 29, 2013), http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6208a1.htm. The IOM Report noted that in 2001, 42 percent of unintended pregnancies in the United States were terminated by abortion. IOM Report at 102.
3 Marfan syndrome is a genetic disorder that affects the body’s connective tissue. Pregnancy can be difficult for women with the condition because of the additional strain
6

Case: 14-12696 Date Filed: 02/18/2016 Page: 7 of 148
that “greater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally.” Id. at 105.
Pursuant to its statutory authority, HRSA released binding guidelines, based on the IOM Report, that require coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” U.S. Dep’t of Health & Human Servs., Health Res. & Servs. Admin., Women’s Preventive Services Guidelines (“HRSA guidelines”), http://www.hrsa.gov/womensguidelines (last visited Feb. 12, 2016); see also 77 Fed. Reg. 8725, 8725-26 (Feb. 15, 2012) (quoting the language in the HRSA guidelines regarding coverage). Implementing regulations developed by the Department of Labor, the Department of the Treasury, and HHS (collectively, the “Departments”) reiterate the contraceptive mandate’s requirement that health plans cover all services listed in the HRSA guidelines. 26 C.F.R. § 54.9815-2713(a)(1)(iv) (Treasury Regulation); 29 C.F.R § 2590.715-2713(a)(1)(iv) (Labor Regulation); 45 C.F.R. § 147.130(a)(1)(iv) (HHS Regulation).4
pregnancy places on the cardiovascular system. Nat’l Heart, Lung, & Blood Inst., What is Marfan Syndrome? (Oct. 1, 2010), http://www.nhlbi.nih.gov/health/health-topics/topics/mar/.
4 The Departments have jointly developed regulations carrying out the ACA. To be concise, whenever possible we cite only to the regulations issued by HHS, codified at 45 C.F.R. pt. 147, and not to the corresponding identical regulations issued by the Departments of Labor and the Treasury.
7

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Mindful of religious freedom and the importance of respect for “the unique relationship between a house of worship and its employees in ministerial positions,” the Departments promulgated interim regulations that gave HRSA discretion to exempt from the contraceptive mandate certain group health plans established or maintained by religious employers. See 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). The Departments defined “religious employer” by incorporating the Internal Revenue Service’s definition of a church or integrated auxiliary from 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). 45 C.F.R. § 147.130(a)(1)(iv)(B) (2011). The definition also required a religious employer to have a religious purpose and to both serve and employ primarily persons who share the religious tenets of the organization. Id. Exercising the discretion the regulations provided, HRSA amended its guidelines to exempt religious employers from the contraceptive mandate. The guidelines, issued on August 1, 2011, required compliance beginning on August 1, 2012. See id. § 147.130(b)(1).
The Departments finalized the implementing regulations in February 2012. See 77 Fed. Reg. 8725. At the same time, the Departments established a temporary safe harbor from the contraceptive mandate for nonprofit organizations with religious objections to providing contraceptive coverage. See Dep’t of Health & Human Servs., Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Health Plans & Group Health Insurance Issuers with Respect to the
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Requirement to Cover Contraceptive Services Without Cost Sharing (Feb. 10, 2012). The safe harbor remained in effect for the 2012 plan year, ending on August 1, 2013. See id. at 2.
The Departments intended to use the safe harbor period to “expeditiously develop and propose changes to the final regulations implementing” the contraceptive mandate. 77 Fed. Reg. 16501, 16503 (Mar. 21, 2012). The changes to the regulations needed to “meet two goals—accommodating non-exempt, nonprofit religious organizations’ religious objections to covering contraceptive services and assuring that participants and beneficiaries covered under such organizations’ plans receive contraceptive coverage without cost sharing.” Id. In March 2012, the Departments began the rulemaking process and solicited comments on potential regulations that could achieve these two goals. Id. at 16501.
At the conclusion of the rulemaking process in July 2013, the Departments promulgated revised regulations that retained HRSA’s authority to exempt religious employers. See 78 Fed. Reg. 39870 (July 2, 2013). The same day, HRSA released revised guidelines that tracked the Departments’ changes to the religious employer exemption. The final regulations simplified the definition of a “religious employer,” making the term coextensive with the IRS’s statutory definition and removing the additional qualifications regarding a religious
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employer’s mission, programs, and employees. 45 C.F.R. § 147.131(a) (2013); see also 78 Fed. Reg. at 39873-74. Religious employers remained categorically exempt from the contraceptive mandate out of “respect [for] the religious interests of houses of worship and their integrated auxiliaries.” 78 Fed. Reg. at 39874. The Departments noted that the exemption did not undermine their goal of making contraceptive coverage available because religious employers and their integrated auxiliaries “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.” Id.
The revised regulations, which took effect on Aug. 1, 2013, added an accommodation for organizations that do not qualify as religious employers under the exemption. See 45 C.F.R. § 147.131(b) (2013). So long as an organization is a nonprofit entity holding itself out as a religious organization and has a religious objection to providing contraceptive coverage (we refer to such entities as “eligible organizations”), it may opt out of the contraceptive mandate. Id.5
5 Under 45 C.F.R. § 147.131(b), an organization is eligible for the accommodation if: (1) The organization opposes providing coverage for some or all of any contraceptive items or services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) (i) The organization is organized and operates as a nonprofit entity and holds itself out as a religious organization; or
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Eligible organizations can take advantage of the accommodation via one of
two procedures. The first procedure requires the organization to complete
Employee Benefits Security Administration Form 700 (“Form 700”). See EBSA
Form 700–Certification (Aug. 2014),
http://www.dol.gov/ebsa/preventiveserviceseligibleorganizationcertificationform.doc. 6 To complete the two-page form, the eligible organization must provide its name
and the name, title, and contact information of the individual signing the form on
behalf of the organization. The person signing the form must certify that the
organization “has a religious objection to providing coverage for some or all of any
contraceptive services that would otherwise be required to be covered.” Id.
(ii) The organization is organized and operates as a closely held for-profit entity, as defined in paragraph (b)(4) of this section, and the organization’s highest governing body (such as its board of directors, board of trustees, or owners, if managed directly by its owners) has adopted a resolution or similar action, under the organization’s applicable rules of governance and consistent with state law, establishing that it objects to covering some or all of the contraceptive services on account of the owners’ sincerely held religious beliefs. (3) The organization must self-certify in the form and manner specified by the Secretary of Labor or provide notice to the Secretary of Health and Human Services as described in paragraph (c) of this section. The organization must make such self-certification or notice available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification or notice must be executed by a person authorized to make the certification or notice on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of ERISA. 6 Form 700 is included as the appendix to this opinion.
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The form’s recipient depends on the type of health plan the eligible organization maintains. Employers can provide health benefits either through an insured health plan or a self-insured health plan.7 See Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals 6 (2008). If the eligible organization has an insured plan, it gives Form 700 to the insurance company that provides its health plan (“plan provider”); if the organization has a self-insured plan, it gives Form 700 to its third-party administrator (“TPA”). The plaintiffs in both cases before us provide health benefits to their employees through selfinsured group health plans, and all employ TPAs to administer their plans.
Alternatively, an eligible organization may directly notify HHS of its religious objection to complying with the contraceptive mandate. This more recently developed method of taking advantage of the accommodation arose from the United States Supreme Court’s order granting a preliminary injunction in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). After the regulations concerning the exemption and accommodation procedures were finalized, the Supreme Court in Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2759-60 (2014), extended the accommodation for nonprofit religious organizations to
7 For insured health plans, the employer contracts with an insurance company that administers the group plan and pays claims. For self-insured plans, the financial risk of providing health insurance lies with the organization itself; the organization directly pays for the plan participants’ and beneficiaries’ claims. Usually, organizations with self-insured plans hire a third party to handle administrative tasks, such as developing provider networks and processing claims.
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closely held for-profit corporations whose owners have religious objections to complying with the contraceptive mandate. Three days after the Hobby Lobby decision was issued, the Supreme Court in Wheaton College granted a request for a preliminary injunction pending appellate review to a plaintiff challenging the accommodation itself under RFRA, the same challenge the plaintiffs mount here. Wheaton Coll., 134 S. Ct. at 2807. The Supreme Court’s order enjoined HHS from enforcing the accommodation procedure against the college, so long as the college “inform[ed] 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.” Id. The Supreme Court warned, however, that the injunction order “should not be construed as an expression of the Court’s views on the merits.” Id.8
In response to the order in Wheaton College, the Departments issued interim final regulations in August 2014 to allow an eligible organization to opt out by sending a letter to HHS, instead of giving Form 700 to its plan provider or TPA. 79 Fed. Reg. 51092, 51094-95 (Aug. 27, 2014); see Ctr. for Medicare & Medicaid Servs., Model Notice, https://www.cms.gov/CCIIO/Resources/Regulations-and-
8 The Seventh Circuit recently resolved Wheaton College’s appeal, affirming the district court’s denial of the college’s request for a preliminary injunction. Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. 2015).
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Guidance/Downloads/Model-Notice-8-22-14.pdf (last visited Feb. 12, 2016).9
There is no prescribed format for the letter, but it must include:
the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on its sincerely held religious beliefs to coverage of some or all contraceptive services, as applicable (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type . . . ; and the name and contact information for any of the plan’s third party administrators and health insurance issuers.
45 C.F.R. § 147.131(c)(1)(ii).
The regulations became final, without substantial changes, in a set of new
rules effective on September 14, 2015. 80 Fed. Reg. 41318 (July 14, 2015). Under
the current rules, if an eligible organization directly notifies HHS of its intent to
opt out of the contraceptive mandate, the government then alerts the organization’s
health plan provider or TPA that the organization has opted out and describes the
plan provider’s or TPA’s resulting obligations. See 26 C.F.R. § 54.9815-
2713A(b)(1)(ii)(B), (c)(1)(ii).
For insured plans, once an eligible organization avails itself of the
accommodation, the plan provider must (1) “[e]xpressly exclude contraceptive
9 The interim final regulations also removed a provision (known as the non-interference provision) requiring that eligible organizations “‘must not, directly or indirectly[,] seek to interfere with a third party administrator’s arrangements to provide or arrange for separate payments for contraceptive services,’ and ‘must not, directly or indirectly, seek to influence a third party administrator’s decision to make any such arrangements.’” 79 Fed. Reg. at 51095 (quoting 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii)).
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coverage from the group health insurance coverage” and (2) “[p]rovide separate payments for any contraceptive services required to be covered” for the plan participants and beneficiaries. 45 C.F.R. § 147.131(c)(2)(i).
For self-insured plans, the regulations provide that when an eligible organization invokes the accommodation, its TPA is designated as the plan administrator under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(16), with respect to contraceptive services. Under the regulations, the TPA is designated as the plan administrator in one of two ways. If the eligible organization provides a copy of Form 700 to its TPA, then the regulations treat the form “as a designation of the [TPA] as the plan administrator” for ERISA purposes. 29 C.F.R. § 2510.3-16(b). If the eligible organization instead notifies HHS of its intent to opt out, then the Department of Labor notifies the TPA that it shall be the plan administrator with respect to contraceptive services for ERISA purposes. Id.
Upon receiving notification, the TPA has the option of terminating its contractual relationship with the eligible organization.10 See 26 C.F.R. § 54.9815-
10 If the TPA terminates the relationship, the organization must (1) contract with a new TPA to administer its self-insured plan, (2) convert to an insured plan by contracting with a plan provider, or (3) administer the plan itself. If the eligible organization contracts with a new TPA, then it remains subject to the mandate and must provide contraceptive coverage, seek an accommodation, or pay a penalty. Alternatively, the organization could restructure its plan and contract with a plan provider that would assume the risk of providing health insurance (that is, change from a self-insured to an insured plan). In this scenario, the organization would have to
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2713A(b)(2). If it remains as the TPA, then it must provide (or arrange for another
insurer to provide) contraceptive benefits to participants and beneficiaries of the
self-insured plan. Id.; 29 C.F.R. § 2510.3-16(c).11
Significantly, plan providers and TPAs “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.”
26 C.F.R. § 54.9815-2713A(c)(2)(i); 45 C.F.R. § 147.131(c)(2)(ii).12 Plan
providers “must segregate premium revenue collected from the eligible
organization from the monies used to provide payments for contraceptive
comply with the mandate, seek an accommodation, or pay a penalty. Finally, the organization could continue with its self-insured plan without a TPA, meaning the organization would assume responsibility for administering claims. Although the Departments are unaware of the existence of a single self-insured plan without a TPA, they have created a safe harbor that excuses such a plan from complying with the contraceptive mandate so long as it annually notifies HHS that it has no TPA and plan participants and beneficiaries that contraceptive coverage is not provided. The Departments will provide this safe harbor while considering an additional accommodation. 78 Fed. Reg. at 39880-81.
11 Self-insured plans run by houses of worship and certain organizations controlled by or associated with a house of worship, known as “church plans,” are not subject to the provisions of ERISA unless they elect otherwise. See 26 U.S.C. §§ 410(d), 414(e). The government lacks authority to compel the TPA of a church plan not subject to ERISA to provide contraceptive coverage. See 29 U.S.C. § 1003(b)(2). Nonetheless, the TPA for a church plan may voluntarily provide contraceptive services; the government incentivizes these TPAs to provide the coverage by offering larger reimbursements. See 80 Fed. Reg. at 41323 n.22; 45 C.F.R. § 156.50(d).
12 The government reimburses plan providers and TPAs for providing contraception benefits. Plan providers receive a downward adjustment to the user fees they must pay to the federal government to sell plans on the federally-facilitated health exchanges. The process for TPAs can be more complicated. If the TPA is not itself a participating insurer, then it must contract for contraceptive coverage with a participating insurer, and the insurer then passes on the reimbursement to the TPA. See 80 Fed. Reg. at 41328.
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services.” 45 C.F.R. § 147.131(c)(2)(ii). A plan provider or TPA also must notify plan participants and beneficiaries (contemporaneously with the delivery of other plan materials, if possible) “that the eligible organization does not administer or fund contraceptive benefits,” but that the plan provider or TPA instead “provides separate payments for contraceptive services.” 26 C.F.R. § 54.9815-2713A(d); 45 C.F.R. § 147.131(d). B. The Parties and Procedural History
This opinion addresses two cases: one brought by EWTN and one brought by two Catholic Dioceses and a group of related persons and entities. Below, we briefly discuss the plaintiffs and the procedural history of each case in turn.
1. Eternal Word Television Network Plaintiff-appellant EWTN is a non-profit worldwide Catholic media network founded in 1981 by Mother Mary Angelica, a Catholic nun. EWTN, based in Irondale, Alabama, has approximately 350 employees. The network consists of 11 television feeds and two radio stations that reach 230 million homes in 144 countries and territories. Its programming includes daily Mass, Catholic devotions, coverage of Catholic Church events, documentaries, children’s programs, educational series, and other television and radio shows that support EWTN’s mission of “serv[ing] the orthodox belief and teaching of the Church as proclaimed by the Supreme Pontiff and his predecessors.” Compl. at 5, No. 1:13-cv-00521-
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CG-C, Doc. 1. EWTN has a self-insured group health plan to provide health insurance benefits to its employees. Blue Cross Blue Shield of Alabama serves as the TPA for the plan.
EWTN, together with the State of Alabama,13 filed a complaint challenging the contraceptive mandate and accompanying regulations under RFRA, the First Amendment, the Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The complaint alleged that “EWTN cannot facilitate access to health care insurance . . . that covers artificial contraception, sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs.” Compl. at 7, No. 1:13-cv-00521-CG-C, Doc. 1. To EWTN, this means that its religious beliefs prevent it both from providing contraceptive coverage in its health plan and from using the accommodation. As a result, EWTN alleged, the contraceptive mandate “imposes government pressure and coercion on EWTN to change or violate its religious beliefs” because if it does not provide coverage or use the accommodation, it faces fines for non-compliance with the mandate. Id. at 27.
EWTN and Alabama moved for partial summary judgment on five of the 17 counts in the complaint, including: Count One, alleging a violation of RFRA
13 Alabama was a party throughout the district court proceedings, but the State did not join EWTN in this appeal.
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based on the regulations’ burden on religious exercise; Count Two, alleging a violation of the Free Exercise Clause based on the same burden; Count Three, alleging a violation of the Free Exercise Clause based on intentional discrimination among religious organizations; Count Five, alleging a violation of the Establishment Clause based on the selective imposition of a burden on some religious organizations; and Count Nine, alleging a violation of the Free Speech Clause based on compelled speech. Alabama joined in EWTN’s motion and additionally moved for summary judgment on Count Seventeen, which sought a declaration that the contraceptive mandate does not preempt Alabama law.
The defendants-appellees—the Departments and their Secretaries—filed a motion to dismiss the complaint or, in the alternative, for summary judgment on all of the plaintiffs’ claims. The district court denied EWTN’s and Alabama’s motions for summary judgment and granted the defendants’ motion for summary judgment as to Counts One, Two, Five, and Nine. On a motion by the plaintiffs, the district court entered a final judgment on those four counts pursuant to Federal Rule of Civil Procedure 54(b) and stayed litigation of the remaining claims pending appeal.
EWTN timely appealed. On EWTN’s motion, we issued an injunction pending appeal, preventing the defendants from enforcing the mandate or the
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accommodation against EWTN. Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Servs., 756 F.3d 1339 (11th Cir. 2014).
2. The Diocesan Plaintiffs, CENGI, and Catholic Charities A group of Catholic entities—the Roman Catholic Archdiocese of Atlanta, the Archbishop of Atlanta, Christ the King Catholic School, Catholic Charities of the Archdiocese of Atlanta (“Catholic Charities”), the Roman Catholic Diocese of Savannah, and the Bishop of Savannah—filed a lawsuit against the Departments and their Secretaries. Both the Archdiocese of Atlanta and the Diocese of Savannah (collectively with the Bishop and Archbishop, “the Dioceses”) are associations of Catholic parishes and organizations, including Catholic schools. Catholic Charities is a nonprofit organization that provides social services, including immigration counseling, mental health counseling, marriage counseling, and pregnancy support services. The second amended complaint added as a plaintiff Catholic Education of North Georgia (“CENGI”) and removed Christ the King Catholic School. CENGI is a nonprofit organization that oversees five Catholic schools in the Atlanta area. The Atlanta Archdiocese operates a self-insured health plan, which covers employees of the Archdiocese, Catholic Charities, and CENGI. The Savannah
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Diocese operates two self-insured health plans for its employees. Meritain Health
serves as the TPA for all three plans.14
The second amended complaint alleged that the contraceptive mandate and
accompanying regulations violate RFRA, the First Amendment, the non-delegation
doctrine,15 and the APA. The plaintiffs alleged that the regulations require them
“to provide, pay for, and/or facilitate insurance coverage for abortion-inducing
drugs, sterilization, and contraception, in violation of their religious beliefs.”
Second Am. Compl. at 6, No. 1:12-cv-03489-WSD, Doc. 56. They alleged that the
regulations further burden religious exercise “by driving a wedge between
religious organizations, like the Atlanta Archdiocese, and their equally religious
charitable arms, such as Plaintiffs Catholic Charities and CENGI.” Id. Because
the charitable arms do not qualify as “religious employers,” the Dioceses alleged
14 The parties disagree over whether these health plans qualify as “church plans” for purposes of ERISA. We need not decide whether the plans at issue are church plans because their ERISA status does not impact our conclusion that the accommodation does not substantially burden religious exercise. If the plans are not church plans, then our analysis as to EWTN’s self-insured plan applies, and the accommodation presents no burden on religious exercise. See infra Part III.A.2.b. If the plans are church plans, then the government lacks authority to enforce the contraceptive mandate against the plaintiffs’ TPAs, rendering the plaintiffs’ assertion that their actions trigger such coverage even weaker. See, e.g., Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1188 (10th Cir.) (“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.”), cert. granted sub nom., S. Nazarene Univ. v. Burwell, 136 S. Ct. 445, and cert. granted, 136 S. Ct. 446 (2015).
15 The non-delegation doctrine is the constitutional principle that prevents Congress from delegating its legislative authority to another body with “unfettered discretion to make whatever laws” the body sees fit. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-38 (1935).
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they must expel the charities’ employees from their health plans if the Dioceses wish to take advantage of the religious exemption.16
The Departments filed a motion to dismiss the second amended complaint or, alternatively, for summary judgment on all counts. The plaintiffs cross-moved for summary judgment as to seven of their eight counts, which alleged that the mandate and accompanying regulations: burden religious exercise in violation of RFRA (Count One); violate the Free Exercise Clause, based on the same burden (Count Two); compel speech in violation of the Free Speech Clause (Count Three); prohibit speech in violation of the Free Speech Clause (Count Four); favor certain religious groups and entangle the government in religion in violation of the Establishment Clause (Count Five); interfere with internal church governance in violation of both the Free Exercise and Establishment Clauses (Count Six); and involve an impermissible delegation of unchecked legislative authority to the Departments (Count Seven).
The district court granted summary judgment to Catholic Charities and CENGI on their RFRA claims, holding that the contraceptive mandate and accommodation substantially burden the organizations’ religious exercise and are not the least restrictive means to accomplish a compelling governmental interest.
16 We note that there is no dispute that EWTN, CENGI, and Catholic Charities qualify for the accommodation and not for the religious employer exemption.
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The court enjoined the Departments from enforcing the mandate or the accommodation against Catholic Charities and CENGI. In addition, the court granted the plaintiffs’ motion for summary judgment on their claim that the noninterference provision created a content-based speech restriction in violation of the First Amendment.
As to the Dioceses’ RFRA claim, the court granted summary judgment to the Departments. The Dioceses had argued first that they might at some point have to pay more in premiums to help cover their plan providers’ cost of contraceptive coverage, in violation of their religious beliefs, and second that the distinction between religious employers and organizations eligible for the accommodation would force the Dioceses to remove unaffiliated Catholic schools from their insurance plans. Rejecting both arguments, the district court ruled that the first argument was merely speculative (and the outcome on which the Dioceses speculated would, in any event, be prohibited by law) and the second argument failed to assert a legitimate religious exercise. The district court granted the Departments’ summary judgment motion as to all of the plaintiffs’ remaining claims based on the First Amendment, the non-delegation doctrine, and the APA.
Despite the split judgment, only the Departments appealed the district court’s decision. Because revisions to the regulations have rendered the plaintiffs’
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compelled speech claim based on the non-interference provision moot,17 the appeal in this case concerns only the district court’s grant of summary judgment to Catholic Charities and CENGI on their RFRA claim.
II. STANDARD OF REVIEW “This court reviews the district court’s disposition of cross-motions for summary judgment de novo, applying the same legal standards used by the district court, viewing the evidence and all factual inferences therefrom in the light most favorable to the non-movant, and resolving all reasonable doubts about the facts in favor of the non-moving party.” Am. Bankers Ins. Group v. United States, 408 F.3d 1328 (11th Cir. 2005). Summary judgment is proper if the movant can show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where the material facts are undisputed and all that remains are questions of law, summary judgment may be granted. See Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir. 2011).
17 As noted above, in 2014 the Departments removed the regulations’ requirement that organizations “must not, directly or indirectly, seek to influence the third party administrator’s decision to” provide contraceptive coverage to the objecting organization’s health plan participants and beneficiaries. 26 C.F.R. § 54.9815-2713A(b)(1)(iii) (2013); see 79 Fed. Reg. at 51095; supra note 9.
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III. DISCUSSION A. RFRA Claims
1. Legal Background a. RFRA
RFRA provides that the federal government “shall not substantially burden a person’s exercise of religion” unless it demonstrates that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb1(a)-(b). Congress passed RFRA in 1993 in response to the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which held that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (characterizing Smith). In Smith, the Supreme Court reasoned that “[t]o make an individual’s obligation to obey [a neutral and generally applicable] law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling[,]’ . . . contradicts both constitutional tradition and common sense.” Smith, 494 U.S. at 885 (internal quotation marks and citation omitted).
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Congress stated that the purpose of RFRA was “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).” 42 U.S.C. § 2000bb(b)(1). Congress declared the strict scrutiny standard provided “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” Id. § 2000bb(a)(5). Indeed, RFRA “provide[s] even broader protection for religious liberty than was available under” Sherbert or Yoder because the government must also show that it used the least restrictive means to achieve its compelling interest. Hobby Lobby, 134 S. Ct. at 2761 n.3.
b. Hobby Lobby In Hobby Lobby, the Supreme Court held that enforcing the contraceptive mandate without an accommodation against closely held for-profit corporations that objected on religious grounds to providing contraceptive coverage violated RFRA. The corporations and their owners challenged the mandate as substantially burdening their religious exercise. Id. at 2764-66. The owners of the corporations sincerely believed that life begins at conception and that it is a sin to facilitate access to contraceptive drugs or devices that could destroy an embryo. Id. It was undisputed that the mandate required the plaintiffs to provide health insurance that covered methods of contraception that could result in the destruction of an embryo. Id. at 2775. The plaintiffs asserted that the mandate left them with only two
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options: (1) provide coverage for contraception in violation of their religious beliefs or (2) pay significant penalties. Given these choices, the Supreme Court held that the mandate “impose[d] a substantial burden.” Id. at 2779.
The government argued there was no substantial burden because the connection between what the mandate required the plaintiffs to do (provide health insurance that covered contraception) and the end that they found morally wrong (the destruction of an embryo) was too attenuated. Id. at 2777. The premise of the government’s attenuation argument was that “providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four [contraceptive] methods at issue.” Id. In other words, the government asserted that the plaintiffs’ belief—that providing insurance coverage for contraception facilitated the destruction of embryos—was unreasonable. The Supreme Court rejected this argument, which would have required the Court to determine the “circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Id. at 2778. The Supreme Court cautioned that “federal courts have no business addressing” such questions of religion and moral philosophy. Id. Instead, the Supreme Court deferred to the plaintiffs’ religious belief that the coverage “is
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connected to the destruction of embryo in a way that is sufficient to make it
immoral for them to provide the coverage.” Id.
The Court then considered whether the mandate survived strict scrutiny.
The majority assumed that the mandate furthered a compelling governmental
interest18 but held that it was not the least restrictive means of doing so. Id. at
2779-80. The Court pointed to the accommodation, which at the time applied only
to nonprofit organizations with religious objections, as a less restrictive alternative.
18 The majority opinion assumed without deciding that the government has a compelling interest. In separate opinions, five members of the Court appeared to go further, suggesting that a majority of the Court would agree that there is, in fact, a compelling interest.
The four dissenting justices concluded that the government carried its burden in showing that the mandate “furthers compelling interests in public health and women’s well being.” Hobby Lobby, 134 S. Ct. at 2799 (Ginsburg, J., dissenting). Justice Kennedy, who joined the majority, offered a separate concurrence in which he emphasized the importance of the majority’s assumption that there is a compelling interest without explicitly stating that he agreed with that premise: “[it is] important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” Id. at 2786 (Kennedy, J., concurring). He also reiterated the government’s position that the mandate “provid[ed] insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee.” Id. at 2785-86.
Justice Ginsburg in her dissent and other courts have treated Justice Kennedy’s concurrence as recognizing that the government has a compelling interest. See id. at 2800 n.23 (Ginsburg, J., dissenting) (writing that Justice Kennedy “recognize[d], without reservation,” the existence of a compelling interest); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 624 (7th Cir. 2015) (Hamilton, J., concurring) (“Justice Kennedy’s concurring opinion made clear that he viewed the governmental interests as compelling.”); Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 257 (D.C. Cir. 2014) (explaining why Justice Kennedy’s concurrence was “more affirmative” than the majority opinion in recognizing a compelling interest), cert. granted sub nom., Roman Catholic Archbishop of Wash. v. Burwell, 136 S. Ct.
444 (2015), and cert. granted, 136 S. Ct. 446 (2015). We are inclined to agree that Justice
Kennedy’s concurring opinion can be read as recognizing a compelling interest. Nonetheless, even if Justice Kennedy merely assumed (but did not decide) there is a compelling interest, such that a majority of the Supreme Court has not reached that conclusion, we conclude that there is a compelling interest here. See infra Part III.B.2.c.(i).
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The Court explained that after an organization opts out, the plan provider (for insured plans) or TPA (for self-insured plans) must exclude contraceptive coverage from the group health plan and provide separate payments for contraceptive coverage without imposing cost sharing requirements on the organization, plan, or plan participants or beneficiaries. Id. at 2782. Although the Court declined to answer whether the accommodation complied with RFRA, it lauded the accommodation as “seek[ing] to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” Id. at 2759. The Court further recognized that “[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.”19 Id. at 2760.
c. Wheaton College After Hobby Lobby, the Court considered the accommodation itself in the context of an injunction sought under RFRA in Wheaton College. The Court enjoined the government from enforcing the mandate but required the plaintiff to
19 Justice Kennedy praised how the accommodation reconciled the competing priorities of ensuring that “no person may be restricted or demeaned by government in exercising his or her religion” and that the same exercise does not “unduly restrict other persons . . . in protecting their own interests, interests the law deems compelling.” Hobby Lobby, 134 S. Ct. at 2786-87 (Kennedy, J., concurring).
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inform HHS in writing that it had religious objections to providing coverage for contraceptive services. 134 S. Ct. at 2807. The Court explained that the government could “rely[] on this notice . . . to facilitate the provision of full contraceptive coverage.” Id. The practical effect of the Wheaton College decision was twofold: the plaintiff received an accommodation, and HHS could rely on the notification to provide contraceptive coverage to the participants and beneficiaries of the plaintiff’s plan.
d. Other RFRA Challenges to the Accommodation After Hobby Lobby and Wheaton College, federal courts around the country considered RFRA challenges to the accommodation. Applying these two Supreme Court decisions, seven of the eight circuits to review these cases held that the accommodation does not violate RFRA. See Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015); Catholic Health Care Sys. v. Burwell, 796 F.3d 207 (2d Cir. 2015); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir.), cert. granted sub nom., S. Nazarene Univ. v. Burwell, 136 S. Ct. 445, and cert. granted, 136 S. Ct. 446 (2015); E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir.), cert. granted, 136 S. Ct. 444 (2015); Univ. of Notre Dame v. Burwell (“Notre Dame II”), 786 F.3d 606 (7th Cir.
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2015);20 Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422
(3d Cir.), cert. granted sub nom., Zubik v. Burwell, 136 S. Ct. 444, and cert.
granted, 136 S. Ct. 445 (2015); Priests for Life v. U.S. Dep’t of Health & Human
Servs. (“Priests for Life I”), 772 F.3d 229 (D.C. Cir. 2014), reh’g en banc denied,
(“Priests for Life II”), 808 F.3d 1 (D.C. Cir. 2015), cert. granted sub nom., Roman
Catholic Archbishop of Wash. v. Burwell, 136 S. Ct. 444 (2015), and cert. granted,
136 S. Ct. 446 (2015). These circuits concluded that the accommodation does not substantially burden religious exercise.21 The Eighth Circuit disagreed, holding
that the accommodation substantially burdens religious exercise and cannot survive
strict scrutiny. Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs.,
801 F.3d 927 (8th Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3350 (U.S. Dec.
15, 2015) (No. 15-775). Recently, the Supreme Court granted certiorari in several
of these cases.
The seven circuits that upheld the accommodation recognized that the RFRA
claim in Hobby Lobby was fundamentally different from challenges to the
20 Before Hobby Lobby was decided, the Seventh Circuit affirmed the denial of a preliminary injunction to enjoin the enforcement of the mandate and accommodation in University of Notre Dame v. Sebelius (“Notre Dame I”), 743 F.3d 547 (7th Cir. 2014). Subsequently, the Supreme Court granted certiorari, vacated the Seventh Circuit’s judgment in Notre Dame I, and remanded for consideration in light of Hobby Lobby. Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015). After considering Hobby Lobby, the Seventh Circuit issued Notre Dame II again affirming the denial of a preliminary injunction.
21 Two circuits have held, in the alternative, that even assuming the accommodation imposes a substantial burden, it survives strict scrutiny under RFRA. See Notre Dame II, 786 F.3d at 616-17; Priests for Life I, 772 F.3d at 256-57.
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accommodation itself. In Hobby Lobby, the plaintiffs challenged the mandate— that is, the requirement that they provide contraceptive coverage—when their only options were to provide the coverage or pay significant penalties. But in the accommodation cases, the plaintiffs have challenged the regulatory scheme that allows them to opt out of the mandate without penalty. Put another way, the plaintiffs in the accommodation cases “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.” Little Sisters of the Poor, 794 F.3d at 1160. Because they assert that “the exemption process itself imposes a substantial burden on their religious faiths,” their challenges are somewhat “paradoxical and virtually unprecedented.” Priests for Life I, 772 F.3d at 246 (internal quotation marks omitted).
The circuits upholding the accommodation recognized that the question of whether there is a substantial burden involves an objective inquiry. After interpreting the ACA and its regulations, they held that the act of opting out does not trigger contraceptive coverage. See, e.g., Notre Dame II, 786 F.3d at 614 (explaining that “[i]t is federal law, rather than the religious organization’s signing and mailing the form, that requires . . . third-party administrators of self-insured health plans[] to cover contraceptive services”). Although the eligible organizations asserted that the act of opting out makes them complicit in providing
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coverage, these courts explained that this objection could not constitute a substantial burden because individuals “have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.” Priests for Life I, 772 F.3d at 246.
In Sharpe Holdings, the Eighth Circuit reached the opposite conclusion, holding that the accommodation substantially burdened religious exercise, and enjoined the government from enforcing the accommodation. Relying on Hobby Lobby, the Eighth Circuit held that it was bound to accept the plaintiffs’ “assertion that self-certification under the accommodation process—using either Form 700 or HHS Notice—would violate their sincerely held religious beliefs.”22 Sharpe Holdings, 801 F.3d at 941. Because the plaintiffs faced a substantial penalty if they failed to seek an accommodation or provide contraceptive coverage, the Eighth Circuit concluded there was a substantial burden. Id. at 942.
The Eighth Circuit then applied strict scrutiny. The court assumed that the government had a compelling interest but held that the government had failed to carry its burden to show that it lacked other means to achieve its interest without imposing a substantial burden on religion. Id. at 943. The Eighth Circuit
22 Although the Eighth Circuit deferred to the plaintiffs’ understanding of how the accommodation functioned, it agreed that the act of opting out triggered coverage. See Sharpe Holdings, 801 F.3d at 942 (TPAs have no “wholly independent obligation” to provide contraceptive coverage).
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concluded that less restrictive alternatives included the government: (1) requiring less information from eligible organizations seeking an accommodation; (2) assuming the cost of providing contraceptives through subsidies, reimbursements, tax credits, or tax deductions to employees; (3) paying for distribution of contraceptives at community health centers, public clinics, and hospitals; or (4) making contraceptive coverage available through the healthcare exchanges. Id. at 944-45. Given these alternatives, the Eighth Circuit concluded that the accommodation failed to survive strict scrutiny.
2. RFRA Analysis With this legal landscape in mind, we now consider the plaintiffs’ RFRA challenge. We hold that their challenge fails because (1) the accommodation does not substantially burden their religious exercise, and (2) in the alternative, even if there is a substantial burden, the accommodation survives strict scrutiny.
a. The Plaintiffs Allege a Sincere Religious Belief. A threshold question we must ask is whether the plaintiffs’ religious beliefs on which their RFRA claims are based are sincere. See Hobby Lobby, 134 S. Ct. at 2774 n.28 (“To qualify for RFRA’s protection, an asserted belief must be ‘sincere’. . . .”). It is well established that we defer to a plaintiff’s statement of its own belief, so long as the plaintiff actually holds that belief. See id. at 2779 (“[I]t is not for [courts] to say that [the plaintiffs’] religious beliefs are mistaken or
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insubstantial.”); Davila v. Gladden, 777 F.3d 1198, 1204 (11th Cir.) (“[W]e look only to see whether the claimant . . . actually holds the beliefs he claims to hold.” (internal quotation marks omitted)), cert. denied sub nom., Davila v. Hayes, 136 S. Ct. 78 (2015).
Each plaintiff states that its religious beliefs prevent it from paying for, providing, or facilitating the distribution of contraceptives. Each plaintiff also asserts that it cannot be complicit in the provision of contraception. The government does not contest the sincerity of these religious beliefs, nor is there any indication whatsoever in the record that the stated beliefs are insincere. We thus conclude that the plaintiffs’ religious beliefs at issue are sincere.
b. The Accommodation Does Not Substantially Burden the Plaintiffs’ Religious Exercise.
We now consider whether, accepting the plaintiffs’ sincere religious beliefs, the accommodation substantially burdens their religious exercise. The plaintiffs assert that the act of notifying HHS or their TPAs of their religious objection will either trigger contraceptive coverage or make them complicit in a system that provides such coverage. Due to the significance they attach to opting out, the plaintiffs contend that the accommodation itself imposes a substantial burden because it puts them to the choice of violating their sincerely held religious beliefs or paying a substantial penalty. We accept the plaintiffs’ sincere belief that triggering coverage or being complicit in coverage violates their religious beliefs
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and that the accommodation puts them to a choice between honoring their religious beliefs and facing significant penalties. We nonetheless conclude that the accommodation imposes no substantial burden.
(i) The Substantial Burden Analysis Involves an Objective Inquiry.
“[A] ‘substantial burden’ must place more than an inconvenience on religious exercise.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004).23 A law is substantially burdensome when it places “significant pressure” on an adherent to act contrary to her religious beliefs, meaning that it “directly coerces the religious adherent to conform . . . her behavior.” Id. Thus, the government imposes a substantial burden when it places “pressure that tends to force adherents to forego religious precepts.” Id.
This inquiry involves both subjective and objective dimensions. Hobby Lobby made clear that there is a subjective aspect to this inquiry: courts must accept a religious adherent’s assertion that his religious beliefs require him to take or abstain from taking a specified action. See 134 S. Ct. at 2779. But the
23 Midrash concerned the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which Congress enacted after the Supreme Court struck down RFRA as applied to the states in City of Boerne v. Flores, 521 U.S. 507 (1997). RLUIPA imposes the same requirement as RFRA—that the government refrain from substantially burdening religious exercise unless the burden is the least restrictive means of achieving a compelling government interest—on programs and activities that receive federal funding. 42 U.S.C. § 2000cc-1. We apply the same substantial burden analysis under both RLUIPA and RFRA. See generally Davila, 777 F.3d at 1204; Midrash, 366 F.3d at 1237.
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substantial burden analysis does not end there. We agree with our seven sister circuits that the question of substantial burden also presents “a question of law for courts to decide.” Priests for Life I, 772 F.3d at 247.
The objective inquiry requires courts to consider whether the government actually “puts” the religious adherent to the “choice” of incurring a “serious” penalty or “engag[ing] in conduct that seriously violates [his] religious beliefs.” Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (second alteration in original and internal quotation marks omitted). Put another way, courts must determine what the challenged law actually requires of the plaintiff. For example, in Holt, a Muslim inmate asserted that prison grooming policy substantially burdened his religious exercise because it prohibited him from growing a beard, which his religion required. The Supreme Court explained that because the “grooming policy requires petitioner to shave his beard,” the policy “put[]” him to the choice of violating his religious beliefs or facing serious disciplinary action. Id. In Holt, as in many RFRA cases, this inquiry was straightforward because there was no dispute about what the government’s policy objectively required of the religious adherent. But when there is a dispute about what a law or governmental policy objectively requires, it is for the courts to construe the law or policy.
The plaintiffs here contend that under Hobby Lobby no such objective inquiry is required. In their view, a religious adherent’s mere assertion that she is
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being compelled to violate her sincerely held religious belief means that the
government has put her to such a choice, regardless of what the law objectively requires.24 We disagree. In Hobby Lobby, the plaintiffs challenged the
contraceptive mandate. It was undisputed that the mandate gave the plaintiffs just
two options: provide contraceptive coverage or pay a substantial penalty.
Although the Supreme Court engaged in no objective analysis about what the
mandate required, such analysis was unnecessary because the parties agreed that
the government, through the mandate, put the plaintiffs to the choice of providing
contraceptive coverage or paying a hefty fine. See Hobby Lobby, 134 S. Ct. at
2777-79; see also Priests for Life II, 808 F.3d at 2 (Pillard, J.) (concurring in denial
of reh’g en banc) (“The parties in Hobby Lobby did not dispute what the law
required, nor its practical effects . . . .”).
Here, the parties agree that the plaintiffs have at least three options: provide
contraceptive coverage, pay a penalty, or use the accommodation to opt out of providing contraceptive coverage.25 But they disagree about whether opting out
24 The Eighth Circuit similarly interpreted Hobby Lobby as requiring courts to “accept [the plaintiffs’] assertion that self-certification under the accommodation process . . . would violate their sincerely held religious beliefs.” Sharpe Holdings, 801 F.3d at 941.
25 We agree with the dissent that the plaintiffs have a fourth option, as well: to terminate their TPAs and take over the costs and responsibilities of running their self-insured plans. See Dissent at 109-10. But, the Departments contend there is no evidence of the existence of any self-insured plan without a TPA. See 78 Fed. Reg. at 39880 (“[T]he Departments continue to believe that there are no self-insured group health plans in this circumstance.”). If an eligible organization elected to become the first self-insured plan without a TPA, it would enjoy at least a
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puts the plaintiffs to the choice of violating their religious beliefs or paying a substantial fine. The plaintiffs contend that because an eligible organization’s TPA only becomes obligated to provide coverage when the organization opts out, by opting out they will be triggering coverage. The government argues to the contrary that plan participants and beneficiaries are entitled to contraceptive coverage under the ACA regardless of any opt out. We conclude that it is for the courts to determine objectively what the regulations require and whether the government has, in fact, put plaintiffs to the choice of violating their religious beliefs by seeking the accommodation or incurring a substantial penalty.
We reject a framework that takes away from courts the responsibility to decide what action the government requires and leaves that answer entirely to the religious adherent. Such a framework improperly substitutes religious belief for legal analysis regarding the operation of federal law. Indeed, the plaintiffs have identified nothing in RFRA or case law that allows a religious adherent to dictate to the courts what the law requires. The plain language of RFRA simply does not support reducing the role of federal courts to “rubber stamps” that automatically
temporary safe harbor so long as the plan notifies (1) HHS that it has no TPA and (2) plan participants and beneficiaries that the plan provides no benefits for contraceptive services. Id.
We assume for purposes of this appeal that if the government forced an eligible organization to have a self-insured plan without a TPA, it would be imposing a substantial burden. Nonetheless, we conclude there is no substantial burden because eligible organizations can instead select the accommodation.
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recognize a substantial burden whenever a religious adherent asserts there is one. Catholic Health Care Sys., 796 F.3d at 218. If Congress had intended strict scrutiny to be triggered in all circumstances by a religious adherent’s claim that there is a burden, it would have said so. Instead, it required that the federal government “substantially burden” the adherent’s religious exercise.
Our dissenting colleague concedes that the question of substantial burden involves an objective inquiry but asserts that the inquiry should be limited to whether the government has imposed a substantial penalty. See Dissent at 113-15. This analysis would require courts to defer to a religious adherent’s sincere belief that the government is forcing her to choose between her religious belief and paying a substantial fine, even when the religious adherent is objectively wrong about how the law operates and what action the government requires her to take. The dissent’s view is flawed because any burden (even an objectively insubstantial one) becomes a substantial burden if the penalty is heavy enough.
We acknowledge that in Hobby Lobby the Supreme Court cautioned courts against dictating to religious adherents “the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” 134 S. Ct. at 2778. In some cases, a court’s objective analysis interpreting a statute or regulation may contradict a religious adherent’s sincerely held belief about what
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that law requires. But such questions about what a law means are not the type of “difficult and important question of religion and moral philosophy” for which courts must defer to religious adherents. Id.; see Notre Dame II, 786 F.3d at 623 (Hamilton, J., concurring) (explaining that the interpretation of the regulations that give rise to the accommodation “is an issue not of moral philosophy but of federal law”).
Deciding how the law functions is not the only objective part of the substantial burden inquiry. The Supreme Court’s free exercise cases (prior to Smith) distinguished between substantial burdens on religious exercise, which are protected, and de minimis burdens, which are not. For example, a religious adherent may not “require the Government to conduct its own internal affairs in ways that comport” with the person’s religious beliefs, even if the government action interferes with that person’s religious exercise. Bowen v. Roy, 476 U.S. 693, 699-700 (1986); see Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988) (recognizing that government’s decision to log and build roads would “have severe adverse effects” on practice of Native American religion but concluding this burden was not “heavy enough” to trigger strict scrutiny under the Free Exercise Clause).
In Bowen, Native American parents challenged federal statutes requiring them to provide their daughter’s social security number to state welfare agencies as
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a condition of seeking benefits on the ground that it impinged upon their free exercise of religion. They sought an accommodation to keep the government from using her social security number in administering benefits, which they believed would rob their daughter of her spirit. 476 U.S. at 695-96.
Even recognizing that the parents had a sincere belief that by using her social security number the government would be stealing their daughter’s spirit, the Supreme Court rejected their claim, holding that the government’s “use of a Social Security number . . . does not itself in any degree impair [the parents’] freedom to believe, express, and exerc[ise their] religion.’” Id. at 700 (internal quotation marks omitted). The Court rejected the parents’ attempt to use the Free Exercise Clause to “demand that the Government join in their chosen religious practices.” Id. at 699-700. The Court explained that “[t]he Free Exercise Clause affords an individual protection from certain forms of governmental compulsion,” yet does not extend so far to “afford an individual a right to dictate the conduct of the Government’s internal procedures.” Id. at 700. The Court acknowledged that the parents’ “religious views may not accept” the line that the Court drew “between individual and governmental conduct,” but it drew a line nonetheless.
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Id. at 701 n.6. Likewise, under RFRA courts must determine whether the burden
on a religious adherent is, in fact, substantial.26
As we alluded to above, the plain language of RFRA supports our
conclusion that there is a distinction between a burden and a substantial burden.
RFRA requires strict scrutiny only when the government “substantially burden[s] a
person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). Congress chose to
modify “burden” with “substantial[],”27 and we must of course interpret RFRA to
give full effect to its every word. See TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) (recognizing that statutes should be construed whenever possible so that
“no clause, sentence, or word shall be superfluous, void, or insignificant” (internal
quotation marks omitted)).
26 We reiterate that in Hobby Lobby the Supreme Court did not grapple with this aspect of the substantial burden analysis. But it was plain that the action required of the plaintiffs in that case—paying to provide health insurance that included contraceptive coverage—imposed a substantial burden. Accordingly, the Court had no occasion to address the more difficult question presented here, where the plaintiffs’ claims of substantial burden rest on their assertion that seeking an accommodation results in another entity (the TPA) providing contraceptive coverage and thus makes them complicit in a system that achieves an end to which they have a religious objection. In other words, Hobby Lobby did not pose the issue whether courts must defer to a religious adherent’s assertion that seeking an accommodation (opting out) itself imposes a substantial burden.
27 Congress used “substantial burden” instead of “burden” in order “to clarify [that] the compelling interest required by the Religious Freedom [Restoration] Act applies only where there is a substantial burden placed on the individual free exercise of religion.” 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch) (emphasis added). Limiting RFRA’s application to substantial burdens was intended to ensure that the government was not required “to justify every action that has some effect on religious exercise.” Id.
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We recognize that the distinction between burden and substantial burden is not implicated in every RFRA case. Nonetheless, there are cases brought under RFRA in which the purported burden is too slight to trigger strict scrutiny. For example, in Kaemmerling v. Lappin, an inmate challenged under RFRA the Bureau of Prison’s collection and analysis of his DNA. 553 F.3d 669, 673-74 (D.C. Cir. 2008). He claimed that the government’s sampling, collection, and analysis of his DNA violated his sincerely held religious beliefs about the proper use of DNA. The D.C. Circuit concluded there was no substantial burden. Importantly, the inmate had no religious objection to the collection of his bodily material; he challenged only how the government would subsequently use that specimen to extract his DNA information. Id. at 678-79. There was no question that the Bureau of Prisons required the inmate to submit a bodily specimen that would be used for an end to which he had a strong religious objection (that is, the collection and analysis of his DNA). But the D.C. Circuit held there was no substantial burden because the inmate “suggest[ed] no way in which these government acts pressure[d] him to modify his own behavior in any way that would violate his beliefs.” Id. at 679. Kaemmerling reinforces that a religious adherent cannot use RFRA to stop the government or third parties from taking subsequent actions to which he objects when the acts required of him impose a de minimis burden.28
28 Our dissenting colleague worries that our framework creates a “Bizarro World” in 44

