Case 1:13-cv-01261-EGS Document 1 Filed 08/19/13 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
PRIESTS FOR LIFE 20 Ebbitts Street, Staten Island, New York 10306
FATHER FRANK PAVONE 20 Ebbitts Street, Staten Island, New York 10306

ALVEDA KING 20 Ebbitts Street, Staten Island, New York 10306
JANET MORANA 20 Ebbitts Street, Staten Island, New York 10306
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES 200 Independence Avenue, SW, Washington, DC 20201

COMPLAINT

KATHLEEN SEBELIUS, in her official capacity as Secretary, U.S. Department of Health & Human Services 200 Independence Avenue, SW, Washington, DC 20201

UNITED STATES DEPARTMENT OF THE TREASURY 1500 Pennsylvania Avenue, NW, Washington, DC 20220

JACOB J. LEW, in his official capacity as Secretary, U.S. Department of the Treasury 1500 Pennsylvania Avenue, NW, Washington, DC 20220

UNITED STATES DEPARTMENT OF LABOR 200 Constitution Avenue, NW, Washington, DC 20210

THOMAS E. PEREZ, in his official capacity as Secretary, U.S. Department of Labor 200 Constitution Avenue, NW, Washington, D.C. 20210
Defendants.

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Plaintiffs, by and through undersigned counsel , bring this Com plaint against the above -

named Defe ndants, their em ployees, agents, and successors in office, and in support thereof

allege the following upon information and belief:

INTRODUCTION

1. This is a civil action in which Plaintiffs are seeking to protect and defend religious

freedom. Plain tiffs are challenging the im plementing regulations of the Patient Protection and

Affordable Care Act (“Affordable Care Act”) which require ce

rtain em ployers, includin g

Plaintiff Priests for Life, to provid e insurance plans that include cov erage for, or access to,

contraception, sterilization, abortifacients, and related education and counseling (hereinafter also

referred to as “contraceptive services mandate”).

2. Plaintiffs seek a declaration that the contraceptive serv ices m andate violates

federal constitutional and statutory law and a p reliminary and permanent injunction enjoining its

enforcement. Indeed, the contraceptive serv ices mandate is unconstitutional on its face and as

applied in that it violat es Plaintiffs’ rights to th e free exercise of religi on, the freedom of speech,

and expressive association under the First Am endment; it violates the Establishm ent Clause of

the First Amendment; it depriv es Plaintiffs of the equal protection of the law guaranteed by the

Fifth Amendment; and it violates the Religious Freedom Restoration Act.

JURISDICTION AND VENUE

3. This action in which the United States is a defendant arises under the Constitution

and laws of the United States. Jurisdiction is conferred on this C ourt pursuant to 28 U.S.C. §§

1331 and 1346.

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4. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Fe deral Rules of Civil Procedure, by 28 U.S.C. § 2000bb-1, and by the general legal and equitable powers of this Court.
5. Venue is p roper in th is district pur suant to 28 U.S.C. § 1391(e) because Defendants reside in this district and a substantial part of the acts gi ving rise to Plaintiffs’ claims occurred in this district.
PARTIES 6. Plaintiff Priests for L ife is a nonprofit corp oration that is inco rporated under the laws of the State of New York. It is recogn ized by the Internal Reven ue Service a s a Section 501(c)(3) organization. Priests fo r Life is a religious organizat ion. And based on its sincerely held religious beliefs, Priests for Life objects to providing—directly or indirectly—any support for, or access to, contraception, sterilization, and abortifacients. 7. Plaintiff Father Frank Pavone is an ordained, Rom an Catholic priest and the National Director of Pr iests for Life. Through Priests for Life and those who associate with Priests for Life for the purpos e of advancing and prom oting its religious m ission, Fr. Pavone exercises his fundam ental constitutional rights to the free exercise of religion, the freedom of speech, and expressive associati on. Fr. Pavone objects to D efendants forcing Priests for Life to provide—directly or indi rectly—any support for, or access t o, contraception, sterilization, and abortifacients based on his sincerely held religious beliefs. Fr. Pavone is currently covered under Priests for Life’s health care plan. 8. Plaintiff Alveda King, the niece of civil righ ts leader Martin Luther King, Jr., is a full-time e mployee of Priests for Life. She is cu rrently the Pastoral Associate and Director of African-American Outreach for P riests for Life and Gospel of Life Minis tries. She is also a
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voice for the Silent No More Awareness Cam paign, which is the world’s largest m obilization of women and m en who have lost children to ab ortion, sharing her testimony of two abortions , God’s forgiveness, and healing. Through Priests for Life a nd those who associate with Priests for Life for the purpose of advancing and pr omoting its religious m ission, Plaintiff King exercises her fundam ental consti tutional rights to the free exerci se of religion, the freedom o f speech, and expressive association. Plaintiff King objects to Defe ndants forcing Priests for Life to provide—directly or indirectly—any support for, or access to, con traception, sterilization, and abortifacients based on her sincerely held religious beliefs.
9. Plaintiff King is currently covered under Pr iests for Life’s health care plan, which is an “employer-sponsored” plan under the Affordable Care Act. If Priest s for Life were forced out of the health care market, Plaintiff King, as well as m any other Priests for Life em ployees, including Plaintiff Morana, would be forced to purchase a costly, ind ividual insurance plan as a result of the “individual m andate” provision of the Act. This indi vidual health care plan will necessarily include “con traceptive services” coverage because the m andate applies to individual plans.
10. Plaintiff Janet Morana is a full-time employee of Priests for Life. She is currently the Executive Director of Priests for Life, and she is the Co-Founder of the Silent No More Awareness Campaign. Through Priests for Life and those who associate with Priests for Life for the purpose of advancing and promoting its relig ious m ission, Plaintiff Morana exercises her fundamental constitutional rights to the free ex ercise of religion, the freedom of speech, and expressive association. Plai ntiff Morana objects to Defendant s forci ng Pri ests for Li fe t o provide—directly or indi rectly—any support for, or access t o, contraception, sterilization, and abortifacients based on her sincerely held religious beliefs.
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11. Plaintiff Morana is covered under Priests for Life’s health care plan, which is an “employer-sponsored” plan under the Affordable Care Act. If Priests for Life were forced out of the health care m arket, Plaintiff Morana woul d be forced to purchase a costly, individual insurance plan as a res ult of the “individual mandate” provision of the Act. This individual health care plan will necessar ily include the immoral “contracep tive services” coverage becaus e the mandate applies to individual plans.
12. Defendant HHS is an executive agency of the United States governm ent and is responsible for the promulgation, administration, and enforcem ent of the contraceptive services mandate, which is the subject of this lawsuit.
13. Defendant Kathleen Se belius is the Secretary of the United States Departm ent of Health and Human Services (hereinafter “HHS”). In this capac ity, she has responsibility for the operation and management of HHS. Defendant Sebelius is sued in her official capacity only.
14. Defendant Department of the Treasury is an executive agency of the United States government and is responsible for the prom ulgation, adm inistration, and enforcem ent of the contraceptive services mandate, which is the subject of this lawsuit.
15. Defendant Jacob J. Lew is th e Secretary of the United States Departm ent of the Treasury. In this capacity, he has responsib ility for the operation and m anagement of the Department of the Treasury. Defendant Lew is sued in his official capacity only.
16. Defendant Departm ent of Labor is an executive agency of the United States government and is responsible for the prom ulgation, adm inistration, and enforcem ent of the contraceptive services mandate, which is the subject of this lawsuit.
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17. Defendant Thomas E. Perez is the Secret ary of the United States Departm ent of

Labor. In this capacity, he has responsibility for the operation and m

anagement of t he

Department of Labor. Defendant Perez is sued in his official capacity only.

FACTUAL ALLEGATIONS

The Affordable Care Act

18. In March 2010, President Obam a signed into law the P atient Protection and

Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Healthc are an d

Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (hereinafter

“Affordable Care Act” or “Act”).

19. The Affordable Care Act requires em ployers with 50 or m ore e mployees to

provide federal governm ent-approved health insura nce or pay a substantial per-employee fine

(“corporate m andate”). 26 U.S.C. § 4980H. Th e im plementation of the “corporate m andate,”

which was required to take effect on January 1, 2014, has been delayed until 2015 by the Obama

administration without congressional approval.

20. The Affordable Care Act also requires, inter alia, each “applicable individual” to

purchase health insurance (“individual m andate”). Individuals who fail to have “m inimum

essential co verage” req uired by this m andate must pay a monetary penalty. See 26 U.S.C. §

5000A(b)(1). The “individual mandate” takes effect on January 1, 2014.

The Affordable Care Act — Not a Neutral Law of General Applicability

21. To date, HHS has granted over 1,000 i ndividualized w aiver requests from

employers and to insurance plans excusing their compliance with the Affordable Care Act.

22. Certain provisions of the Act do not apply to members of certain religious groups.

See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (indi vidual mandate does not apply to m embers

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of a “recogn ized religious sect o r division” that conscientiously objects to acceptance of public or private insurance funds); § 5000A(d)(2)(a)(ii) (individual mandate does not apply to m embers of “health care sharing m inistry” that meets certain criteria). None of t hese exceptions apply to Priests for Life.
23. The contraceptive services m andate (descr ibed further below) does not apply to employers who provide so-called “grandfathered” h ealth care plans. T he Affordable Care Act’s default position is that an existing health care plan is not a grandfathered plan.
24. Priests for Life’s health care plan is not a grandfathered plan under the Affordable Care Act for m ultiple reasons, including, but n ot li mited to, the follo wing: (1 ) th e health care plan does not include the required “disclosure of grandfather status” statem ent; (2) Priests for Life does not take the position that its health c are plan is a gr andfathered plan and thus does not maintain the records necessary to verify, explain, or clarify its status as a grandfathered plan nor will it make such records available for examination upon request; and (3) the health care plan has an increase in a percentage cost-sharing requirem ent m easured from M arch 23, 2010. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140.
25. The Affordable Care Act is not gen erally applicable becau se, inter alia , it does not apply equally to all individuals and e mployers; because the Act provides for num erous exemptions from its provisions, including exem ptions for som e religious groups and for som e religious beliefs, but not for others, including Priests f or Lif e and its re ligious belief s; an d because HHS grants ind ividualized waiver requ ests excus ing som e em ployers from com plying with the provisions of the Act.
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26. The Affordable Care is not neutral because, inter alia, some groups, both secular

and religious, enjoy exemptions from certain provi sions of the Act, which others do not; because

some groups, both secular and religious, hav e receiv ed waivers from com plying with the

provisions of the Act, while others have not. Prie sts for Life is not elig ible for any exem ptions,

and it is c ertainly not elig ible f or an exem ption from the challenged contraceptive services

mandate. In fact, the m andate specifically target s for discrim inatory treatm ent those religious

groups such as Priests for Life that oppose provid ing coverage for, or access to, “contraceptive

services” on the basis of their religious views.

27. The Affordable Care Act favors certain religious organizations, beliefs, and

practices, and it disfavors those religious organizations, such as Priests for Life, that oppose

contraception, sterilization, and abortifacients on religious grounds . T hus, the Affordable Care

Act disc riminates am ongst sim ilarly situa ted r eligious org anizations o n the bas is of religiou s

beliefs and practices.

The Affordable Care Act — Development of the Contraceptive Services Mandate

28. The Affordable Care Act mandates that health insurers “provide coverage for and

shall not im pose any cost sharing requirem ents for . . . with respect to wom en, such additional

preventative care and screenings . . . as provided for in comp rehensive guidelines supported by

the Health Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(4).

29. While organizations with fewer than fi fty employees are not subject to the

“corporate mandate” and are thus not required to provide health insurance for their em ployees

under the Act, if such organizations do offer

a health plan, they m ust comply with the

contraceptive services mandate. 42 U.S.C. § 300gg-13.

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30. On July 19, 2010, HHS, along with the Depart ment of Labor and the Departm ent of the Treasury, published interim final regulati ons “im plementing the rules for group health plans and health insurance covera ge in the group and individual markets under provisions of the Patient Protection and Affordable Care Act rega rding preventive health services.” 75 Fed. Re g. 41726 (July 19, 2010). Among other things, the interim final regulations required health insurers to cover preventive care for wo men as provided for in “guide lines supported by the Health Resources and Services Administration.” 75 Fed. Reg. at 41759.
31. HHS accepted public comments to the 2010 interim fi nal regu lations until September 17, 2010. A large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of services, including contraception, sterilization, and abortion.
32. HHS commissioned a study by a private hea lth policy organization, the Institute of Medicine (hereinafter “IOM”), “to review what preventive services are necessary for women’s health and well-being and should be considered in the development of comprehensive guidelines for preventive services for women.” (See http://www.hrsa.gov/womensguidelines).
33. In conducting its study, IOM invited va rious pro-elective abortion groups and individuals to m ake presentations on the preven tive care that should be provided by all health insurers, in cluding the following: the Guttm acher Ins titute, the Am erican Congress o f Obstetricians and Gynecologis ts, th e Nationa l Wom en’s Law Center, the National W omen’s Health Network, Planned Parenthood Federati on of Am erica, John Santelli, and Sara Rosenbaum. (See http://www.nap.edu/openbook.php?record_id=13181&page=217).
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34. No religious groups or other groups th at oppose governm ent-mandated coverage

of contraception, sterilization, abortion, and relate d education and coun seling were am ong the

invited presenters. (See http://www.nap.edu/openbook.php?record_id=13181&page=217).

35. On July 19, 2011, IOM published a report of its study regarding preventive care

for wom en. Am ong ot her things, IOM recomm ended that preventive services include “[a]ll

Food and Drug Adm inistration approved contraceptiv e methods [and] s terilization procedures.”

(See Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (2011)).

36. Federal Drug Adm inistration-approved contraceptive m ethods include, am ong

other drugs, devices and procedures , birth control pills, prescription contraceptive devices, Plan

B (also known as the “morning after pill”), and ulipristal (also known as “ella” or the “week after

pill”).

37. Plan B and ella can prevent the implantation of a human embryo in the wall of the

uterus and can cause the death of an em bryo. The use of ar tificial m eans to prevent the

implantation of a hum an em bryo in the wall of th e u terus o r to caus e th e death of an em bryo

constitutes an “abortion.” Consequently, Plan B and ella are abortifacients.

38. On August 1, 2011, HHS’s Hea lth Resour ces and Services Adm inistration

(hereinafter “HRSA”) announced that it was supporting “the IOM’s recommendations on

preventive services that add ress h ealth needs specific to wom en and f ill gaps in exis ting

guidelines.” HRSA entitled the recommendati ons, “W omen’s Preven tive Serv ices: Required

Health Plan Coverage Guidelines.” Among other things, HRSA’s Guidelines include “[a]ll Food

and Drug A dministration approved contraceptive methods, sterili zation procedures, and patient

education and counseling for all wom

en with reproductive capacity.” (

See

http://www.hrsa.gov/womensguidelines).

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The Affordable Care Act — Adoption of the Contraceptive Services Mandate

39. On August 3, 2011, HHS, along with the Departm

ent of Labor and the

Department of the Treasury, published interi m final regulations which, am ong other things,

mandate that all health insurers “provide benefits for and prohi bit the imposition of cost-sharing:

. . . . W ith respect to wom en, pre ventive care and screening provided for in comprehensive

guidelines s upported by HRSA . . . which will be commonly known as HRSA’ s W omen’s

Preventive Services: Required Health Plan C overage Guidelines.” 76 Fed. Reg. 46621 (Aug. 3,

2011); 45 C.F.R. § 147.130.

40. Defendant Departm ents “determ ined that an addition al op portunity for public

comment would be im practical an d contrary to the publ ic interest” and pr omulgated the final

regulation without waiting for public comment.

41. The August 3, 2011, interim final regulations noted that “several comm enters [to

the July 19, 2010 interim final regulations] asserted that requiring group health plans sponsored

by religious em ployers to cover co ntraceptive servic es tha t the ir f aith deem s contrary to its

religious tenets would impinge upon their religious freedom.” A ccordingly, as further noted in

the regulations, “the Departments seek to provide for a religious accommodation that respects the

unique re lationship be tween a hou se of worship a nd its e mployees in m inisterial position s. . .

[T]he Departments are amending the interim final rules to provide HRSA additional discretion to

exempt certain relig ious em ployees from the Guidelin es where con traceptive s ervices are

concerned.” 76 Fed. Reg. at 46623.

42. For purposes of the discretionary exem ption set forth in the August 3, 2011,

interim final regulations, Defendant s concluded that a “religious employer was one that: (1) Has

the incu lcation of religious values as its pu rpose; (2) prim arily em ploys persons who share its

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religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit

organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii).” 76 F ed. Reg. at

46623; 45 C.F.R. § 147.130.

43. Priests for Life did not qualify as a “religious employer” under this exemption.

44. Although HHS accepted public co mments to the 2011 interim final regulations

until September 30, 2011, it went into effect immediately.

45. Accordingly, health ins urers were re quired to begin providing the m andated

contraceptive services coverage in the first p lan year (in the individual market, policy year) that

began on or after August 1, 2012.

46. The United States Conference of Catholic Bishops called for a rescission of the

contraceptive services m andate, and, in the even t HHS insisted on keeping the m andate, urged

HHS to provide a broad and com prehensive conscience exemption for all of those persons and

organizations that objected to the m andate—not just the extrem ely sm all subset of “religious

employers” that HHS proposed to exempt initially.

47. On January 20, 2012, Defendant Sebelius announced that: “Nonprofit em ployers

who, based on religious beliefs do not currently

provide contraceptive coverage in their

insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new

law.” She further announced that: “We intend to require employers that do not offer coverage of

contraceptive services to provide notice to employees, which will also state th at contraceptiv e

services are available at sites such as community health centers, public clinics, and hospitals with

income-based support.” (See http://www.hhs.gov/news/press/2012pres/01/20120120a.html).

48. On February 10, 2012, President Oba ma announced that his adm inistration

intended to propose and finalize a new regulation that “will require insurance companies to cover

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contraception if the [non-exem pted] religious or ganization chooses not t o. . . . Contraception

coverage will be offered to wom en by their empl oyers’ insurance companies directly, with no

role for religious em ployers who oppose contraception.” ( See http://www.whitehouse.gov/the-

press-office/2012/02/10/fact-sheet-women-s-preventive-services-and-religious-institutions).

49. In conjunction with the President’s

announcement, Defendants created a

“temporary enforcem ent safe harbor,” which is a self-imposed stay of enforcem ent of the

contraceptive serv ices m andate f or cer tain qua lified organizations. This “safe harbor” would

remain in e ffect f or the qualif ied o rganization un til its f irst plan yea r that began on or after

August 1, 2013. See HHS, Guidance on Tem porary Enforcement Safe Harbor (Feb. 10, 2012);

77 Fed. Reg. 16501, 16504 (Mar. 21, 2012).

50. The “temporary enforcement safe harbor” applied if (1) the organization is a non-

profit; (2) “[f]rom February 10, 2012 onward, contraceptiv e coverage has not b een provided at

any point by the group health pl an sponsored by the organization” ; (3) “[t]he group health plan

sponsored by the organization . . . provides to plan participants a prescribed notice indicating that

the plan will not prov ide contracep tive coverag e for the first plan y ear beginning on or after

August 1, 2012”; and (4) “[t]he organization self-certifies that it satisfies the three criteria above,

and documents its self -certification in acco rdance with prescrib ed procedures.” See HHS ,

Guidance on Temporary Enforcement Safe Harbor (Feb. 10, 2012).

51. On August 15, 2012, Defendants issued addi tional guidance clar ifying the scope

of the “temporary enforcem ent safe harbor.” Under this additional guidance, so long as an

otherwise qualified organization “took som e action to try to exclude or lim it such coverage that

was not successful as o f February 10, 2012,” th e organization could still qualify for the safe

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harbor even if it provided contracep tive coverage after February 10, 2012. See HHS, Guidance on Temporary Enforcement Safe Harbor (Aug. 15, 2012).
52. The “com promise” announced by President Obam a on February 10, 2012, was promptly rejected by th e Catholic Bishops becau se it to failed to p rotect religious freedom and the right to conscience.
53. Defendants rejected consid ering a “broad er exem ption” from the challenged mandate because they b elieve that such an exemption “would lead to m ore employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives, which would underm ine the be nefits [of requiring the coverage].” According to Defendants, “Employees that do not prim arily employ employees who share the religious tenets of the organization are more likel y to employ individuals who have no religious objection to the use of contraceptive services and therefore are more likely to use contraceptives. Including these employers within the scope of the exe mption would subject their employees to the relig ious views of th e employer , lim iting access to contraceptives, and thereby inhib iting the use o f contraceptive services and the benefits of preventive ca re.” 77 Fed. Re g. 8725, 8728 (Feb. 15, 2012) (emphasis added).
54. Thus, the u ltimate goal of Defendants is to in crease the “use of contraceptive services” b y com pelling access to these s ervices and to ensure that em ployees, includ ing employees of religious organizations such as Prie sts for Life, are not “sub ject” to the employer’s religious beliefs regarding such “services.” Thus, Defendants’ objective is in direct conflict with Priests for Life’s goals and religious mission.
55. Consequently, despite beginning the proc ess of a mending th e regulations by publishing an Advance Notice of Proposed Rule Making in the Federal Register, see 77 Fed.
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Reg. 16501 (Mar. 21, 2012), Defendants m ade it clear from the very beginning that they did not intend to provide a “broader exemption” that would in any way “inhibit[] the use of contraceptive services” by e mployees or “subject . . . e mployees to the religious views of the employer.” In short, Defendants did not intend to extend the exem ption f rom the m andate to organizations such as P riests f or L ife in a m anner that would protect and resp ect Pries ts fo r Life’s religious beliefs and convictions, as well as those who work for and associate with Priests for Life, such as Fr. Pavone and Plaintiffs King and Morana.
56. Indeed, according to D efendants, they were intent on developing “alternative ways of providing contraceptive co verage” that would require “con traceptive coverage directly to the em ployer’s plan participan ts (and their benef iciaries) who desire it,” cla iming that ther e would “be no charge for the contraceptive coverage.” 77 Fed. Reg. at 8728.
57. Thus, even under this proposed regulati on, which would soon becom e final (as discussed below), Priests for Life would still be purchas ing a health care plan that provid es “contraceptive coverage directly to [its] plan pa rticipants (and th eir b eneficiaries),” which is unacceptable to Priests for Life. In deed, Priests fo r Life w ould still be paying for a health care plan that pr ovides these immoral services “directly to” its em ployees in vi olation of Priests for Life’s sincerely held religious belief s. And as Defendants’ proposed regulations made clear, the government is purposefully and intentionally inse rting itself into Priests for Life’s business practices so that, according to the governm ent, Priests fo r Life’s em ployees wo uld not be “subject” to Priests for Life’s “religious views,” thereby dir ectly underm ining and interfering with Priests for Life’s religious beliefs and practices.
58. While Defendant Sebelius claim ed that women may pay up to $600 per year for contraceptive serv ices, she asserted that insu rers could provide thos e serv ices to cove red
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employees at no cost because “on balance, prev entive services around family planning, avoiding

what may be unhealthy pregnancies, avoiding the health consequences of that ac tually is a cos t

reducer.”

59. However, insurance companies do not dona te products and serv ices to covered

employees. Drug m akers will s till charge ins urers f or birth control pills, IUD’s, and other

contraceptive devices. Doctors wi ll still bill insurers for reproductive treatm ent. The reality, as

with all m andated ben efits, is that these co sts will be bo rne eventu ally via high er prem iums.

Insurers may amortize the cost dif ferently over time, but eventually pric es will find equilibrium.

Thus, Priests for Life will s till pay for contraceptive services, including abortifacients, even if it

is nominally carried by a third-party corporation—its health insurance provider.

Final Rules on Contraceptive Coverage and Religious Organizations

60. On June 28, 2013, the Oba ma administrati on announced that it had issued final

rules on contraceptive coverage and religious orga nizations. These final ru les were published in

the Federal Register on July 2, 2013 and b ecame e ffective on August 1, 2013. 78 Fed. Reg.

39870 (July 2, 2013).

61. With the e xception of the am endments to th e re ligious em ployer exem ption,

which apply to group health plans and health in surance issuers for plan years beginning on or

after August 1, 2012, these final regulations apply to group health plans and health insurance

issuers for plan years beginning on or

after January 1, 2014. 78 Fed. Reg. at 39870.