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(ii) No Substantial Burden Exists.
To determine whether the accommodation objectively puts plaintiffs to the
choice of violating their religious beliefs or paying a significant fine, we must
understand how the accommodation functions and what it requires of these
plaintiffs. The only act that the regulations require the plaintiffs to take is to seek
the accommodation—that is, filling out and sending Form 700 to their TPAs or
writing a letter to HHS letting it know of their objections. The plaintiffs do not
contend that notifying HHS or their TPAs itself constitutes a substantial burden
because of the time or effort involved. Rather, their objection is based on the
significance they attribute to this act. They contend that the act of opting out
triggers contraceptive coverage for plan participants and beneficiaries or makes
them complicit in a system that provides contraceptive coverage. We accept that
the plaintiffs truly believe that triggering contraceptive coverage or being complicit
in a system providing contraceptive coverage violates their religious beliefs. But
which courts determine whether the burden imposed by a law or regulation violates the adherent’s beliefs. Dissent at 117-18. The dissent overstates our position. We are not saying that courts may determine that when a prison requires a Muslim inmate to shave his beard or the government forces a Seventh-Day Adventist to work on the Sabbath, the religious adherent’s claim that the government is coercing him to forego his religious precepts is wrong. But when a dispute exists about whether the challenged governmental policy actually requires an inmate to shave his beard or a person to work on Saturday, it is for the courts to determine what the law requires. See, e.g., Sherbert, 374 U.S. at 403-04 (Supreme Court performed its own analysis to determine whether challenged policy compelled Seventh-Day Adventist to work on Saturdays). Likewise, when a religious adherent challenges an accommodation scheme as imposing a substantial burden on the religious adherent based on subsequent actions taken by the government or third parties, it is for the courts to determine whether the burden is substantial.
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our objective inquiry leads us to conclude that the government has not put plaintiffs to the choice of violating their religious beliefs or facing a significant penalty. We hold there is no substantial burden.
Here’s why: the ACA and HRSA guidelines are what entitle plan participants and beneficiaries to contraceptive coverage. The ACA provides that the plaintiffs’ self-insured plans “shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventative care and screenings . . . as provided for in” the HRSA guidelines. 42 U.S.C. § 300gg-13(a)(4). The HRSA Guidelines, in turn, “require coverage, without cost sharing, for ‘[a]ll . . . [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.’” 77 Fed. Reg. at 8725 (alterations in original) (quoting HRSA guidelines).
The plaintiffs and the dissent take a different view of the statutory and regulatory scheme, contending that an eligible organization’s act of opting out triggers the TPA’s designation as plan administrator and, without it, plan participants or beneficiaries would not receive contraceptive coverage.29 Indeed,
29 Because the plaintiffs here have only self-insured plans, we consider only the accommodation procedures that apply to self-insured health plans.
For an eligible organization with a plan insured by a third party, the accommodation imposes no new coverage obligation. The eligible organization’s act of opting out simply makes
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the dissent asserts that opting out requires an eligible organization’s “affirmative participation” because the act of opting out is the “linchpin on which the contraceptive mandate rests.” Dissent at 125. We disagree.
The ACA and the HRSA guidelines—not the opt out—are, to borrow the dissent’s term, the “linchpins” of the contraceptive mandate because they entitle women who are plan participants and beneficiaries covered by group health insurance plans to contraceptive coverage without cost sharing. In other words, women are entitled to contraceptive coverage regardless of their employers’ action (or lack of action) with respect to seeking an accommodation. Because a woman’s entitlement to contraceptive benefits does not turn on whether her eligible organization employer chooses to comply with the law (by providing contraceptive coverage or seeking an accommodation) or pay a substantial penalty (in the form of a tax) for noncompliance, we cannot say that the act of opting out imposes a substantial burden.30
the coverage the plan provider’s “sole responsibility rather than one shared with the group health plan itself.” Little Sisters of the Poor, 794 F.3d at 1181.
30 The dissent complains that our reading renders the act of opting out “meaningless.” Dissent at 128 (internal quotation marks omitted). The dissent misses our point. Although plan participants and beneficiaries are entitled to contraceptive coverage under federal law regardless of any opt out, notification of the opt out allows the government to identify the plan participants and beneficiaries who will not receive contraceptive coverage from a self-insured eligible organization because of that organization’s religious objection to the mandate. In other words, the act of opting out aids the government in identifying these women and making sure that they receive the contraceptive coverage to which they are legally entitled. Thus, the act of opting out
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We do not mean to imply that the act of opting out plays no causal role in the ultimate provision of contraceptive coverage. We acknowledge that an eligible organization’s act of notifying HHS or its TPA of its objection results in the TPA’s designation as the plan administrator and gives rise to the TPA’s obligation to provide contraceptive coverage.31 See 29 C.F.R. § 2510.3-16(b). But we view an eligible organization’s act of opting out as, at most, an incidental cause of plan participants and beneficiaries receiving contraceptive coverage because these women are entitled to contraceptive coverage under the ACA and HRSA guidelines regardless of whether the eligible organization opts out. Accordingly, even if the act of opting out in some way leads to women receiving the contraceptive coverage to which they were entitled under federal law, the plaintiffs have failed to establish that the act of opting out substantially burdens their religious exercise. Importantly, the government does not force an eligible organization to provide contraceptive coverage, pay costs related to contraceptive coverage, notify plan participants and beneficiaries of the existence of such coverage, or even include the availability of such coverage from a separate source in information the plan provides to plan participants and beneficiaries. Instead, all
has significance in the regulatory scheme, but not because it creates a woman’s entitlement to contraceptive coverage.
31 Indeed, the government has admitted that an eligible organization’s opt out results in a TPA’s designation as plan administrator and the TPA providing plan participants and beneficiaries contraceptive benefits.
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of these responsibilities fall upon the TPA. Rather, the only action required of the eligible organization is opting out: literally, the organization’s notification of its objection. Such an opt out requirement 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.” Little Sisters of the Poor, 794 F.3d at 1183.
The plaintiffs’ challenge is in substance indistinguishable from an objection to the government’s requiring another entity to provide coverage in their stead. See Catholic Health Care Sys., 796 F.3d at 224 (characterizing an identical challenge as seeking a “blanket religious veto over the government’s interactions with others”). Put differently, the plaintiffs’ opposition to opting out is an objection to their inability to keep the TPA with which they have contracted to provide services in connection with healthcare coverage from complying with the relevant regulations. The plaintiffs point to a but-for causal relationship between their opting out and the conduct that they find religiously objectionable. But, as the Supreme Court has explained, a religious adherent cannot claim a substantial burden based on the subsequent conduct of another party.32 See Bowen, 476 U.S.
32 The plaintiffs argue that under the accommodation they are facilitating access to contraceptives because their ongoing contractual relationship with their TPA leads the TPA to continue to provide contraceptive coverage to plan participants and beneficiaries. It is true that a TPA remains as plan administrator for purposes of contraceptive coverage only so long as the organization serves as the plan’s TPA. Nonetheless, the plaintiffs cannot show a substantial
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at 699-700 (“Just as the government may not insist that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter.”).33
We recognize that the plaintiffs sincerely abhor and object to the subsequent acts taken by the government and their TPA, which ultimately result in the TPA providing contraceptive coverage to their plan participants and beneficiaries. We acknowledge that they “may not accept [the] distinction” that we draw here between their conduct and the downstream, separate conduct of HHS and the TPAs to provide coverage. Id. at 701 n.6. But we simply cannot say that RFRA affords the plaintiffs the right to prevent women from obtaining contraceptive coverage to which federal law entitles them based on the de minimis burden that the plaintiffs face in notifying the government that they have a religious objection.
As the Seventh Circuit first articulated, an analogy to a conscientious objector to the military draft illustrates why the accommodation does not impose a
burden because, as explained above, their challenge is an objection to the TPA’s subsequent conduct.
33 The dissent dismisses Bowen as distinguishable because the plaintiffs here object only to their own participation in the accommodation, not to any acts taken by the government. See Dissent at 126-27 n.32. We are not persuaded. The dissent’s position ignores that the plaintiffs object to opting out because it requires them to play a causal role (albeit, a small one) in a system in which the government requires contraceptive coverage. Put another way, their religious objection is, at its core, an objection to the government requiring the TPAs to provide coverage upon their opting out.
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substantial burden. See Notre Dame I, 743 F.3d at 556. A religious conscientious objector to the military draft may opt of military service based on his belief that war is immoral. The objector sincerely believes that his act of opting out triggers the drafting of another person in his place, and thus renders him complicit in the very thing to which he objects. But we would reject the assertion that the government’s subsequent act of drafting another person in his place—even though the drafting was in some sense caused by the objector’s act of opting out— transforms the act of lodging a conscientious objection into a substantial burden. See id. Likewise, we reject the plaintiffs’ assertion that opting out imposes a substantial burden because the government requires a third party to provide contraceptive coverage after an eligible organization opts out.
Accordingly, we conclude that through the accommodation the government has imposed no substantial burden on the plaintiffs. We thus hold that the accommodation does not violate RFRA.
c. The Accommodation Survives Strict Scrutiny. Even assuming that the accommodation imposes a substantial burden on plaintiffs’ religious exercise, RFRA allows the government to impose such a burden when it demonstrates that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). Because the
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government has carried its burden of showing that the accommodation is the least restrictive means of furthering its compelling interests, we hold in the alternative that the accommodation survives strict scrutiny under RFRA.
(i) Compelling Interests Justify the Accommodation. In applying RFRA’s strict scrutiny test, we must first determine whether the accommodation is “in furtherance of a compelling governmental interest.” Id. Because the mandate and accommodation require the provision of cost-free contraceptive coverage with little to no administrative burden on women, these regulations further compelling government interests in avoiding the adverse public health consequences of unintended pregnancies and in assuring women the equal benefit of preventative care by requiring coverage for their distinctive health needs.34 See Priests for Life I, 772 F.3d at 258-59.
34 As we explained above, the majority in Hobby Lobby assumed without deciding that there was a compelling governmental interest. There is, however, an argument that five justices concluded there was a compelling interest. See supra note 18. But even if Justice Kennedy’s concurring opinion in Hobby Lobby did not recognize a compelling governmental interest, we would hold that the compelling interest test is satisfied here.
We acknowledge that the majority opinion in Hobby Lobby criticized the government’s purported interests in “promoting public health and gender equality” as “broadly framed.” 134 S. Ct. at 2779 (internal quotation marks omitted). But we agree with the D.C. Circuit that the government has now provided a more focused analysis “by explaining how those larger interests inform and are specifically implicated in its decision to support women’s unhindered access to contraceptive coverage.” Priests for Life I, 772 F.3d at 259.
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(a) The Government’s Interests in Reducing the Rate of Unintended Pregnancies Are Compelling.
We begin our analysis with the facts: unintended or poorly spaced pregnancies have a host of negative impacts on women and children. See supra Part I.A. Women who experience unintended pregnancies are often unaware of their condition in the early stages of their pregnancy, which leads them to delay prenatal care and cessation of behaviors such as smoking or alcohol consumption. 78 Fed. Reg. at 39872. Babies born as a result of unintended pregnancies are at a greater risk of premature birth and low birth weight. Id. Short interpregnancy intervals also result in a greater risk of prematurity and low birth weight. Id. Contraceptive use can alleviate these public health problems.35 “[G]reater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally.” IOM Report at 105.
During debate over the ACA, Congress was informed that “[i]n America today, too many women are delaying or skipping preventive care because of the costs of copays and limited access.” 155 Cong. Rec. S12027 (Dec. 1, 2009) (statement of Sen. Gillibrand). The IOM Report also found that “cost-sharing
35 Many contraceptives also carry significant positive health side effects. “[T]he noncontraceptive benefits of hormonal contraception include treatment of menstrual disorders, acne or hirsutism, and pelvic pain. Long-term use of oral contraceptives has been shown to reduce a woman’s risk of endometrial cancer, as well as protect against pelvic inflammatory disease and some benign breast diseases.” IOM Report at 107 (internal citations omitted).
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requirements, such as deductibles and copayments, can pose barriers to care and result in reduced use of preventive and primary care services, particularly for lowincome populations.” IOM Report at 109. The Women’s Health Amendment, which added to the ACA the requirement that group and individual health plans provide women with coverage for preventative care and screenings, aimed to increase women’s use of preventive care by removing administrative and financial barriers. See 155 Cong. Rec. S12027 (statement of Sen. Shaheen) (“Too often, women forgo their health care needs because they are not affordable. We know cost plays a greater role in preventing women from accessing health care than it does men. In 2007, more than half of all women reported problems accessing needed health care because of costs.”); see also Priests for Life I, 772 F.3d at 260 (explaining that Congress and the Executive branch determined with the ACA and its regulations that “serving the government’s compelling public health interests depends on overcoming the human behavioral tendencies of denial and delay documented in the legislative and regulatory record”).
Moreover, the Women’s Health Amendment, which added the contraceptive mandate to the ACA’s minimum coverage requirements, specifically addressed the need to provide preventive care to women to rectify past gender discrimination in health insurance. As the Departments noted, “the statute acknowledges that both existing health coverage and existing preventive services recommendations often
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did not adequately serve the unique health needs of women. This disparity placed women in the workforce at a disadvantage compared to their male coworkers.”36 78 Fed. Reg. at 39873; see also 155 Cong. Rec. S12027 (statement of Sen. Gillibrand) (“The prevention section of the bill before us must be amended so coverage of preventive services takes into account the unique health care needs of women throughout their lifespan.”). Indeed, before the ACA, “women of childbearing age spent 68 percent more on out-of-pocket health care costs than men.” 78 Fed. Reg. at 39887. The Departments explained that this “disproportionate” financial burden “prevented women from achieving health outcomes on an equal basis with men.” Id. The Departments intended the contraceptive coverage requirement to “help[] to equalize the provision of preventative health care services to women and, as a result, help[] women contribute to society to the same degree as men.” Id. As the Departments explained, “[r]esearch shows that access to contraception improves the social and economic status of women.” Id. at 39873; see generally Claudia Goldin & Lawrence F. Katz, The Power of the Pill: Oral Contraceptives & Women’s Career & Marriage Decisions, 110 J. of Pol. Econ. 731 (2002).
36 See also 155 Cong. Rec. S11987 (statement of Sen. Mikulski) (“Women are often faced with the punitive practices of insurance companies. No. 1 is gender discrimination. Women often pay more and get less. For many insurance companies, simply being a woman is a preexisting condition. . . . We pay more because of our gender, anywhere from 2 percent to over 100 percent.”).
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Based on this evidence, we conclude that the government’s interests in the public health of women and children, as well as in assuring women equal preventative care, are compelling.
(b) The Mandate and Accommodation Further These Compelling Interests.
The mandate and accommodation achieve the government’s goals by making contraceptives affordable and otherwise accessible to women. As explained above, federal law generally guarantees women contraceptive coverage without cost sharing. See 42 U.S.C. § 300gg-13(a)(4); 77 Fed. Reg. at 8725 (discussing HRSA guidelines). Importantly, under the mandate and accommodation, women covered by group health insurance plans generally are required to take no additional action to obtain this contraceptive coverage. This is because the coverage is delivered “through the existing employer-based system of health coverage.” 78 Fed. Reg. at 39888. Thus, under the mandate, women need not complete extra paperwork or sign up for an additional program because the contraceptive coverage is delivered with the health insurance they already have through their employers.
This is true even when an employer opts out of providing contraceptive coverage by seeking an accommodation. Although objecting employers are not obligated to provide or pay for contraceptives, the women covered by their plans seamlessly receive contraceptive coverage from the plans’ TPAs. This system was
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carefully designed to make contraceptive coverage accessible by not requiring women to research plans that offer contraceptive coverage, purchase separate contraceptive coverage, or even sign up with a different entity or program. See id. As the Supreme Court acknowledged in Hobby Lobby, the Departments designed the accommodation so that it has “precisely zero” impact on female plan participants and beneficiaries. 134 S. Ct. at 2760; see also id. at 2759 (explaining the accommodation “ensur[es] that the employees of [eligible organizations] have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage”).37
Providing women with such seamless coverage should result in a lower unintended pregnancy rate. Medical evidence reflects a causal relationship between the accessibility of contraceptives and the unintended pregnancy rate: “progress in reducing the rate of unintended pregnancy would be possible by making contraceptives more available, accessible, and acceptable.” IOM Report at 104 (internal quotation marks omitted); see also id. at 109 (“[C]ost-sharing requirements, such as deductibles and copayments, can pose barriers to care and result in reduced use of preventative and primary care services, particularly for
37 We acknowledge that the Supreme Court in Hobby Lobby expressly declined to decide whether the accommodation violated RFRA. Nonetheless, our analysis is consistent with the Court’s dicta.
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low-income populations.”); Dianne Greene Foster, et al., Number of Oral
Contraceptive Pill Packages Dispensed & Subsequent Unintended Pregnancies,
Obstetrics & Gynecology, March 2011, at 566 (concluding that when receipt of
oral contraceptives was made more convenient by dispensing them annually rather
than quarterly the unintended pregnancy rate dropped by 30% and the abortion rate
dropped by 46%).38 Because the government has demonstrated that the mandate
and accommodation increase access to contraception, we conclude that the
mandate and accommodation are effective ways to reduce the unintended
pregnancy rate. Accordingly, they serve the government’s compelling interests of
38 The government’s evidence further shows that when contraception is easily accessible, women not only use it more often, they select more effective methods of contraception. In research studies, “when out-of-pocket costs for contraceptives were eliminated or reduced, women were more likely to rely on more effective long-acting contraceptive methods.” IOM Report at 109. These methods include intrauterine devices and contraceptive implants, which are long-lasting and have the additional advantage of not being dependent on user compliance. See Birth Control Methods Fact Sheet, Dep’t of Health & Hum. Servs., Office on Women’s Health, http://www.womenshealth.gov/publications/our-publications/fact-sheet/birth-controlmethods.html (July 16, 2012) (showing that implants and intrauterine devices have a failure rate of less than 1 percent, compared to 5 percent for oral contraceptives and 11 to 16 percent for male condoms).
These longer-acting contraceptive methods have been underutilized in the United States compared to other developed countries where unintended pregnancy rates are lower, Jeffrey F. Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, Obstetrics & Gynecology, Dec. 2012, at 1291, in large part because they pose higher up-front costs that discourage use. See IOM Report at 108. Evidence shows that women’s use of longacting contraceptive methods easily can be increased by making the methods cheaper and more readily available. In a study that provided intrauterine devices and implanted contraceptives at no cost to study participants, researchers found a significant decrease in unintended pregnancy and abortion rates in the study population. The study concluded that “[u]nintended pregnancies may be reduced by providing no-cost contraception and promoting the most effective contraceptive methods.” See Peipert, supra, at 1291.
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improving the health of women and children and assuring that women receive health benefits that meet their needs as well as the health care provided to men does.
Of course, a compelling interest alone is insufficient to satisfy RFRA; we must also assess “the marginal interest in enforcing” the challenged law against the religious adherents in question. Hobby Lobby, 134 S. Ct. at 2779. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (quoting 42 U.S.C. § 2000bb-1(b)); see also Yoder, 406 U.S. at 221 (“Where fundamental claims of religious freedom are at stake, however, we cannot accept such a sweeping claim [of compelling interest]; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote . . . and the impediment to those objectives that would flow from recognizing the claimed . . . exemption.”).
Yoder provides a good example of the application of this principle. There, the Amish plaintiffs challenged Wisconsin’s law requiring high school attendance until the age of 16. Yoder, 406 U.S. at 207-08. The government asserted that the law was justified by a general interest in the virtues of universal education. Id. at
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213-14. The Supreme Court was unsatisfied with this interest as it applied to the plaintiffs. “[T]he evidence adduced by the Amish . . . [was] persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve [the government’s stated] interests.” Id. at 222 (emphasis added).
Similarly, the government’s argument in O Centro exemplifies an overly generalized interest. The plaintiffs, a religious sect with origins in the Amazon rainforest, challenged the Controlled Substances Act’s regulation of hoasca, a hallucinogenic tea they used in religious ceremonies. The federal government argued that it had “a compelling interest in the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen can be made to accommodate the sect’s sincere religious practice.” O Centro, 546 U.S. at 423. The Supreme Court dismissed this slippery slope argument, which it said “could be invoked in response to any RFRA claim for an exception to a generally applicable law,” because it failed to consider the limited effect of an exception for the particular plaintiffs, and its stated need for universal application was undermined by the existence of other exceptions. Id. at 435-36.
In contrast to Yoder and O Centro, here the government’s stated interests all concern the law’s application to these particular plaintiffs. The government argues that applying the accommodation procedure to the plaintiffs in these cases furthers
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its interests because the accommodation ensures that the plaintiffs’ female plan participants and beneficiaries—who may or may not share the same religious beliefs as their employer—have access to contraception without cost sharing or additional administrative burdens as the ACA requires. Unlike the exception made in Yoder for Amish children, whom the Supreme Court found had an adequate substitute for additional formal education to refute the government’s compelling interest, here the IOM Report’s findings of poor health outcomes related to unintended or poorly timed pregnancies apply to the plaintiffs’ female plan participants or beneficiaries and their children just as they do to the general population.
Moreover, the accommodation’s requirement that the plaintiffs inform their TPAs or HHS of their religious objection is essential to achieving the government’s compelling interests. It ensures that a TPA is aware when it has an obligation to provide contraceptive coverage so that the women covered by these plans can receive coverage if they want it, without gaps in such coverage. The notification also guarantees that the Departments will be able to identify objecting organizations, like the plaintiffs, to make sure that the accommodation procedures work (that is, to independently ensure that the women covered by the plaintiffs’ plans are receiving the coverage to which they are entitled). Thus, the government’s interests are sufficiently particular to satisfy the O Centro standard.
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(c) The Exceptions to the Mandate and Accommodation Do Not Undermine the Government’s Compelling Interest.
The plaintiffs argue that the government’s interests in providing broad contraceptive coverage cannot be compelling because the ACA provides exemptions from the mandate for other types of employers—namely, those (1) with grandfathered health plans, (2) with fewer than 50 employees, and (3) that qualify as “religious employers.” We disagree.
First, the existence of grandfathered plans does not undermine the government’s compelling interest in providing contraceptive coverage because grandfathered plans are only a short-lived, transitional measure intended to ease the burden of compliance with the ACA’s sweeping reforms. 78 Fed. Reg. at 39887 n.49 (“[T]he Affordable Care Act’s grandfathering provision is only transitional in effect, and it is expected that a majority of plans will lose their grandfathered status by the end of 2013.”). To be grandfathered, a plan must continue to provide virtually the same benefits for the same percentage cost sharing as the plan had in effect on March 23, 2010. 45 C.F.R. § 147.140(g)(1)(ii). It becomes difficult to comply with these requirements over time. See, e.g., Second Am. Compl. at 23-24, No. 1:12-cv-03489, Doc. 56 (describing the Atlanta Archdiocese’s inability to afford to maintain its grandfathered plan past January 1, 2014).
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Research by the Kaiser Family Foundation demonstrates that the percentage of workers covered by grandfathered plans has rapidly declined: 26 percent in 2014, down from 36 percent in 2013, 48 percent in 2012, and 56 percent in 2011. Kaiser Family Found. & Health Research & Ed. Trust, Employer Health Benefits 2015 Annual Survey at 218 (Sept. 22, 2015).39 In addition, some employees covered by grandfathered plans may in fact be receiving contraceptive benefits without cost sharing because, though not required to do so, their plans may include such a benefit.
As an additional consideration, we do not wish to penalize the government for phasing in the ACA’s requirements to help businesses adjust to a new health care regulatory landscape. Cf. Heckler v. Mathews, 465 U.S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time. . . . The protection of reasonable reliance interests is . . . a legitimate governmental objective.”). Accordingly, even if the mandate and accommodation are phased in
39 We acknowledge that the Kaiser Family Foundation’s 2015 data shows that 25% of covered workers are enrolled in a grandfathered plan, which is not much less than the 26% in 2014. But the Foundation reported that many employers were confused and unsure about whether their plans remained grandfathered, suggesting that employers may have inaccurately reported that they had grandfathered plans. Kaiser Family Found., supra, at 214.
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over time, the gradual implementation is insufficient to undermine the government’s compelling interest.
Second, the ACA’s treatment of employers with 50 or fewer employees as exempt from the “employer mandate” and therefore not required to provide employees with health insurance at all, see 26 U.S.C. § 4980H(a)(c)(2)(A), does not undercut the government’s compelling interests. If, on the one hand, smaller employers do not provide insurance coverage, then their employees must purchase health plans on the health insurance exchanges or face tax penalties. See id. § 5000A(a), (b)(1). And plans purchased on the exchanges will include contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). If, on the other hand, smaller employers choose to provide health insurance, then their plans are subject to the contraceptive mandate. See id. The employees of small businesses therefore will receive contraceptive coverage regardless of whether their employers are exempt from providing health insurance. This exemption reflects a practical recognition that small businesses have different financial realities from larger businesses. It in no way undermines the government’s interest in providing contraceptive coverage without cost sharing because small businesses’ employees end up with health plans subject to the contraceptive mandate whether the employers provide health insurance or not.
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Third, the exemption from the contraceptive mandate for religious employers does not weaken the government’s stated interests. Under the HRSA guidelines, the contraceptive mandate does not apply to a group health plan run by a religious employer, defined by the regulations as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). In finalizing the regulations, the Departments declined to extend the exemption to other organizations that have religious objections to the mandate because:
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. 78 Fed. Reg. at 39874. The exemption for religious employers attempts to balance the need for contraceptive coverage with our nation’s longstanding history of deferring to a house of worship’s decisions about its internal affairs. See 76 Fed. Reg. at 46623 (“[T]he Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.”); see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 704-06 (2012) (describing history of non-
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interference with internal affairs of houses of worship). The government undoubtedly has a compelling interest in respecting the values of religious employers and their employees, and pursuing that interest does not undermine the government’s equally compelling interest in improving women’s and the public’s health by making contraceptives easier to obtain. Especially with regard to sweeping legislation like the ACA, the government is often faced with competing compelling interests. Courts may allow the government to balance those interests without undermining any individual compelling interest. See Hobby Lobby, 134 S. Ct. at 2780 (“Even a compelling interest may be outweighed in some circumstances by another even weightier consideration.”).
We also reject the plaintiffs’ argument that the Departments’ distinction between houses of worship (which are exempted from the mandate) and other organizations with religious affiliation (which must seek an accommodation) is illogical. Although it may not universally hold true,40 it is a common-sense notion that a church’s employees likely share more beliefs with the church than do the employees of, for example, a school linked to that church, and therefore the employees of a church that objects to contraception are less likely to use contraceptive coverage even if it is available. See 78 Fed. Reg. at 39874. Thus,
40 EWTN in particular argues that the Departments’ distinction between houses of worship and other religious organizations is illogical and does not hold for EWTN because, like employees of “religious employers,” its employees share its religious convictions.
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the Departments distinguished between houses of worship and other religious groups using the readily available and well-established IRS tax status test. This test is predictable for affected organizations and easy for the Departments to implement. See United States v. Lee, 455 U.S. 252, 260-61 (1982) (noting it was reasonable for Congress to exempt self-employed Amish from Social Security taxes because the exemption for “the self-employed provided for a narrow category which was readily identifiable . . . [and] distinguishable from the generality of wage earners employed by others”). We do not think that the Departments’ decision to exempt houses of worship based on a bright-line test while accommodating other religious organizations undercuts the government’s compelling interests in enforcing the contraceptive mandate.
In sum, the mandate and accommodation further the government’s compelling interests by ensuring that women have contraceptive coverage without cost sharing or additional administrative hurdles. Additionally, by requiring organizations that opt out of the mandate to identify themselves, the government ensures that these organizations’ health plan participants and beneficiaries can receive the coverage seamlessly through other channels. Although the government has attempted to accommodate religious freedom as well as the needs of businesses, it has not done so in a way that undermines its goal of ensuring access to contraception.
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(ii) The Mandate and Accommodation Are the Least Restrictive Means of Furthering the Government’s Compelling Interests.
As a final step, we must determine whether the mandate and accommodation are “the least restrictive means of furthering” the government’s compelling interests. 42 U.S.C. § 2000bb-1(b). This test is “exceptionally demanding.” Hobby Lobby, 134 S. Ct. at 2780. The government must show “that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the [plaintiffs].” Id. When a less restrictive alternative serves the government’s compelling interest “equally well,” the government must use that alternative. Id. at 2782; see id. at 2786 (Kennedy, J. concurring) (considering whether alternative “equally furthers the Government’s interest”).
In determining whether potential alternatives to the mandate and accommodation equally further the government’s interests, we must consider both the cost to the government and the burden the alternatives impose on the affected women. See id. at 2760 (majority opinion) (“[W]e certainly do not hold or suggest that RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on thousands of women employed by Hobby Lobby. The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.” (emphasis added) (alteration, footnote, citation,
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and internal quotation marks omitted)); id. at 2760 (clarifying that the Court did not hold that “corporations have free rein to take steps that impose disadvantages on others or that require the general public to pick up the tab” (alteration and internal quotation marks omitted)). Because there are no less restrictive means available that serve the government’s interests equally well, we hold that the mandate and accommodation survive strict scrutiny under RFRA.
Although the plaintiffs and the dissent suggest several potential less restrictive alternatives to the mandate and accommodation, their proposals fail to achieve the government’s interests as effectively. Indeed, their proposals impose burdens on women that would make contraceptives less accessible than they currently are. Because these proposals cannot be expected to reduce the rate of unintended pregnancies and thereby improve the health of women and children as effectively as the mandate and accommodation, they do not qualify as less restrictive alternatives under RFRA.
Previously, the Supreme Court and a member of this Court suggested that a less restrictive alternative would be to allow eligible organizations to notify HHS of their opt out, instead of having to provide Form 700 to their plan providers or TPAs. See Wheaton Coll., 134 S. Ct. at 2807; Eternal Word Television Network, 756 F.3d at 1349 (William Pryor, J., concurring) (“The United States, for example, could require the Network to provide a written notification of its religious
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objection to the Department of Health and Human Services, instead of requiring
the Network to submit Form 700—an instrument under which the health insurance
plan is operated—to the third-party administrator.”). The Departments have
responded to and addressed this concern by revising the accommodation
procedures to allow eligible organizations notify HHS directly of their desire to opt
out of the contraceptive mandate. 79 Fed. Reg. at 51094-95. With that potential
alternative incorporated into the regulatory scheme, we turn to the alternatives
proposed by the plaintiffs and the dissent.
(a) The Plaintiffs’ Proposals
The plaintiffs propose two less restrictive alternatives. First, they suggest
that the government could pay directly for all contraceptive coverage, in effect a single-payer system for contraceptives only,41 either by creating a new government program or expanding an existing one.42 Either way Congress would need to pass
legislation that would fundamentally change how the majority of American women
41 In a single-payer system, the government—as opposed to employers, health insurers, or patients—pays for healthcare services. See Notre Dame II, 786 F.3d at 615; Single-Payer, Merriam Webster Dictionary, http://www.merriam-webster.com/dictionary/single-payer (last visited Feb. 12, 2016). Although the plaintiffs never call their proposal a “single-payer” system for contraceptives, the label applies because they propose a system in which the government would be the sole payer for contraceptives and related services. It is important to note that all other health care would continue to be provided through our existing system.