Accordingly, Defendants extended the “tem porary enforcement safe harbor” to enco mpass plan

years beginning on or after August 1, 2013, and before January 1, 2014. 78 Fed. Reg. at 39872.

62. Pursuant to these final regulations, the definition of “religious em ployer” for

purposes of the only exem ption from the cont raceptive ser vices ma ndate that provides

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meaningful protection f or religious libe rty and the r ight o f conscienc e ( i.e., it exem pts the organization from having to provide any offendi ng coverage) was narrowed. W hile the revised definition d id elim inate three cr iteria f rom the earlier definition of “religious employer” for purposes of this exemption, it ultimately includes only those organizations that fall under Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. 78 Fed. Reg. at 39874. These organizations are essentially churches and re ligious orders—a very narrow class of nonprofit organizations.
63. Priests for Life, while a nonprofit religious organization, does not qualify for this narrow exemption. Consequently, Defendants re vised the religious em ployer exemption by not expanding it for organizations such as Priests for Life, but by excluding such organizations altogether.
64. The earlier definition o f “religious em ployer” included nonprofit organizations described in section 6033(a)(1) of the Code, which includes religious organizations such as Priests for L ife. However, Pries ts for Life was not eligible for the earli er exemption because of the other criteria that are now removed by these final rules.
65. The final ru les also pro vide a so -called “acco mmodation” for certain “elig ible organizations.” An “eligible organization” is an organization that satisf ies all of the following requirements: (1) the organiza tion opposes providing coverage for som e or all of any contraceptive services required to be covered by the challenged m andate on account of religious objections; (2) the organization is organized and ope rates as a nonprof it entity; (3) the organization holds itself out as a religious organiza tion; and (4) the organizat ion self-certifies, in a form and m anner specified by HHS, that it satisf ies the criteria in (1) through (3) above, and makes such self-certification avai lable for exam ination upon request by the first day of the first
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plan year to which the “accomm odation” applies. This self-certification must be executed by a person authorized to ma ke the certification on behalf of the organiza tion, and the organization must retain a record of this self-certification.
66. A group health plan established or m aintained by an “eligible organization” that provides benefits through one or more group health insurance issuers complies with the “eligible organization” requirem ents by furnishing a copy of the s elf-certification to each issuer that would otherwise provide coverage in connection with the group hea lth plan. An issuer m ay not require any docum entation other than the copy of the self -certification f rom the elig ible organization regarding its status.
67. A group health plan issuer who receives a copy of the self-certi fication must: (1) exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan; and (2) provide separate paym ents for any contraceptive services required to be covered for plan pa rticipants and beneficiaries so l ong as they rem ain enrolled in the plan. W ith respec t to p ayments f or con traceptive serv ices, the iss uer m ay not im pose any cost-sharing requirem ents (such as a copaym ent, coinsurance, or a d eductible), or im pose any premium, fe e, or other charge, or any portion thereof, directly or ind irectly, on the eligible organization, the group health pl an, or plan participants or be neficiaries. The issuer m ust segregate p remium revenue collected from the e ligible org anization f rom the m onies us ed to provide payments for contraceptive services.
68. For each plan year to which the “accomm odation” applies, an issuer required to provide payments for contraceptive services m ust provide to plan particip ants and beneficiaries written notice of the availab ility of separate paym ents f or contrac eptive servic es contemporaneous with (to the extent possible), but separate from , any application m aterials
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distributed in connection with en rollment (or re-enrollm ent) in group health coverage that is effective beginning on the first d ay of each applicable plan year. The n otice must specify that the eligible organization does not adm inister or fund contracep tive benefits, but that the issuer provides separate payments for contraceptive serv ices, and must provide contact inform ation for questions and complaints.
69. Consequently, because Priests for Life pr ovides its em ployees with a health care plan, the governm ent mandate fo rces Pries ts for Life to pro vide th e m eans and m echanism by which contraception, sterilization, and abortifacients are p rovided to its em ployees, which is unacceptable to Plaintiffs because it violates their sincerely held religious beliefs.
70. There is no logical or moral distinction be tween the extant contraceptive services mandate, with its lim ited religious em ployer ex emption, and the “accommodation” for certain “eligible organizations.” Em ployers who offe r health insurance do not pay for individual benefits and products as they are provided. Rath er, they pay a prem ium for a policy that gives their em ployees access to covered benefits an d products when they need them . Under the “accommodation,” all non-exempted health plans must necessarily include contraceptive services among their covered benefits. Consequently, relig ious employers, such as Priests for Life, are still paying an insurer to provide thei r employees with access to a product ( i.e., contraceptives, sterilization, and abortifacients) that violates their religious convictions.
Priests for Life — Mission 71. Priests for Life is a p rivate as sociation of the f aithful, recognized and approved under the Canon Law of the Catholic Church. It works in harm ony with the goals of the Bishops’ Pro-Life Committee and the local diocesan respect life offices.
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72. Priests for Life was founded in 1991 to do one of the m ost important tasks in the Church today: to help spread the Gospel of Life.
73. The mission of Priests for Life is to unite and encourage all clergy to give special emphasis to the life issues in their ministry. It also seeks to help them take a m ore voca l and active ro le in the pro- life m ovement. Pr iests f or Lif e e xists to f ight the cultu re of death. Contraception, sterilization, abortifacients, and abortion all prom ote and support th e culture of death and are therefore immoral and antithetical to Priests for Life’s religious mission.
74. Pursuant to its Mission Statement, Priests for L ife seeks to: (1) unite, encourage, and provide ongoing training to pr iests and deacons who give a special em phasis to the “life issues,” especially abortion and euthanasia, in their ministries; (2) instill a sense of urgency in all clergy to teach about these issu es and to m obilize their peopl e to help stop abortion and euthanasia; (3) assist clergy and laity to work to gether productively for th e cause of life; and (4 ) provide ongoing training and motivation to the entire pro-life movement.
75. Priests for Life offers a wide range of audios, videos, and brochures, and regularly uses the media of television, radio, and the printed press to spread the message of life.
76. Fr. Pavone, the National Director of Priests for Life, and his associates travel the country full tim e to m eet with priests, pro-life groups, and others to express, teach, and spread the Gospel of Life. This is a religious exercise for Fr. Pavone.
77. The Gospel of Life promotes the culture of life, which opposes contraception, sterilization, abortifacients, and abortion.
78. Through his expressive association with Priests for Life, Fr . Pavone spreads the Gospel of Life.
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79. Fr. Pavone is the “face” of Pr iests for Life, and he uses th e media of television, radio, and the printed press to spr ead Priests for Life’s message of life. For example, Fr. Pavone hosts the Defending Life television series on the Eternal Word Television Network (EWTN). Through his m edia appearances and other expressive activities, Fr. Pavone prom otes the culture of life and actively oppos es the culture of death, which supports and prom otes the use of contraception, sterilization, abortifacients, and abortion.
80. Plaintiff King uses the m edia of televisi on, radio, and the printed press to spread Priests for Life’s m essage of life. Through her expressive association with Priests for L ife, Plaintiff King spreads the Gospel of Life. This is a religious exercise for Plaintiff King. Through her m edia appearances and other expressi ve activities, Plain tiff King prom otes the culture of life and actively opposes the culture of death.
81. Plaintiff Morana uses the m edia of tele vision, radio, and th e p rinted press to spread Priests for Life’s m essage of life. She is featured on Fr. Pa vone’s Defending Life television series and is the Co-host of the The Catholic View for Wom en, also seen on EW TN. Plaintiff Morana is a w eekly guest on EW TN Global Cath olic Radio with Teresa Tom eo and numerous other media outlets. Through her expressive association with Priests for Life, Plaintiff Morana spreads the Gospel of Life. This is a religious exercise for P laintiff Morana. Through her media appearances and other ex pressive activities, Plaintiff Mo rana promotes the culture of life and actively opposes the culture of death.
82. Priests for Life also represents a family of ministries that reach and enrich every aspect of th e pro-life m ovement, for clergy and laity alike, in a wide variety of activities, including d irect m inistries to priests, deaco ns, and seminarians; yo uth outreach; healing
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ministries; broadcasting; prayer campaigns; edu cation regarding public po licy; and facilitating relationships among pro-life organizations and leaders.
83. In sum, Priests for L ife provides a wide range of serv ices to both Catholics and non-Catholics as part of its pro-lif e m inistry, and it engages in a wide-range of expressive , religious activity to further its pro-life mission. Through their asso ciation with Priests for L ife, Fr. Pavone and Plaintiffs King and Morana expr ess a pro-life m essage to further Priests for Life’s pro-life mission.
84. Indeed, an individual’s freedom to speak and to worship coul d not be vigorously protected from interference by the government unless a correlative freedom to engage in a group effort toward those ends were not also guaranteed. This freedom to associate is an indispensable means of pr eserving individual liberties such as the freedom of speech and the free exercise of religion. By subjecting Priests for Life to the contraceptive services m andate as set forth in this Complaint, Defendants are infringing upon the constitutional freedom s of Fr. Pavone and Plaintiffs King and Morana, who associate with Priests for Life for purposes of promoting the culture of life through speech and religious activities protected by the First Amendment.
Plaintiffs’ Sincerely Held Religious Beliefs Regarding Contraceptive Practices and Abortion
85. A deep devotion to the Catholic faith is central to the mission of Priests for Life. 86. Priests for Life holds and actively prof esses religious beliefs that include traditional Christian te aching on the nature a nd pur pose of hum an sexuality. In particula r, in accordance with Pope P aul VI’s 19 68 encyclical Humanae Vitae , Prie sts f or Lif e believes that human sexuality has two prim ary purposes: to “m ost closely unit[e] husband and w ife” and “for the generation of new lives.” Priests for Life believes and actively professes the Catholic Church teaching that “[t]o use t his divine gift destroying, even if only partially, its m eaning and purpose
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is to contradict the nature both of man and of woman and of their most intimate relationship, and

therefore it is to contra dict al so th e plan of G od and His W ill.” Theref ore, Pr iests f or L ife

believes an d teaches th at “any action which either before, at the m oment of, or after sexual

intercourse, is specifically inte nded to prevent procreation, w hether as an end or as a m eans”—

including contraception and sterilization—is a grave sin.

87. Plaintiffs believe, as Pope Pa ul VI prophetically stated in Humanae Vitae , that

“man, growing used to the em ployment of antico nceptive practices, may finally lose respec t for

the woman and, no lon ger caring for her physical and psy chological equilibrium, may come to

the point of considering her as a m ere instrum ent of selfish enjoym ent, and no longer as his

respected and beloved com panion.” Consequentl y, Plaintiffs believe that the contraceptive

services mandate harms women.

88. Priests for Life holds and actively prof esses religious beliefs that include

traditional Christian te aching on the sanctity of life. It b elieves and teache s tha t each hum an

being bears the im age and likeness of God, and th erefore all hum an life is sacred and precious

from the mom ent of conception. Consequently, Priests for Li fe believes and teaches that

abortion ends a human life and is a grave sin.

89. Further, P riests for Lif e subscribes to authoritative Catholic teaching about the

proper nature and aim s of health care and m edical treatm ent. For example, Priests for Life

believes, in accordance with Pope John Paul II’s 1995 encyclical

Evangelium Vitae , that

“‘[c]ausing death’ can never be considered a form of m edical treatm ent,” but rather “runs

completely counter to the health-care professi on, which is m eant to be an im passioned and

unflinching affirmation of life.”

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90. Based on the teachings of the Catholic Church, and its own sincerely held beliefs, Priests for Life does not believe that contracep tion, sterilization, abortif acients, or abortion are properly understood to constitute medicine, health care, or a m eans of providing for the wellbeing of persons. Indeed, Priests for Life beli eves thes e procedures involve gravely immoral practices.
91. As part of its religious m inistry, Priests for L ife prom otes the culture o f life by directly an d em phatically oppos ing the use of contraceptive s, sterilization practices, abortifacients, and abortion. Acco rding to Priests for L ife’s sinc erely held religious beliefs, contraception, sterilization, aborti facients, and abortion are not m orally neutral. Consequently, Priests for Life actively opposes the use of such immoral drugs and procedures.
92. Fr. Pavone and Plaintiffs Ki ng and Morana share Priests for Life’s sincerely held religious beliefs described in this Complaint.
Priests for Life — Employee Health Insurance 93. As part of its comm itment to Catholic social teaching, Priests for Life prom otes the health and well-being of its employees. In furtherance of this commitm ent, Priests for Life provides health insurance for its employees. 94. Priests for Life ensures that its in surance policies do not cover, promote, or provide access to drugs, de vices, services, or procedures inc onsistent with its faith, including contraception. 95. Priests for Life cannot provide health insurance that su pports—directly or indirectly—artificial contraception, sterili zation, abortifacients, abor tion, or related education and counseling without violating its sincerely held religious beliefs.
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96. Priests for Life cannot provide health insurance that provides access to and makes available contraception, sterilization, abor tifacients, abortion, or related education and counseling without violating its sincerely held religious beliefs.
97. Priests for Life cannot provide inform ation or guidance to its em ployees about other locations at which they can access artificia l con traception, steriliz ation, ab ortifacients, abortion, or related education an d counseling without violating its sincerely held religious beliefs.
98. In short, Priests for Life cannot comply with the contracep tive services m andate and its so-called “accommodation” without violating its sincerely held religious beliefs.
99. Priests for Life is funded solely th rough tax-deductible donations. Donors who give to Priests for Life do so with an understanding of Priest for Life’s m ission and with the assurance that Priests for Life wi ll continue to adhere to, dissem inate, and report reliable Catholic teaching on the sanctity of life and human sexuality.
100. Priests for Life cannot use donated f unds for purposes known to be m orally repugnant to its donors and in ways that would violate the im plicit trust of the purpose for their donations.
101. Priests for Life’s next plan year will commence on January 1, 2014. Priests for Life — Harm Caused by the Imposition of the Challenged Mandate 102. Because of the contraceptive servi ces m andate, in cluding the s o-called “accommodation,” Priests for Life mu st now make busin ess decisions that will affect its ability to continue the services it provides. As a nonprofit organization, Priests for Lif e funds its operations alm ost entirely thr ough tax-deductible donations, includi ng planned giving. Priests for Life m ust make business decisions now base d on what it expects to receive in donations in
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the future. This requires Priests for Life to look several years ahead to determine what its budget will be and thus what s ervices it will be capab le of providing. Priests for Life’s donors will no t support an organization that provides its employees with access to contraception, sterilization, or abortifacients—practices that r un counter to Priests for Life’s mission, goals, and m essage—the very basis for the donations in the first instance.
103. Indeed, the current mandate with its limited religious employer exemption and socalled “accommodation” will force Priests for Life out of the market for health care services and thus adversely affect it as an organization. Many of Priests for Life’s valued employees, without whom Priests for Life could not provide its m uch needed services, will be forced to leave Priests for Life and seek other employment that provides health care benefits.
104. The contraceptive services m andate is cau sing Priests for Life to feel econom ic and m oral pressure today as a result of the government imposing subs tantial bu rdens on th e religious beliefs and practices of Priests for Life.
105. In sum, Priests for Life, a Catholic organization, is morally prohibited based on its sincerely held religious convictions from cooperating with evil. Priests for Life objects to being forced by the governm ent to purchase a health care plan that provides its employees with access to contracep tives, sterilization, a nd abortifacients, all of which are proh ibited by its religious convictions. This is true whether the imm oral services are paid for direc tly, indirectly, or even not at all by Priests for Life. Contracepti on, ste rilization, and abor tifacients ar e imm oral regardless of their cost. And Priests for Life objects to the governm ent forcing it into a m oral dilemma with regard to its relationsh ip with its e mployees and its very su rvival as an effective, pro-life organization.
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FIRST CLAIM FOR RELIEF (Free Exercise of Religion — Violation of the First Amendment) 106. Plaintiffs hereby incorporate by reference all stated paragraphs set forth herein. 107. The contra ceptive serv ices m andate, as set f orth in this Complaint, vio lates the Free Exercise Clause of the First Amendment to the United States Constitution. 108. Plaintiffs’ sincerely held religious be liefs prohibit them from promoting or supporting—directly or indirect ly—contraception, sterilization, abortifacients, abortion, and related education and counseling, including providing a h ealth care p lan that p rovides access to or the m eans of acquiring such immoral services. Plaintiffs’ compliance with th ese beliefs is a religious exercise. 109. The contrac eptive se rvices mandate, as set f orth in this Complaint, sub stantially burdens Plaintiffs’ sincerely held religious beliefs. 110. The contr aceptive serv ices m andate, as se t f orth in this Com plaint, crea tes government-imposed coercive pressure on Plaintiffs to change or violat e their sincerely held religious beliefs. 111. The contraceptive services mandate, as set forth in this Complaint, exposes Priests for Life to significan t com petitive disadvan tage, in that it will no longer be able to offer its employees health insurance. 112. The contrac eptive s ervices m andate, as set f orth in th is Com plaint, does no t further any compelling governmental interest. 113. The contraceptive services mandate, as set forth in this Complaint, is not the least restrictive means to accomplish any permissible governmental interest.
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114. The contraceptive services mandate, as set forth in this Complaint, is a restriction on the free exercise of religion w hich is not narrowly tailored to advance any perm issible governmental interest.
115. The contraceptive services mandate, as set forth in this Complaint, is not a neutral law of general applicability.
116. Notwithstanding its rec eipt of m ultiple obj ections to the c ontraceptive servic es mandate on the basis that it woul d violate sincerely held religi ous beliefs, Defe ndants designed that requ irement and its re ligious em ployer exemption and “accom modation” in a way that makes it impossible for Plaintiffs to comply with their religious beliefs.
117. By design, the contraceptive services m andate, as set forth in this Complaint, is imposed on som e religious organizations, but not others, resulting in discrim ination am ong religions.
118. The contraceptive s ervices m andate, as set forth in this Com plaint, is of ficial government action that targets re ligious conduct and beliefs for di stinctive, discriminatory, and adverse treatment.
119. Defendants prom ulgated the contraceptive services m andate, as set forth in this Complaint, to adversely target and suppress the right to free ex ercise of religion of religious organizations such as Priests for Life.
120. Defendants’ violation of Plai ntiffs’ right to free exercise of religion has caused, and will continue to cause, Plaintiffs to suffer undue hardship and irreparable injury.
SECOND CLAIM FOR RELIEF (Violation of the Religious Freedom Restoration Act) 121. Plaintiffs hereby incorporate by reference all stated paragraphs set forth herein.
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122. The contra ceptive serv ices m andate, as set f orth in this Complaint, vio lates the Religious Freedom Restoration Act. 42 U.S.C. § 2000bb, et seq.
123. Plaintiffs’ sincerely held religious be liefs prohibit them from promoting or supporting—directly or indirect ly—contraception, sterilization, abortifacients, abortion, and related education and counseling, including providing a h ealth care p lan that p rovides access to or the m eans of acquiring such immoral services. Plaintiffs’ compliance with th ese beliefs is a religious exercise.
124. The contrac eptive se rvices mandate, as set f orth in this Complaint, sub stantially burdens Plaintiffs’ sincerely held religious beliefs.
125. The contrac eptive s ervices m andate, as set f orth in th is Com plaint, does no t further any compelling governmental interest.
126. The contraceptive services mandate, as set forth in this Complaint, is not the least restrictive means to accomplish any permissible governmental interest.
127. Defendants’ violation of the Religious Freedom Restoration Act has caused, and will continue to cause, Plaintiffs to suffer undue hardship and irreparable injury.
THIRD CLAIM FOR RELIEF (Freedom of Speech and Expressive Association — Violation of the First Amendment)
128. Plaintiffs hereby incorporate by reference all stated paragraphs set forth herein. 129. The contrac eptive s ervices m andate, as set f orth in th is Com plaint, violate s Plaintiffs’ right to freedom of spe ech and ex pressive ass ociation gu aranteed by the First Amendment to the United States Constitution. 130. The contraceptive services m andate, as set f orth in th is Com plaint, com pels Priests for Life to subsidize and/or provide access to education and counseling regarding
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contraceptive m ethods, sterilizatio n procedures, and abortif acients in violation of its sincerely held religious beliefs.
131. The contraceptive services m andate, as set f orth in th is Com plaint, com pels Priests f or Lif e to enga ge in spee ch that is co ntrary to its since rely h eld re ligious belief s and contrary to the m essage that Fr. Pavone and Plai ntiffs King and Morana express on behalf of Priests for Life pursuant to their association with the pro-life organization.
132. By subjecting Priests for Life to the contraceptive services mandate as set forth in this Com plaint, Defendants are infringing upon the constitutional freedom s of Fr. Pavone and Plaintiffs King and Morana, who associate with Priests for Life for purposes of promoting the culture of life through speech and religious activities protected by the First Amendment.
133. The contraceptive services mandate, as set forth in this Complaint, is not narrowly tailored to advance a compelling governmental interest.
134. Defendants prom ulgated the contraceptive services m andate, as set forth in this Complaint, with the intent and purpose to harm the pro-life speech of religious organizations and individuals such as Plaintiffs.
135. Defendants’ violation of Plaintiffs’ right to free speech and expressive association has caused, and will continue to cause, Plaintiffs to suffer undue hardship and irreparable injury.
FOURTH CLAIM FOR RELIEF (Establishment Clause — Violation of the First Amendment) 136. Plaintiffs hereby incorporate by reference all stated paragraphs set forth herein. 137. By favoring som e religious beliefs and pr actices, but disfavor ing those sincerely held religious beliefs and practic es of Plaintiffs, Defendants ha ve vio lated the Es tablishment Clause of the First Amendment.
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138. The contraceptive services mandate, as set forth in this Complaint, lacks a secular purpose, has the prim ary effect of inhibiting religion, and creates excessive enta nglement with religion in violation of the Establishment Clause.
139. The contra ceptive serv ices m andate, as set f orth in this Complaint, co nveys an impermissible, governm ent-sponsored m essage of disapproval of and hostility toward the Catholic C hurch and Catholic religious belie fs and practices. As a result, Defendants’ contraceptive services mandate sen ds a clear m essage to Plaintiffs and others who are adherents to the Ca tholic faith that they a re outsiders, not full m embers of the political comm unity and an accompanying message that those who oppose the Catholic Church and Catholic religious beliefs and practices by accep ting and pro moting contraceptive services, are insiders, favored m embers of the political community, in violation of the Establishment Clause.
140. Defendants’ violation of the Establis hment Clause has cause d, and will continue to cause, Plaintiffs to suffer undue hardship and irreparable injury.
FIFTH CLAIM FOR RELIEF (Equal Protection — Violation of the Fifth Amendment) 141. Plaintiffs hereby incorporate by reference all stated paragraphs set forth herein. 142. By exe mpting som e religious organiza tions from the requirem ents of the Affordable Care Act an d its con traceptive services mandate on the basis of religious beliefs and practices, but forcing Priests for Life to comply in violation of its sincerely held religious beliefs, Defendants have deprived Plaintiffs of the equa l protection of the law guaranteed under the Fifth Amendment to the United States Constitution.
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143. By favoring som e religious beliefs and pr actices, but disfavor ing those sincerely held religious beliefs and practices of Plaintiffs, Defendants have deprived Plaintiffs of the equal protection of the law guaranteed under the Fifth Amendment.
144. The contraceptive services mandate, as se t forth in th is Complaint, discriminates amongst similarly situated religious organizations on the basis of religious beliefs and practices in violation of the equal protection guarantee of the Fifth Amendment.
145. Defendants’ violation of the Fif th Am endment has caused, and will continue to cause, Plaintiffs to suffer undue hardship and irreparable injury.
PRAYER FOR RELIEF Wherefore, Plaintiffs pray for judgment as follows: A. That this Court declare that the contraceptive services mandate, as set forth in this Complaint, violates the First and Fifth Am endments to th e United States Cons titution and th e Religious Freedom Restoration Act; B. That this C ourt prelim inarily and perm anently enjoin the c ontraceptive services mandate, as set forth in this Complaint; C. That this Court award Plaintiffs their r easonable costs, includ ing attorney’s fees, pursuant to 28 U.S.C. § 2412, 5 U.S.C. § 504, 42 U.S.C. § 2000bb-1, and the general legal and equitable powers of this Court; D. That this C ourt grant such other and furt her relief as it d eems equitable and just under the circumstances.
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/s/ David

Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise Robert J. Muise, Esq. (D.C. Court Bar No. MI 0052) P.O. Box 131098 Ann Arbor, Michigan 48113 Tel: (734) 635-3756 rmuise@americanfreedomlawcenter.org
David Yerushalmi Yerushalmi, Esq. (DC Bar No. 978179)
1901 Pennsylvania Avenue NW Suite 201 Washington, D.C. 20006 dyerushalmi@americanfreedomlawcenter.org (646) 262-0500
Counsel for Plaintiffs

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 Case 1:13-cv-01261-EGS Document 36 Filed 12/19/13 Page 1 of 45

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________

)

PRIESTS FOR LIFE, et al.,

)

)

Plaintiffs,

)

)

v. UNITED STATES DEPARTMENT OF

) Civil Action No. 13-1261 (EGS) ) )

HEALTH AND HUMAN SERVICES,

)

et al.