42 The plaintiffs suggest, for example, that Congress could expand Title X, which currently benefits only low-income families; patients whose income exceeds 250 percent of the poverty level must pay for any services they receive through Title X programs. See 42 U.S.C. § 300a-4(c); 42 C.F.R. § 59.5(a)(8).
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receive their healthcare coverage for contraception.43 See Jessica C. Smith & Carla
Medalia, U.S. Census Bureau, Health Insurance Coverage in the U.S.: 2014 at 3
(2015) (55% of Americans had insurance coverage provided by an employer in
2014). Among other things, adopting a single-payer system for contraception
would require Congress to squeeze insurance companies out of an entire segment of the health insurance business.44 Second, the plaintiffs assert that the
government could provide tax credits to reimburse women for purchasing contraceptive coverage.45 Under either the single-payer or tax credit proposals, all
coverage for contraception and related services would operate outside the existing,
largely employer-based, insurance system.
43 In Hobby Lobby, the government argued that RFRA does not permit the court to consider proposals that would require the government to create entirely new programs as less restrictive alternatives. The Court rejected this argument, explaining “we see nothing in RFRA that supports this argument.” Hobby Lobby, 134 S. Ct. at 2781. Accordingly, we consider this proposal even though it would require substantial congressional action to expand significantly an existing program or create a new one.
44 We may, of course, consider the burdens that a proposed alternative places on nonbeneficiaries, such as insurance companies. See Cutter v. Wilkinson, 544 U.S. 709, 720-722 (2005) (“[A]pplying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries. . . . Our decisions indicate that an accommodation must be measured so that it does not override other significant interests.”).
45 The plaintiffs suggest the government could require women to purchase separate contraceptive coverage on the healthcare exchanges and then offer tax credits to offset the cost of purchasing the coverage. This proposal would require Congress to amend the ACA because the exchanges are statutorily restricted to selling only full health insurance policies. See 42 U.S.C. §§ 18021(a)(1)(B), 18022(a), (b).
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Most importantly, these proposals are not less restrictive alternatives because they would not serve the government’s interests “equally well.”46 Hobby
Lobby, 134 S. Ct. at 2782. As the Departments explain, these proposals would
cause all women who have existing contraceptive coverage through group health
insurance plans to lose such coverage, forcing them instead to “take steps to learn
about, and to sign up for, a new health benefit.” 78 Fed. Reg. at 39888. Indeed,
under these proposals, women would have one employer-provided health insurance
plan covering healthcare other than contraception. Then, they would have to take
additional, separate steps to secure contraceptives or contraceptive coverage.
Under a single-payer system for contraceptives, they would have to research the
federal entitlement for contraceptives and register for the program. Under a tax-
credit system, they would have to research plans offering separate contraceptive
coverage, select a plan, purchase coverage, and later file for a tax credit as part of their individual tax returns.47 The mandate and accommodation present an easier,
46 We acknowledge dicta in Hobby Lobby suggesting as a less restrictive alternative that the government pay directly for contraception; however, the Supreme Court did not hold that such a program was a less restrictive alternative. 134 S. Ct. at 2871-82 (“[W]e need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test.”).
47 The tax-credit proposal is particularly problematic because it forces women to pay up front for contraceptives in exchange for tax credits later. But many women simply would not be able to afford to wait a year for a refund from the government in the form of a tax credit and, as the government’s evidence shows, would instead have to forgo using contraceptives. See IOM Report at 109 (recognizing that “cost-sharing requirements, such as deductibles and copayments, can pose barriers to care and result in reduced use of preventive . . . services”); see also supra
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simpler, and more certain path for women by ensuring that, by obtaining health insurance, they also secure contraceptive coverage, even when their employers opt out.
Because plaintiffs’ proposals impose greater barriers to contraceptive access than exist under the mandate and accommodation, their proposals likely will lead to lower rates of contraceptive usage (along with use of less effective forms of contraception), meaning these proposals will be less effective at preventing unintended pregnancies and concomitant health consequences.48 See IOM Report at 104-09; Foster, supra, at 566 (reflecting that when obtaining contraceptives became less convenient, the rate of unintended pregnancy increased); see also 78 Fed. Reg. at 39888 (recognizing that these proposals would be “less effective than the employer-based system of health coverage in advancing the government’s compelling interests”).
Plaintiffs’ proposals would make contraception less accessible not only to women who currently receive contraceptive coverage through a group insurance
note 38. In contrast, the mandate and accommodation require women to pay nothing upfront for contraceptives. Accordingly, contraceptives are significantly more available to women under the mandate and accommodation than they would be under the tax-credit proposal.
48 The two other circuit courts to address this issue have rejected similar alternatives for the same reason. See Notre Dame II, 786 F.3d at 616-17 (rejecting similar proposed alternatives because they “would impede the receipt of [contraceptive] benefits”); Priests for Life I, 772 F.3d at 265 (holding that proposed alternatives “would not serve the government’s compelling interest with anywhere near the efficacy of the challenged accommodation and would instead deter women from accessing contraception”).
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plan, but also to women who currently purchase health insurance through the
exchanges, including women who work for an employer with fewer than 50 full-
time employees. Under the current framework, these women must research and
compare potential health insurance plans sold on the exchanges and then purchase
and sign up for a plan. As a result of their efforts, they receive health insurance
that includes contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). Under the
plaintiffs’ proposals, these women would still have to procure health insurance
from the exchanges. But then they would have to take the additional steps
described above to obtain coverage for contraceptives. In other words, women
who currently purchase insurance through the exchanges would also face greater
burdens accessing contraceptives under a single-payer system.49
49 It is unclear whether our dissenting colleague advocates as a less restrictive alternative replacing our insurance-based system with a single-payer system for contraceptive coverage. On the one hand, the dissent never states that a single-payer system would be a less restrictive alternative, instead proposing that the ACA and ERISA need only a “slight[] tweak,” not the jettisoning of our insurance-based system for contraceptives that a single-payer system would entail. Dissent at 137. On the one other hand, the dissent argues that the government should “provid[e] for contraceptive coverage directly without the accommodation’s administrative rigmarole” so that the government could “offer cost-free access to each and every woman in the United States.” Id. at 134. This sounds to us like a single-payer system.
Indeed, the dissent suggests that a single-payer system would be as effective or more effective than the mandate and accommodation at making contraceptives accessible to women. Because under either system women pay nothing for contraceptives, to compare women’s access to contraceptives under the two systems, we must focus on the administrative burdens that women face under either system.
We conclude that, on the whole, women face fewer barriers to obtaining contraceptives under the mandate and accommodation than they would under a single-payer system. Most significantly, most women covered by group health insurance plans and all who purchase insurance on the exchanges seamlessly receive coverage under the mandate and accommodation.
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After careful consideration, we conclude that the government has shown that
contraceptives would be less accessible—and used less frequently or effectively—
under the plaintiffs’ proposals then they are under the mandate and
Nonetheless, the dissent asserts that a single-payer system is a more effective way to improve access to contraceptives because three categories of women whose employers are exempt from the contraceptive mandate—(1) women employed by small businesses, (2) women covered by grandfathered plans, and (3) women employed by churches or church-affiliated organizations— would have greater access to contraceptives under such a system. See id. at 50. After considering these three categories, we remain convinced that a single-payer system would be less effective than the mandate and accommodation.
First, the dissent suggests that women whose employers have 50 or fewer full-time employees would receive better access to contraceptives under a single-payer system. But, as we explained above, these women receive contraceptive coverage under the mandate and accommodation regardless of whether their employers elect to provide health insurance coverage or they purchase a plan on the exchanges. See supra Part III.A.2.c.(i).(c). Given that these women currently have seamless access to contraceptives, we fail to see how this group supports the dissent’s argument.
Second, the dissent asserts that women whose health plans have a grandfathered exemption would have better access to contraceptives under a single-payer system. But the dissent overlooks that the grandfathered exemption is a temporary measure, meaning the number of women covered by plans subject to the exemption has rapidly declined and should continue to decline over time because it becomes more expensive for plans to maintain their grandfathered status. See 45 C.F.R. § 147.140(g)(1) (requiring grandfathered plans to provide virtually the same benefits for the same percentage cost sharing that the plan had in effect on March 2010). We cannot say that a single-payer system serves the government’s interest as effectively or more effectively simply because in the short term a subset of women may have easier access to contraceptives under a single-payer system.
Third, the dissent argues that women employed by churches and church-affiliated organizations would have easier access to contraceptives under a single-payer system. Even if that is true for this relatively small group of women, the Departments have explained that these employees are likely to share their employer’s religious objection to contraception, meaning they are “less likely than other people to use contraceptive services even if such services were covered under the plan.” 78 Fed. Reg. at 39874. All together, we cannot say that a single-payer system serves the government’s interest as effectively as the mandate and accommodation when we consider that a single-payer system would impose greater barriers to accessing contraceptives for most women who purchase health insurance from an employer and all women who purchase plans on the exchanges. What’s more, the balance tips even further in favor of the mandate and accommodation when we consider the impact of imposing on non-beneficiaries a single-payer system for an entire segment of preventative care. See Cutter, 544 U.S. at 720.
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accommodation. Given the government’s compelling interest in minimizing the barriers women face in accessing contraceptives so that they will use contraceptives to lower the rate of unintended pregnancies, we conclude that the plaintiffs’ proposals would not serve the government’s interest equally as well as the mandate and accommodation. Thus, they fail to qualify as less restrictive alternatives.
The dissent criticizes our position as giving the Departments a “free pass” on the least restrictive means requirement. Dissent at 139. Our dissenting colleague takes our analysis to mean that the government can defeat a potential alternative merely by showing that the alternative would take away a benefit—any benefit— that the government’s existing framework provides to “third parties” (here, the women who are the intended beneficiaries of the mandate and accommodation). Id. at 138. The dissent overstates our position. We are not saying that the government can always overcome strict scrutiny by showing that proposed alternatives would take away a benefit that the current framework provides. Rather, on the facts and record of this case—including the evidence that when women face greater burdens (whether financial or administrative) in accessing contraceptives or contraceptive coverage, they are less likely to use contraceptives—we must conclude that plaintiffs’ alternatives, which make contraceptives less accessible, would be significantly less effective than the
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mandate and accommodation at reducing the rate of unintended pregnancies and thus would thwart the government’s interests.50
(b) The Dissent’s Proposal The dissent suggests that Congress could “slightly tweak” the ACA and ERISA to “eliminate the need for eligible organizations to affirmatively designate the third-party administrators of their health plans.” Dissent at 137. We understand the dissent’s proposal to be that Congress should pass legislation and the Departments should enact regulations that would designate the TPA for a selfinsured eligible organization as plan administrator for purposes of contraceptive coverage without requiring the eligible organization to communicate its religious objection to anyone. The dissent’s proposal fails to serve the government’s interest equally as well as the accommodation because the alternative would make contraceptives less accessible to women covered by eligible organizations’ plans than would the accommodation. The dissent fails to explain—and we cannot imagine—how a TPA would know when an employer has a religious objection to providing contraceptive coverage under the proposal and thus that the TPA is required to
50 The Eighth Circuit’s proposal that “the government could pay for the distribution of contraceptives at community health centers, public clinics, and hospitals with income-based support” likewise would impose additional administrative burdens on women and thus in a similar way fails to satisfy the government’s interests. Sharpe Holdings, 801 F.3d at 945.
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provide the coverage in the employer’s stead if the employer is not required to
notify anyone. Like the TPAs, the government must also be able to identify
women whose employers object on religious grounds to providing contraceptive
coverage. Otherwise, the government will be unable to ensure that the participants
and beneficiaries of the abstaining organization’s health insurance plan receive the
coverage the law mandates. Without an effective way to identify any gaps, the
government would be hamstrung in its ability to accommodate employers’
sincerely held religious beliefs while also pursuing the interests that Congress
intended to achieve in passing the Women’s Health Amendment.51
51 The Eighth Circuit suggested as a less restrictive alternative that the Departments revise the regulations governing the accommodation to remove the requirement that when notifying HHS of its religious objection, an eligible organization must identify its TPA and provide the TPA’s contact information. Sharpe Holdings, 801 F.3d at 944. The Eighth Circuit concluded that this alternative would be “less onerous” than the current regulations yet “permit[] the government to further its interests.” Id. The Eighth Circuit relied on the fact that when the Supreme Court in Wheaton College created an accommodation, the Court required the college only to notify HHS that it had an objection to providing coverage for contraceptive services, and not to identify its TPA. Id.
We disagree with the Eighth Circuit that this alternative would serve HHS’s interests equally well. As the Departments explained, the information required under the regulations is “necessary for the Departments to determine which entities are covered by the accommodation, to administer the accommodation, and to implement the policies in the . . . final regulations.” 79 Fed. Reg. at 51095. The Eighth Circuit has not explained why this is not so. Although the Supreme Court in Wheaton College did not require the college to identify its TPA to HHS to receive an accommodation, the information was unnecessary because HHS already knew the identity of the college’s TPA. See Wheaton College, 134 S. Ct. at 2815 (Sotomayor, J., dissenting) (“HHS is aware of Wheaton’s third-party administrator in this case.”). Thus, Wheaton College does not suggest that HHS could administer the mandate and accommodation in other cases without requiring an eligible organization to identify its TPA.
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The dissent’s proposal would create gaps or delays in contraceptive
coverage for plan participants and beneficiaries of eligible organizations that refuse
to provide contraceptive coverage or tell anyone of their objection. Until the
insured, the TPA, or HHS learned of the silent omission of contraceptive coverage,
these women would be denied the contraceptive coverage to which they are
irrefutably entitled. During this period, such eligible organizations would, in
effect, be imposing their religious beliefs on women who wish to take advantage of
their rights under federal law. These gaps in contraceptive coverage would
frustrate the government’s interests. Because the dissent’s proposal substantially
burdens religious exercise and fails to meet the government’s compelling interests,
it cannot constitute a less restrictive alternative.52
52 We pause to note that if we assume that the dissent’s substantial burden analysis is correct—meaning the only objective inquiry for determining whether there is a substantial burden is the magnitude of the penalty, see Dissent at 116—then the dissent’s proposal would substantially burden the plaintiffs’ religious exercise. Presumably the dissent’s position is that the proposal presents a satisfactory alternative because it requires no “affirmative participation” by the objecting organization. Id. at 139. In fact, though, a TPA’s obligation to provide contraceptive coverage to a specific plan participant or beneficiary would remain tied to and—in some limited way—“triggered” by actions taken by the organization. An eligible organization is required to take two actions before its TPA becomes obligated to provide contraceptive coverage to a specific plan participant or beneficiary: the eligible organization must (1) contract with a specific TPA to provide administrative services for its plan and (2) notify the TPA of the individuals covered by its plan. Unless an eligible organization hired a specific TPA and provided a list of its insureds, those insureds would never receive contraceptive coverage from the TPA, even under the dissent’s proposal. See Notre Dame II, 786 F.3d at 617 (explaining that under a similar proposal when a university hired an unemployed person who “by virtue of becoming employed by [the organization], obtained contraception coverage for the first time,” the university’s acts would “‘trigger[]’ the new employee’s access to contraception”).
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We hold that, even if the accommodation substantially burdens the plaintiffs’ religious exercise, it does not violate RFRA because it is the least restrictive means of furthering the government’s compelling interests in the contraceptive mandate.
B. EWTN’S Free Exercise Claims Plaintiff-appellant EWTN additionally claims that the contraceptive mandate
violates the Free Exercise Clause of the First Amendment. The Supreme Court’s Smith decision continues to apply to Free Exercise claims outside of the RFRA context; thus, neutral and generally applicable laws need not be justified by any compelling interest even if those laws incidentally burden religious exercise. Smith, 494 U.S. at 885. A law is neutral unless “the object of a law is to infringe upon or restrict practices because of their religious motivation.” Lukumi Babalu
The plaintiffs’ religious objections to taking acts that “trigger[]” contraceptive coverage, “facilitat[e]” access to contraceptives, or render them “complicit” in a scheme that provides access to contraceptives apply with equal force to the dissent’s proposal. See EWTN Reply Br. at 5, 10-11; Catholic Charities and CENGI Appellee Br. at 10, 13, 20. Indeed, Catholic Charities and CENGI alleged in their complaint that their “religious beliefs prohibit them from contracting with [a] . . . third-party administrator that will, as a direct result, procure or provide the objectionable coverage to [their] employees.” Second Am. Compl. at 49, No. 1:12-cv-03489WSD, Doc. 56. We acknowledge that the dissent’s proposal does not require an eligible organization to tell HHS or its TPA that it has a religious objection to providing contraceptive coverage. But the plaintiffs do not claim that the government imposes a substantial burden by forcing them to state that they have a religious objection. Rather, they claim a substantial burden because, they assert, their objection would cause their TPAs to provide contraceptive coverage.
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Aye, 508 U.S. at 533. And a law is generally applicable if it does not “in a selective manner impose burdens only on conduct motivated by religious belief.” Id. at 543. “A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Id. at 531-32. But if a law indeed is neutral and generally applicable, “then rational basis scrutiny should be applied, requiring that the plaintiff show that there is not a legitimate government interest or that the law is not rationally related to protect that interest.” GeorgiaCarry.Org, Inc v. Georgia, 687 F.3d 1244, 1255 n.21 (11th Cir. 2012).
Congress included the contraceptive mandate in the ACA to improve women’s health and public health generally. There is no evidence whatsoever that the mandate was enacted in an attempt to restrict religious exercise. To the contrary, in implementing the contraceptive mandate the Departments have attempted to accommodate religious interests by granting exceptions for religious employers and those organizations with religious objections to providing contraceptive coverage. EWTN nonetheless argues that the mandate is non-neutral because the exemption and accommodation “discriminate[] among religious objectors, creating a three-tiered system.” EWTN Appellant Br. at 54. But the regulations do not discriminate between religious denominations or infringe upon or restrict conduct because of its religious motivation. Rather, the procedures
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distinguish among organizations on the basis of their tax status. Thus EWTN has failed to show that the mandate is non-neutral.
EWTN also argues that the mandate is not generally applicable because the ACA carves out small employers and grandfathered plans. For the same reasons we rejected this argument as it pertains to the plaintiffs’ RFRA claim, we reject it here. Just as these exceptions do not undermine the government’s compelling interests justifying the contraceptive mandate, they do not prevent the mandate from being generally applicable as defined by Lukumi Babalu Aye. The exceptions for small businesses and grandfathered plans apply equally to religious employers and non-religious employers. The exceptions in no way “impose burdens only on conduct motivated by religious belief.” Lukumi Babalu Aye, 508 U.S. at 543.
Because the contraceptive mandate is neutral and generally applicable, to invalidate it the plaintiff must show that is it not rationally related to a legitimate government interest. See GeorgiaCarry.Org, 687 F.3d at 1255 n.21. EWTN cannot make such a showing. We have already concluded that the government has a compelling (and therefore legitimate) interest in ensuring women have access to contraceptives without cost sharing. See supra Part III.A.2.c.(i). The mandate is clearly rationally related to that interest and thus passes muster under the Free Exercise Clause. C. EWTN’S Establishment Clause Claim
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EWTN next argues that the contraceptive mandate violates the Establishment Clause by discriminating among religious organizations. Specifically, EWTN objects to the way the exemption and accommodation distinguish between houses of worship and other types of religious organizations. As an initial matter, the Supreme Court “has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144-145 (1987); see also Wallace v. Jaffree, 472 U.S. 38, 83 (1985) (O’Connor, J., concurring) (“It is disingenuous to look for a purely secular purpose when the manifest objective of a statute is to facilitate the free exercise of religion by lifting a government-imposed burden. Instead, the Court should simply acknowledge that the religious purpose of such a statute is legitimated by the Free Exercise Clause.”).
Like its claim based on the Free Exercise Clause, EWTN’s Establishment Clause claim fails because the accommodation does not distinguish among religious groups on the basis of denomination, but rather on non-denominational attributes of an objecting organization. The accommodation relies on tax status, which is a permissible way to distinguish between organizations for the purpose of drafting a religious exemption. “[R]eligious employers, defined as in the cited regulation, have long enjoyed advantages (notably tax advantages) over other
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entities, without these advantages being thought to violate the establishment clause.” Geneva Coll., 778 F.3d at 443 (alteration in original and internal quotation marks omitted); see also Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 666, 672-73 (1970) (upholding a tax exemption on social welfare services that churches performed and emphasizing that “[t]he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.”). We therefore reject EWTN’s Establishment Clause challenge. D. EWTN’S Free Speech Claim
Lastly, EWTN contends that the contraceptive mandate violates the Free Speech Clause by compelling the organization to speak in order to avail itself of the accommodation.53 “[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). In Wooley, the plaintiff objected to the slogan on New Hampshire’s license plate: “Live Free or Die.” Id. at 707-08. He argued that by criminalizing his efforts to cover up the slogan, the government forced him to express a message contrary to his beliefs. The Supreme Court agreed that the license plate was forced
53 EWTN’s Free Speech claim that the regulations compel silence is moot because the Department removed the non-interference provisions from the regulations in 2014. 79 Fed. Reg. at 51095.
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speech. The Court then applied United States v. O’Brien, 391 U.S. 367 (1968), to hold that the government’s stated interest in identifying passenger cars was not sufficiently compelling because passenger cars could be identified in other ways. Id. at 715-17.
Assuming, arguendo, that the act of filling out Form 700 or notifying HHS implicates the Free Speech Clause, this Court must ask whether the government’s “countervailing interest is sufficiently compelling to justify” the forced speech. Id. at 716. Our disposition of the plaintiffs’ RFRA claims decides the issue. Because the government has a compelling interest in ensuring that women have access to contraceptive care without additional financial or administrative burden, it may force the plaintiffs to speak simply to opt out of the mandate.
IV. CONCLUSION We hold that the accommodation for the contraceptive mandate does not violate RFRA because it does not substantially burden the plaintiffs’ religious exercise and because the government’s regulatory scheme is the least restrictive means of furthering its compelling interests. The regulations also do not violate the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment. With regard to EWTN, we affirm the district court’s grant of summary judgment to the government. With regard to CENGI and Catholic Charities, we vacate the district court’s grant of summary judgment on the
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plaintiffs’ RFRA claim and remand to the district court with instructions to grant the government’s summary judgment motion.
* * * The question of whether the mandate and accommodation violate RFRA is currently before the Supreme Court in Zubik v. Burwell, Nos. 14- 1376 and 141377, and other consolidated cases. The Supreme Court will hold oral argument in these cases on March 23, 2016. Because the Supreme Court will soon render a decision addressing this issue, we believe it is appropriate to stay enforcement of the mandate and accommodation against the plaintiffs until the Supreme Court issues a decision. Accordingly, the Secretary of Health and Human Services is enjoined from enforcing against EWTN, Catholic Charities, and CENGI the substantive requirements set forth in 42 U.S.C. § 300gg-13(a)(4) and from assessing fines or taking other enforcement action against EWTN, Catholic Charities, or CENGI for non-compliance. The parties are directed to file a notice with this Court once the Supreme Court has issued its decision in Zubik. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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APPENDIX: FORM 700
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 54.9815-2713 A, 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, I 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 2590.715-2713 A(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 54.9815-2713 A(a)(3), 29 CFR 2590.715-2713 A(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
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APPENDIX: FORM 700
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)(l)(iv) or 29 CFR 2590.7152713(a)(l)(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 54.9815-2713 A, 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)(l)(ii)(B) and (c)(l)(ii), 29 CFR 2590.715-2713A(b)(l)(ii)(B) and (c)(l)(ii), and 45 CFR 147.13l(c)(l)(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 selfcertification 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 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 1210-0150.
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ANDERSON, Circuit Judge, concurring: I join Judge Jill Pryor’s opinion for the court in its entirety. I write
separately only to emphasize one point already made in the opinion. Plaintiffs seem to suggest, as a less restrictive means, that a religious employer be allowed to opt out without notifying anyone – without requiring even the de minimis notice to Health and Human Services (“HHS”) pursuant to the most recent alternative notice provided for in the Regulations. However, the necessary consequence of such an automatic opt-out would be the imposition of plaintiffs’ religious beliefs on their female employees. In other words, if HHS were not able to identify which employers have opted out, the employees of such employers would not receive contraceptive coverage, at least until they happened to sua sponte discover that their employer had opted out, and until such employees happened to sua sponte discover their statutory entitlement. Only then would such employees be in position to notify HHS, and begin their coverage. Such an automatically exempted employer – notifying no one of its decision to opt out -- would at least temporarily impose its own religious beliefs on its employees and deprive them of the coverage to which they are entitled under the statute and regulations. RFRA does not require that construction of the law. Rather, the Supreme Court in Hobby Lobby recognized that “RFRA took the position that ‘the compelling interest test as set forth in prior Federal rulings is a workable test for striking sensible balances
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between religious liberty and competing prior governmental interests.’” Burwell v. Hobby Lobby Stores, Inc., 537 U.S. __, __, 134 S. Ct. 2751, 2785 (2014)(quoting from the express RFRA provision cited and quoted below). See also Cutter v. Wilkinson, 544 U.S. 709, 720, 125 S. Ct. 2113, 2121 (2005)(“Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries”); id. at 722, 125 S. Ct. at 212223 (“Our decisions indicate that an accommodation must be measured so that it does not override other significant interests . . .. We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way.”). Indeed, RFRA contains an express provision which incorporates the prior Federal case law contemplating a “sensible balance” between religious liberty and competing governmental interests. See 42 U.S.C. §2000bb(a)(5) (“the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”) Plaintiffs’ position – and its necessary consequence of the imposition of plaintiffs’ religious views on others – clearly does not strike a “sensible balance” between religious liberty and the government’s compelling interests in this case. See Hobby Lobby, 537 U.S. at __, 134 S. Ct. at 2786-87 (Kennedy, J., concurring) (“[N]o person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such
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as employees, in protecting their own interests, interests the law deems compelling.”).
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TJOFLAT, Circuit Judge, dissenting: I diverge from the majority on the question of whether the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., shields Eternal Word Television Network and the Archdiocese of Atlanta, the Diocese of Savannah, and their related schools and charities (the “Dioceses”) from the Government’s efforts to force them to participate in a complicated regulatory scheme. Doing so, these parties sincerely believe, would make them complicit in violating the sanctity of human life. As I understand RFRA’s plain meaning and the controlling precedent, on full display in the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014), the answer should be straightforward. Under RFRA’s demanding scrutiny, the Government cannot put religious believers to the choice of abandoning the commands of their faith or paying massive penalties unless it can show that it has no other way of achieving a compelling interest. Just as in Hobby Lobby, the Government has failed to make this showing. We are therefore bound to grant Eternal Word Television Network and the Dioceses the relief they seek.
“Great cases, like hard cases, make bad law.” N. Sec. Co. v. United States, 193 U.S. 197, 364, 24 S. Ct. 436, 468, 48 L. Ed. 679 (1904) (Holmes, J., dissenting). In such circumstances, practical concerns “exercise a kind of hydraulic pressure” under which “even well settled principles of law will bend” as
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a result of “some accident of immediate overwhelming interest.” Id. at 364, 401, 24 S. Ct. at 468. In the background of this litigation rage many competing interests: What sort of legal regime would best preserve the American ideal of religious liberty? How can we most effectively expand healthcare access? When and where should the interests of society trump those of the individual? Who will be left holding the check for any newly minted social-welfare programs?
It is Congress’s responsibility—not the prerogative of courts—to balance these interests. And Congress made clear in RFRA how that balance is to be struck: the freedom of religious exercise is to be jealously guarded by subjecting, across the board, Congress’s own actions to the most rigorous scrutiny. Under that scrutiny, the Government’s attempt here to burden Eternal Word Television Network and the Dioceses’ religious exercise must give way. Concluding otherwise, the majority makes bad law. For that reason, I dissent.
I. The devil, as they say, is in the details. Nowhere does this adage ring truer than in the administrative morass of the so-called “accommodation,” the regulatory mechanism by which religiously objecting employers can affirmatively opt out of the Affordable Care Act’s so-called “contraceptive mandate.” The resolution of this case turns on the exact functioning of an evolving set of overlapping and intricate regulations promulgated by three Executive-branch agencies. These
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regulations overlay a particularly unsettled and murky region of the generally unsettled and murky landscape of federal healthcare regulation. Therefore, it is critical to get the details right. And they are devilish indeed.
A. Under the Patient Protection and Affordable Care Act of 2010 (“the ACA”), covered employers, as part of their “[s]hared responsibility” for their employees’ healthcare needs, are required to provide qualifying employees with health plans that meet certain standards of “minimum essential coverage.” 26 U.S.C. §§ 4980H(a), 5000A(f)(2). Covered employers who fail to do so have to pay a “tax”1 of $100 per day for each affected employee. Id. § 4980D(a)–(b). For continued “noncompliance” after receiving a “notice of examination,” employers are subject to a minimum penalty in the amount of $2,500 or $15,000 per affected employee, depending on whether the violations “are more than de minimis.” Id. § 4980D(b)(3). Included in the ACA’s definition of “minimum essential coverage” are a number of preventive healthcare services. Relevant here is the requirement to provide “with respect to women, such additional preventive care and screenings … as provided for in comprehensive guidelines supported by the Health Resources
1 It is ironic that the ACA refers to an annual penalty for noncompliance of $36,500 per employee as a “tax.” Cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. __, __, 132 S. Ct. 2566, 2593–2600, 183 L. Ed. 2d 450 (2012).
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and Services Administration.” 42 U.S.C. § 300gg-13(4). To develop these
guidelines, the Health Resources and Services Administration, a subpart of the
Department of Health and Human Services, sought recommendations from the
Institute of Medicine, a division of the National Academies of Sciences. The
Institute of Medicine’s recommendations2 were ultimately adopted in identical
regulations promulgated by the Department of Treasury, the Department of Labor,
and the Department of Health and Human Services. See 26 C.F.R. § 54.9815-
2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R.
§ 147.130(a)(1)(iv).3 As a result, nonexempt employers are responsible for
providing their plan beneficiaries with coverage for “[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 Guidelines, U.S. Dep’t of Health and Human Servs.,
2 The Institute of Medicine’s recommendations were laid out in its report Clinical Preventive Services for Women: Closing the Gaps, which was released on July 19, 2011. Like much of the ACA, that report and the process used to generate it sparked significant controversy, prompting public backlash and a dissent from one of the committee members. Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps Appendix D at 231–35 (2011) (Anthony Lo Sasso, dissenting); see also Grace Sch. v. Burwell, 801 F.3d 788, 815–22 (7th Cir. 2015) (Manion, J., dissenting); 77 Fed. Reg. 8725, 8725–26 (Feb. 15, 2012); Helen M. Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 Vill. L. Rev. 379, 391–431 (2013). Because I assume that the Government has a compelling interest in providing the preventive services at issue in this case, I pass no judgment on the Institute of Medicine’s report or its contents.
3 As in the majority’s opinion, for convenience when discussing the Departments’ regulations I will cite only those of the Department of Health and Human Services unless otherwise indicated.
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Health Res. and Servs. Admin., http://hrsa.gov/womensguidelines/ (last visited Feb. 10, 2016).
These regulations, collectively known as the “contraceptive mandate,” did not apply as enacted to several categories of employers. As is true generally of the ACA, the contraceptive mandate does not cover employers with less than fifty fulltime employees. See 26 U.S.C. § 4890H(a), (c)(2). These employers are thus under no obligation to provide any health plan at all. Similarly, employers who maintain “grandfathered health plans”—health plans that have not undergone specified changes in the way they operated before March 23, 2010, see 75 Fed. Reg. 34538, 34540–41—are specifically exempted from the contraceptive mandate. 42 U.S.C. § 18011(a), (e). Other changes instituted by the ACA do apply to grandfathered health plans, including extensions of dependent coverage for adult children under the age of twenty-six and prohibitions on excessive waiting periods, lifetime benefits limits, and rescissions of coverage. Id. § 18011(a)(4)(A)(i)–(iv). The ACA does not include a sunset provision for grandfathered health plans, which can continue their exempt status indefinitely.4