)

)

Defendants.

)

________________________________ )

MEMORANDUM OPINION
This case presents one of many challenges to the contraceptive services mandate of the Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010). A number of circuits, including the District of Columbia Circuit, have examined the mandate’s requirements regarding contraceptive coverage for employees of for-profit companies; that issue is now pending before the Supreme Court. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, (10th Cir. 2013) (en banc), cert. granted, 2013 U.S. LEXIS 8418 (U.S. Nov. 26, 2013) (Case No. 13-354); Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013), cert. granted, 2013 U.S. LEXIS 8418 (U.S. Nov. 26, 2013) (No. 13-354); see also, e.g., Gilardi v. United States Dep’t of Health and Human Services, 733 F.3d 1208 (D.C. Cir. 2013).

Case 1:13-cv-01261-EGS Document 36 Filed 12/19/13 Page 2 of 45
The instant case presents a different issue: the obligations, vel non, of non-profit religious organizations to provide contraceptive coverage under the mandate. These organizations are eligible for an accommodation to the mandate; specifically, they are not required to provide contraceptive coverage to their employees if they object to doing so on religious grounds. Under the regulations, an employer in this situation can self-certify to its health insurance issuer that it has a religious objection to providing coverage for contraceptive services as part of its health insurance plan. Once the issuer receives the self-certification, the non-profit organization is exempt from the mandate. The organization’s employees will receive coverage for contraceptive services, but that coverage will be provided directly through the issuer. The coverage is excluded from the employer’s plan of benefits, and the issuer assumes the full costs of coverage; it is prohibited from charging any co-payments, deductibles, fees, premium hikes or other costs to the organization or its employees.
Priests for Life, a non-profit organization which takes a “vocal and active role in the pro-life movement,” Complaint ¶ 73, and three of its employees have filed this lawsuit objecting to the accommodation to the mandate. They allege that the selfcertification Priests for Life must provide to its issuer violates their rights under the Religious Freedom Restoration
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Act, 42 U.S.C. §§ 2000bb, et seq. (“RFRA”), and the First and Fifth Amendments to the Constitution.
The Supreme Court has made clear that religious exercise is impermissibly burdened when government action compels individuals “to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). At the same time, acts of third parties, which do not cause adherents to act in violation of their religious beliefs, do not constitute an impermissible burden. Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008). The right to religious freedom “simply cannot be understood to require the Government to conduct its [] affairs in ways that comport with the religious beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699 (1986). Religious freedom is protected “in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.” Lyng v. N’west Indian Cemetery Protective Assn., 485 U.S. 439, 451 (1988) (citations omitted).
Plaintiffs here do not allege that the self-certification itself violates their religious beliefs. To the contrary, the certification states that Priests for Life is opposed to providing contraceptive coverage, which is consistent with those beliefs. Indeed, during oral argument, plaintiffs stated that they have no religious objection to filling out the self-
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certification; it is the issuer’s subsequent provision of coverage to which they object. But filling out the form is all that the ACA requires of the plaintiffs in this case.
There is no doubt that the plaintiffs find the statute’s requirement that the issuer provide contraceptive coverage profoundly opposed to their religious scruples. But the issuer’s provision of coverage is just that -- an entirely third party act. The issuer’s provision of coverage does not require plaintiffs to “perform acts” at odds with their beliefs. Yoder, 406 U.S. at 218. Accordingly, the accommodations to the contraceptive services mandate do not violate their religious rights.
Pending before the Court is the plaintiffs’ motion for summary judgment and the defendants’ cross motion to dismiss or in the alternative for summary judgment. Upon consideration of the motions, the oppositions and replies thereto, the Amicus Curiae brief of the American Civil Liberties Union, the entire record, and for the reasons explained below, defendants’ motion to dismiss is GRANTED; accordingly, the parties’ motions for summary judgment are hereby DENIED AS MOOT.
I. BACKGROUND Priests for Life is a non-profit corporation incorporated
in the State of New York, and Father Frank Pavone, Alveda King, and Janet Morana are among its employees. Compl. ¶¶ 6-11. “A
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deep devotion to the Catholic faith is central to the mission of Priests for Life.” Compl. ¶ 85. Its mission is to “unite and encourage all clergy to give special emphasis to the life issues in their ministry . . . [and] to help them take a more vocal and active role in the pro-life movement.” Compl. ¶ 73. Accordingly, “contraception, sterilization, abortifacients1 and abortion . . . are immoral and antithetical to Priests for Life’s religious mission.” Id. Priests for Life provides health insurance for its employees. Compl. ¶ 93. The next plan year will commence on January 1, 2014. Compl. ¶ 101.
Plaintiffs’ claims arise out of certain regulations promulgated in connection with the ACA. The Act requires all group health plans and health insurance issuers that offer nongrandfathered group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, for “women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(“HRSA”)].” 42 U.S.C. § 300gg-13(a)(4). The HRSA, an agency within the Department of Health and Human Services (“HHS”), commissioned the Institute of Medicine (“IOM”) to conduct a
1 Plaintiffs use the word “abortifacient” to refer to drugs such as Plan B and Ella that they allege cause abortions. See, e.g., Compl. ¶ 37. Plaintiffs do not allege that the regulations will require them to provide insurance coverage for the medical procedure of abortion.
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study on preventive services. On August 1, 2011, HRSA adopted IOM’s recommendation to include “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), available at http://www.hrsa.gov/womensguidelines/ (last visited Dec. 17, 2013).
Several exemptions and safe-harbor provisions excuse certain employers from providing group health plans that cover women’s preventive services as defined by HHS regulations. First, the mandate does not apply to certain “grandfathered” health plans in which individuals were enrolled on March 23, 2010, the date the ACA was enacted. 75 Fed. Reg. 34,538 (June 17, 2010). Second, certain “religious employers” are excluded from the mandate. See, e.g., 76 Fed. Reg. 46,621 (Aug. 3, 2011); 45 C.F.R. § 147.130(a)(1)(iv)(A). On June 28, 2013, the government issued final rules on contraceptive coverage and religious organizations; the rules became effective August 1, 2013. 78 Fed. Reg. 39,870 (July 2, 2013). These regulations are the subject of this case.
Under the final regulations, a “religious employer” exempt from the contraceptive services mandate is “an organization that is organized and operates as a nonprofit entity and is referred
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to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal
Revenue Code,” which refers to churches, their integrated
auxiliaries, and conventions or associations of churches, and
the exclusively religious activities of any religious order. 45
C.F.R. § 147.131(a). Non-profit organizations which do not
qualify for this exemption may, however, qualify for an
accommodation with respect to the contraceptive coverage
requirement if they are “eligible organizations” under the
regulations. An “eligible organization” must satisfy the
following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in the form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (1) through (3), and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation applies.
45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75.
Once an eligible organization provides a copy of a self-
certification to its issuer, which provides coverage in
connection with the group health plan, the organization is
relieved of its obligation “to contract, arrange, pay or refer
for contraceptive coverage” to which it has religious
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objections. 78 Fed. Reg. at 39,874. The group health plan
issuer which receives the self-certification form must (1)
exclude contraceptive coverage from the group health insurance
coverage provided in connection with the group health plan, and
(2) provide separate payments for any contraceptive services
required to be covered for plan participants and beneficiaries.
The issuer may not impose any cost-sharing requirements (such as
a copayment, coinsurance or a deductible) on plan participants
or beneficiaries. 78 Fed. Reg. at 39,896. Likewise, the issuer
is prohibited from imposing any premium, fee, or other charge,
or any portion thereof, directly or indirectly, on the eligible
organization or the group health plan. Id. Failure to self-
certify or otherwise comply with the mandate will result in
Priests for Life’s issuer including contraceptive services
within Priests for Life’s healthcare policy, and charging the organization for such coverage.2
2 During the initial briefing, the parties stated that if Priests for Life refused the accommodation, it could be fined $100 per employee per day. 26 U.S.C. § 4980D. At oral argument, however, the government informed the court that the ACA imposes an independent obligation on insurers to sell policies which comply with the law, including, e.g., coverage for contraceptive services. See Defs.’ Suppl. Mem. at 1-4 [ECF No. 31], citing 42 U.S.C. §§ 300gg-13; 300gg-22; 76 Fed. Reg. 46,621, 623 (Aug. 3, 2011). This does not alter the analysis, however. Under the statute and regulations, if Priests for Life refuses the accommodation, it would then be placed in the position of providing contraceptive services to its employees as part of its plan of benefits, and paying for such services. As this Circuit held in Gilardi, this arrangement would substantially burden
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The parties agree that Priests for Life does not qualify for an exemption to the contraceptive services mandate. The grandfathered plans provision does not protect the organization because the current health insurance plan has made changes since 2010, including an increase in the percentage cost-sharing requirement. See Decl. of Fr. Pavone, ECF No. 7-1, at ¶ 5. Priests for Life also does not satisfy the definition of “religious employer” and is not eligible for an exemption on that ground. Id. at ¶ 3. Finally, the parties agree that Priests for Life would qualify as an “eligible organization,” entitled to the accommodation, if it completes the selfcertification form. Compl. ¶ 6.
Priests for Life states that completing the selfcertification form will require it to violate its sincerely held religious beliefs because “the government mandate forces Priests for Life to provide the means and mechanism by which contraception, sterilization and abortifacients are provided to its employees. . . . There is no logical or moral distinction between the [] contraceptive services mandate . . . and the “accommodation[.]” . . . Priests for Life [is] still paying an insurer to provide [its] employees with access to a product [] that violates [its] religious convictions.” Compl. ¶¶ 69-70,
Plaintiffs’ free exercise of religion. Gilardi, 733 F.3d at 1216-19.
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see also id. ¶ 105 (“Priests for Life objects to being forced by the government to purchase a health care plan that provides its employees with access to contraceptives, sterilization and abortifacients, all of which are prohibited by its religious convictions. This is true whether the immoral services are paid for directly, indirectly, or even not at all by Priests for Life.”).
On September 19, 2013, plaintiffs moved for a preliminary injunction as to all counts of the Complaint. On September 25, 2013, the parties agreed to consolidate the preliminary injunction motion with the merits under Federal Rule of Civil Procedure 65(a)(2). Thereafter, plaintiffs filed a motion for summary judgment and defendants filed a cross motion to dismiss or in the alternative for summary judgment. Toward the end of the briefing schedule set by the Court, the D.C. Circuit issued its decision in Gilardi, addressing religious freedom claims arising from different regulations under the ACA’s contraceptive services mandate. Following Gilardi, the Court ordered the parties to file supplemental briefs addressing its impact on this case. The Court heard oral argument on the parties’ cross motions on December 9, 2013. The motions are ripe for determination by the Court.
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II. STANDARD OF REVIEW A. Motion to Dismiss A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted; alteration in original). While detailed factual allegations are not necessary, plaintiffs must plead enough facts “to raise a right to relief above the speculative level.” Id.
When ruling on a Rule 12(b)(6) motion, the court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002). The Court must construe the complaint liberally in plaintiffs’ favor and grant plaintiffs the benefit of all reasonable inferences deriving from the complaint. Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court must not accept plaintiffs’ inferences that are “unsupported by the facts set out in the complaint.” Id. “Nor must the court
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accept legal conclusions cast in the form of factual allegations.” Id. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
B. Motion for Summary Judgment Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham
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v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, “[a]ll underlying facts and inferences are analyzed in the light most favorable to the nonmoving party.” N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.
III. DISCUSSION A. Standing The parties do not dispute that Priests for Life, a non-
profit religious organization, has standing to advance all of its constitutional and statutory claims. See, e.g., Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 381, 384 (1990); EEOC v. Catholic Univ. of Am., 83 F.3d 455, 467-70 (D.C. Cir. 1996). The Court, therefore, has jurisdiction to hear and decide the issues presented by this case. Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-orcontroversy requirement.”).
While the defendants challenge standing of the individual plaintiffs, they acknowledge that the individual plaintiffs’ claims are identical to Priests for Life’s claims. See Defs.’ Combined Mot. to Dismiss or for Summ. J and Opp’n to Pls.’ Mot. (hereinafter “Defs.’ Mot.”) at 13, n.8. At oral argument, the
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parties agreed that it is unnecessary for the Court to address the standing of the individual plaintiffs. See, e.g., Chamber of Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011) (it is unnecessary to address the standing of party whose presence or absence is immaterial to a suit’s outcome, where another party clearly has standing) (citation omitted). Accordingly, because the presence of the individual plaintiffs has no impact on the merits of this case, the Court need not reach the issue of their standing.
B. The RFRA The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb1, provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).” Subsection (b) provides that “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Congress enacted the RFRA in response to the Supreme Court’s decision in Employment Division, Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990), in which the Court held that the right to free exercise of religion under the
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First Amendment does not exempt an individual from a law that is neutral and of general applicability, and explicitly disavowed the test used in earlier decisions, which prohibited the government from substantially burdening a plaintiff’s religious exercise unless the government could show that its action served a compelling interest and was the least restrictive means to achieve that interest. 42 U.S.C. § 2000bb. The purpose of the RFRA was to “restore the compelling interest test” as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). Id.
In order to state a prima facie case under RFRA, and thus to survive a motion to dismiss, plaintiffs must allege a substantial burden on their religious exercise. The statute defines “religious exercise” broadly, as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4); 2000cc-5. The RFRA does not define “substantial burden,” but because the RFRA intends to restore Sherbert and Yoder, those cases are instructive in determining the meaning of that term. In Sherbert, plaintiff’s exercise of her religion was impermissibly burdened when plaintiff was forced “to choose between following the precepts of her religion,” resting and not working on the Sabbath and forfeiting certain unemployment benefits as a result, or “abandoning one of the precepts of her religion in
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order to accept work.” 374 U.S. at 404. In Yoder, the “impact of the compulsory [school] attendance law on respondents’ practice of the Amish religion [was found to be] not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” 406 U.S. at 218.
This Circuit also recently addressed the issue of substantial burden in the context of a RFRA challenge to the ACA in Gilardi. The Gilardi brothers are the two owners of closely held for-profit companies. Their companies are not eligible for the accommodations available to Priests for Life; the regulations require such companies to provide contraceptive coverage for the participants and beneficiaries in their group health plans. The Gilardis challenged the provisions of the contraceptive mandate which would have required them to directly provide contraceptive coverage to their employees, claiming it substantially burdened their religious beliefs opposing contraception. The Circuit agreed, finding that “the burden on religious exercise . . . occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan. In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties.” 733
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F.3d at 1217. “The contraceptive mandate,” as applied to
companies not eligible for the accommodations, “demands that
owners like the Gilardis meaningfully approve and endorse the
inclusion of contraceptive coverage in their companies’
employer-provided plans.” Id. at 1217-18.
Unlike the Gilardis, Priests for Life is eligible for the
accommodations to the mandate, and therefore is not required to
provide contraceptive services to its employees. To take
advantage of the accommodations, Priests for Life will be
required to provide its insurer with a self-certification form
stating that it is a religious, non-profit organization which
opposes providing coverage for some or all of any contraceptive
services required to be covered by the mandate. 78 Fed. Reg. at
39,874, 39,892.3 Plaintiffs argue that the self-certification
3 In addition, Priests for Life claims that it will be required to “identify its employees to its insurer for the distinct purpose of enabling and facilitating the government’s objective of promoting the use of contraceptive services;” Pls.’ Mot. for Prelim. Inj. at 7 (hereinafter “Pls.’ Mot.”); and “coordinate with its insurer when adding or removing employees and beneficiaries from its health care plan to ensure that these individuals receive coverage for contraceptive services,” id. at 8. Plaintiffs provide no support for their claim that the challenged regulations require either of these things, and admitted at oral argument that Priests for Life must “identify” its employees to its insurer and “coordinate” with its insurer in order to provide its current health care plan to its employees. Priests for Life also suggests, without support, that it will ultimately have to bear the costs of the contraceptive services mandate, because the insurance companies will somehow find a way to either raise premiums to cover the cost of such coverage, or fail to lower premiums to reflect the
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substantially burdens their exercise of religion because the accommodations require Priests for Life to “promote, facilitate and cooperate in the government’s immoral objective to increase the use of contraceptive services in direct violation of Plaintiffs’ sincerely held religious beliefs.” Pls.’ Mot. at 1. “[B]ecause Priests for Life provides its employees with a health care plan, the government mandate forces Priests for Life to provide the means and mechanism by which contraception, sterilization, and abortifacients (and related education and counseling) are provided to its employees (and beneficiaries), which is unacceptable to Plaintiffs because it violates their sincerely held religious beliefs.” Id. at 9. “This is true whether the immoral services are paid for directly, indirectly, or even not at all by Priests for Life.” Id. at 15. In sum, Plaintiffs alleges they are pressured to choose between violating their religious beliefs by “support[ing] and provid[ing] access to” the services provided under the contraception mandate, or “leaving the health care insurance market altogether.” Id. at 16.
savings to the insurer by its provision of such coverage. Pls.’ Mot. at 9, n.6, 10, n.7. The plain language of the regulations, however, prohibits insurers from passing along any costs of contraceptive coverage to eligible organizations such as Priests for Life, whether through cost-sharing, premiums, fees, or other charges. 78 Fed. Reg. at 39,875-77. The Court declines, therefore, to find a substantial burden exists on any of these grounds.
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Defendants do not question the sincerity of Plaintiffs’ religious beliefs, but they do dispute whether the accommodations impose a substantial burden on the exercise of those beliefs. Defendants argue that the regulations impose no more than a de minimis burden on Plaintiffs’ religious exercise because the regulations “do not require Priests for Life to “modify [its] religious behavior in any way.”” Defs.’ Mot. at 15 (quoting Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008)). Defendants contend that Priests for Life “is not required to contract, arrange, pay or refer for contraceptive coverage . . . Priests for Life need not do anything more than it did prior to the promulgation of the challenged regulations – that is, to inform its issuer that it objects to providing contraceptive coverage in order to insure that it is not responsible for contracting, arranging, paying or referring for such coverage.” Id. at 14-15. The self-certification form only “require[s] [Priests for Life] to inform its issuer that it objects to providing contraceptive coverage, which it has done . . . voluntarily anyway even absent these regulations” in order to insure that it does not provide such coverage. Id. 15-16. Accordingly, Defendants argue that completing the selfcertification form “is at most, de minimis, and thus cannot be “substantial” under RFRA.” Id. 17. For the reasons set forth below, the Court agrees with the government.
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A substantial burden exists when government action puts “substantial pressure on an adherent to modify his behavior and violate his beliefs.” Gilardi, 733 F.3d at 1216 (quoting Kaemmerling, 553 F.3d at 678); see also Yoder, 406 U.S. at 218 (law substantially burdens the exercise of religion if it compels individuals “to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”) “An inconsequential or de minimis burden on religious practice does not rise to this level[.]” Kaemmerling, 553 F.3d at 678. Finally, an adherent is not substantially burdened by laws requiring third parties to conduct their internal affairs in ways that violate his beliefs. Id. at 679.
In Kaemmerling, a federal prisoner claimed that the statutorily mandated collection and use of his DNA for purposes of a national law enforcement database substantially burdened his free exercise rights. Kaemmerling alleged that the collection, storage, and use of his DNA violated his sincerely held religious beliefs. The D.C. Circuit “accept[ed] as true the factual allegations that Kaemmerling’s beliefs are sincere and of a religious nature,” 553 F.3d at 679. The Court further noted that the government commanded compliance with the statute; failure to cooperate with collection of a fluid sample from which the DNA would be isolated is a misdemeanor offense. Id. at 673. Nevertheless, the Court rejected his RFRA claim
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because the government was not forcing him to modify his own
behavior. The Court explained:
Kaemmerling does not allege facts sufficient to state a substantial burden . . . because he cannot identify any “exercise” which is the subject of the burden to which he objects. The extraction and storage of DNA information are entirely the activities of the FBI, in which Kaemmerling plays no role and which occur after the [prison] has taken his fluid or tissue sample (to which he does not object). The government’s extraction, analysis, and storage of Kaemmerling’s DNA information does not call for Kaemmerling to modify his religious behavior in any way – it involves no action or forbearance on his part, nor does it otherwise interfere with any religious act in which he engages. Although the government’s activities with his fluid or tissue sample after the [prison] takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his religious exercise because they do not “pressure [him] to modify his behavior and to violate his beliefs.” Thomas v. Review Bd., 450 U.S. 707, 718 (1981).
Kaemmerling alleges no religious observance that the DNA Act impedes, or acts in violation of his religious beliefs that it pressures him to perform. Religious exercise necessarily involves an action or practice, as in Sherbert, where the denial of unemployment benefits “impede[d] the observance” of the plaintiff's religion by pressuring her to work on Saturday in violation of the tenets of her religion, 374 U.S. at 404, or in Yoder, where the compulsory education law compelled the Amish to “perform acts undeniably at odds with fundamental tenets of their religious beliefs,” 406 U.S. at 218. Kaemmerling, in contrast, alleges that the DNA Act’s requirement that the federal government collect and store his DNA information requires the government to act in ways that violate his religious beliefs, but he suggests no way in which these governmental acts pressure him to modify his own behavior in any way that would violate his beliefs. See Appellant's Br. at 21 (describing alleged substantial burden as “knowing [his] strongly held beliefs had been violated by a[n] unholy act of an oppressive regime”).
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553 F.3d at 679.4 The Kaemmerling court relied on Bowen v. Roy,
in which a Native American man objected to the states’ use of
his child’s Social Security number in determining eligibility
for welfare benefits. The parents objected to a statutory
requirement that state agencies “shall utilize” Social Security
numbers “not because it place[d] any restriction on what [the
father] may believe or what he may do, but because he believes
the use of the number,” a governmental act, “may harm his
daughter’s spirit.” 476 U.S. 693, 699 (1986). The Supreme
Court concluded that the government’s use of the child’s Social
Security number did not impair her parents’ freedom to exercise
their religion.
Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise clause simply cannot be understood to require the Government to conduct its own internal affairs in ways
4 Other Circuits have also emphasized the requirement that an adherent be pressured to modify his own conduct in order to show a substantial burden on religious exercise. See, e.g., Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir. 2008) (en banc) (to establish a substantial burden under RFRA, governmental action must “coerce the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, [or] condition a governmental benefit upon conduct that would violate their religious beliefs.”); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (“within the meaning of RFRA, a substantial burden on religious exercise is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to these beliefs.”) (internal citation omitted).
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that comport with the religious beliefs of particular citizens. . . . [A]ppellees may not demand that the Government join in their chosen religious preferences by refraining from using a number to identify their daughter. Id. at 699-700. Other Supreme Court decisions have similarly rejected free exercise challenges to laws which would not require a plaintiff to modify his own behavior, but would permit a third party to engage in behavior to which the plaintiff objects on religious grounds. In Lyng, the Court rejected Native American tribes’ challenge to government building roads and harvesting timber on national forest land used by the tribes for religious purposes. The Court explained “government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs,” do not violate the First Amendment. 485 U.S. 439, 450 (1988). “The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government . . . ” Id. at 451 (quoting Sherbert, 374 U.S. at 412 (Douglas, J., concurring)). In this case, the Court does not doubt the sincerity of Plaintiffs’ beliefs, nor does it doubt that condemnation of contraception is central to their exercise of the Catholic religion. “It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the
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validity of particular litigants’ interpretation of those
creeds.” Hernandez v. Comm’r of Internal Revenue Serv., 490
U.S. 680, 699 (1989). However, to prevail under the substantial
burden test Plaintiffs must show more than a governmental action