4 The Government does predict that grandfathered health plans will be phased out over time as part of a planned “transition period” designed “to avoid undue disruption.” It is ultimately an empirical question how many grandfathered plans are currently in effect and how many will persist in the future. The record developed in this case, as in so many other respects, betrays no answer.
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Conscious of the bind in which the contraceptive mandate would place
certain employers with religious objections, the Departments promulgated a series
of further regulations to exempt these employers as well.5 What emerged from
several years of rulemaking were two distinct regimes for employers with religious
objections: one for “religious employers” and another for “eligible organizations.”
45 C.F.R. § 147.131(a), (b). “Religious employers” are defined, by reference to
the Internal Revenue Code, as “churches, their integrated auxiliaries, and
conventions or associations of churches” and any “nonprofit entit[ies]” engaged in
“the exclusively religious activities of any religious order.” Id. § 147.131(a); 26
U.S.C. § 6033(a)(3)(A)(i), (iii).6 Employers who object to the contraceptive
mandate but are not considered “religious employers” can still qualify as “eligible
organizations” if they meet the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive items or services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
5 The development of the current iteration of the contraceptive mandate—which has changed multiple times since these suits was first brought, though not in ways that materially alter the RFRA inquiry—has been largely defined by how to treat religiously objecting employers, inspiring hundreds of thousands of comments from interested stakeholders. See 75 Fed. Reg. 41726, 41726–56 (July 19, 2010); 77 Fed. Reg. 8725, 8725–29 (Feb. 15, 2012); 77 Fed. Reg. 16501, 16501–08 (Mar. 21, 2012); 78 Fed. Reg. 8456, 8456–72 (Feb. 6, 2013); 78 Fed. Reg. 39870, 39870–92 (July 2, 2013); 79 Fed. Reg. 51092, 51092–98 (Aug. 27, 2014); 79 Fed. Reg. 51118, 51118–25 (Aug. 27, 2014); 80 Fed. Reg. 41318, 41318–41 (July 14, 2015).
6 As the term “church” is hardly self-defining, the IRS uses a fourteen-factor test to determine which organizations make the cut. See Internal Revenue Serv., Pub. 1828: Tax Guide for Churches & Religious Organizations 33 (2015), available at https://www.irs.gov/pub/irspdf/p1828.pdf.
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(2) (i) The organization is organized and operates as a nonprofit entity and holds itself out as a religious organization; or
(ii) The organization is organized and operates as a closely held for-profit entity … that … objects to covering some or all of the contraceptive services on account of the owners’ sincerely held religious beliefs.
(3) The organization must self-certify in the form and manner specified by the Secretary of Labor or provide notice to the Secretary of Health and Human Services as described [elsewhere in the regulations]…
45 C.F.R. § 147.131.7
7 The current version of § 147.131 took effect on September 14, 2015. In response to the Supreme Court’s decisions in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014) and Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct. 2806, 189 L. Ed. 2d 856 (2014), § 147.131 now extends to cover qualifying “closely held for-profit entit[ies]” in addition to religious nonprofits, and expands the available methods of opting out of the contraceptive mandate. Compare 45 C.F.R. § 147.131, with 45 C.F.R. § 147.131 (effective Aug. 27, 2014 to Sept. 13, 2015), and 45 C.F.R. § 147.131 (effective Aug. 1, 2013 to Aug. 26, 2014). The relevant portion of § 147.131 now provides in full:
(b) Eligible organizations. An eligible organization is an organization that meets the criteria of paragraphs (b)(1) through (3) of this section.
(1) The organization opposes providing coverage for some or all of any contraceptive items or services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) (i) The organization is organized and operates as a nonprofit entity and holds itself out as a religious organization; or
(ii) The organization is organized and operates as a closely held for-profit entity, as defined in paragraph (b)(4) of this section, and the organization's highest governing body (such as its board of directors, board of trustees, or owners, if managed directly by its owners) has adopted a resolution or similar action, under the organization's applicable rules of governance and consistent with state law, establishing that it objects to covering some or all of the contraceptive services on account of the owners' sincerely held religious beliefs.
(3) The organization must self-certify in the form and manner specified by the Secretary of Labor or provide notice to the Secretary of Health and Human Services as described in paragraph (c) of this section. The organization must make such self-certification or notice available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification or notice must be executed by a person
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Religious employers’ and eligible organizations’ bids to remove themselves from the contraceptive mandate fare differently. Religious employers are simply exempt; they are not required to participate, directly or indirectly, in providing access to contraceptive coverage to their female employees and beneficiaries, whether or not these women share their employers’ beliefs. 45 C.F.R. § 147.131(a). Eligible organizations, in contrast, are required to affirmatively opt out of providing contraceptive coverage, if they wish to do so, by complying with a further series of regulations known as “the accommodation.” Id. § 147.131(c).
How the accommodation functions turns on the eligible organization’s type of health plan. Broadly speaking, employer-sponsored health plans come in two types: insured plans and self-insured plans. Under an insured plan, the employer enters into a contract with an insurer. The insurer, in exchange for up-front premiums, becomes responsible for administering the plan and paying out claims. Under a self-insured plan, the employer remains responsible for paying its employees’ claims itself; in essence, the employer serves as its own insurer. For employers with self-insured plans, it is a common practice to contract with a thirdparty administrator—which may also be in the business of providing insured plans—to administer the self-insured plan, though the employer continues to bear
authorized to make the certification or notice on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of ERISA.
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the cost of paying claims.8 Eligible organizations that maintain their own self-
insured plans without a third-party administrator are, like religious employers,
exempt from the contraceptive mandate altogether.
Eligible organizations may, in line with the regulations currently in force, avail themselves of the accommodation in one of two ways.9 The first option is to
send a “self-certification” form, Employee Benefits Security Administration Form
700 (“Form 700”), to the eligible organization’s insurer, if the organization has an
insured plan, or to the organization’s third-party administrator, if the organization
has a self-insured plan. 45 C.F.R. § 147.131(b)(3), (c)(1). Form 700 requires
eligible organizations to identify themselves as qualifying for the accommodation;
list the name, title, and contact information of the person authorized to make that certification; and sign and date the form.10 The second option is to send to the
Secretary of Health and Human Services less-formal notice of the eligible
organization’s intent to opt out. That notice must include “the name of the eligible
organization and the basis on which it qualifies for an accommodation,” notice of
8 For example, Eternal Word Television Network has a self-insured health plan for which Blue Cross Blue Shield of Alabama serves as third-party administrator. The Dioceses collectively maintain three self-insured health plans, for all of which Meritain Health serves as third-party administrator. Though Blue Cross Blue Shield of Alabama and Meritain Health may separately offer insured plans, they are not responsible for paying the claims of Eternal Word Television Network’s and the Dioceses’ beneficiaries.
9 In the pre–Wheaton College iteration of the contraceptive mandate, there was only one way to opt out under the accommodation: submitting Employee Benefits Security Administration Form 700 to the relevant insurer or third-party administrator. See infra n.11.
10 A copy of Form 700 is appended to the majority’s opinion.
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its objection to the contraceptive mandate “based on [the eligible organization’s] sincerely held religious beliefs,” the name and type of the eligible organization’s health plan, and the identity and contact information of the eligible organization’s insurer or third-party administrator. Id. § 147.131(c)(1)(ii).
Under the first option provided for in the accommodation, whereby Form 700 is sent directly to an eligible organization’s insurer or third-party administrator, the recipient insurer or third-party administrator becomes responsible for establishing separate contraceptive coverage for the eligible organization’s female employees and plan beneficiaries. The insurer or third-party administrator must, upon receipt of the eligible organization’s Form 700, “[e]xpressly exclude contraceptive coverage” from the eligible organization’s plan and “[p]rovide separate payments for any contraceptive services required to be covered” pursuant to the contraceptive mandate. Id. § 147.131(c)(2)(i)(A)–(B). Among other requirements, the insurer or third-party administrator must also “segregate premium revenue … from the monies used to provide payments for contraceptive services” and is forbidden from “impos[ing] any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impos[ing] 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.” Id. § 147.131(c)(2)(ii). And the insurer or third-party administrator
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must provide to plan members and beneficiaries written notice outlining how the accommodation works and “specify[ing] that the eligible organization does not administer or fund contraceptive benefits.” See id. § 147.131(d) (proposing suggested language for this notice).
Under the second option provided for in the accommodation, whereby lessformal notice is sent instead to the Secretary of Health and Human Services, the Secretary is then tasked with alerting the eligible organization’s insurer or thirdparty administrator. The Department of Health and Human Services will “send a separate notification” to the insurer relaying that the eligible organization’s notice was received and “describing the [insurer’s or third-party administrator’s] obligations.” 45 C.F.R. § 147.131(c)(1)(ii). The insurer’s or third-party administrator’s obligations to provide separate coverage pursuant to the contraceptive mandate are identical whether it is alerted to the eligible organization’s objections directly by Form 700 or indirectly by the Government.11
11 The reason that eligible organizations are given two similar-seeming options for opting out of the contraceptive mandate stems from the Supreme Court’s decision in Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct. 2806, 189 L. Ed. 2d 856 (2014). In Wheaton College, the Supreme Court enjoined enforcement of the contraceptive mandate against an eligible organization that sent written notice to the Government but objected, based on the organization’s religious beliefs, to sending Form 700 to its insurer and third-party administrator. Id. at __, 134 S. Ct. 2807. The Court did not address the situation presented here where an eligible organization objects, on religious grounds, both to completing Form 700 and to providing lessformal notice to the Secretary of Health and Human Services.
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The regulations require eligible organizations to affirmatively opt out of the contraceptive mandate because doing so enables the Government to require the eligible organizations’ insurers and third-party administrators to provide contraceptive coverage. For eligible organizations with insured plans,12 opting out under the accommodation notifies the insurers of their obligations to provide contraceptive coverage. 45 C.F.R. § 147.131(c)(2)(i). For eligible organizations with self-insured plans that contract with a third-party administrator,13 opting out of the contraceptive mandate under the accommodation makes the third-party administrator “the plan administrator” for purposes of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., under regulations promulgated by the Department of Labor. 29 C.F.R. § 2510.3-16(b). If the eligible organization submits Form 700, that submission “shall be treated as a designation of the third party administrator as the plan administrator.” Id. If the eligible organization instead provides less-formal notice to the Secretary of Health and Human Services, “the Department of Labor, working with the Department of Health and Human Services, shall … provide notification … that such third party administrator shall be the plan administrator” under ERISA. Id. Once a thirdparty administrator becomes a “plan administrator” under ERISA, the relevant
12 Because this case does not involve eligible organizations with insured plans, I pass no judgment on the accommodation in that context.
13 As mentioned above, eligible organizations that administer their own self-insured plans are not subject to the contraceptive mandate under the regulations.
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administrative agencies gain the regulatory authority to require the third-party administrator to provide contraceptive coverage.14 Id. § 2510.3-16(c).
The Government’s regulatory authority to require third-party administrators of self-insured plans to provide contraceptive coverage is limited. A third-party administrator may always decline to “agree[] to enter into or remain in a contractual relationship with the eligible organization.”15 26 C.F.R. § 54.98152713A(b)(2). Only if it accepts the terms of the regulations does a third-party administrator incur the obligation “to provide or arrange payments for contraceptive services.” Id. § 54.9815-2713A(d). If a third-party administrator agrees to provide the contraceptive coverage, the costs it incurs to do so will be reimbursed from “Federally-facilitated Exchange” user fees, which are fees
14 Under ERISA, a third-party administrator that is neither the “plan sponsor” nor specifically designated as such can be considered the “plan administrator” only “as the Secretary [of Labor] may by regulation prescribe.” 29 U.S.C. § 1002(16)(A)(iii). The Government contends that, as currently written, the ACA’s implementing regulations also allow it to independently enforce the contraceptive mandate against third-party administrators of selfinsured plans without any further action from the eligible organization. The truth of this contention is far from certain. See ante at 44–45 & nn.30–31; Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 935 n.8 (8th Cir. 2015) (collecting cases contrary to the Government’s position). In any event, I decline to pass judgment on this question because its resolution is unnecessary to decide this case.
15 If a third-party administrator declines to provide contraceptive coverage, eligible organizations with self-insured plans must select another willing third-party administrator, administer its own health plan, or become subject to the monetary penalties discussed above.
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imposed on insurers offering health plans on exchanges established by the
Government under the ACA.16 See 80 Fed. Reg. at 41328.
B.
Inextricably intertwined with these evolving regulations is a series of cases
challenging the various iterations of the contraceptive mandate under the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. RFRA provides
that the federal government17 “may substantially burden a person’s exercise of
religion” only if it does so “in furtherance of a compelling governmental interest”
and the burden it imposes is “the least restrictive means of furthering that
compelling governmental interest.” Id. § 2000bb-1(b).
In 1993, Congress enacted RFRA in response to the Supreme Court’s path-
breaking approach to the First Amendment’s Free Exercise Clause taken in
Employment Division, Department of Human Resources of Oregon v. Smith, 494
16 Specifically, the regulations contemplate “adjustments” to the third-party administrator’s own user fees, if the third-party administrator also offers health plans on a Federally-facilitated Exchange, or the user fees of another participating insurer that the thirdparty administrator contracts with to receive reimbursement. See 80 Fed. Reg. at 41328. Thirdparty administrators are to be reimbursed for the “total dollar amount of the payments for contraceptive services” and an “allowance for administrative costs and margin” of “no less than 10 percent” for the amount spent on contraceptive services. 45 C.F.R. § 156.50(d)(3)(i), (ii). The Government does not address how reimbursement will be made, if at all, should these user fees prove insufficient. Cf. King v. Burwell, 576 U.S. __, __, 135 S. Ct. 2480, 2487, 192 L. Ed. 2d 483 (2015) (noting that the ACA contemplates that each state will create its own exchange).
17 RFRA originally applied to the actions of state governments as well, but the Supreme Court held that extending RFRA’s mandate to the states exceeded Congress’s powers under § 5 of the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997).
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U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (holding that neutral laws of general applicability do not burden free exercise whether or not they are supported by a compelling interest). Congress declared that the standard of strict scrutiny RFRA imposes creates “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. § 2000bb(a)(5). RFRA’s stated purposes included “restor[ing] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)” and “provid[ing] a claim or defense to persons whose religious exercise is substantially burdened by government.” Id. § 2000bb(b)(1), (2). To the extent that it imposes a least-restrictive-means requirement not present in Sherbert or Yoder, however, RFRA “provide[s] even broader protection for religious liberty than was available under those decisions.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __ n.3, 134 S. Ct. 2751, 2761 n.3, 189 L. Ed. 2d 675 (2014).
Following the enactment of the ACA and the promulgation of the contraceptive mandate, a diverse set of employers brought suit to avoid providing what they viewed as objectionable contraceptive coverage.18 The Supreme Court
18 Though the bulk of this litigation has been brought under RFRA, at least one nonreligious employer has challenged the contraceptive mandate under the Fifth Amendment. See March for Life v. Burwell, No. 14-cv-1149(RJL), 2015 WL 5139099 (D.D.C. Aug. 31, 2015) (concluding that the contraceptive mandate violates equal-protection principles because it lacks a rational basis for discriminating between religious and non-religious objectors). Because this
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first encountered the contraceptive mandate in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014).19 The Court held in Hobby Lobby that enforcing the contraceptive mandate against a closely held forprofit company that had religious objections to providing contraceptive coverage would violate RFRA. Id. at __, 134 S. Ct. at 2785. The Court began by determining that, as a matter of statutory interpretation, RFRA covers certain forprofit companies because the term “person” was not limited only to natural persons. Id. at __, 134 S. Ct. at 2767–75. Moving to RFRA’s threshold inquiry, the Court “ha[d] little trouble concluding” that the contraceptive mandate imposes a substantial burden on religious exercise. Id. at __, 134 S. Ct. at 2775. The Hobby Lobby plaintiffs had an uncontested “sincere religious belief that life begins at conception” and understood that their belief would be violated if they were required to “provid[e] health insurance that covers methods of birth control” that “may result in the destruction of an embryo.” Id. By forcing them to choose between violating their deeply held convictions and “pay[ing] an enormous sum of money,” the contraceptive mandate “clearly imposes a substantial burden on those beliefs.” Id. at __, 134 S. Ct. at 2779.
case involves only employers with religious objections and is resolved by RFRA’s clear dictates, I decline to address the constitutional propriety of applying the contraceptive mandate to nonreligious objectors.
19 Justice Alito wrote the majority opinion in Hobby Lobby, joined by Chief Justice Roberts and Justices Scalia and Thomas. Justice Kennedy concurred. Justice Ginsburg dissented, joined in full by Justice Sotomayor and in relevant part by Justices Breyer and Kagan.
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The Court specifically and emphatically rejected any argument that the participation of religious objectors, by paying for contraceptive coverage, is “simply too attenuated” from the objectionable outcome, the destruction of embryos, to constitute a burden on religious exercise. Id. at __, 134 S. Ct. at 2777. Such an argument, which “implicates a difficult and important question of religion and moral philosophy,” would “in effect tell the plaintiffs that their beliefs are flawed”—and defining the scope of religious belief is a dangerous line-drawing inquiry “federal courts have no business addressing.” See id. at __, 134 S. Ct. at 2778 (“Instead, our ‘narrow function … in this context is to determine’ whether the line drawn reflects ‘an honest conviction’” (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716, 101 S. Ct. 1425, 1431, 67 L. Ed. 2d 624 (1981))). Moreover, the Court noted, if the contraceptive mandate’s burden were not substantial, it would “be hard to understand” and “not easy to square” with the exemptions carved out for qualifying “religious employers” facing “exactly the same” burden. Id. at __ n.33, 134 S. Ct. at 2777 n.33.
The Court next declined to address whether the contraceptive mandate furthered a compelling interest because, even if it did, the contraceptive mandate was not the least restrictive means of doing so. Id. at __, 134 S. Ct. at 2779–80. The Court identified several less-restrictive alternatives that the Government could have used to achieve the assumed compelling interest, holding that the
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contraceptive mandate foundered under RFRA’s “exceptionally demanding”
standard. Id. at __, 134 S. Ct. at 2780. The “most straightforward” alternative
“would be for the Government to assume the cost” of contraceptive coverage. Id.
at __, 134 S. Ct. at 2780. In response to the Government’s contrary position, the
Court observed that “it is hard to understand [the] argument that [the Government]
cannot be required under RFRA to pay anything” for “a Government interest of the highest order.” Id. at __, 134 S. Ct. at 2781.20 The Court also strongly suggested
that the Government’s direct provision of contraceptive coverage would still be a
less-restrictive alternative if the Government were required to create “an entirely
new program” rather than “modif[y] an existing program (which RFRA surely
allows).” Id.
In its analysis the Court decided it “need not rely on the option of a new,
government-funded program” to identify a less-restrictive alternative because the
regulations already provided one: the then-existing version of the accommodation
for employers with religious objections. Id. at __, 134 S. Ct. at 2781–82. The for-
20 Requiring the Government to, at times, spend additional monies to avoid imposing substantial burdens on the free exercise of religious objectors would accord with RFRA’s sister statute, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc, 2000cc-1. See id. § 2000cc-3(c) (“[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”). Congress enacted RLUIPA pursuant to the Spending and Commerce Clauses after the Supreme Court in City of Boerne held that RFRA could not be applied to the actions of state governments under § 5 of the Fourteenth Amendment. See supra note 17. The standard of RLUIPA mirrors that of RFRA and applies in two contexts: land-use regulation and the religious exercise of institutionalized persons.
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profit Hobby Lobby plaintiffs did not object to the accommodation itself, so granting them the option for a third party to provide their female employees’ contraceptive coverage “serves [the Government’s] stated interests equally well.” Id. at __, 134 S. Ct. at 2781–82. Though derided as “‘noncommittal’” by the dissent for doing so, the Court expressly declined to rule on “whether an approach of this type complies with RFRA for purposes of all religious claims.” Id. at __ & n.40, 134 S. Ct. at 2782 & n.40.
Three days after it decided Hobby Lobby, the Supreme Court again ruled on the contraceptive mandate in Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct. 2806, 189 L. Ed. 2d 856 (2014).21 In Wheaton College, the Court issued an order enjoining the Secretary of Health and Human Services, “pending final disposition of appellate review,” from enforcing the contraceptive mandate against an employer that submits “in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Id. at __, 134 S. Ct. at 2807. The parties disputed whether the obligation to provide contraceptive coverage was “dependent” on submitting Form 700 to an insurer or third-party administrator. Id. The Court concluded in its two-page order that, because notice had already been given to the Government, the
21 Chief Justice Roberts and Justices Alito, Thomas, Kennedy, and Breyer joined the Court’s decision in Wheaton College. Justice Scalia concurred without issuing a separate opinion. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.
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Government “relying on this notice” could “facilitate the provision of full contraceptive coverage under the [ACA].” Id. The Court ended its order by noting that it “should not be construed as an expression of the Court’s views on the merits.” Id.
After Hobby Lobby and Wheaton College, the federal courts were inundated with cases posing the question presented here: whether RFRA provides relief to employers with religious objections to the accommodation itself. Our sister circuits are deeply divided. Like the majority, most circuits have concluded that, though RFRA requires deference to adherents’ sincerely held religious beliefs, “an objective inquiry” to determine whether a law presents a substantial burden reveals that the accommodation does not impose a substantial burden on religious exercise.22 Ante at 33–41; see also Catholic Health Care Sys. v. Burwell, 796 F.3d 207, 216–18 (2d Cir. 2015); Geneva Coll. v. Sec’y U.S. Dep’t of Health and Human Servs., 778 F.3d 422, 435–40 (3d Cir. 2015), cert. granted sub nom. Zubik v. Burwell, 83 U.S.L.W. 3894 (U.S. Nov. 6, 2015) (No. 14-1418) and cert. granted, 84 U.S.L.W. 3096 (U.S. Nov. 6, 2015) (No. 15-191); E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449, 456–58 (5th Cir. 2015), cert. granted, 84 U.S.L.W. 3050 (U.S. Nov. 6, 2015) (No. 15-35); Mich. Catholic Conference & Catholic
22 Lumping together these decisions in this manner necessarily misses some of their nuance. Again, this case is limited to eligible organizations with self-insured health plans overseen by third-party administrators that object, on religious grounds, to the accommodation.
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Family Servs. v. Burwell, Nos. 13-2723, 13-6640, 2015 WL 4979692, at *7–8 (6th Cir. Aug. 21, 2015); Grace Sch. v. Burwell, 801 F.3d 788, 803–05 (7th Cir. 2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 614–19 (7th Cir. 2015); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1176–77 (10th Cir. 2015), cert. granted sub nom. S. Nazarene Univ. v. Burwell, 84 U.S.L.W. 3061 (U.S. Nov. 6, 2015) (No. 15-119) and cert. granted, 84 U.S.L.W. 3056 (U.S. Nov. 6, 2015) (No. 15-105); Priests for Life v. U.S. Dep’t of Health and Human Servs., 772 F.3d 229, 246–49 (D.C. Cir. 2014), cert. granted sub nom. Roman Catholic Archbishop v. Burwell, 83 U.S.L.W. 3936 (U.S. Nov. 6, 2015) (No. 14-1505) and cert. granted, 83 U.S.L.W. 3918 (U.S. Nov. 6, 2015) (No. 14-1453). The Eighth Circuit and a number of dissenting judges have concluded otherwise, determining that the accommodation substantially burdens religious exercise. See Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 941–43 (8th Cir. 2015), cert. granted, 84 U.S.LW. 3350 (U.S. Dec. 15, 2015 ) (No. 15775); E. Tex. Baptist Univ. v. Burwell, Nos. 14-20112, 14-10241, 14-40212, 2015 WL 5773560, at *2–3 (5th Cir. Sept. 30, 2015) (Jones, J., dissenting from denial of rehearing en banc); Grace Sch., 801 F.3d at 810–15 (Manion, J., dissenting); Univ. of Notre Dame, 786 F.3d at 627–29 (Flaum, J., dissenting); Little Sisters of the Poor, 794 F.3d at 1208–10 (Baldock, J., dissenting in part); Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315, 1316–18 (10th Cir. 2015)
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(Hartz, J., dissenting from denial of rehearing en banc); Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health and Human Servs., 756 F.3d 1339, 1344–48 (11th Cir. 2014) (William Pryor, J., specially concurring in order granting injunction pending appeal); Priests for Life v. U.S. Dep’t of Health and Human Servs., Nos. 13-5368, 13-5371, 14-5021, 2015 WL 5692512, at *6–8 (D.C. Cir. May 20, 2015) (Brown, J., dissenting from denial of rehearing en banc); Priests for Life, 2015 WL 5692512, at *14–17 (Kavanaugh, J., dissenting from denial of rehearing en banc).
C. To summarize, when Congress enacted the ACA it ceded broad authority to three Executive-branch administrative agencies to promulgate rules governing the availability of women’s preventive health services in employer-sponsored health plans. The agencies ultimately determined that the Government had a compelling interest in providing women with cost-free access to a wide range of contraceptive services. In accordance with that determination, the agencies, through threat of large monetary penalties, mandated that certain employers must provide contraceptive coverage to their female employees. Though Congress had already exempted some types of employers—those with fewer than fifty employees and those with grandfathered health plans—the agencies decided that another group of
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employers should be exempt too: churches and church-affiliated organizations, as defined by already-existing definitions in the Internal Revenue Code.
The agencies exempted churches and church-affiliated organizations from the contraceptive mandate because the agencies understood that the contraceptive mandate would impose a substantial burden on many of these organizations’ religious exercise. As a result, churches and church-affiliated organizations may choose what contraceptive coverage, if any, will be available in their female employees’ health plans. No such exemption, however, was thought necessary for other organizations with similar religious objections, whether for-profit or nonprofit. After much public outcry and litigation, the agencies changed course. At first, the agencies began offering an exemption-like option to certain nonprofits with religious objections. In response to the Supreme Court’s decision in Hobby Lobby, the agencies extended the same to for-profit religious objectors as well.
But the exemption-like option—the accommodation—did not truly exempt qualifying employers. Rather, it required qualifying employers to affirmatively opt out of providing contraceptive coverage, shifting the obligation to provide the required contraceptive coverage to the employers’ insurer or third-party administrator. Originally, qualifying employers had to opt out by sending Form 700 to the insurer or third-party administrator responsible for the employers’ health plans, alerting the insurer or third-party administrator to its new obligations. After
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the Supreme Court’s order in Wheaton College, the agencies also made available an option of providing less-formal notice to the Secretary of Health and Human Services. Under this option, the notice is rerouted to the insurer or third-party administrator, in lieu of the employer submitting Form 700 directly.
For employers that run self-insured health plans in conjunction with a thirdparty administrator and are eligible for the accommodation, opting out of the contraceptive mandate has the effect of designating the employers’ third-party administrators as “plan administrators” under ERISA. Once so designated, the agencies can require a third-party administrator to provide contraceptive coverage. Absent any affirmative action from the employer, third-party administrators remain outside of ERISA’s reach. Likewise outside of ERISA’s reach, and thus effectively exempt from the contraceptive mandate, are employers that run selfinsured health plans without a third-party administrator.
As a result, there are four discrete options facing employers like Eternal Word Television Network and the Dioceses, which operate self-insured plans and do not meet the Internal Revenue Code’s definition for churches or churchaffiliated organizations but nonetheless have religious objections to providing contraceptive coverage. First, these employers can provide the objectionable coverage in violation of their beliefs. Second, these employers can comply with the accommodation and affirmatively opt out of the contraceptive mandate,
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shifting the obligation to provide the required coverage to their insurer or thirdparty administrator, also in violation of their beliefs. Third, these employers can drop their third-party administrators and assume the costs and responsibilities of running their own health plans. Fourth, these employers can do nothing and thereby become liable for annual fines of thousands of dollars per employee.
This case requires two determinations. First, does the regulatory scheme discussed above impose a substantial burden on the religious exercise of Eternal Word Television Network and the Dioceses, which believe that opting out under the accommodation would violate the sanctity of human life? If so, does the regulatory scheme nonetheless survive RFRA’s demanding standard of strict scrutiny? Because I conclude that the answers to these questions are yes and no, while the majority says no and yes, I dissent.
II. The threshold inquiry under RFRA requires a showing that the Government has “substantially burden[ed]” the plaintiff’s “exercise of religion.” 42 U.S.C. § 2000bb-1. First, a RFRA plaintiff must identify religious exercise that the Government is burdening. The allegedly burdened exercise “must be sincerely based on a religious belief and not some other motivation.” Holt v. Hobbs, 574
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U.S. __, __, 135 S. Ct. 853, 862, 190 L. Ed. 2d 747 (2015).23 When determining the content of a religious belief, including how and to what extent its attendant exercise may be burdened, we defer to the plaintiff’s understanding of what his faith requires of him because “[c]ourts are not arbiters of scriptural interpretation.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716, 101 S. Ct. 1425, 1431, 67 L. Ed. 2d 624 (1981). So long as a religious adherent has drawn a line based on “an honest conviction,” “it is not for us to say that the line he drew was an unreasonable one.” Id. at 715–16, 101 S. Ct. at 1430–31.
Next, we must determine whether, as an objective matter, the identified burden on religious exercise is substantial. The existence of a substantial burden, which “can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct,” turns on whether the Government’s actions coerce a religious adherent to affirmatively violate his beliefs. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). To be substantial, a burden must be “akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly” and must be more than “an inconvenience on religious exercise.” Id. For example, a zoning ordinance that forces members of an Orthodox Jewish congregation to
23 Though Hobbs involved a claim brought under RLUIPA rather than RFRA, both statutes impose the same standard for substantial burdens of religious exercise. See, e.g., Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004).
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“walk[] a few extra blocks” to attend services on the Sabbath is not a substantial burden when there is no “religious significance” as to a particular synagogue site, though “walking may be burdensome.” Id. at 1221, 1227–28. In contrast, if the Government puts a religious adherent to the “choice” of incurring a “serious” penalty or “‘engag[ing] in conduct that seriously violates [his] religious beliefs,’” then the Government “substantially burdens his religious exercise.” See Hobbs, 574 U.S. at __, 135 S. Ct. at 862 (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __, 134 S. Ct. 2751, 2775, 189 L. Ed. 2d 675 (2014) (second alteration in the original)). And a burden is no less substantial if the burdened party “is able to engage in other forms of religious exercise,” if the exercise in question is not “compelled” by the burdened party’s religion, or if the burdened party’s belief is “idiosyncratic.” Id. at __, 135 S. Ct. 862.
Here, it is overwhelmingly clear that the contraceptive mandate imposes on Eternal Word Television Network and the Dioceses a burden that the accommodation does not alleviate. Eternal Word Television Network and the Dioceses assert a religious belief—which the Government does not contest is sincerely held—that both complying with the contraceptive mandate and opting out under the accommodation, which requires the third-party administrators of their health plans to provide contraceptive coverage, would make them complicit in violating the sanctity of human life. The Government burdens that belief by
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requiring Eternal Word Television Network and the Dioceses to affirmatively participate in its regulatory scheme.
And it is equally clear that the burden imposed is substantial. The Government puts Eternal Word Television Network and the Dioceses to the “choice” of either (1) complying with the contraceptive mandate, to which they object on religious grounds; (2) opting out under the accommodation, to which they also object on religious grounds; (3) dropping the third-party administrators of their health plans and becoming de facto insurance companies, incurring substantial costs and diverting the focus of their religiously motivated operations; or (4) incurring millions of dollars in penalties annually.24 Besides providing yet another way for the eligible organizations to violate their religious beliefs, the accommodation does nothing to change the Supreme Court’s holding in Hobby Lobby that the contraceptive mandate “clearly imposes a substantial burden on those beliefs.” 573 U.S. at __, 134 S. Ct. at 2779. Eternal Word Television Network and the Dioceses must either violate their beliefs or incur massive
24 Should it fail to comply with the contraceptive mandate, Eternal Word Television Network would face annual penalties of up to $12,775,000 for its 350 full-time employees. See Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health and Human Servs., 756 F.3d 1339, 1341–42 (11th Cir. 2014) (William Pryor, J., specially concurring in order granting injunction pending appeal). The Dioceses’ three health plans are collectively responsible for almost 2,000 employees and would be subject to roughly $73,000,000 per year. See Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 1256373, at *2 (N.D. Ga. Mar. 26, 2014); 26 U.S.C. § 4890D(b)(1).
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monetary costs. On its face, such a “choice” is not a choice at all. Rather, it is a substantial burden on religious exercise.
As I understand it, this straightforward application of RFRA’s substantialburden test should end the matter. The majority thinks otherwise, reaching the wrong conclusion for two reasons. First, the majority fails to give proper deference to Eternal Word Television Network and the Dioceses’ sincerely held religious beliefs. Second, the majority mischaracterizes how the contraceptive mandate works by understating the critical role that the accommodation forces employers to play in providing contraceptive coverage.
Before explaining why the majority fails to give RFRA its proper meaning, it is helpful to clarify how our understandings of RFRA’s inquiry differ. Exactly where we differ is highlighted below:
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THE MAJORITY’S VIEW OF RFRA Step 1: Does the plaintiff hold a sincere religious belief?
—Objective determination