that violates their sincerely held religious beliefs; they must
show that the governmental action forces Priests for Life,
itself, to modify its own behavior in violation of those
beliefs. Kaemmerling, 553 F.3d at 679.5 This is where
Plaintiffs’ RFRA challenge must fail--like the challenges in
Kaemmerling and Bowen, the accommodations to the contraceptive
mandate simply do not require Plaintiffs to modify their
religious behavior. The accommodation specifically ensures that
provision of contraceptive services is entirely the activity of
5 For this reason, inter alia, the Court is not persuaded by the rationale articulated in two recent cases that a plaintiff can meet his burden of establishing that the accommodation creates a “substantial burden” upon his exercise of religion simply because he claims it to be so. See Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12-2542, 2013 U.S. Dist. LEXIS 176432, *44 (E.D.N.Y. Dec. 13, 2013) (stating that plaintiffs “consider [completing the self-certification] to be an endorsement of [contraceptive services] coverage to which they object; to them, the self-certification compels affirmation of a repugnant belief. It is not for this Court to say otherwise.”); see also Zubik v. Sebelius, No. 13-1459, 2013 U.S. Dist. LEXIS 165922, *79-*82 (W.D. Pa. Nov. 21, 2013) (reaching the same conclusion). In this Court’s view, those opinions misconceive RFRA’s substantial burden test, which requires courts to “accept as true the factual allegations that [a plaintiff’s] beliefs are sincere and of a religious nature – but not the legal conclusion, cast as a factual allegation, that his religious exercise is substantially burdened.” Kaemmerling, 553 F.3d at 679.
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a third party – namely, the issuer – and Priests for Life plays no role in that activity. As in Kaemmerling, “[a]lthough the [third party]’s activities . . . may offend [plaintiff’s] religious beliefs, they cannot be said to hamper [his] religious exercise.” 553 F.3d at 679.
Priests for Life attempts to distinguish Kaemmerling on the grounds that Mr. Kaemmerling did not object to the government taking his fluid, hair, or tissue samples; he only objected to the subsequent extraction and storage of his DNA. Priests for Life claims that in this case, “the coverage for the morally objectionable contraceptive coverage will occur only because Priests for Life has played an active role in purchasing a healthcare plan and then authorizing the issuer of its plan through “self-certification” to provide the objectionable coverage directly to its plan participants and beneficiaries (a role that is prohibited by Plaintiffs’ religion) and thereby cooperating with and thus facilitating the government’s illicit objective “to increase access to and utilization of” contraceptive services (cooperation that is prohibited by Plaintiffs’ religion).” Pls.’ Combined Opp’n to Govt’s Mot./Reply in Support of Pls.’ Mot. (hereinafter “Pls.’ Opp’n/Reply”) at 23 (emphasis in original). The Court does not find this distinction to be meaningful. The governmental action in Kaemmerling could not have occurred without the plaintiff
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playing an active role by providing a blood sample. Nevertheless, the court rejected claims that his action constituted a substantial burden because the action did not, in and of itself, violate plaintiff’s religious beliefs. The fact that government action thereafter was deeply offensive to his beliefs did not give rise to a RFRA claim. See Kaemmerling, 553 F.3d at 679 (plaintiff’s knowledge that his “strongly held beliefs had been violated by a[n] unholy act of an oppressive regime” was not enough to violate the RFRA because the government’s actions do not “pressure him to modify his own behavior in any way that would violate his beliefs.”); see also Bowen, 476 U.S. at 699-700 (rejecting plaintiff’s challenge to the government’s use of his daughter’s Social Security number because it “may harm his daughter’s spirit. . . . The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.”)
In this case, Plaintiffs assert an objection to a single requirement the regulations impose on Priests for Life directly: completing a self-certification form stating that it is a nonprofit religious organization which objects to providing contraceptive services coverage. Pls.’ Mot. at 7. However, during oral argument Plaintiffs conceded that they have no
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religious objection to the self-certification form, in and of itself. Rather, Plaintiffs’ act under the accommodations becomes burdensome only when it is characterized as “cooperating” with or providing “authorization” for “the government’s illicit goal of increasing access to and utilization of contraceptive services.” Pls.’ Opp’n/Reply at 23. But no matter how religiously offensive the statutory or regulatory objective may be, the law does not violate RFRA unless it coerces individuals into acting contrary to their religious beliefs. See Lyng, 458 U.S. at 450. In this case, it is only the subsequent actions of third parties – the government’s and the issuer’s provision of contraceptive services, in which Priests for Life plays no role – that animate its religious objections. Under Bowen and Kaemmerling, however, RFRA does not permit Plaintiffs to proscribe the conduct of others.
Plaintiffs’ reliance on Sherbert, Yoder, and Thomas is unavailing. Pls.’ Mot. at 21. Plaintiffs argue that these cases, particularly Thomas, established that the impact of a “substantial burden” need not be direct. Id. at 20. In each of these cases, however, the burdens of the governmental action – denial of unemployment benefits for refusal to work on the Sabbath or in an armaments factory, threatened criminal prosecution for refusing to send children to school – all fell
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directly upon the plaintiffs’ participation in or abstention
from a specific religious practice. That is not the case here;
once again, the only action required of Priests for Life under
the accommodations is consistent with its beliefs. It is only
the independent actions of third parties which result in the
availability of contraceptive services. See Conestoga Wood
Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 415 & n.15
(E.D. Pa. 2013) (explaining that while an indirect compulsion
may constitute a substantial burden, legislation which imposes
only an indirect burden on the exercise of religion does not),
aff’d 724 F.3d 377 (3d Cir. 2013), cert. granted, 2013 U.S. LEXIS 8418 (U.S. Nov. 26, 2013) (No. 13-354).6
This Circuit’s recent decision in Gilardi does not alter
the analysis. In Gilardi, the plaintiffs themselves (through
6 The Court is not persuaded by the rationale in Archdiocese of N.Y., which states that completing the self-certification form, itself, amounts to a substantial burden on the plaintiffs’ exercise of religion, because if they do not complete the form, they are subject to penalties or other forms of government coercion. See, Roman Catholic Archdiocese of N.Y., 2013 U.S. Dist. LEXIS 176432, *32 (stating that RFRA’s “substantial burden” test is met by a finding that plaintiffs face “substantial pressure” to comply with the law.) The Court agrees with the reasoning of Kaemmerling, which, in the Court’s view, correctly interpreted Sherbert, Yoder and Thomas to hold that even a threat of criminal sanction did not amount to a substantial burden when it did not impact plaintiff’s religious exercise. Kaemmerling, 553 F.3d at 679 (“Although the [third party]’s activities . . . may offend [plaintiff’s] religious beliefs, they cannot be said to hamper [his] religious exercise.”)
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their companies) had to provide contraceptive coverage for the participants and beneficiaries of their plan. The Circuit explained that the Gilardis were substantially burdened when they had to place contraceptive coverage into “the basket of goods and services that constitute [their companies’] healthcare plan.” Gilardi, 733 F.3d at 1218. The Circuit repeated the nature of the burden later in the opinion, defining the burden as a “demand[] that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans, over whatever objections they may have. Such an endorsement . . . is a “compel[led] affirmation of a repugnant belief.”” Id. at 1218 (quoting Sherbert, 374 U.S. at 402). Priests for Life need do none of those things. It need not place contraceptive coverage into “the basket of goods and services that constitute its healthcare plan,” nor must it even permit, much less “approve and endorse” such coverage in its plan. Gilardi, 733 F.3d at 1217. On the contrary, Priests for Life need only reaffirm its religiously based opposition to providing contraceptive coverage, at which point third parties will provide the coverage separate and apart from Priests For Life’s plan of benefits. In the Court’s view, the Circuit’s holding on the issue of substantial burden in Gilardi is distinguishable from this case.
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For the foregoing reasons, the Court finds that Plaintiffs have not stated a prima facie case under RFRA because they have not alleged a substantial burden on their religious exercise. Therefore, Count II of the Complaint will be dismissed for failure to state a claim.
C. The Free Exercise Clause The First Amendment provides that Congress shall make no law “prohibiting the free exercise” of religion. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694, 702 (2012). The right of free exercise protected by the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (quotation omitted). A law is not neutral “if the object of [the] law is to infringe upon or restrict practices because of their religious motivation.” Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993). A law is not generally applicable if it “in a selective manner impose[s] burdens only on conduct motivated by religious beliefs.” Id. at 543.
This Court agrees with the vast majority of courts which have considered the issue and found that the contraceptive services regulations are neutral and generally applicable, and
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accordingly have rejected Free Exercise Clause challenges. See Defs.’ Mot. at 32 n.5 (citing, e.g., MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., U.S. Dist. LEXIS 47887, *13-15 Case No. 13-11379 (E.D. Mich. Apr. 3, 2013); Conestoga, 917 F. Supp. 2d at 409-10; Autocam Corp. v. Sebelius, 2012 U.S. Dist. LEXIS 184093, *23, Case No. 12-1906 (W.D. Mich., Dec. 24, 2012), aff’d 730 F.3d 618 (6th Cir. 2013), petition for cert. filed, (U.S. Oct. 15, 2013) (No. 13-482); Hobby Lobby, 870 F. Supp. 2d 1278, 1289-90 (W.D. Okl. 2012) rev’d on other grounds, 723 F.3d 1114). Although these cases do not specifically address the accommodations to the mandate at issue here, nothing about the specific regulations governing the accommodations leads to a different result.
Plaintiffs do not dispute that the regulations’ stated purpose is secular: to promote public health and gender equality. Nevertheless, they argue that the mandate, and its accommodations, is not neutral because it was “designed to target employers who refuse to provide contraceptive services to their employees based on the employers’ religious beliefs.” Pls.’ Mot. for Prelim. Inj. 23-24. They cite the exemption for “religious employers” as defined by 45 C.F.R. § 147.131(a), which applies only to houses of worship and their integrated auxiliaries, but not to other religious organizations, and argue that the exemption divides religious objectors into favored and
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disfavored groups without any secular purpose. Pls.’ Mot. at 24.
As several other courts considering the issue have found, “carving out an exemption for defined religious entities does not make a law nonneutral as to others.” Hobby Lobby, 870 F. Supp. 2d at 1289 (W.D. Okl. 2012). In other words, the neutral purpose of the regulations – to make contraceptive coverage available to women – is not altered because the legislature chose to exempt some religious institutions and not others. On the contrary, “the religious employer exemption presents a strong argument in favor of neutrality, demonstrating that the “object of the law” was not to “infringe upon or restrict practices because of their religious motivation.”” O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1161 (E.D. Mo. 2012) (quoting Lukumi, 508 U.S. at 533); see also Catholic Charities of Diocese of Albany v. Serio, 7 N.E.2d 510, 522 (N.Y. 2006), cert. denied, 552 U.S. 816 (2007) (rejecting Free Exercise Clause challenge to state law requiring contraceptive coverage on grounds that the law exempted some, but not all, religious institutions. “To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions—and thus to restrict, rather than promote, freedom of religion.”). Indeed, Priests for Life itself is the beneficiary
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of an accommodation to the regulations, which was enacted for
the purpose of alleviating any burden on its religious practice.
Plaintiffs argue that a statement in the Overview of the
Final Regulations authorizing the religious employer exemption
from the mandate reveals a discriminatory intent toward all
employers which oppose contraceptive coverage and which do not
qualify for the exemption.
A group health plan . . . qualifies for the [religious employer] exemption if, among other qualifications, the plan is established and maintained by an employer that primarily employs persons who share the religious tenets of that organization . . . . Employers that do not primarily employ employees who share the religious tenets of the organization are more likely to employ individuals who have no religious objection to the use of contraceptive services and therefore are more likely to use contraceptives. Including these employers within the scope of the exemption would subject their employees to the religious views of the employer, limiting access to contraceptives, and thereby inhibiting the use of contraceptive services and the benefits of preventive care.
Pls.’ Mot. at 5, 24 (quoting 77 Fed. Reg. 8724, 8728). For the
reasons just discussed, this comment lacks significance in the
context of a Free Exercise Clause claim. It merely explains
that the regulations confer the special benefit of an exemption
only for those religious organizations that are essentially
houses of worship and their integrated auxiliaries, and who
therefore may be permitted to give employment preference to
members of their own religion. See, e.g., 42 U.S.C. § 2000e-
1(a). That benefit, as discussed above, “is justifiable as a
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legislative accommodation--an effort to alleviate a governmentally imposed burden on religious exercise.” Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 85 (Cal. 2004). Those non-profit religious organizations that do not qualify for the exemption but nevertheless are opposed to contraceptive services, like Priests for Life, are also eligible for an accommodation. Finally, employers that do not qualify for an exemption or accommodation are subject to the contraceptive services mandate in the same manner as all other employers, whether religious or non-religious. Accordingly, while the regulations “treat some [] employers” with religious objections to contraceptive coverage “more favorably than other employers, it does not under any circumstance treat [employers with religious objections] less favorably than any other employers.” 85 P.3d at 85. Therefore, Plaintiffs’ neutrality argument fails.