THE CORRECT VIEW OF RFRA Step 1: Does the plaintiff hold a sincere religious belief?
—Objective determination

What are the contents of that belief? —Deference to the plaintiff
Step 2: Do the Government’s actions substantially burden the plaintiff’s religious exercise?
—Objective determination

What are the contents of that belief? —Deference to the plaintiff
Step 2(a): Do the Government’s actions burden the plaintiff’s religious exercise?
—Deference to the plaintiff Step 2(b): If so, is that burden substantial?

Step 3: Is the Government acting to further a compelling interest?

—Objective determination Step 3: Is the Government acting to further a compelling interest?

—Objective determination Step 4: Is the Government’s chosen means the least-restrictive alternative of achieving that compelling interest?

—Objective determination Step 4: Is the Government’s chosen means the least-restrictive alternative of achieving that compelling interest?

—Objective determination

—Objective determination

A. First, the majority fails to give the proper deference due Eternal Word Television Network and the Dioceses’ sincerely held belief that it would violate the sanctity of human life to comply with the Government’s regulatory scheme, either directly through the contraceptive mandate or indirectly through the accommodation. Though the majority purports to defer to these beliefs, its deference is largely illusory. The majority begins by correctly observing that
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RFRA’s substantial-burden inquiry “involves both subjective and objective dimensions.” Ante at 34. The majority continues on, also correctly, to observe that “courts must accept a religious adherent’s assertion that his religious beliefs require him to take or abstain from taking a specified action.” Id. The majority falters, however, when it concludes that “it is for the courts to determine objectively . . . whether the government has, in fact, put plaintiffs to the choice of violating their religious beliefs . . . or incurring a substantial penalty.” Id. at 36– 37.
Contrary to the majority’s position, RFRA does require deference to religious adherents’ determinations that their sincerely held beliefs are being burdened. “The narrow function of a reviewing court in this context” prevents unnecessary and improper judicial intrusion into highly sensitive matters of moral philosophy or theology, Thomas, 450 U.S. at 716, 101 S. Ct. at 1431, and this understanding of the substantial-burden standard is confirmed by the Supreme Court’s most recent religious-accommodation decisions. See Hobbs, 574 U.S. at __, 135 S. Ct. at 861–63 (granting an exemption to a prison’s grooming policy for a Muslim inmate’s proposed “‘compromise’” that he be allowed to grow a halfinch-long beard); Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 2775–79 (rejecting the argument that “the connection between” providing contraceptive coverage and
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the “destruction of an embryo[] is simply too attenuated” because this “would in effect tell the plaintiffs their beliefs are flawed.”).
The “objective inquiry” under RFRA focuses only on whether that burden is substantial. For example, courts must defer to a religious adherent’s belief, if it is sincerely held, that dancing is morally wrong.25 And courts must defer to the religious adherent’s understanding that this belief would be burdened if she were required to look upon, even if only for a moment, a single masquerade ball or sock hop. What courts must determine as an objective matter is whether the burden imposed by any pro-dancing Government action is a substantial one. Imposing millions of dollars in fines for failing to perform a Government-mandated jitterbug would, obviously, be a substantial burden on religious exercise. In contrast, there would be no substantial burden if the Government merely financed public dancefloors or had a hortatory policy of extolling the virtues of dance.26
If the substantial-burden test were as the majority believes it to be, federal judges would have to decide whether the burden itself substantially violated the adherent’s beliefs. That is, the majority would necessarily shift the gaze of its “objective inquiry” to the merits of religious belief. In this Bizarro World, it
25 Many faith traditions proscribe some or all forms dancing, including various denominations of Christianity, Islam, and Judaism.
26 Indeed, it appears that Congress has contemplated adopting such a measure. See H.R. Res. 667, 113th Cong. (2014) (as introduced in the House, July 11, 2014) (“Expressing support for dancing as a form of valuable exercise and artistic expression, and for the designation of July 26, 2014, as National Dance Day.”).
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would be secular courts making ex cathedra pronouncements on whether Muslims are truly put out by requirements to shave their beards, Hobbs, 574 U.S. __, 135 S. Ct. 853; Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), whether Seventh-day Adventists are sufficiently deterred from accepting employment by requirements to work on Saturdays, Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), whether Santeria priests could just make do without ritual sacrifice or Ache-infused beads and shells, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993); Davila v. Gladden, 777 F.3d 1198 (11th Cir. 2015), and whether the sacramental use of peyote is really that big of a deal to members of the Native American Church, Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). But, of course, the Constitution does not vest in the judiciary the authority to declare winners and losers in matters of faith. And for good reason.
At bottom, the majority’s reasoning takes aim at the heart of RFRA itself. Implicit in the majority’s rationale is the notion that wily plaintiffs could game the system if religious adherents’ beliefs were given the full extent of the deference demanded by RFRA. In tailoring their stated beliefs, these plaintiffs could engage in strategic litigation unhampered, impairing the government’s ability to function efficiently. By expanding the limited scope of the objective portion of the
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substantial-burden inquiry, the majority expressly seeks to avoid “reducing the . . . federal courts to ‘rubber stamps.’” Ante at 37. Here, despite conceding as the majority must that “the act of opting out plays [some] causal role in the ultimate provision of contraceptive coverage,” the majority runs roughshod over the sincerely held religious objections of Eternal Word Television Network and the Dioceses because, in line with the majority’s sense of things, the “de minimis burden that the plaintiffs face” resulting from their role as “an incidental cause of contraceptive coverage being provided” does not constitute a substantial burden. Id. at 44-45, 47. The majority through a nifty bit of legalistic legerdemain manages to transform the subjective content of religious adherents’ sincerely held beliefs into an objective question of federal law, undercutting the very deference to religious exercise it purports to extend.
The majority’s not-so-veiled implication that, if given its full effect, RFRA will be refashioned from a shield protecting the faithful into a sword wielded by cynical opportunists is troubling and at odds with RFRA’s fundamental respect for the deeply held convictions that guide the daily lives of hundreds of millions of Americans. As an initial matter, whether or not a belief is sincerely held remains an important part of RFRA’s substantial-burden inquiry. Courts are not, for example, compelled to entertain challenges from such obvious farces as a
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hypothetical “Church of Marijuana and Pepperoni Pizza”27 or the satirical “Our Lady of Perpetual Exemption.”28 Separating the faithful sheep from the cynically opportunistic goats is well within our judicial capabilities.
Moreover, to the extent that granting exemptions for religious adherents would impair the government’s ability to run programs and administer law efficiently, this is a feature of RFRA, not a bug. Congress made the clear policy choice that protecting the individual right of free religious exercise outweighed the costs imposed at the expense of administrative efficiency. And this choice—to preserve individual freedom by fettering the Government’s ability to act as expeditiously as possible—is at the core of our foundational notion of limited government. Permitting demonstrations in public parks, requiring police officers to secure a warrant before searching homes or seizing persons, and committing the Government to provide just compensation if it wishes to take private property all surely hamper the Government’s ability to pursue countless other important ends. These tradeoffs are the cost of liberty. And how best to balance these enhanced
27 Of course, people can and do sincerely believe that marijuana consumption serves a sacramental purpose. See, e.g., Olsen v. Drug Enf’t Admin., 878 F.2d 1458 (D.C. Cir. 1989).
28 See God bless John Oliver: late-night comedian forms his own church, The Guardian (Aug. 17, 2015), http://www.theguardian.com/tv-and-radio/2015/aug/17/john-oliver-last-weektonight-mega-church.
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protections against their added costs is exactly the sort of thorny policy decision best left to democratically responsive legislators, not unelected judges.29
The majority is hardly alone in its implicit rejection of RFRA’s core purpose. Striking the proper balance between the collective needs of society and the individual freedom of religious exercise has been fraught with rancor and sectarian strife since time immemorial. Unsurprisingly then, the oft-embattled RFRA has proven a favorite whipping boy from all sides of the legal academy during its twenty-three-year existence. See, e.g., Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516 (2015); Mary Anne Case, Why “Live-And-Let-Live” is not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights, 88 S. Cal. L. Rev. 463 (2015); Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. Ill. L. Rev. 839; William P. Marshall, Bad Statutes Make Bad Law: Burwell v Hobby Lobby, 2014 Sup. Ct. Rev. 71; Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249 (1995).
29 “[T]hat one legislature cannot abridge the powers of a succeeding legislature” and, thus, “one legislature is competent to repeal any act which a former legislature was competent to pass” is a foundational principle that “can never be controverted.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135, 3 L. Ed. 162 (1810). RFRA’s protections are statutory, not mandated by the Constitution. Should it wish to do so, Congress remains free to alter the scrutiny to be applied to any particular law challenged under RFRA or to repeal RFRA altogether.
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Judicial declarations that the sky will fall if exemptions were granted to
religious objectors in a pluralistic society as diverse and vibrant as the United
States are old hat as well. Consider the following statement of Chief Justice
Morrison Waite, written almost one hundred and fifty years ago:
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. … Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
Reynolds v. United States, 98 U.S. 145, 166–67, 25 L. Ed. 244 (1878). After more
than a century of wrestling with the First Amendment’s Free Exercise Clause, the
Supreme Court brought constitutional religious-accommodation doctrine full circle
in Smith, upholding without accommodation neutral laws of general applicability.
Writing for the majority, Justice Scalia echoed Chief Justice Waite’s sentiment:
If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interests” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.
Smith, 494 U.S. at 888, 110 S. Ct. at 1605 (emphasis added). It is hard to fathom a
plainer statement of the risks of reinstituting a policy of religious accommodation.
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Yet it was against this very backdrop that Congress enacted RFRA in 1993. And Congress specifically declared that by adopting the demands of strict scrutiny it intended to depart from the less-protective constitutional standard announced in Smith. See 42 U.S.C. § 2000bb(4). To the extent that the standard RFRA imposes raises policy concerns, criticisms on this front are best addressed to Congress, and may find appropriate shelter in the pages of law reviews. But as federal judges we are duty-bound to follow and apply the laws Congress actually enacted, not as we might wish them to be. “The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes,” Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 2785, the accommodation, no less than the contraceptive mandate itself, imposes a substantial burden on religious exercise.
B. Second, the majority fails to appreciate the crucial role in providing religiously objectionable contraceptive coverage that the accommodation foists on eligible organizations. The majority believes that the accommodation places no burden on the beliefs of Eternal Word Television Network and the Dioceses because the “significance they attribute to this act [of opting out]” is misguided, and thus the outcome of this case is not controlled by the otherwise-identical analysis in Hobby Lobby. See ante at 42. According to the majority, “[t]he ACA
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and HRSA guidelines” are what “entitle women who are plan participants and beneficiaries covered by group health insurance plans to contraceptive coverage without cost sharing”—“not the opt out.” See id. at 43–44 . This is so even though the majority “acknowledge[s] that an eligible organization’s act of [opting out] results in the TPA’s designation as the plan administrator” under ERISA and “may be an incidental cause of contraceptive coverage being provided.” Id. at 44–45. Boiled down to its bare essentials, the majority’s position is that if the parties really understood what is going on, they would have no basis to object to their role in the contraceptive mandate’s regulatory scheme.
It is the majority, however, that misunderstands the contraceptive mandate. Under its regulatory scheme, as bounded by the statutory requirements of the ACA and ERISA,30 the Government becomes empowered to require contraceptive coverage for an eligible organization’s self-insured health plan only if that organization affirmatively opts out under the accommodation. A third-party administrator of a self-insured health plan “bears the legal obligation to provide
30 Some doubts have been raised as to the Government’s exact ability to require thirdparty administrators to comply with the contraceptive mandate within the scope of its regulatory authority. See Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 941–42 (8th Cir. 2015). To the extent such doubts linger, they are of no moment here. “We need look no further than to the government’s own litigation behavior to gauge the importance of self-certification in the regulatory scheme. If [third-party administrators] had a wholly independent obligation to provide contraceptive coverage to religious objectors’ employees and plan beneficiaries, there would be no need to insist on … compliance with the accommodation process.” Id. at 942.
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contraceptive coverage only upon receipt of a valid self-certification.”31 Wheaton College v. Burwell, 573 U.S. __, __ n.6, 134 S. Ct. 2806, 2814 n.6, 189 L. Ed. 2d 856 (2014) (Sotomayor, J., dissenting) (emphasis added). The majority is incorrect, then, to say that the contraceptive mandate “does not turn on whether [an] eligible organization employer chooses to comply with the law.” See ante at 44. Federal law kicks in only after an eligible organization acts; should an eligible organization decline to do anything, the Government lacks an independent means to ensure the provision of contraceptive coverage. Because the regulations condition the provision of contraceptive coverage on eligible organizations’ affirmative participation, their participation is the linchpin on which the contraceptive mandate rests.
To draw an analogy with which any first-year law student should be well acquainted, an eligible organization’s opting out under the accommodation is both an actual and proximate cause of the provision of contraceptive coverage. There can be no doubt that opting out under the accommodation is a “cause in fact” of providing contraceptive coverage. But for opting out, the Government would lack the requisite regulatory authority over the third-party administrators of the organizations’ health plans. Cf. Stacy v. Knickerbocker Ice Co., 54 N.W. 1091
31 Under the regulations currently in force, a valid self-certification is either Form 700 or the alternative notice sent to the Secretary of Health and Human Services. 45 C.F.R. § 147.131(b)(3), (c).
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(Wis. 1893) (noting that without defendant’s cutting and removing of surface ice, uncontrolled horses would not have fallen through a frozen lake). The majority contests whether the act of opting out also meets some standard of “legal” or “proximate” cause. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 104 (N.Y. 1928) (Andrews, J., dissenting) (“What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. That is not logic, it is practical politics.”). According to the majority, because federal law entails the authorization to require third-party administrators to provide contraceptive coverage, opting out is only “an incidental cause of contraceptive coverage being provided.” See ante at 44–45.
I fail to see, however, how affirmatively opting out of the contraceptive mandate under the accommodation could be deemed anything other than a “substantial factor” or “material concurring cause” directly leading to the provision of religiously objectionable coverage. Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 146 Minn. 430, 436–37, 439 (1920). Opting out under the accommodation sets in motion a chain of events leading to the provision of contraceptive coverage as inexorably as night follows day.32 Once an employer
32 Eternal Word Television Network and the Dioceses object only to their own, government-mandated participation under the contraceptive mandate. They do not—and indeed
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opts out, only then does the Government become authorized to regulate third-party
administrators. See Grace Sch. v. Burwell, 801 F.3d 788, 808 (7th Cir. 2015)
(Manion, J., dissenting) (describing “the accommodation’s tangled mess” as “the
long and winding extension cord the government uses to power its contraceptive
mandate”). So authorized, there can be no doubt that the Government will in turn
flex its newfound regulatory muscle to require the provision of contraceptive
coverage.
cannot—seek “to require the Government itself to behave” in accordance with their beliefs. See Bowen v. Roy, 476 U.S. 693, 696–700, 106 S. Ct. 2147, 2150–52, 90 L. Ed. 2d 735 (1986) (denying relief to Abenaki man objecting on religious grounds to the Government’s “‘use’” of his daughter’s already-issued Social Security number). The majority’s reliance on Bowen and its ilk is, therefore, inapposite.
Likewise inapposite is the Majority’s analogizing the accommodation to the process used by conscientious objectors to opt of a military draft. See ante at 46. As Judge Manion puts it in his thorough debunking of this familiar trope,
This is not like the case of a conscientious objector who objects and the government finds a replacement. Under the regulations, the government does not find the replacement, the nonprofit does. The designation does not take place unless the nonprofit either delivers the self-certification form to its insurer or TPA, or uses the alternative notice to inform the government who its insurer or TPA is and which health plan is at issue. By insisting that the nonprofit deliver the form or supply the plan information for the government's use, the government uses the objecting nonprofit to do its dirty work. The government has not provided an exit—it offers a revolving door with only one opening. . . . This is not the case of a conscientious objector walking into the draft board, voicing his objection, being excused, and walking out. For the analogy to fit the HHS accommodation, the draft board must decide that every objector will be replaced by the objector’s friend, and the objector’s objection is only effective if the objector delivers written notice of his objection to his friend or tells the draft board who his friend is and where the board can find him. Then, the objector must send his friend money so that his friend will remain his friend for the purpose of being his replacement. Grace Sch. v. Burwell, 801 F.3d 788, 812 & n.11 (7th Cir. 2015) (Manion, J., dissenting).
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This clear and uninterrupted causal chain holds whether an employer sends Form 700 directly to its third-party administrator or submits less-formal notice indirectly to the Secretary of Health and Human Services, just as a pilot reaches his destination as certainly flying direct as with a layover. An employer connecting these dots would hardly need the insight of Henry Friendly to conclude that its actions caused, in a direct and material fashion, the religiously objectionable outcome. “After all, if the form were meaningless, why would the Government require it?” Priests for Life v. U.S. Dep’t of Health and Human Servs., Nos. 135368, 13-5371, 14-5021, 2015 WL 5692512, at *17 (D.C. Cir. May 20, 2015) (Kavanaugh, J., dissenting from denial of rehearing en banc)
But this analogy can be stretched only so far. Common-law principles of causation, however fundamental to our legal heritage, are simply too unreliable a light to guide RFRA’s substantial-burden analysis.33 Reading into RFRA some sort of proximate-cause limitation would reintroduce the exact same “attenuat[ion]” argument rejected by the Supreme Court in Hobby Lobby for “dodg[ing] the question that RFRA presents.” 573 U.S. at __, 134 S. Ct. at 2777– 78. To do so would be an illegitimate foray into the realm of personal faith, and
33 “There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion [as defining ‘proximate cause’]. Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the best approach.” W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on Torts § 41 at 263 (5th ed. 1984).
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federal courts are “singularly ill equipped” to parse the moral reasoning and theological conclusions of religious believers, especially in light of secular judges’ unspecified and almost certainly inconsistent determinations of legal causation. Thomas, 450 U.S. at 715, 101 S. Ct. at 1431. No matter how elaborate the Rube Goldberg machine the Government manages to jerry-rig, it is simply not our place to decide for Eternal Word Television Network and the Dioceses their degree of complicity when forced to topple the initial domino.
Accordingly, for eligible organizations that object to opting out under the accommodation, the contraceptive mandate burdens their religious exercise to the same impermissible extent as the plaintiffs’ in Hobby Lobby.
III. Concluding that the contraceptive mandate substantially burdens Eternal Word Television Network’s and the Dioceses’ religious exercise does not end the matter. The Government can still prevail if it is able to show that the contraceptive mandate is “in furtherance of a compelling governmental interest” and the accommodation is “the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The Government fails to make this showing. For purposes of this opinion, I assume that the accommodation serves “a legitimate and compelling interest in the
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health of female employees.”34 See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __, 134 S. Ct. 2751, 2786, 189 L. Ed. 2d 675 (2014) (Kennedy, J., concurring). There is no need to reach the merits of this assumed compelling interest, whatever its exact nature, because the accommodation is not the least-restrictive means capable of achieving any government interest that could conceivably be called compelling. Accord id. at __, 134 S. Ct. at 2779–80 (Alito, J.).
IV. If the notion that the accommodation does not substantially burden religious exercise is “[r]ubbish,” Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health and Human Servs., 756 F.3d 1339, 1347 (11th Cir. 2014) (William Pryor, J., concurring), then the majority’s further notion that the contraceptive mandate passes RFRA’s “exceptionally demanding” scrutiny is rubbish on stilts. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __, 134 S. Ct. 2751, 2780, 189 L. Ed. 2d 675 (2014). In codifying the familiar language of strict scrutiny—the “most demanding test known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507, 534, 117 S. Ct. 2157, 2171, 138 L. Ed. 2d 624 (1997)—Congress erected
34 I pause to note my skepticism of the Government’s proposed gloss on the compelling interest allegedly served by the contraceptive mandate. Providing “seamless” contraceptive coverage—that is, providing coverage without cost sharing or additional administrative hurdles—and identifying organizations that opt out of the contraceptive mandate appear to me to be derivative considerations of feasibility and administrative convenience rather than compelling interests in their own right. As such, these considerations are better left to the least-restrictivemeans prong of the RFRA inquiry.
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RFRA as a mighty bulwark, entrenching against Government incursion the freedom of religious liberty throughout the United States Code. To surmount these protections, the Government has the burden of “show[ing] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties.” Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 2780. Carrying this burden is no mean feat. “If a less restrictive means is available for the Government to achieve its goals, the Government must use it.” Holt v. Hobbs, 574 U.S. __, __, 135 S. Ct. 853, 864, 190 L. Ed. 2d 747 (2015) (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815, 120 S. Ct. 1878, 1887, 146 L. Ed. 2d 865 (2000)) (alteration omitted).
So, is there a less-restrictive alternative of ensuring that the female employees of employers with religious objections to the contraceptive mandate nonetheless continue to receive cost-free access to the challenged services? Of course there is. As the Hobby Lobby majority observed: “The most straightforward way of doing this would be for the Government to assume the cost of providing” the objectionable contraceptive coverage. 573 U.S. at __, 134 S. Ct. at 2780. Though the Court did not ultimately need to reach the question of whether direct Government provision of contraceptive coverage would constitute a less-restrictive alternative because the plaintiffs did not object to the accommodation, id. at __, 1354 S. Ct. at 2780–82, we must do so here. And I fail
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to see any reason why the Court’s persuasive reasoning should not be adopted. The Government has not shown, as it must, that it would be able to provide the same access to contraceptive coverage to the same women only if it can force eligible organizations to violate their sincerely held religious beliefs.
Speaking bluntly, RFRA makes the Government put its money where its mouth is. I see nothing in RFRA’s text or the subsequent case law that would allow the Government to claim a compelling interest without having to spend a single red cent to do anything about it. Significant here, the Government must necessarily agree that RFRA compels it to fund contraceptive coverage otherwise the accommodation would not exist at all. Indeed, the entire purpose of the accommodation is to make the provision of contraceptive coverage independent of the eligible organization, including segregating all the costs paid by the eligible organization from all the expenditures for the objectionable services. Aware of the fallacy of free-lunch thinking and absent any expectation of third-party administrators acting out of purely eleemosynary impulse, the Government committed itself to funding contraceptive coverage for certain religious objectors,35 albeit in roundabout fashion.
35 Notably, the Government did not similarly commit itself to fund contraceptive coverage for female employees of other employers with religious objections—either churches and church-affiliated organizations or eligible organizations that maintain self-insured health plans but do not use a third-party administrator. Nor did the Government commit itself to fund
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To be clear, the Government is already committed to fund the contraceptive
mandate under the current regulations. The Government reimburses third-party
administrators required to fund contraceptive coverage through a reduction in
Federally-facilitated Exchange user fees, the amount of money paid to be able to
offer insurance products on exchanges established by the Government under the
ACA.36 Money is fungible; the Government finds itself in the same financial
position whether it declines to collect a tax liability of $500 or whether it collects
the $500 and then immediately refunds the same. By forgoing revenue to fund the
contraceptive coverage for the female employees of eligible organizations that opt
out under the accommodation, the Government is effectively paying for the
objectionable coverage. And in contrast to the half-measure of the
accommodation—which covers only a limited set of religiously objecting
employers and does not provide access to the female employees of churches and
church-affiliated organizations, employers with grandfathered health plans, or
contraceptive coverage for female employees of employers with grandfathered plans or employers with fewer than fifty full-time employees.
Though there may be some level of backstop coverage provided by the other provisions of the ACA and Title X, see infra n.36, the Government’s failure to extend its largesse to these women may also call into question the contraceptive mandate’s asserted compelling interest— which, again, I assume the Government would be able to show—but certainly raises an obvious question: If the Government is able and willing to pay for some women to receive access to contraceptive coverage, why would it not be a less-restrictive means to do so in a more straightforward manner for all women at risk of being denied such access?
36 As discussed above, third-party administrators may either reduce their own Federallyfacilitated Exchange user fees if they are also in the business of selling insurance or they may enter into a contractual arrangement with another insurer to recoup that insurer’s user fees. See 80 Fed. Reg. at 41328.
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employers with fewer than fifty full-time employees37—providing for contraceptive coverage directly without the accommodation’s administrative rigmarole would allow the Government to offer cost-free access to each and every woman in the United States should it choose to do so. And the Government has failed to shoulder its burden to show that it would be unable to grant women access to contraceptive coverage without the coerced involvement of Eternal Word Television Network and the Dioceses.
Again, this straightforward application of well-established legal principles should carry the day. But, again, the majority thinks otherwise. Specifically, the majority concludes that the current iteration of the contraceptive mandate has finally hit upon the least restrictive means of achieving the Government’s compelling interest when “the cost to the government” and “the burden the alternatives impose on the affected women” are taken into account. See ante at 63. Though I do not dispute that these concerns are relevant to the least-restrictive-
37 For female employees whose health plans are not subject to the contraceptive mandate, the Government has stitched together a patchwork safety net under Title X and other provisions of the ACA. The record does not reveal how many women who would otherwise lack access to contraceptive services are eligible for coverage under this makeshift framework. Nor does the record reveal whether there are hundreds, thousands, or millions of women who will continue to go without such access, with or without the accommodation. Though a less-restrictive means need not be a perfect means, strict scrutiny demands that the Government’s chosen solution must be “neither seriously underinclusive nor seriously overinclusive.” Brown v. Entm’t Merchants Ass’n, 564 U.S. __, __, 131 S. Ct. 2729, 2741–42, 180 L. Ed. 2d 708 (2011).
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means inquiry, I cannot agree with the majority that they save the contraceptive mandate from RFRA’s exceptionally demanding scrutiny.
The arguments advanced in the majority’s apology for the contraceptive mandate seem to rest largely on speculative and overblown logistical problems the Government might face if it were held responsible for furthering its asserted compelling interest. According to the majority, if the Government were forced to provide contraceptive coverage “outside the existing, largely employer-based, insurance system,” whether directly or through tax credits, “Congress would need to pass legislation that would fundamentally change how the majority of Americans receive” contraceptive coverage specifically, if not healthcare generally. See id. at 66–67. Likewise, if forced to keep the current model of providing contraceptive coverage through eligible organizations’ health plans, “the government would be hamstrung” because of the “gaps” in institutional knowledge that would spring up regarding which female employees of which employers would be covered by the Government and which are not. Id. at 72. As a result, because the majority believes that adopting any of the alternatives it considers would incur various administrative and transactions costs, the result would be less access to contraceptive coverage, undermining the Government’s asserted compelling interest. See id. at 70–71, 74.
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The majority’s insistence on assuming a virtually immutable regulatory and statutory status quo is fundamentally misplaced. RFRA makes clear that it is the “Government” that “shall not substantially burden a person’s exercise of religion,” 42 U.S.C. § 2000bb-1(a) (emphasis added), not just constituent parts acting within their respective spheres of authority. In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, for example, the Supreme Court specifically rejected the Government’s position “that the Controlled Substances Act is [not] amenable to judicially crafted exceptions [for the hallucinogen hoasca]” because of “the existence of a congressional exemption for peyote.” 546 U.S. 418, 434, 126 S. Ct. 1211, 1222, 163 L. Ed. 2d 1017 (2006). It would be absurd to say, then, that we cannot grant a judicially crafted exception here because the relevant administrative agencies lacked the regulatory authority to promulgate exceptions that would have been equally effective in achieving an allegedly compelling interest had there been congressional action allowing them to do so. In short, if the Government as a whole has a less-restrictive alternative available, the Government must use it.
The majority’s radically revisionist account of RFRA, in contrast, would limit the universe of less-restrictive means to what the Executive Branch can accomplish unilaterally by administrative fiat. This is a shocking reversal of our Constitution’s prime directive: “All legislative Powers herein granted shall be vested in a Congress of the United States.” U.S. Const. art. I, § 1. To the extent
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that the Government claims an interest of the highest order, it is only reasonable that Congress be expected to pitch in when freewheeling regulators encounter statutory roadblocks. The practical hurdles to providing the access to contraceptive coverage the Government seeks would simply disappear if Congress were to slightly tweak the contraceptive mandate’s statutory authorization under ERISA and the ACA. By having Congress eliminate the need for eligible organizations to affirmatively designate the third-party administrators of their health plans—thus becoming directly involved in the provision of the objectionable coverage—the Departments of Labor, Treasury, and Health and Human Services would no longer need to substantially burden eligible organizations by putting them to the “choice” of affirmatively violating their sincerely held beliefs or paying massive penalties. And the Government has failed to show why this could be accomplished without imposing any additional burden on female employees only if eligible organizations were required to use the accommodation.38
38 To the extent that there may be additional administrative costs incurred in crafting an appropriately tailored exception to the contraceptive mandate, RFRA contemplates such costs and places them squarely on the Government’s shoulders. Even if the Government were to require female employees of exempt employers to fill out the sort of all-too-familiar paperwork associated with receiving health insurance, such a “burden”—in contrast to being forced to either violate a sincere religious conviction or face steep monetary penalties—would be, at most, “de minimis.” Cf. Catholic Health Care Sys. v. Burwell, 796 F.3d 207, 220 (2d Cir. 2015).
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Finally, the fate of the contraceptive mandate under RFRA is complicated by the Government’s decision to condition benefits flowing to third parties on actions taken by religious objectors in violation of their beliefs. I agree that granting an exemption that would impose costs on third parties could, under certain circumstances, run afoul of the Establishment Clause of the First Amendment. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334–35, 107 S. Ct. 2862, 2868, 97 L. Ed. 2d 273 (1987) (“At some point, accommodation may devolve into ‘an unlawful fostering of religion.’” (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 145, 107 S. Ct. 1046, 1051, 94 L. Ed. 2d 190 (1987))). But such an eventuality alone does not automatically transform the Government’s chosen means into the leastrestrictive alternative required by RFRA. As the Supreme Court reiterated in upholding the constitutionality of RLUIPA, RFRA’s sister statute, “‘there is room for play in the joints between’ the Free Exercise and Establishment Clauses, allowing the government to accommodate religion beyond free exercise requirements, without offense to the Establishment Clause.” Cutter v. Wilkinson, 544 U.S. 709, 713, 125 S. Ct. 2113, 2117, 161 L. Ed. 2d 1020 (2005) (quoting Locke v. Davey, 540 U.S. 712, 718, 124 S. Ct. 1307, 1311, 158 L. Ed. 2d 1 (2004)). Granting Eternal Word Television Network and the Dioceses an exemption from
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the contraceptive mandate falls well within the space allowed for “play in the joints,” wherever those exact boundaries may lie.
Here, the Government is essentially asking for a free pass on RFRA’s leastrestrictive-means requirement because the administrative agencies responsible for crafting the contraceptive mandate decided—for administrative convenience—to tie the provision of contraceptive coverage to eligible organizations’ affirmative participation in an elaborate regulatory scheme. If we were to honor the Government’s request, anytime regulators wanted to immunize their slapdash efforts, regardless of the potential alternatives, they need only condition a benefit to third parties on any substantial burden placed on religious exercise. Lest RFRA is understood to have ushered in the apotheosis of the administrative state, surely the rigorous standard of strict scrutiny cannot be so easily evaded.
Without a doubt, there are sundry ways for the Government to provide women with cost-free access to contraceptive coverage. The administrative agencies tasked with promulgating the regulatory structure that undergirds the contraceptive mandate chose, because of convenience and their bounded statutory authority, to do so in a manner that substantially burdens religious adherents. We have been presented insufficient evidence to hold that the goal of increasing access to contraceptive coverage could be reached only through the circuitous regulatory pathways that have been cobbled together here. The Government, therefore, has
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failed to carry its burden to show that the contraceptive mandate is the least restrictive means of furthering any assumed compelling interest.
V. The sweeping protections for religious exercise Congress contemplated when it enacted RFRA should not be denied to Eternal Word Television Network and the Dioceses. RFRA’s text and purpose, as confirmed by well-established precedent, extend these protections to religious adherents forced to choose between affirmatively participating in a regulatory scheme that they sincerely believe would make them complicit in denigrating the sanctity of human life and paying millions of dollars in noncompliance penalties. Because the Government cannot show that the latest iteration of its constantly evolving “accommodation” survives strict scrutiny, RFRA bars enforcing the contraceptive mandate against those employers whose religious exercise it substantially burdens. By concluding otherwise, the majority diminishes the full range of religious liberty that Congress sought to protect when it enacted RFRA. Recasting and enfeebling RFRA’s standard as nothing more than “good enough for government work” is a far cry from strict scrutiny’s typical charge of fiat justitia ruat caelum.39 Perhaps the majority’s desire to bring RFRA’s statutory protections for religious liberty closer in line with the less-demanding constitutional standard represents a
39 Let justice be done though the heavens may fall. 147

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superior policy judgment. Perhaps not. In any event, the majority’s application of “water[ed] down” strict scrutiny is exactly the sort of wishy-washy treatment likely to “subvert its rigors in the other fields where it applies” that motivated the Supreme Court’s Smith decision in the first place. See Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 888, 110 S. Ct. 1595, 1605, 108 L. Ed. 2d 876 (1990). But by enacting RFRA, Congress confirmed that strict scrutiny “really means what it says.” Id.; see also Hobby Lobby, 573 U.S. at __ n.3, 134 S. Ct. at 2761 n.3. Regardless of individual judges’ views of the wisdom motivating RFRA, that was Congress’s call to make.
Respectfully, I DISSENT.
148

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ETERNAL WORD TELEVISION NETWORK, INC.,
Plaintiff-Appellant,
v.
SECRETARY, US. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.
Defendants-Appellees.

No. 14-12696

STATUS REPORT The Departments file this status report pursuant to this Court’s order of March 9, 2017, to notify the Court of a development in the above-captioned cases. On October 6, 2017, the Departments issued new regulations that modify the regulations at issue in this litigation. The parties are discussing an appropriate resolution of this appeal. We therefore ask that the Court maintain the existing abeyance in this case and instruct the Departments, pursuant to this Court’s order of March 9, 2017, to file another status report no later than November 15, 2017.

OCTOBER 2017

Respectfully submitted,
MATTHEW COLLETTE PATRICK G. NEMEROFF /s/ Joshua M. Salzman JOSHUA M. SALZMAN
202-532-4747 Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., NW, Rm. 7258 Washington, DC 20530

2

CERTIFICATE OF SERVICE I hereby certify that on October 16, 2017, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. I further certify that the participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Joshua M. Salzman JOSHUA M. SALZMAN

 
 No. 14-12696

In the United States Court of Appeals for the Eleventh Circuit

ETERNAL WORD TELEVISION NETWORK, INC., AN ALABAMA NON-PROFIT CORPORATION
Plaintiff-Appellant,
v.
ALEX AZAR, SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ALEXANDER ACOSTA, SECRETARY OF THE UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT
OF LABOR, STEVEN MNUCHIN, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE TREASURY, AND UNITED STATES DEPARTMENT OF
THE TREASURY,
Defendants-Appellees.
On Appeal from the United States District Court for the Southern District of Alabama

APPELLANT’S UNOPPOSED MOTION TO REMAND AND VACATE

October 19, 2018

Lori Windham Eric Rassbach Mark Rienzi Daniel Blomberg Diana Verm The Becket Fund for Religious Liberty 1200 New Hampshire Ave, N.W. Suite 700 Washington, D.C. 20036 (202) 955-0095 lwindham@becketlaw.org Counsel for Appellant Eternal Word
Television Network

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, counsel for Eternal Word Television Network, Inc. represent that this entity does not have any parent entities and does not issue stock. Counsel further certifies, to the best of their knowledge, that the following persons and entities have an interest in this appeal:
ACLU of Alabama Foundation, Inc. (privately held corporation associated with amicus curiae)
Acosta, Alexander Alabama Physicians for Life (amicus curiae) Alliance Community for Retirement Living, Inc. (amicus curiae) Alliance Home of Carlisle, Pennsylvania (amicus curiae) American Association of Pro-Life Obstetricians & Gynecologists
(amicus curiae) American Bible Society (amicus curiae) American Civil Liberties Union (amicus curiae) American Civil Liberties Union of Alabama (amicus curiae) Americans United for Separation of Church and State
C-1

(amicus curiae) Amiri, Brigitte (counsel for amici curiae) Association of American Physicians & Surgeons, Inc. (amicus curiae) Association of Christian Schools International (amicus curiae) Association of Gospel Rescue Missions (amicus curiae) Ave Maria University (amicus curiae) Azar, Alex Becket Fund for Religious Liberty (law firm for Appellant EWTN) Blomberg, Daniel Howard (counsel for the Appellant EWTN) Brasher, Andrew L. (counsel for State of Alabama) Carmelite Sisters of the Most Sacred Heart of Los Angeles
(amicus curiae) Cassady, William E. (Magistrate Judge) Catholic Medical Association (amicus curiae) Center for Law & Religious Freedom of the Christian Legal Society
(amicus curiae) Christian Legal Society (amicus curiae) Christian Medical Association (amicus curiae) Christian and Missionary Alliance Foundation, Inc. (amicus curiae)
C-2

Colby, Kimberlee Wood (counsel for amicus curiae) Crown College (amicus curiae) Dewart, Deborah J. (counsel for amicus curiae) Dominican Sisters of Mary (amicus curiae) Dys, Jeremiah Grant (counsel for amicus curiae) Eternal Word Television Network, Inc. Ethics & Religious Liberty Commission of the Southern Baptist
Convention (amicus curiae) First Liberty Institute (amicus curiae) Gibson Dunn & Crutcher, LLP (amicus curiae) Granade, Callie V. S. (District Court Judge) Humphreys, Bradley Philip (counsel for defendants) Hungar, Thomas G. (counsel for amicus curiae) Institutional Religious Freedom Alliance (amicus curiae) Jed, Adam C. (counsel for defendants) Judicial Crisis Network (amicus curiae) Judicial Education Project (amicus curiae) Katskee, Richard B. (counsel for amicus curiae) Keim, Jonathan (counsel for amicus curiae)
C-3

Khan, Ayesha N. (counsel for amicus curiae) Kirkpatrick, Megan A. (counsel for State of Alabama) Klein, Alisa B. (counsel for defendants) Lee, Jennifer (counsel for amicus curiae) Liberty, Life, and Law Foundation (amicus curiae) The Lutheran Church—Missouri Synod (amicus curiae) Mach, Daniel (counsel for amici curiae) Marshall, Randall C. (counsel for amici curiae) Mnuchin, Steven Mother of the Eucharist (amicus curiae) Myron, Laura (counsel for defendants) National Association of Catholic Nurses (amicus curiae) National Association of Evangelicals (amicus curiae) National Association of Pro Life Nurses (amicus curiae) The National Catholic Bioethics Center (amicus curiae) Nemeroff, Patrick G. (counsel for defendants) Parker, Jr., William G. (counsel for the State of Alabama) Prison Fellowship Ministries (amicus curiae) Rassbach, Eric (counsel for the Appellant EWTN)
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Religious Sisters of Mercy of Alma, Michigan (amicus curiae) Rienzi, Mark (counsel for Appellant EWTN) Salzman, Joshua M. (counsel for defendants) Scalia, Eugene (counsel for amicus curiae) Severino, Carrie Lynn (counsel for amicus curiae) Simpson University (amicus curiae) Sisters of Life (amicus curiae) Smith, Mailee R. (counsel for amicus curiae) Strange, Luther (counsel for the State of Alabama) State of Alabama (amicus curiae) State of Florida (amicus curiae) State of Georgia (amicus curiae) The Most Reverend John Hartmayer The Most Reverend Wilton D. Gregory The Roman Catholic Archdiocese of Atlanta The Roman Catholic Diocese of Savannah United States Department of Health and Human Services United States Department of Labor United States Department of the Treasury
C-5

Verm, Diana (counsel for Appellant EWTN) Windham, Lori (counsel for Appellant EWTN)
Respectfully submitted, /s/ Lori H. Windham
Lori H. Windham Eric Rassbach Mark L. Rienzi Daniel H. Blomberg Diana M. Verm The Becket Fund for Religious Liberty 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 (202) 955-0095 lwindham@becketlaw.org Dated: October 19, 2018
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TABLE OF CONTENTS Page
TABLE OF AUTHORITIES......................................................................ii INTRODUCTION...................................................................................... 1 PROCEDURAL HISTORY........................................................................ 1 ARGUMENT ............................................................................................. 4 I. Remand and vacatur are appropriate because the
Government can no longer defend its position on appeal. .............. 4 II. Remand and vacatur are appropriate because the
parties resolved their dispute at the direction of the courts. .......... 9 CONCLUSION ........................................................................................ 10 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS ................. 12 CERTIFICATE OF SERVICE................................................................. 13
i

TABLE OF AUTHORITIES

Page(s)

CASES

California v. HHS, No. 4:17-cv-5783, 2017 WL 6524627 (N.D. Cal. Dec. 21, 2017), No. 18-15144 (9th Cir.) .............................................................. 3

Camreta v. Greene, 563 U.S. 692 (2011)............................................................................... 8

Catholic Benefits Ass’n LCA v. Sebelius, No. 5:2014-cv-00240 (W.D. Okla.) ........................................................ 3

Colorado Christian Univ. v. U.S. Dep’t of Health & Human Servs., No. 1:13-cv-02105 (D. Colo.) ................................................................. 3

Eternal Word Television Network v. Sec’y, U.S. Dep’t of Health & Human Servs., 756 F.3d 1339 (11th Cir. 2014) ............................................................. 2

Eternal Word Television Network v. Sec’y of U.S. Dep’t of Health & Human Servs., 818 F.3d 1122 (11th Cir. 2016) ..................................................... 2, 5, 6

Eternal Word Television Network v. Sec’y, U.S. Dep’t of Health & Human Servs., No. 1:31-cv-521 (S.D. Ala. June 18, 2014) ............................................ 2

Eternal World Television Network v. Burwell, 26 F. Supp. 3d 1228 (S.D. Ala. 2014).................................................4-5

Hartford Cas. Ins. Co. v. Crum & Forster Specialty Ins. Co., 828 F.3d 1331 (11th Cir. 2016) ........................................................... 10

Pennsylvania v. Trump, No. 2:17-cv-4540, 2017 WL 6398465 (E.D. Pa. Dec. 15, 2017), No. 17-3752, 18-1253 (3d Cir.)................................................... 3

ii

Wheaton Coll. v. Burwell, No. 1:13-cv-08910 (N.D. Ill.) ................................................................. 3
Zubik v. Burwell, 136 S. Ct. 1557 (2016)................................................................. passim
Other Authorities 82 Fed. Reg. 47,792 (Oct. 13, 2017)................................................ 2-3, 5, 6
iii

INTRODUCTION After six years of litigation and four years before this Court, the Government has abandoned and rejected the defenses it used to argue against EWTN’s claims. As a result of the Government’s 180-degree change of position, the parties have reached an agreement to resolve the remaining issues between them. Therefore, EWTN asks this Court to lift its stay, vacate the decision below, and remand the case so that EWTN may dismiss its remaining claims pursuant to settlement. The Government does not oppose the relief sought in this motion, but does not agree with all of the specific arguments raised by Appellants. Remand and vacatur are appropriate here. The Government has made concessions, both in regulatory findings and before the Supreme Court in Zubik v. Burwell, which undermine the positions the Government previously advanced before the district court and this Court and which now render the Government unable to defend its case on appeal. As a result of that changed position and the Supreme Court’s directive in Zubik, the parties have resolved the outstanding issues between them.
PROCEDURAL HISTORY In 2014, the district court entered partial summary judgment in favor of the Government and certified the partial final judgment for appeal.
1

Eternal Word Television Network v. Sec’y, U.S. Dep’t of Health & Human Servs., No. 1:31-cv-521 (S.D. Ala. June 18, 2014), ECF Nos. 65, 66. In light of impending massive fines, EWTN immediately appealed and sought an emergency stay pending appeal, which this Court granted. Eternal Word Television Network v. Sec’y, U.S. Dep’t of Health & Human Servs., 756 F.3d 1339 (11th Cir. 2014). This Court then heard the appeal and issued a decision affirming the district court. Eternal Word Television Network v. Sec’y of U.S. Dep’t of Health & Human Servs., 818 F.3d 1122 (11th Cir. 2016). That decision was vacated after the Supreme Court’s decision in Zubik v. Burwell, 136 S. Ct. 1557 (2016), and the case was stayed at the request of the parties, subject to monthly status reports. See May 31, 2016 Order; Aug. 10, 2016 Order.
During the Zubik litigation before the Supreme Court, the Government made admissions to the Supreme Court which contradicted the positions it had maintained before this Court and before the district court. Since that time, the Government has also issued a new Interim Final Rule relevant to the issues in this case. 82 Fed. Reg. 47,792
2

(Oct. 13, 2017).1 In the process of issuing that IFR, the government made
a number of regulatory findings which further contradict the position it
had previously taken in this case. In light of these concessions, the
parties continued to discuss an appropriate resolution of this case, and
have now arrived at a settlement.
Based upon the Government’s admissions and the new developments,
EWTN now files this unopposed motion to lift the stay, vacate the partial
final judgment below, and remand the case for resolution of its claims.
1 That IFR was enjoined by the Eastern District of Pennsylvania, and that injunction is currently on appeal. See Pennsylvania v. Trump, No. 2:17-cv-4540, 2017 WL 6398465 (E.D. Pa. Dec. 15, 2017), No. 17-3752, 181253 (3d Cir.) (pending). The Northern District of California issued a second nationwide injunction, also on APA grounds. California v. HHS, No. 4:17-cv-5783, 2017 WL 6524627 (N.D. Cal. Dec. 21, 2017), No. 1815144 (9th Cir.) (pending). Both courts also suggested that their APA rulings should not impact pre-existing litigation such as this case. Pennsylvania, 2017 WL 6398465, at *21; California, 2017 WL 6524627, at *17. Several other federal courts have likewise disposed of pending HHS Mandate challenges notwithstanding the IFR injunctions. See, e.g., Colorado Christian Univ. v. U.S. Dep’t of Health & Human Servs., No. 1:13-cv-02105 (D. Colo.) (permanent injunction issued Jul. 11, 2018); Wheaton Coll. v. Burwell, No. 1:13-cv-08910 (N.D. Ill.) (permanent injunction issued Feb. 22, 2018); Catholic Benefits Ass’n LCA v. Sebelius, No. 5:2014-cv-00240 (W.D. Okla.) (permanent injunction issued Mar. 7, 2018).
3

ARGUMENT Remand and vacatur are appropriate where, as here, the Government is no longer able to defend its case on appeal. This is particularly true given the unusual circumstances of this case, in which the Supreme Court directed the Government and the HHS Mandate challengers to consider alternative approaches.
I. Remand and vacatur are appropriate because the Government can no longer defend its position on appeal.
Since this Court rendered its opinion, the Government has made regulatory findings and factual concessions that undermine the district court’s opinion and the Government’s arguments to the district court and this Court.
The decision below found that the HHS Mandate did not violate the Religious Freedom Restoration Act because there was no substantial burden on EWTN’s religious exercise. Specifically, it accepted the Government’s argument that contraceptive coverage was separate and distinct from EWTN’s actions, ruling that that “there is a world of difference between a law that compels EWTN to provide contraceptive coverage directly and one in which the government places that burden on someone else after EWTN opts out.” Eternal World Television Network v.
4

Burwell, 26 F. Supp. 3d 1228, 1235 (S.D. Ala. 2014). Similarly, this Court likewise accepted the Government’s representations, holding that EWTN was not burdened by the “the downstream, separate conduct of HHS and the TPAs to provide coverage.” Eternal Word Television Network, 818 F.3d at 1150.
This Court likewise accepted the Government’s assertions that, even if there was a substantial burden, the HHS Mandate’s nonprofit accommodation scheme was justified by its furtherance of a compelling interest in ensuring that “women need not complete extra paperwork or sign up for an additional program.” Id. at 1153. Finally, this Court accepted the Government’s argument that “there are no less restrictive means available that serve the government’s interests equally well.” Id. at 1158.
The Government has since abandoned all three of these positions. In October 2017, the government issued Interim Final Rules (IFR) revising the accommodation at issue in this appeal. 82 Fed. Reg. at 47,792. Citing its prior concessions to the Supreme Court, the government concluded that requiring objecting religious organizations to comply with the mandate “constituted a substantial burden on the religious exercise” of
5

objecting religious organizations. Id. at 47,806, 47,809. Since requiring
“compliance through the mandate or accommodation . . . did not serve a
compelling interest and was not the least restrictive means of serving a
compelling interest,” the government concluded that “requiring such
compliance led to the violation of RFRA in many instances.” Id. at 47,806.
In order to genuinely accommodate religious organizations’ objections,
the government expanded the “religious employer” exemption to include
“all bona fide religious objectors.” Id.2
These regulatory findings followed the Government’s prior admissions
before the Supreme Court in Zubik. There, after years of claiming the
2 Although there would be no need to reach the claims because the government has conceded EWTN’s arguments under RFRA, these same admissions leave the Government unable to defend its actions under the Free Exercise, Establishment, and Free Speech Clauses. The Government acknowledged in promulgating the IFR that it did so in part to avoid Free Exercise and Establishment Clause problems raised by the prior version of the Mandate. See 82 Fed. Reg. at 47,793 (new rules were justified in part by “protection of the free exercise of religion in the First Amendment”); id. at 47,801 (acknowledging that the Government could not “adequately explain some of the disparate results of the existing rules” differentiating between churches and other religious ministries, the crux of EWTN’s Establishment Clause argument). And its concessions on strict scrutiny undermine its Free Speech defense. See Eternal Word Television Network, 818 F.3d at 1166 (resting Free Speech determination on earlier determination that the Government satisfied strict scrutiny).
6

opposite in the lower courts, the Government conceded in its merits brief to the Supreme Court that contraceptive coverage provided under the “accommodation” actually was “part of the same plan as the coverage provided by the employer.” Br. for the Respondents at 38, Zubik v. Burwell, 136 S. Ct. 1557 (2016) (No. 14-1418) (internal quotation marks omitted). In other words, it was neither “downstream” and “separate,” as the Government had told this Court that it was.
Second, the Government acknowledged that its interests would be satisfied so long as women had access to a plan with some contraceptive coverage, which they could obtain from many sources, including “a family member’s employer,” “an Exchange,” or “another government program.” Id. at 65. As the Government put it to the Supreme Court, “All of [these] sources would include contraceptive coverage.” Id. (italics in original). In other words, the Government’s interest is satisfied in situations where women sign up for a different program to access contraception.
Third, after years of telling the lower courts that it was already using the least restrictive means possible, the Government told the Supreme Court that its accommodation system actually “could be modified” to avoid forcing religious organizations to execute documents that violate
7

their faith, while still getting women contraceptives. Suppl. Br. for the Respondents at 14–15, Zubik v. Burwell, 136 S. Ct. 1557 (2016) (No. 141418).
Given these concessions and regulatory determinations, the Government can no longer defend its prior decisions before this Court and the district court. Thus the district court’s decision here has in effect become unreviewable and must be vacated.
The Supreme Court has recognized that the very “point of vacatur is to prevent an unreviewable decision ‘from spawning any legal consequences,’ so that no party is harmed by what we have called a ‘preliminary’ adjudication.” Camreta v. Greene, 563 U.S. 692, 713 (2011) (citation omitted). In particular, a “legally consequential decision” such as “a constitutional ruling” is “rightly ‘strip[ped] . . . of its binding effect” when an appeal becomes moot. Id. (citation omitted). Because the Government unilaterally made admissions that undermined its arguments and has forfeited any ability to defend its actions on appeal, this Court will not be able to review the district court’s ruling on important constitutional claims. This legal issue could harm EWTN’s
8

interests if, in the future, it must deal with an unreviewable, legally consequential final judgment.
Even prior to the IFRs, this Court acknowledged the importance of the new developments in the case, vacating its own decision and directing additional briefing on how Zubik would apply to the self-insured plan at issue here. See May 31, 2016 Order at 4. For the same reasons, this Court should now vacate the decision below and remand the case to allow the parties to dispose of the remaining claims. II. Remand and vacatur are appropriate because the parties
resolved their dispute at the direction of the courts. The Supreme Court in Zubik v. Burwell directed the parties to “arrive at an approach going forward” that would meet their concerns, and expressed its expectation “that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.” 136 S. Ct. at 1560. In response to that directive, EWTN and the Government have engaged in discussions and arrived at a settlement agreement which will resolve EWTN’s claims. Now that the parties have settled, vacatur is appropriate. This Court has found that, where settlement was pursuant to mediation ordered by the appellate court, vacatur of the decision below is appropriate after
9

settlement. See Hartford Cas. Ins. Co. v. Crum & Forster Specialty Ins. Co., 828 F.3d 1331, 1336 (11th Cir. 2016) (district court abused its decision by refusing to vacate decision after settlement pursuant to courtordered mediation). Here, the discussions and eventual settlement occurred because the Supreme Court directed the Government and the mandate objectors to consider their significantly clarified views and arrive at an alternative approach. This Court has already acknowledged the unusual circumstances created by Zubik in vacating its own prior opinion in this case. See May 31, 2016 Order. Given this exceptional circumstance, vacatur of the opinion below is appropriate.
CONCLUSION Since the Government has abandoned the positions upon which it obtained a judgment below, and upon which it relied in this Court, and because the parties have resolved this matter at the direction of the courts, the proper response is to vacate the decision below and remand the case so that the parties may dispose of the remaining claims. Therefore EWTN respectfully requests that this Court lift the stay, vacate the decision below, and remand the case so that the parties may dismiss the remaining claims.
10

Respectfully submitted, /s/ Lori Windham Lori Windham Mark Rienzi Eric Rassbach Daniel Blomberg Diana Verm The Becket Fund for Religious Liberty 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 (202) 955-0095 lwindham@becketlaw.org Counsel for EWTN
11

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE
REQUIREMENTS
1. This motion complies with the length limitation of Fed.R.App.P. 27(d)(2) because it contains 2,053 words, excluding the parts of the motion exempted by Fed.R.App.P. 27(d)(2),
2. This motion complies with the typeface requirements of Fed.R.App.P. 32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6) because:
3. This motion has been prepared in a proportionally spaced typeface using “Word 2013” with Century Schoolbook, size 14 font.

Dated: October 19, 2018

/s/ Lori Windham Lori H. Windham The Becket Fund for Religious Liberty 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 (202) 955-0095 lwindham@becketlaw.org
Counsel for EWTN

12

CERTIFICATE OF SERVICE I certify that on October 19, 2018, I caused the foregoing Motion to be served electronically via the Court’s electronic filing system, which then served it upon all counsel of record. All other case participants will be served via the Court’s electronic filing system as well.
/s/ Lori H. Windham Lori H. Windham The Becket Fund for Religious Liberty 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 (202) 955-0095 lwindham@becketlaw.org
13

 
 U.S. District Court SOUTHERN DISTRICT OF ALABAMA (Mobile) CIVIL DOCKET FOR CASE #: 1:13−cv−00521−CG−C

CLOSED2019

Eternal Word Television Network, Inc. et al v. U.S. Department of Health and Human Services et al Assigned to: Senior Judge Callie V. S. Granade Referred to: Magistrate Judge William E. Cassady Case in other court: 11th Circuit, 14−12696−CC Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/28/2013 Date Terminated: 01/10/2019 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Eternal Word Television Network, Inc.

represented by Daniel Howard Blomberg The Becket Fund for Religious Liberty 1200 New Hampshire Ave NW Suite 700 Washington, DC 20016 202−955−0095 Fax: 202−955−0090 Email: dblomberg@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Windham The Becket Fund for Religious Liberty 3000 K Street NW Suite 220 Washington, DC 20007−5153 202−955−0095 Fax: 202−955−0090 Email: lwindham@becketfund.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stuart Kyle Duncan Duncan PLLC 1629 K Street NW, Suite 300 Washington, DC 20006 (202) 714−9492 Email: kduncan@duncanpllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff State of Alabama

represented by Andrew L. Brasher 501 Washington Ave. Montgomery, AL 36103 334−242−7300 Email: abrasher@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

William G. Parker , Jr. Office of the Governor Alabama State Capitol 600 Dexter Avenue, Room NB−05 Montgomery, AL 36130 334−242−7120 Fax: 334−242−2335 Email: will.parker@governor.alabama.gov

V. Defendant Sylvia M. Burwell Secretary of the United States Department of Health and Human Services
Amicus American Civil Liberties Union
Amicus American Civil Liberties Union of Alabama

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys 20 Massachusetts Ave, NW, Room 7108 Washington, DC 20529 202−514−3367 Email: bradley.p.humphreys@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20529−2099 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Lee 125 Broad Street, 18th Floor New York, NY 10004 212−549−2633 Email: jlee@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C. Marshall ACLU of Alabama Foundation, Inc. P.O. Box 6179 Montgomery, AL 30106−0179 334−420−1741 Fax: 334−269−5666 Email: rmarshall@aclualabama.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brigitte Amiri 125 Broad St., 18th Floor New York, NY 10004 212−549−2633 Email: bamiri@aclu.org ATTORNEY TO BE NOTICED
Daniel Mach 915 15th Street, 8th Floor Washington, DC 20005 202−548−6605 Email: dmach@aclu.org ATTORNEY TO BE NOTICED
represented by Randall C. Marshall (See above for address) LEAD ATTORNEY

Defendant United States Department of Health and Human Services
Defendant Thomas Perez Secretary of the United States Department of Labor
Defendant United States Department of Labor
Defendant Jacob Lew Secretary of the United States Department of the Treasury
Defendant United States Department of the Treasury

ATTORNEY TO BE NOTICED
Brigitte Amiri (See above for address) ATTORNEY TO BE NOTICED
Daniel Mach (See above for address) ATTORNEY TO BE NOTICED
Jennifer Lee (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/28/2013
10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/30/2013 10/30/2013

# Docket Text
1 COMPLAINT ( Filing fee $400 receipt number 1128−1502887, Online Credit Card Payment), filed by Eternal Word Television Network, Inc., State of Alabama against Kathleen Sebelius, United States Department of Health and Human Services, Thomas Perez, United States Department of Labor, Jacob Lew, and United States Department of the Treasury. (Attachments: # 1 Exhibit A_HRSA Guidelines, # 2 Exhibit B_FDA Birth Control Guide, # 3 Exhibit C_Sebelius Press Release, # 4 Exhibit D_HealthCare.gov Grandfathering Factsheet, # 5 Exhibit E_Amendment to Grandfathering Regulation, # 6 Exhibit F_White House Small Business Statement, # 7 Summons_DOL, # 8 Summons_HHS, # 9 Summons_Lew, # 10 Summons_Perez, # 11 Summons_Sebelius, # 12 Summons_Treasury, # 13 Disclosure Statement) (Blomberg, Daniel) Modified on 10/28/2013 (mab). (Additional attachment(s) added on 10/29/2013: # 14 Civil Cover Sheet) (mab). (Entered: 10/28/2013)
2 MOTION for Daniel Blomberg to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1502952, Online Credit Card Payment.) by Eternal Word Television Network, Inc.. (Attachments: # 1 PHV Application, # 2 Certificate of Good Standing) (Blomberg, Daniel) (Entered: 10/28/2013)
3 MOTION for S. Kyle Duncan to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1502977, Online Credit Card Payment.) by Eternal Word Television Network, Inc.. (Attachments: # 1 PHV Application, # 2 Certificate of Good Standing) (Duncan, Stuart) (Entered: 10/28/2013)
4 MOTION for Lori H. Windham to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1502993, Online Credit Card Payment.) by Eternal Word Television Network, Inc.. (Attachments: # 1 PHV Application, # 2 Certificate of Good Standing) (Windham, Lori) (Entered: 10/28/2013)
5 Local Rule 3.4 and blank Disclosure Statement form e−mailed to Plaintiff Eternal Word Television Network, Inc.; Disclosure Statement Due 11/4/2013. (mab) (Entered: 10/28/2013)
6 Corporate Disclosure Statement filed by Plaintiff Eternal Word Television Network, Inc. (Attachment to Complaint) (mab) (Entered: 10/28/2013)
7 Summonses Issued as to Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, U.S. Attorney & U.S. Attorney General. (NOTE TO COUNSEL: The Summonses have been issued. Please print copies necessary for service.) (mab) (Entered: 10/28/2013)
8 Service Notice issued 10/28/2013. Plaintiffs' Notice of Service Efforts due by 12/12/2013 pursuant to Local Rule 4.1(c). (Entered: 10/28/2013)
9 ORDER on 6 Corporate Disclosure Statement filed by Eternal Word Television Network, Inc.. A review does not reveal any reason to believe that there are potential conflicts of interest that would require recusal in this action. Signed by Magistrate Judge William E. Cassady on 10/30/2013. (sdb) (Entered: 10/30/2013)
10 Order granting 3 MOTION for S. Kyle Duncan to Appear Pro Hac Vice; granting 2 MOTION for Daniel Blomberg to Appear Pro Hac Vice; granting 4 MOTION for Lori H. Windham to Appear Pro Hac Vice. Deadline set for Mr. Duncan to supplement his application with a certificate of good standing by 11/12/2013. Signed by Magistrate Judge William E. Cassady on 10/30/2013. copies to parties. (sdb) (Entered: 10/30/2013)

10/30/2013 11/05/2013 11/13/2013 11/18/2013 11/18/2013 11/18/2013 11/18/2013 11/18/2013 11/18/2013 11/18/2013 11/18/2013 12/03/2013
12/19/2013 12/20/2013 12/20/2013
12/20/2013
12/31/2013

11 Document endorsed NOTED by Judge Callie V. S. Granade: Corporate Disclosure Statement 6 filed by Eternal Word Television Network, Inc. (McDermott, Elizabeth) (Entered: 10/30/2013)
12 Supplement to 3 Pro Hac Vice Application/Certificate of Good Standing from USDC New Orleans, LA (Duncan, Stuart) Modified on 11/6/2013 (mab). (Entered: 11/05/2013)
13 Order, recognizing that Mr. Duncan has appropriately supplemented his motion as requested. (See Doc. 12 ). Signed by Magistrate Judge William E. Cassady on 11/13/2013. (adk) (Entered: 11/13/2013)
14 SUMMONS Returned Executed by Eternal Word Television Network, Inc.. United States Department of Health and Human Services served on 10/31/2013, answer due 12/30/2013. (Duncan, Stuart) (Entered: 11/18/2013)
15 SUMMONS Returned Executed by Eternal Word Television Network, Inc.. United States Department of the Treasury served on 11/5/2013, answer due 1/4/2014. (Duncan, Stuart) (Entered: 11/18/2013)
16 SUMMONS Returned Executed by Eternal Word Television Network, Inc.. Kathleen Sebelius served on 10/31/2013, answer due 12/30/2013. (Duncan, Stuart) (Entered: 11/18/2013)
17 SUMMONS Returned Executed by Eternal Word Television Network, Inc.. United States Department of Labor served on 11/5/2013, answer due 1/4/2014. (Duncan, Stuart) (Entered: 11/18/2013)
18 SUMMONS Returned Executed by Eternal Word Television Network, Inc.. Jacob Lew served on 11/1/2013, answer due 12/31/2013. (Duncan, Stuart) (Entered: 11/18/2013)
19 SUMMONS Returned Executed by Eternal Word Television Network, Inc.. Thomas Perez served on 10/31/2013, answer due 12/30/2013. (Duncan, Stuart) (Entered: 11/18/2013)
20 SUMMONS Returned Executed by Eternal Word Television Network, Inc.. All Defendants. (Duncan, Stuart) (Entered: 11/18/2013)
21 SUMMONS Returned Executed by Eternal Word Television Network, Inc.. All Defendants. (Duncan, Stuart) (Entered: 11/18/2013)
22 NOTICE of Appearance by Bradley Philip Humphreys on behalf of Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Humphreys, Bradley) (Entered: 12/03/2013)
23 Joint MOTION for Extension of Time to File Answer , Extension of Briefing Length, and Adoption of Briefing Schedule by Eternal Word Television Network, Inc.. (Attachments: # 1 Text of Proposed Order) (Blomberg, Daniel) (Entered: 12/19/2013)
24 NOTICE of Endorsement by State of Alabama re: 23 Joint MOTION for Extension of Time to File Answer , Extension of Briefing Length, and Adoption of Briefing Schedule (Brasher, Andrew) (Entered: 12/20/2013)
25 NOTICE of Endorsement by Jacob Lew, Kathleen Sebelius, United States Department of Labor, United States Department of Health and Human Services, Thomas Perez, United States Department of the Treasury re: 23 Joint MOTION for Extension of Time to File Answer , Extension of Briefing Length, and Adoption of Briefing Schedule (Humphreys, Bradley) (Entered: 12/20/2013)
26 ENDORSED ORDER granting 23 Joint Motion for Briefing Schedule, Extended Briefing Length, and Extension of Defendants' Deadline to Submit a Responsive Pleading. Briefing schedule is adopted, and Defendants' responsive pleading shall be filed no later than February 6, 2014. Signed by Judge Callie V. S. Granade on 12/20/2013. (mab) (Entered: 12/20/2013)
27 MOTION for Summary Judgment by State of Alabama. (Attachments: # 1 Text of Proposed Order) (Brasher, Andrew) (Entered: 12/31/2013)

12/31/2013 12/31/2013
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28 Brief filed by State of Alabama re 27 MOTION for Summary Judgment filed by State of Alabama. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Brasher, Andrew) (Entered: 12/31/2013)
29 MOTION for Partial Summary Judgment & Either MOTION to Expedite Case or MOTION for Preliminary Injunction by Eternal Word Television Network, Inc. (Attachments: # 1 Text of Proposed Order, # 2 Affidavit Blomberg, # 3 Exhibit A_HRSA Guidelines, # 4 Exhibit B_FDA Birth Control Guide, # 5 Exhibit C_Sebelius Press Release, # 6 Exhibit D_Grandfathering Factsheet, # 7 Exhibit E_Grandfathering Reg Amendment, # 8 Exhibit F_White House Small Business Statement, # 9 Exhibit G_Warsaw Declaration, # 10 Exhibit H_Haas Declaration, # 11 Exhibit I_Self−Certification Form, # 12 Exhibit J_Reaching Souls Transcript, # 13 Exhibit K_Cohen Dep. Excerpt, # 14 Suggested Statement of Undisputed Facts) (Blomberg, Daniel). (Added MOTION to Expedite, MOTION for Preliminary Injunction on 1/2/2014) (tot). (Entered: 12/31/2013)
30 Brief filed by Eternal Word Television Network, Inc. re 29 MOTION for Summary Judgment ; Memorandum in Support of Motion for Summary Judgment. (Blomberg, Daniel) (Entered: 12/31/2013)
31 PRELIMINARY SCHEDULING ORDER entered. Rule 26 Meeting Report due by 3/20/2014. Signed by Magistrate Judge William E. Cassady on 2/3/2014. (Attachment: # 1 consent form) (mab) (Entered: 02/03/2014)
32 Unopposed MOTION for Extension of Time to File Responsive Pleading and to Amend Briefing Schedule by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Text of Proposed Order) (Humphreys, Bradley) (Entered: 02/06/2014)
33 ENDORSED ORDER, GRANTING 32 Unopposed MOTION for Extension of Time and to Amend Briefing Schedule. The deadline for defendants to file their responsive pleading is extended to February 10, 2014. The deadline for defendants to file their response to the plaintiffs' motions for summary judgment is extended to February 10, 2014. The plaintiffs are to file their response to any motion to dismiss or motion for summary judgment and file their reply briefs regarding their motions for summary judgment by February 28, 2014. The defendants are to file their reply briefs by March 11, 2014. Signed by Judge Callie V. S. Granade on 2/10/2014. (mab) (Entered: 02/10/2014)
34 MOTION to Dismiss or, in the Alternative, for Summary Judgment by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Exhibit Defendants' Statement of Suggested Findings of Undisputed Facts and Conclusions of Law, # 2 Text of Proposed Order) (Humphreys, Bradley) (Entered: 02/10/2014)
35 Memorandum in Support re 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 02/10/2014)
36 Memorandum in Opposition re 29 MOTION for Summary Judgment MOTION to Expedite MOTION for Preliminary Injunction, 27 MOTION for Summary Judgment filed by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Exhibit Defendants' Response to EWTN's Statement of Suggested Undisputed Material Facts) (Humphreys, Bradley) (Entered: 02/10/2014)
37 MOTION for Jennifer Lee to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1543217, Online Credit Card Payment.) by American Civil Liberties Union, American Civil Liberties Union of Alabama. (Attachments: # 1 Pro Hac Vice Application, # 2 Certificate of Good Standing) (Lee, Jennifer) (Entered: 02/11/2014)

02/11/2014 02/11/2014 02/11/2014 02/11/2014 02/11/2014 02/11/2014 02/11/2014 02/11/2014
02/11/2014 02/11/2014 02/28/2014 02/28/2014 02/28/2014
02/28/2014

38 MOTION for Brigitte Amiri to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1543296, Online Credit Card Payment.) by American Civil Liberties Union, American Civil Liberties Union of Alabama. (Attachments: # 1 Pro Hac Vice Application, # 2 Certificate of Good Standing) (Amiri, Brigitte) (Entered: 02/11/2014)
39 MOTION for Daniel Mach to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1543327, Online Credit Card Payment.) by American Civil Liberties Union, American Civil Liberties Union of Alabama. (Attachments: # 1 Pro Hac Vice Application, # 2 Certificate of Good Standing) (Mach, Daniel) (Entered: 02/11/2014)
40 MOTION for Leave to File Brief as Amici Curiae by American Civil Liberties Union, American Civil Liberties Union of Alabama. (Attachments: # 1 Proposed Amicus Brief) (Marshall, Randall) (Entered: 02/11/2014)
41 Corporate Disclosure Statement filed by Amicus Parties American Civil Liberties Union, American Civil Liberties Union of Alabama. (Marshall, Randall) (Entered: 02/11/2014)
42 ENDORSED ORDER granting 40 Motion of American Civil Liberties Union and American Civil Liberties Union of Alabama for Leave to File Brief as Amici Curiae. Signed by Judge Callie V. S. Granade on 2/11/2014. (mab) (Entered: 02/11/2014)
43 Brief of Amici Curiae filed by American Civil Liberties Union and American Civil Liberties Union of Alabama in Opposition to ETWN's 29 MOTION for Summary Judgment or for Preliminary Injunction, and in Support of Defendants' 34 MOTION to Dismiss or for Summary Judgment; referred to Judge Granade (mab) (Entered: 02/11/2014)
44 Document endorsed NOTED by Judge Callie V. S. Granade: Corporate Disclosure Statement 41 filed by American Civil Liberties Union, American Civil Liberties Union of Alabama (McDermott, Elizabeth) (Entered: 02/11/2014)
45 NOTICE by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury of Filing of Administrative Record (Attachments: # 1 Exhibit Index of Administrative Record) (Humphreys, Bradley) (Three CDs received and placed in RED FILE FOLDER) Modified on 2/12/2014 (mab). (Entered: 02/11/2014)
46 ENDORSED ORDER granting 37 Motion to Appear Pro Hac Vice of Attorney Jennifer Lee; granting 38 Motion to Appear Pro Hac Vice of Attorney Brigitte Amiri; granting 39 Motion to Appear Pro Hac Vice of Attorney Daniel Mach. Signed by Judge Callie V. S. Granade on 2/11/2014. (mab) (Entered: 02/11/2014)
47 Order, review of 41 Corporate Disclosure Statement filed by American Civil Liberties Union and American Civil Liberties Union of Alabama has not revealed any reason to believe that there are potential conflicts of interest that would require disqualification or recusal in this action. Signed by Magistrate Judge William E. Cassady on 2/11/2014. (mab) (Entered: 02/12/2014)
48 RESPONSE to Motion re: 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment, 27 MOTION for Summary Judgment filed by State of Alabama. (Brasher, Andrew) (Entered: 02/28/2014)
49 REPLY to Response to Motion 29 for Partial Summary Judgment filed by Eternal Word Television Network, Inc.. (Attachments: # 1 Affidavit, # 2 Exhibit L, Little Sisters of the Poor Order, # 3 Exhibit M, Archbishop of Wash. Transcript, # 4 Exhibit Robertson & Collins Survey) (Blomberg, Daniel) (Entered: 02/28/2014)
50 RESPONSE in Opposition re 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Eternal Word Television Network, Inc.. (Attachments: # 1 Affidavit, # 2 Exhibit L, Little Sisters of the Poor Order, # 3 Exhibit M, Archbishop of Wash. Transcript, # 4 Exhibit N, Robertson & Collins Survey, # 5 Response to Defendants Proposed Statement of Undisputed Fact) (Blomberg, Daniel) (Entered: 02/28/2014)
51 MOTION for Discovery under Rule 56(d) by Eternal Word Television Network, Inc.. (Attachments: # 1 Affidavit in support of Rule 56(d) Motion, # 2 Text of Proposed

03/07/2014 03/11/2014
03/18/2014 03/20/2014 05/01/2014 05/22/2014 06/06/2014 06/13/2014 06/13/2014 06/17/2014
06/17/2014
06/17/2014 06/18/2014 06/18/2014
06/18/2014 06/18/2014

Order) (Blomberg, Daniel) (Entered: 02/28/2014)
52 REPORT of Rule 26(f) Planning Meeting . (Blomberg, Daniel) (Entered: 03/07/2014)
53 REPLY Brief filed by Defendants Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re: 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment Addressing EWTN's Claims filed by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 03/11/2014)
54 Order, the Court's Rule 16(b) Scheduling Order will be HELD IN ABEYANCE until after Judge Granade has ruled upon the pending motions. Signed by Magistrate Judge William E. Cassady on 3/18/2014. (mab) (Entered: 03/19/2014)
55 Unopposed MOTION to Expedite Consideration of Case and For Oral Argument by Eternal Word Television Network, Inc.. (Attachments: # 1 Text of Proposed Order) (Blomberg, Daniel) (Entered: 03/20/2014)
56 NOTICE by Eternal Word Television Network, Inc. of Supplemental Authority (Blomberg, Daniel) (Entered: 05/01/2014)
57 NOTICE by Eternal Word Television Network, Inc. Second Notice of Supplemental Authority (Attachments: # 1 Affidavit) (Blomberg, Daniel) (Entered: 05/22/2014)
58 NOTICE by Eternal Word Television Network, Inc. Third Notice of Supplemental Authority (Blomberg, Daniel) (Entered: 06/06/2014)
59 NOTICE by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury of Supplemental Authority (Humphreys, Bradley) (Entered: 06/13/2014)
60 RESPONSE to 59 Notice (Other) filed by Eternal Word Television Network, Inc.. (Blomberg, Daniel) (Entered: 06/13/2014)
61 ORDER, GRANTING EWTN's motion to expedite summary judgment proceedings; DENYING EWTN's motion for summary judgment; and GRANTING Defendants' motion for summary judgment with respect to Counts I, II, V, and IX of the complaint. The court will address EWTN's motion for discovery under 56(d) and the remainder of the Defendants' dispositive motion in a separate order. Signed by Judge Callie V. S. Granade on 6/17/2014. (mab) (Entered: 06/17/2014)
62 ORDER, Defendants' Motion to Dismiss (Doc. 34 ) is DENIED with respect to Counts XII, XIII, XIV, XVI, XVII, and is GRANTED with respect to all remaining claims; Defendants' Motion for Summary Judgment is DENIED with respect to Counts XII, XIII, XIV, XVI, and XVII; EWTN's 56(d) motion (Doc. 51 ) is DENIED AS MOOT. Signed by Judge Callie V. S. Granade on 6/17/2014. (mab) (Entered: 06/17/2014)
63 Joint MOTION for Entry of Judgment under Rule 54(b) for Counts I, II, V, and IX, and for a stay of litigation with respect to the remaining counts by Eternal Word Television Network, Inc., State of Alabama. (Attachments: # 1 Text of Proposed Order) (Blomberg, Daniel) (Entered: 06/17/2014)
64 MOTION for Preliminary Injunction Pending Appeal by Eternal Word Television Network, Inc.. (Attachments: # 1 Text of Proposed Order) (Blomberg, Daniel) (Entered: 06/18/2014)
65 ORDER, certifying that the order of partial summary judgment dated June 17, 2014, (Doc. 61 ), constitutes a final judgment as to Counts I, II, V, and IX. A separate final judgment as to those Counts will be entered on the docket. Remaining claims STAYED pending appeal of the partial summary judgment. Signed by Judge Callie V. S. Granade on 6/18/2014. (mab) (Entered: 06/18/2014)
Case Stayed pursuant to 65 Order. (mab) (Entered: 06/18/2014)
66 FINAL JUDGMENT entered in favor of United States Department of Health and Human Services, United States Department of Labor, United States Department of the

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05/31/2016 11/29/2018

Treasury, Jacob Lew, Sylvia M. Burwell, Thomas Perez against Eternal Word Television Network, Inc. and State of Alabama. Counts I, II, V and IX of the Plaintiff's complaint are DISMISSED with prejudice. Costs are to be taxed against the plaintiffs. Signed by Judge Callie V. S. Granade on 6/18/2014. (mab) (Entered: 06/18/2014)
67 Order re: 64 MOTION for Preliminary Injunction Pending Appeal filed by Eternal Word Television Network, Inc. Defendant's response due by 6/20/2014. Plaintiff's reply due by 6/23/2014. Signed by Judge Callie V. S. Granade on 6/18/2014. (mab) (Entered: 06/18/2014)
68 NOTICE OF APPEAL as to 65 Judgment, 61 Order on Motion for Summary Judgment,, Order on Motion to Expedite, Order on Motion for Preliminary Injunction, Order on Motion to Dismiss, 66 Judgment, by Eternal Word Television Network, Inc.. ( Filing fee $505 receipt number 1128−1595729, Online Credit Card Payment.) (Blomberg, Daniel) (Note: No Hearings). (Entered: 06/18/2014)
69 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re: 65 Judgment, 61 Order on Motion for Summary Judgment,, Order on Motion to Expedite, Order on Motion for Preliminary Injunction, Order on Motion to Dismiss, 66 Judgment, 68 Notice of Appeal, Judge Appealed: Judge Granade, Court Reporter: No Hearings, Fee Paid: PAID (as to Claims I, II, V, IX), all other claims stayed (No Hearings.) (jal) (Entered: 06/18/2014)
70 RESPONSE in Opposition re 64 MOTION for Preliminary Injunction Pending Appeal filed by Sylvia M. Burwell, Jacob Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 06/18/2014)
71 NOTICE of Docketing Record on Appeal from USCA re 68 Notice of Appeal, filed by Eternal Word Television Network, Inc.. USCA Case Number 14−12696−CC (jal) (Entered: 06/19/2014)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Southern District of Alabama certifies that the record is complete for purposes of this appeal re: 68 Notice of Appeal,, Appeal No. 14−12696−CC. The record on appeal is available electronically with the exception of 1 Red Folder of CDs at doc. 45. (jal) (Entered: 06/19/2014)
72 REPLY to Response to Motion 64 for Injunction Pending Appeal filed by Eternal Word Television Network, Inc.. (Blomberg, Daniel) (Entered: 06/19/2014)
73 ORDER denying 64 Motion for Preliminary Injunction pending appeal. Signed by Judge Callie V. S. Granade on 6/19/2014. (mab) (Entered: 06/19/2014)
74 NOTICE of Appearance by Michelle Renee Bennett on behalf of Sylvia M. Burwell, Jacob Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Bennett, Michelle) (Entered: 04/24/2015)
75 OPINION of USCA as to 68 Notice of Appeal, filed by Eternal Word Television Network, Inc., Opinion issued by court as to Appellant Eternal Word Television Network, Inc. in 14−12696, Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury in 14−12890, 14−13239. Decision: Affirmed in part, Reversed in part and Remanded. Opinion type: Published. Opinion method: Signed. [14−12696, 14−12890, 14−13239], (Mandate to issue at a later date.) (jal) (Entered: 02/19/2016)
76 ORDER of USCA as to 68 Notice of Appeal, filed by Eternal Word Television Network, Inc., Given the Zubik decision, we are VACATING OUR 2/18/16 OPINION in (14−12696 SDAL), (14−12890 and 141329 NDGA). (jal) (Entered: 07/06/2016)
77 MANDATE of USCA re: 68 Notice of Appeal, filed by Eternal Word Television Network, Inc. Appellant's Unopposed Motion to Remand and Vacate is GRANTED. STAY is lifted. Order Granting Partial Summary Judgment in favor of Defendants is VACATED and this matter is REMANDED. Mandate issued 11/29/2018; USCA Case Number 14−12696−CC. (srd) (Entered: 11/30/2018)

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78 Order re: 77 USCA Mandate, The parties are ORDERED to file a written report on the status of this action no later than January 9, 2019. Signed by Senior Judge Callie V. S. Granade on 12/6/2018. (mab) (Entered: 12/06/2018)
79 Unopposed MOTION to Dismiss by Eternal Word Television Network, Inc.. (Windham, Lori) (Entered: 01/09/2019)
MOTIONS REFERRED: 79 Unopposed MOTION to Dismiss Under Fed.R.Civ.P. 41(a)(2); Referred to Senior Judge Callie V. S. Granade. (mab) (Entered: 01/09/2019)
80 ORDER, GRANTING 79 Plaintiffs' unopposed motion to dismiss case without prejudice. Signed by Senior Judge Callie V. S. Granade on 01/10/2019. (mab) (Entered: 01/10/2019)
Appeal Remark 1 Red Folder with CDs returned to CRD re USCA Case Number 14−12696−CC. (srd) (Entered: 03/20/2019)

 
 Case: 14-12696 Date Filed: 06/30/2014 Page: 1 of 29

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 14-12696-CC

ETERNAL WORD TELEVISION NETWORK, INC.,
STATE OF ALABAMA,
versus SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,

Plaintiff-Appellant, Plaintiff,
Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Alabama

Before: PRYOR, MARTIN, and JORDAN, Circuit Judges. BY THE COURT:
In light of the Supreme Court's decision today in Burwell v. Secretary of Health and Human Services, _ S.Ct. _ , 2014 WL 2921709 (U.S. June 30,

Case: 14-12696 Date Filed: 06/30/2014 Page: 2 of 29
2014), we grant the motion of Eternal Word Television Network for an injunction pending appeal, and deny as moot the request for expedited briefing and oral argument. The Secretary is enjoined from enforcing against EWTN the substantive requirements set forth in 42 U.S.C. § 300gg-13(a)(4) and from assessing fines or taking other enforcement action against EWTN for noncompliance.
We express no views on the ultimate merits ofEWTN's appeal in this case. MOTION FOR INJUNCTION PENDING APPEAL GRANTED; MOTION FOR EXPEDITED BRIEFING AND EXPEDITED ORAL ARGUMENT DENIED AS MOOT.
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PRYOR, Circuit Judge, specially concurring: I concur that we should grant the injunction pending appeal sought by The
Eternal Word Television Network, Inc. I write separately to explain why the Network is substantially likely to succeed on the merits of its appeal that the contraception mandate of the Patient Protection and Affordable Care Act, 42 U.S.C. § 300gg-13(a)(4), violates the Religious Freedom Restoration Act, id. § 2000bb-1. The Network has asserted, without dispute, that it "is prohibited by its religion from signing, submitting, or facilitating the transfer of the governmentrequired certification" necessary to opt out of the mandate. The Network further asserts that, by requiring it to deliver Form 700 to the third-party administrator of its health insurance plan, the United States has forced the Network "to forego religious precepts" and instead, contrary to Catholic teachings, materially cooperate in evil. Midrash Sephardi, Inc. v. Town ofSurfside, 366 F.3d 1214, 1227 (11th Cir. 2004). If it fails to deliver that form, the Network faces $12,775,000 in penalties a year. 26 U.S.C. § 4980D(b)( 1). If that is not a substantial burden on the free exercise of religion, then it is hard to imagine what would be.
The argument of the United States calls to mind the proverbial Mizaru, Kikazaru, and Iwazaru who cover their eyes, ears, and mouth to see, hear, and speak no evil. That is, the United States turns a blind eye to the undisputed evidence that delivering Form 700 would violate the Network's religious beliefs.
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The United States instead pretends that the Network's complaint fails because the Network holds an erroneous legal opinion about how the contraception mandate works. But make no mistake: the Network offers no evidence that its complaint turns on the advice of counsel. The Network bases its complaint on the undisputed declarations of a Catholic theologian and the Network's chief executive about ancient teachings of the Catholic Church. The Network complains that it would violate those teachings and commit a grave sin if it were to comply with the mandate. That belief is undisputed.
It is neither our duty nor the duty of the United States to tell the Network that its undisputed belief is flawed. See Burwell v. Hobby Lobby Stores, Inc., No. 13-354, slip op. at 36-37 (U.S. June 30, 2014). The Supreme Court has instructed that "it is not for us to say that the line [drawn by the religious believer] was an unreasonable one. Courts should not undertake to dissect religious beliefs...." Thomas v. Rev. Bd. ofthe Ind. Emp'tSec. Div., 450 U.S. 707,714, 101 S. Ct. 1425, 1430 (1981 ). The United States flouts that instruction by treating an undisputed religious belief as a disputed question of law. But "it is not for us to say that [the Network's] religious beliefs are mistaken or insubstantial." Hobby Lobby, No. 13354, slip op. at 37. We must instead "determine whether the line drawn [by the Network] reflects an honest conviction, and there is no dispute that it does." /d. at 37-38 (internal quotation marks and citation omitted).
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I. BACKGROUND In 1981, a cloistered nun of the Poor Clares of Perpetual Adoration order founded the Eternal Word Television Network in Irondale, Alabama. The Network is a nonprofit corporation that now employs 350 full-time employees and is the largest Catholic media network in the world. The Network is not formally affiliated with the Roman Catholic Church or any diocese, but its mission is to serve the Church and broadcast its teachings. It transmits Catholic programming every hour of the day in many languages to more than 230 million homes in 144 countries and territories. The Network also broadcasts worldwide two 24-hour radio services, which can be heard on shortwave radio, satellite radio, and on the Internet. It airs family and religious programing, airs daily Masses and prayers, and provides spiritual devotions. It prints and distributes a newsletter featuring Catholic teaching. The Network also has a chapel on its campus, which holds a daily Mass open to the public. Its campus also includes an outdoor shrine, Stations of the Cross, private prayer areas, and religious statutes, images, and icons. The Network refuses to provide, subsidize, or support health insurance that in any way encourages the use of artificial contraception, sterilization, or abortion, all of which it considers "grave sin." The Network believes, in accordance with Catholic doctrine, that human sexuality has two primary purposes that cannot be separated: to unite husband and wife and for the generation of new lives. The
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Network actively professes Catholic doctrine, as articulated by Pope Paul VI, that abortion, even for therapeutic reasons, is "absolutely excluded as lawful means of regulating the number of children." Humanae Vitae, 14. And "[e]qually to be condemned ... is direct sterilization, whether of the man or of the woman, whether permanent or temporary." /d. Finally, "[s]imilarly excluded is any action which either before, at the moment of, or after sexual intercourse is specifically intended to prevent procreation-whether as an end or as a means." /d. Catholic doctrine teaches that it is "serious error" to justify sexual intercourse "which is deliberately contraceptive and so intrinsically wrong." /d. The Network also invokes the teachings of Pope John Paul II, who declared that it is "morally unacceptable to encourage, let alone impose, the use of methods such as contraception, sterilization and abortion in order to regulate births." Evangelium Vitae, 91. Based on these teachings, the Network considers contraception, sterilization, and abortion "grave sin."
The Network is eligible for a religious accommodation from the contraception mandate of the Affordable Care Act, which requires employers to provide employees with insurance coverage for contraception recommended by the Health Resources and Services Administration, including all contraceptive methods approved by the Food and Drug Administration. 45 C.F.R. § 147.130(a)(l)(iv); 29 C.F.R. § 2590.715-2713(a)(l)(iv); 26 C.F.R. § 54.9815-
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2713(a)(1)(iv). The law exempts religious employers from that mandate. 45 C.F.R. § 147.131(a). But the Network does not qualify as a religious employer. See 26 U.S.C. § 6033(a)(3)(A)(i), (iii). It instead may certify that it is religiously opposed to providing contraceptive services and may seek a religious accommodation. 45 C.F.R. § 147.131(b); 29 C.F.R. § 2590.715-2713A(a); 26 C.F.R. § 54.98152713A(a). That accommodation allows an "eligible organization" to opt out of contracting, arranging, paying for, or referring for contraceptive coverage to which it has religious objections. Coverage ofCertain Preventative Services Under the Affordable Care Act, 78 Fed. Reg. 39,870-01, 39,879 (July 2, 2013). An "eligible organization" is a nonprofit organization that holds itself out as a religious organization and opposes providing some or all contraceptive coverage on account of religious objections. !d. The organization must self-certify that it objects to the contraceptive coverage by signing Form 700. !d. When an eligible organization with a self-insured plan, like the Network, signs Form 700, that form is "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." !d. The form notifies the administrator of its obligation to provide contraceptives to the eligible organization's employees and beneficiaries. 29 C.F.R. § 2590.7152713A(b)(1)(ii)(B); 26 C.F.R. § 54.9815-2713A(b)(1)(ii)(B). The administrator notifies the employees and beneficiaries that it, in lieu of the eligible organization,
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will provide contraceptive coverage. 29 C.F.R. § 2590.715-2713A(d). And the administrator may seek reimbursement for payments for contraceptive services from the United States. !d. § 2590.715-2713A(b)(3). Because the regulations provide that Form 700 is one of the "instruments under which the [health insurance] plan is operated," that form gives the third-party administrator legal authority to become the plan administrator for purposes of contraceptive coverage. 78 Fed. Reg. at 39,880.
The Network specifically objects to Form 700, which it must sign and deliver to opt out of the mandate. The form states that the Network "certiflies] that, on account of religious objections, [it] opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered." EBSA Form 700-Certification, Dep't of Labor, http://www.dol.gov/ebsa/ preventiveserviceseligibleorganizationcertificationform.doc (all Internet materials as visited June 30, 2014, and available in Clerk of Court's case file). But the form also states that the Network "must provide" a copy of the form to the third-party administrator of its health insurance plan "in order for the plan to be accommodated with respect to the contraceptive coverage requirement." !d. The form states that the delivery of the form to the third-party administrator constitutes notice that the administrator should undertake its obligations to provide contraception to the Network employees. /d.; see also 26 C.F.R. § 54.9815-2713A
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(administrator must separately pay for any contraceptive services for employees); 29 C.F.R. § 2590.715-2713A (same); id. § 2510.3-16 (administrator shall be treated as a designation of the administrator as the plan administrator responsible for coverage of contraception). To comply with the mandate, the Network must deliver the form to its administrator before July 1, 2014. If the Network fails to comply, federal law subjects it to a fine of$12,775,000 per year. 26 U.S.C. § 4980D(b)(1).
The Network objects to filing Form 700 for at least four reasons. First, the Network contends that, by filing the form, the Network "trigger[s]" the third-party administrator's obligation to make separate payments for contraceptive services for the Network's employees and beneficiaries. Second, the Network contends that it will have to identify its employees to the third-party administrator so that the administrator may notify those employees that it will provide contraceptive coverage, and the Network will have to coordinate with the administrator when employees and beneficiaries need to be removed or added to the healthcare plan. But see 78 Fed. Reg. at 39,885 (failing to specify whether the employer or the health insurance issuer must update the list of eligible insurees). Third, the Network states that, in the event the third-party administrator also objects to providing contraceptive coverage, 26 C.P.R.§ 54.9815-2713A(b)(2); 29 C.P.R. § 2590.715-2713A(b)(2), the Network will have to find another third-party
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administrator willing to comply with the mandate so that the Network can take advantage of the accommodation. Fourth, the Network objects to the regulation that bars it from telling any third-party administrator to disregard the instructions on the form or influencing the administrator's decision to provide contraceptive coverage. See 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.7152713A(b)(1)(iii). The Network concludes that, by executing the form and participating in the accommodation scheme, the Network "would ensure that its health insurance plan would serve as the trigger for a stream of payments to its employees for the specific purpose of increasing access to, and use of, contraceptive, sterilization, and abortifacient services." It refuses to designate its third-party administrator as its agent to provide contraceptive coverage because the Network believes that designation "is precisely the same as directly providing those services." The Network states that its participation in the scheme contradicts its public witness to Catholic beliefs.
The Network likens its dilemma to a recent controversy in Germany. In the late 1990s, Germany allowed abortions within the first 12 weeks of pregnancy for health-related reasons if the pregnant woman received state-mandated counseling. Representatives from Catholic churches in Germany agreed to act as counselors. After counseling, a church had to issue a certificate stating that the pregnant woman had received counseling. If the pregnant woman rejected the church's
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counsel not to have an abortion, she could present the certificate issued by the church and obtain an abortion. According to a declaration filed by the Network in the district court, the German bishops were divided about whether the Catholic churches were cooperating with evil by issuing the certificates, so they asked the Vatican about whether the churches' counseling could be justified. Pope John Paul II wrote to the bishops that the certification issued by the churches was a necessary condition for abortion without punishment and, as a result, the practice had to cease.
Likewise, the Network attests that if a religious nonprofit employer complies with the accommodation provision of the mandate, the employer will be guilty of immoral cooperation with evil. By signing the form, the employer declares that it objects to contraception, but "actually becomes the agent that enables a host of immoral actions to follow." That complicity in the mandate "could not be justified or excused by the Principle of Material Cooperation in Evil" and is "an immoral act."
Based on these objections to the mandate, the Network, joined by the State of Alabama, filed a complaint against the U.S. Departments of Health and Human Services, Labor, and Treasury, and their respective Secretaries. The Network alleged that the mandate violated the Religious Freedom Restoration Act, the First Amendment, the Fifth Amendment, and the Administrative Procedure Act. The
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Network submitted a declaration of its Chief Executive Officer, Michael Warsaw, and a declaration of a Catholic theologian, John Haas. From these declarations, the Network distilled suggested determinations of undisputed fact, which stated that it was "prohibited by its religion from signing, submitting, or facilitating the transfer of the government-required [Form 700]." The United States did not object to the Network's description of its religious beliefs and objected only to the extent that the Network offered an interpretation of what the regulations required.
The district court ruled that the mandate did not violate the Religious Freedom Restoration Act or the First Amendment. The district court then denied the Network's motion for a preliminary injunction pending appeal, but other district courts in our Circuit have granted injunctions in similar appeals. See Roman Catholic Archdiocese ofAtlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 1256373 (N.D. Ga. March 26, 2014); see also Beckwith Electric Co., Inc. v. Sebelius, 960 F. Supp. 2d 1328 (M.D. Fla. 2013). The Network now seeks an emergency motion for an injunction pending appeal in this Court.
II. STANDARD OF REVIEW We will grant an injunction pending appeal if the appellant establishes a substantial likelihood that it will prevail on the merits of the appeal, a substantial risk of irreparable injury unless the injunction is granted, the threatened injury to the appellants exceeds whatever damage an injunction may cause the appellees,
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and any injunction would not disserve the public interest. Siegel v. LePore, 234 F.3d 1163, 1176 {lith Cir. 2000) (en bane).
III. DISCUSSION I divide my discussion in three parts. First, I explain why the Network is substantially likely to prevail on the merits of its claim that the mandate violates the Religious Freedom Restoration Act. Second, I conclude that there is a substantial risk of irreparable injury if we were to deny the injunction. Third, I conclude that no substantial harm to the United States or to the public interest would result if we were to grant the injunction. A. The Network Is Substantially Likely To Prevail on the Merits ofIts Appeal. The Religious Freedom Restoration Act states that the "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." 42 U.S.C. § 2000bb-l(a). But the Act excepts government-imposed burdens on religion if the application of that burden "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." !d. § 2000bb-l{b). The Act requires that we first address whether the United States has substantially burdened the Network's exercise of religion and then consider whether the burden is the least restrictive means of furthering any compelling governmental interest.
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The Network has established a substantial likelihood that the mandate violates the
Act.
1. There Is a Substantial Likelihood that the Mandate Substantially Burdens the Religious Practices of the Network.
The parties contest whether Form 700 substantially burdens the religious practices of the Network. Let me be clear: The Network does not claim to be burdened by the existence of federal regulations inapplicable to the Network that require contraceptive coverage for women in the United States. Instead, the Network objects that the mandate coerces it to participate in an activity prohibited by its religion.
The Network argues that the mandate requires its participation in the contraceptive delivery system by forcing the Network to execute and deliver Form 700 to the third-party administrator of its health insurance plan. The Network states that its belief that it is religiously prohibited from signing and delivering that form is sincere and undisputed and the district court erred by failing to accept that belief. The Network concludes that its role as a participant in the mandate scheme substantially burdens its religious exercise.
The United States describes the Network's position in a different way. It contends that the Network does not object to informing its third-party administrator of its decision not to provide contraceptive coverage, but instead objects to the requirements imposed on the third-party administrator. The United States rejects
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the Network's claim that the form "triggers" contraceptive coverage. It argues that the provision of contraceptive coverage by a third-party administrator occurs "despite [the Network's] religious objections, not because of them." In other words, federal law, not Form 700, compels the provision of contraceptive coverage by a third-party administrator.
Religion is "substantially burdened" if a regulation "requires participation in an activity prohibited by religion." Midrash Sephardi, 366 F.3d at 1227. A "substantial burden" is "more than an inconvenience on religious exercise." !d. It is "akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly." Id. It "tends to force adherents to forego religious precepts." !d.
The decision of the Supreme Court in Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972), illustrates this concept. In Yoder, the Supreme Court ruled that a law requiring school attendance beyond the eighth grade substantially burdened the religious practices of the Amish. 406 U.S. at 214-19, 92 S. Ct. at 1532-35. The Supreme Court stated that the record "abundantly support[ed]" the claim that the traditional way of life of the Amish-including nonconformity-was "not merely a matter of personal preference, but one of deep religious conviction." Id at 216, 92 S. Ct. at 1533. The Supreme Court concluded that "unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of
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consistent practice, and strong evidence of a sustained faith pervading and regulating [the Yoder's] entire mode of life support[ed] the claim that enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of [the Yoder's] religious beliefs." /d. at 219, 92 S. Ct. at 1535.
And the decision of the Supreme Court in Thomas v. Review Board ofthe Indiana Employment Security Division, 450 U.S. 707, 101 S. Ct. 1425, is an even closer analogue to the issue in this appeal. See Hobby Lobby, No. 13-354, slip op. at 37 (applying Thomas to decide that the mandate substantially burdened the religious exercise of closely held corporations). In Thomas, an employer transferred his employee, a Jehovah's Witness, from fabricating sheet steel at a roll foundry to fabricating turrets for military tanks. /d.at 710, 101 S. Ct. at 1428. The employee objected to the new job duties on the religious ground that those duties involved the manufacture of weapons. All other available jobs were also weaponsrelated, so the employee quit and applied for unemployment compensation benefits. /d. The Indiana Supreme Court ruled that the employee had made merely a "personal philosophical choice rather than a religious choice" by quitting. /d. at 714, 101 S. Ct. at 1430. After all, he had earlier fabricated steel, which also could have been used for the production of military tanks. /d. But the Supreme Court rejected the second-guessing of the Indiana high court: "[The employee's]
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statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that [the employee] drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs ... ."!d.
Our precedents too are instructive. In Midrash Sephardi, we ruled that a zoning requirement did not "substantially burden" religion. 366 F.3d at 1228. The zoning requirement would require congregants to walk farther to attend synagogue, but "we [could not] say that walking a few extra blocks [was] 'substantial."' !d. In so ruling, we emphasized that the congregants offered no argument that the current location of their synagogue had some religious significance such that their faith required a synagogue at that particular site. !d. Likewise, in Cheffer v. Reno, 55 F.3d 1517 (lith Cir. 1995), we confronted a claim that a federal law prohibiting violent, threatening, obstructive, or destructive conduct at abortion clinics substantially burdened religious practices. The plaintiffs in Cheffer had a sincerely held religious belief that abortion was murder, but they failed to "assert that the exercise of their religion require[d] them to use physical force or threats of physical force to prevent abortions" or "that the exercise of their religion require[d] them to physically obstruct-clinic entrances." !d. at 1522. As a result, we concluded that the law itself did not "substantially burden" the religious practices of the plaintiffs. !d. But in Knight v. Thompson, 723 F.3d 1275 (11th Cir. 2013), we ruled
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that a prison policy substantially burdened the religious exercise of Native American inmates. !d. at 1283. The prison policy required inmates to wear a "regular haircut" and prohibited long hair. !d. at 1277. The inmates stated that long hair was a central tenant of their religious faith. !d. We agreed with the inmates that the policy substantially burdened their religion because the evidence was uncontroverted that "long hair has great religious significance for many Native Americans" and that requiring the inmates to cut their hair would amount to an "assault on their sacredness." !d. at 1283. We stated that "[t]he sincerity of these firmly-held beliefs-and the gravity of preventing their exercise-should come as no surprise to anyone familiar with Biblical Scripture." !d. But we nevertheless upheld the policy as the least restrictive means to ensure the compelling government interest of prison safety. !d. at 1287.
The D.C. Circuit recently explained that the beliefs at stake in this appealCatholic teachings on contraception-are "unchallengeable." Gilardi v. U.S. Dep 't ofHealth & Human Servs., 133 F.3d 1208, 1216 (D.C. Cir. 2013). The question in this appeal is instead whether the mandate "requires participation in an activity prohibited" by those Catholic teachings. Midrash Sephardi, 366 F.3d at 1227. And Catholic teaching about that issue is undisputed in this record.
The United States refused to contest the religious beliefs of the Network averred in evidence presented to the district court. The United States does not
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dispute the Network's belief that its Catholic faith prohibits it from signing, submitting, or facilitating the transfer of the form. The United States does not dispute the Network's belief that "[p]articipating in the 'accommodation' would do nothing to lessen [its] complicity in what it believes to be a grave moral wrong." And the United States does not dispute that were the Network to facilitate access to contraception, sterilization, or abortifacients, the Network would violate its religious beliefs, betray its identity, and contradict its public teaching.
Indeed, these religious beliefs of the Network are unchallengeable. As the declarations submitted to the district court make clear, contraception, sterilization, and abortion have long been condemned by the Catholic Church. And any encouragement of contraception, sterilization, and abortion is "morally unacceptable." Evangelium Vitae ~ 91.
As applied to the mandate, the Network believes that its complicity in the scheme is condemned by the principle of material cooperation in evil. The Network sincerely believes that any complicity would constitute "an immoral act." Accordingly, the Network believes that providing Form 700 to its third-party administrator would be a sin.
Instead of disputing these long-held religious tenets of the Catholic Church, the United States disputes the Network's interpretation of what the regulations require. But the Network's legal interpretation is beside the point. What matters is
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whether the Network's participation in the contraception scheme-however minimal-violates its religious beliefs. And the record offers no dispute about that fact. Because those beliefs are undisputed, it is not our role to second guess this "difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another." Hobby Lobby, No. 13-354, slip op. at 36.
I part ways with the Sixth and Seventh Circuits, which have denied injunctions in similar appeals, because the decisions of those courts are wholly unpersuasive. See Mich. Catholic Conference & Catholic Family Servs. v. Burwell, Nos. 13-2723, 13-6640,2014 WL 2596753 (6th Cir. June 11, 2014); Univ. ofNotre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014). Both courts decided that the mandate imposes an independent obligation on the third-party administrator and that independent obligation does not constitute a substantial burden on the plaintiffs' exercise of religion. Mich. Catholic Conference, 2014 WL 2596753, at *10; Univ. ofNotre Dame, 743 F.3d at 552 ("[The University] has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution."). Form 700, those courts held, does not "trigger" contraceptive coverage.
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Rubbish. Even if the form alone does not "trigger" coverage-whatever that means-it is undeniable that the United States has compelled the Network to participate in the mandate scheme by requiring the Network not only to sign but also to deliver the form to its third-party administrator of its health insurance plan. The Network must sign a form that, on its face, states that the Network's delivery of it is required "in order for the plan to be accommodated with respect to the contraceptive coverage requirement." EBSA Form 700-Certification, Dep't of Labor, http://www.dol.gov/ebsa/preventiveserviceseligibleorganization certificationform.doc (all Internet materials as visited June 30, 2014, and available in Clerk of Court's case file). And why must the Network provide Form 700 to its administrator? Because without the form, the administrator has no legal authority to step into the shoes of the Network and provide contraceptive coverage to the employees and beneficiaries of the Network. 78 Fed. Reg. at 39,879-80 ("[A] plan administrator is defined in ERISA section 3( 16)(A)(i) as 'the person specifically so designated by the terms of the instrument under which the plan is operated' .... [T]he self-certification is one of the instruments under which the employer's plan is operated.... The 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.").
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Form 700 is "more than an inconvenience on religious exercise" because it "requires participation in an activity prohibited by religion." Midrash Sephardi, 366 F.3d at 1227 (emphasis added). To be sure, federal law requires contraceptive coverage whether or not the Network signs the form. But the problem in this appeal is that federal law compels the Network to act. That participation, the Network has declared, without dispute, makes it complicit in a grave moral wrong according to the teachings of the Catholic Church. Unlike the plaintiffs in Cheffer, who could not say that the exercise of their religion required them to use physical force to prevent abortion, 55 F.3d at 1522, the Network has declared that its religion requires it to abstain from signing and delivering Form 700-a form that states it will be used to effectuate the mandate. And much like the evidence of religious practice in Yoder and Knight, that religious belief is undisputed. Form 700 "directly coerces the [Network] to conform [its] behavior" to materially cooperate with evil according to Catholic teaching. Midrash Sephardi, 366 F.3d at 1227. So long as the Network's belief is sincerely held and undisputed-as it is here-we have no choice but to decide that compelling the participation of the Network is a substantial burden on its religious exercise. See Hobby Lobby, No. 13-354, slip op. at 35-38 ("Arrogating the authority to provide a binding national answer to this religious and philosophical question, [the agency and the dissenters] in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have
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Case: 14-12696 Date Filed: 06/30/2014 Page: 23 of 29
repeatedly refused to take such a step." (internal citation omitted)); Thomas, 450 U.S. at 715, 101 S. Ct. at 1430 ("Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one."); Univ. ofNotre Dame, 743 F.3d at 566 (Flaum, J., dissenting) ("[W]e are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith."). The form is likely a substantial burden.
2. There Is a Substantial Likelihood that the Mandate Is Not the Least Restrictive Means to Address Any Compelling Governmental Interest.
Because the mandate imposes a substantial burden on the Network, the United States must establish that a compelling governmental interest justifies the burden and that the burden is the least restrictive means of achieving that interest. 42 U.S.C. § 2000bb-1 (b); see United States v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429, 126 S. Ct. 1211, 1219 (2006). The United States must establish a compelling interest in not exempting the specifically burdened party. /d. at 430-31, 126 S. Ct. at 1220. The Supreme Court has made clear that "mere invocation of the general characteristics" of a generally applicable law "cannot carry the day." /d. at 432, 126 S. Ct. at 1221. Instead, the United States must establish how exempting nonprofit organizations that hold themselves out as Catholic adversely affects its interest in providing contraceptive coverage for all. See, e.g., Yoder, 406 U.S. at 236, 92 S. Ct. at 1543 (clarifying that the state
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had to establish how its admittedly strong interest in education "would be adversely affected by granting an exemption to the Amish" (emphasis added)).
The United States asserts that the coverage provision advances two compelling interests: promoting public health and assuring that women have equal access to health care services. The United States cites evidence that contraception use reduces health risks posed by unintended pregnancies, avoids risks of adverse pregnancy outcomes by improving birth spacing, and can prevent certain cancers, menstrual disorders, and pelvic pain. The United States also contends that, if the Network's claims were successful, the Network would subvert the ability of the United States to accommodate religious concerns. The United States reasons that objectors must have a way of notifying the United States that they object to the mandate so that the United States can accommodate the objection. And the Network's legal theory, if successful, would require the United States to restructure the entire accommodation regime. But see Hobby Lobby, No. 13-354, slip op. at 43 ("[B]oth RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens' religious beliefs.").
But the United States fails to establish that its interest in public health or equal access to health care services would be adversely affected by granting an exception to the Network and organizations like it. But see Yoder, 406 U.S. at 216,
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92 S. Ct. at 1543 (clarifying that the government must establish that its compelling governmental interest would be adversely affected by excepting the objecting party). Nor can it. The United States has already exempted thousands of religious organizations from the mandate. 45 C.F.R. § 147.131(a). And any argument that the Network, if successful, might subvert the ability of the United States to accommodate religious concerns is circular. The United States has altogether failed to accommodate religious objections if that "accommodation," as it is currently structured, constitutes a substantial burden on religion.
Even if we assume, for the sake of argument as the Supreme Court did in Hobby Lobby, that the mandate serves a compelling governmental interest, the accommodation provision is not the least restrictive means to address that compelling governmental interest. In Hobby Lobby, the Supreme Court expressly refused to decide whether the accommodation provision satisfies strict scrutiny. Hobby Lobby, No. 13-354, slip op. at 43-44 & 44 n.40 (declining to answer a question not before the Court). That question is before us in this appeal, and the United States has failed to satisfy that test. The United States, for example, could require the Network to provide a written notification of its religious objection to the Department of Health and Human Services, instead of requiring the Network to submit Form 700-an instrument under which the health insurance plan is operated-to the third-party administrator. See Hobby Lobby, No. 13-354, slip op.
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at 10 n.9 (acknowledging that the Supreme Court recently permitted a nonprofit to opt out of the mandate in this manner in Little Sisters ofthe Poor v. Sebelius, 571 U.S. _,134 S. Ct. 1022 (2014)). It is substantially likely that the United States fails to establish that the accommodation provision, as currently structured, is the least restrictive means to address any compelling governmental interest, the "most demanding test known to constitutional law." City ofBoerne v. Flores, 521 U.S. 507, 534, 117 S. Ct. 2157, 2171 (1997).
B. The Network Has Established a Substantial Risk ofIrreparable Injury. The Network argues that, without an injunction, it will suffer irreparable
harm because it will be required either to participate in the mandate scheme in contravention of its religious beliefs or to violate the law and pay ruinous fines. The Network equates this harm with the loss of First Amendment freedoms, which constitutes irreparable injury. KH Outdoor, LLC v. City ofTrussville, 458 F.3d 1261, 1271-72 (11th Cir. 2006). The United States does not respond to the Network's assertions of irreparable harm.
Even though the Religious Freedom Restoration Act created a statutory rule, it is a response to the decision of the Supreme Court about the Free Exercise Clause of the First Amendment. 0 Centro, 546 U.S. at 424, 126 S. Ct. at 1216. The statutory promise the Act embodies is necessarily intertwined with the constitutional promise of the Free Exercise Clause. See Korte v. Sebelius, 735 F.3d
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654, 666 (7th Cir. 2013) ("Although the claim is statutory, RFRA protects First Amendment free-exercise rights."). And the loss of First Amendment freedoms, even if temporary, "unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976).
The discussion by the United States of the injunction granted in Little Sisters ofthe Poor, Home for the Aged v. Sebelius, 571 U.S._, 134 S. Ct. 1022 (2014), illustrates the irreparable harm likely to result if we deny the Network's motion. We cannot interpret that order as a statement about the merits of this appeal, but the issuance of that injunction further confirms that this appeal warrants an injunction. That order was "based on all of the circumstances of the case," id., which the United States argues are distinct from the circumstances of this appeal. In Little Sisters, the nonprofit employer's plan was exempt from ERISA, so the third-party administrator was not required to assume responsibility for contraceptive coverage. And the third-party administrator in Little Sisters had affirmed that it would not voluntarily provide payments for contraception services. The United States asks us to distinguish Little Sisters because the injunction entered in that appeal did not alter whether the employees would receive coverage. Whether an injunction issued or not, the employees would not receive contraceptive coverage. But here, the Network's plan is not exempt from ERISA, so the law requires the third-party administrator to provide contraceptive coverage.
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The United States argues that, unlike Little Sisters, the employees and beneficiaries will receive contraceptive coverage if we do not grant the injunction. But if we enter the injunction, the employees and beneficiaries will not receive contraceptive coverage.
Though raised by the United States, this distinction between the effect of an injunction in Little Sisters and the effect of an injunction in this appeal does not favor the United States. Unlike in Little Sisters, a refusal to enter an injunction in this appeal results in the provision of contraceptive coverage to the Network's employees. The Network will suffer irreparable harm without the injunction: the Network will be subject to fines or will be required to and deliver Form 700 to its third-party administrator, an act it alleges constitutes material cooperation with evil. The Network has satisfied its burden that irreparable injury is likely to result in the absence of an injunction.
C. No Harm Will Result to the Appellees or to the Public. The Network contends that the United States has failed to articulate that it will suffer harm if we issue an injunction. The Network further argues that the public interest weighs in favor of granting the injunction because there is a strong public interest in the free exercise of religion even where that interest may conflict with another statutory scheme.
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The balance of harms between the Network and the United States weighs in favor of the Network, which has established that it is likely to suffer irreparable injury without an injunction. The United States is silent as to any harm it will suffer if we issue an injunction.
Issuing an injunction will not harm the public interest. The United States argues in passing that an injunction might harm the public interest because it "would deprive hundreds of employees and their families of medical coverage." But this argument fails much like the argument that the mandate constitutes a compelling government interest likely fails. The employees at the Network have never been provided contraception. An injunction would maintain the status quo. Moreover, the United States has exempted thousands of religious employers from the mandate, and the United States has grandfathered countless other plans. 78 Fed. Reg. at 39,887 n.49 (describing grandfathered plans). In the light of these exemptions and delays to the mandate, it cannot be that one more delay pending appeal will harm the public interest.
For the foregoing reasons, I concur in the decision to grant an injunction pending appeal.
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John Ley Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
June 30, 2014

For rules and forms visit www.ca11.uscourts.gov

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 14-12696-CC Case Style: Eternal Word Television Networ v. U.S. Department of Health and, et al District Court Docket No: 1:13-cv-00521-CG-C

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause.
The enclosed order has been ENTERED.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Joe Caruso Phone #: (404) 335-6177

MOT-2 Notice of Court Action