Plaintiffs also claim that the law is not one of general applicability because “Congress has permitted exemptions from the requirements of the Act,” including those for grandfathered plans and certain religious employers. Pls.’ Mot. at 24. The existence of categorical exemptions, however, does not mean that the law does not apply generally. See, e.g., United States v. Lee, 455 U.S. 252, 261 (1982) (finding social security tax requirements generally applicable despite existence of
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categorical exemptions). As the Supreme Court has held, laws are not generally applicable when they “in a selective manner impose burdens only on conduct motivated by religious beliefs.” Lukumi, 508 U.S. at 543 (invalidating statute which prohibited only the religious practice of animal sacrifice, but not hunting or other secular practices involving killing of animals). The regulations in this case do not impose burdens selectively; they apply to all non-exempt employers, regardless of their religious beliefs. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1134 (9th Cir. 2009) (“pharmacists who do not have a religious objection to [filling prescriptions for contraceptives] must comply with the rules to the same extent—no more and no less—than . . . pharmacists who may have a religious objection to [filling the prescriptions]. Therefore, the rules are generally applicable.”) And again, to the extent the accommodation alters the analysis, it promotes, not restricts, the free exercise of religion by excusing from compliance employers such as Priests for Life due to their religious beliefs.
Accordingly, the Court concludes that the regulations, and the accommodations, do not violate the Free Exercise Clause. Therefore, Count I of the Complaint will be dismissed for failure to state a claim.
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D. Freedom of Speech and Expressive Association Plaintiffs next argue that the accommodation to the contraceptive services mandate violates their right to Free Speech and Expressive Association under the First Amendment. They claim the accommodation compels speech, in violation of their deeply held religious beliefs, by requiring them to complete the self-certification form, which then leads to Priests for Life’s insurer providing contraceptive coverage. Pls.’ Mot. at 31. They claim the same requirement violates their right to associate, which they do for the purpose of expressing a “message that rejects the promotion and use of contraceptive services.” Id. at 29. As Defendants point out, “every court to review a Free Speech challenge to the prior contraceptive-coverage regulations has rejected it.” Defs.’ Mot. at 35 (citing, e.g., MK Chambers Co., 2013 U.S. Dist. LEXIS 47887, *15-17; Conestoga, 917 F. Supp. 2d at 418; Autocam, 2012 U.S. Dist. LEXIS 184093, *23*25). These cases rely on Rumsfeld v. Forum for Academic & Institutional Rights, Inc., (“FAIR”), a case Plaintiffs do not address. In FAIR, the Court rejected a free speech and expressive association challenge to the Solomon Amendment, a statute that conditioned federal funding to law schools upon their agreement to permit military recruiters on campus. The Court found that the statute “neither limits what law schools
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may say nor requires them to say anything. Law schools remain free . . . to express whatever views they may have on the military . . . the [statute] regulates conduct – not speech. It affects what law schools must do – afford access to military recruiters – not what they may or may not say.” FAIR, 547 U.S. at 60. The Court found that to the extent that complying with the Amendment required the school to speak, such as by sending emails or posting notices on behalf of military recruiters, such speech was “plainly incidental to the . . . regulation of conduct.” Id. at 62. “It has never been deemed an abridgment of freedom of speech . . . to make a course of conduct illegal merely because such conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Id. (citation omitted).
A similar analysis applies to this case. The regulations regarding contraceptive coverage, including the accommodation, place no limits on what Plaintiffs may say; they remain free to oppose contraceptive coverage for all people and in all forms. Rather, the accommodation regulates conduct; specifically, the conduct of Priests for Life’s insurance provider. And like the law schools in FAIR, the only speech the accommodations require of Priests for Life is incidental to the regulation of conduct. Priests for Life’s speech in this case is its self-certification that it opposes contraceptive coverage. This speech is
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necessary only because it is attendant to the regulation of conduct, specifically, the insurance company’s provision of contraceptive services. Indeed, the speech at issue in this case is even farther from a First Amendment violation than the speech in FAIR; in that case, the speech was incidental to the law schools’ conduct, while in this case the speech is incidental to the conduct of a wholly separate entity. And in any event, the speech at issue here is in accordance with Priests for Life’s religious beliefs, not fundamentally opposed to it. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (invalidating state law requiring Jehovah’s Witness schoolchildren to recite the Pledge of Allegiance and to salute the flag); Wooley v. Maynard, 430 U.S. 705 (1977), (striking down law that required Jehovah’s Witnesses to display the state motto—“Live Free or Die”—on their license plates).
Plaintiffs argue strenuously in their motion that because opposition to contraception is a fundamental part of their organizational message, any provision of contraceptive coverage by any other party must necessarily interfere with that message and therefore be considered compelled speech. See Pls.’ Mot. at 28-32. But this is not the test for compelled speech in violation of the First Amendment. As the Court held in FAIR, one speaker who is forced to host another speaker’s message may only assert a compelled-speech violation when the message it is
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forced to host is “inherently expressive.” FAIR, 547 U.S. at
64. For example, the “expressive nature of a parade” was a key
part of the holding in Hurley v. Irish-American Gay, Lesbian,
and Bisexual Group of Boston, Inc., 515 U.S. 557, 568 (1995).
Likewise, in Pacific Gas and Electric Company v. Public Utility
Commission of California, 475 U.S. 1 (1986), the compelled
inclusion of a third party newsletter along with Pacific Gas’s
own newsletter “interfered with the utility’s ability to
communicate its own message in its newsletter.” FAIR, 547 U.S.
at 64. By contrast, there is nothing inherently expressive
about Priests For Life’s insurer, wholly separate from Priests
for Life, providing contraceptive coverage, just as there is
nothing inherently expressive about a law school’s decision to
allow recruiters on campus. Id., see also Autocam Corp. v. Sebelius, 2012 U.S. Dist. LEXIS 184093, *23.7
7 Priests for Life also argues that the ACA’s requirement that contraceptive coverage include patient education and counseling for women constitutes prohibited speech because it advocates a particular viewpoint or content. See Pls.’ Opp’n/Reply at 28. This Court agrees with the Conestoga court, which considered and rejected the same argument, explaining, “[w]hile the regulations mandate that [insurance companies] provide coverage for “education and counseling for women with reproductive capacity,” which may include information about the contraceptives which Plaintiffs believe to be immoral, they are silent with respect to the content of the counseling given to a patient by her doctor. . . . As such, it cannot be said that Plaintiffs are being required to [host] the advocacy of a viewpoint with which they disagree. Plaintiffs’ concern that a doctor may, in some instances, provide advice to a patient that differs from [plaintiffs’] religious beliefs is not one
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Plaintiffs’ expressive association claim is also devoid of merit. The government violates expressive association rights under the First Amendment by directly interfering with an association’s composition by forcing them to accept members or hire employees who would “significantly affect [the association’s] expression,” Boy Scouts of America v. Dale, 530 U.S. 640, 656 (2000). It may also infringe on the freedom of expressive association by passing laws requiring disclosure of anonymous membership lists, or imposing penalties or withholding benefits based on membership in a disfavored group. Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 101-02 (1982); Healy v. James, 408 U.S. 169, 180-84 (1972). These laws were invalidated because they “made group membership less attractive, raising [] First Amendment concerns affecting the group’s ability to express its message.” FAIR, 547 U.S. at 69. By contrast, the presence of military recruiters on a law school campus “has no similar effect on a law school’s associational rights. Students and faculty are free to associate to voice their disapproval of the military’s message; nothing about the statute affects the composition of the group by making group membership less desirable. . . . A military recruiter’s mere
protected by the First Amendment.” Conestoga, 917 F. Supp. 2d at 419 (internal citations omitted).
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presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message.” Id. at 69-70.
As in FAIR, the regulations and accommodations do not violate Plaintiffs’ right to associate. The regulations and accommodations in no way restrict Priests for Life’s members, employees, and donors from associating to express their opposition to contraception. Nothing about the regulations or the accommodations force Plaintiffs to accept members or employees it does not desire, nor do they make group membership less desirable as in Socialist Workers ’74 or in Healy. Like the plaintiffs in FAIR, there can be no doubt that Plaintiffs find the content of the regulations repugnant to their religious beliefs. See Compl. at ¶¶ 87-8, 90 (explaining its beliefs that access to contraception “harms women,” is “gravely immoral,” and “a grave sin.”). However, the fact that a third party provides contraceptive coverage to Priests for Life’s employees, separate from Priests for Life or its employer-sponsored health plan, does not affect the group’s ability to express its message under the First Amendment, and therefore does not violate its associational rights.
The government has not compelled plaintiffs to speak, nor has it violated their rights to expressive association. Accordingly, Count III of the Complaint will be dismissed.
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E. Establishment Clause and Equal Protection Clause The Establishment Clause prohibits the government from showing a preference for any religious denomination over another. Larson v. Valente, 456 U.S. 228, 244 (1982). Plaintiffs claim that the contraceptive services mandate, its exemption for religious employers, and its accommodations create an impermissible government preference in favor of churches and religious orders over other religious organizations. Pls.’ Opp’n/Reply at 29-30. As with Plaintiffs’ Free Speech/ Expressive Association Claim, defendants point out that every court to consider an Establishment Clause challenge to the contraceptive services mandate has rejected it. Defs.’ Mot. at 39 (citing, e.g., O’Brien, 894 F. Supp. 2d at 1162; Conestoga, 917 F. Supp. 2d at 416-17). As these courts found, the regulations permit the government to distinguish between religious organizations based on structure and purpose when granting religious accommodations, which is not prohibited under the Establishment Clause. See, e.g., O’Brien, 894 F. Supp. 2d at 1163-4 (collecting cases).8
8 Plaintiffs claim that under Larson, the government is prohibited from making other distinctions among types of religious institutions, in addition to denominational preferences. Pls.’ Opp’n/Reply at 31-32. Plaintiffs misread Larson. The Larson court invalidated the statute at issue not because it distinguished between different types of organizations based on their structure or purpose, but rather because it “was drafted with the explicit intention of including
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Plaintiffs do not address this authority. The crux of their
argument rests on a statement in the Overview of the Final
Regulations authorizing the religious employer exemption from
the mandate, which states in relevant part:
A group health plan . . . qualifies for the [religious employer] exemption if, among other qualifications, the plan is established and maintained by an employer that primarily employs persons who share the religious tenets of that organization . . . . Employers that do not primarily employ employees who share the religious tenets of the organization are more likely to employ individuals who have no religious objection to the use of contraceptive services and therefore are more likely to use contraceptives. Including these employers within the scope of the exemption would subject their employees to the religious views of the employer, limiting access to contraceptives, and thereby inhibiting the use of contraceptive services and the benefits of preventive care.
Pls.’ Mot. at 35 (quoting 77 Fed. Reg. at 8728); Pls.’
Opp’n/Reply at 33 (same). The Court has already considered
this statement in the context of Plaintiffs’ Free Exercise
Clause challenge and found it constitutionally permissible. See
supra at III.C. Nor does it violate the Establishment Clause,
because it delineates the contours of a religious accommodation
that applies equally to organizations of every faith and does
not favor any denomination over another. See, e.g., Walz v. Tax
Comm’n of City of New York, 397 U.S. 664 (1970) (rejecting
Establishment Clause challenge to law exempting from property
particular religious denominations and excluding others.” 456 U.S. at 254.
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taxes property of religious organizations used exclusively for religious worship); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995) (upholding Social Security tax exemption only for members of organized religious sects, despite the fact that “some individuals receive exemptions, and other individuals with identical beliefs do not,” because the purpose of the exemption was not to discriminate among religious denominations).
Plaintiffs’ Equal Protection claim is identical to its other First Amendment Claims: they claim the regulations, religious employer exemption and accommodation impinge on Priests for Life’s fundamental right to free exercise of religion, freedom of speech and expressive association. Pls.’ Mot. at 33. The Court has already rejected these underlying claims, however. “Where a plaintiff’s First Amendment free exercise claim has failed, the Supreme Court has applied only rational basis scrutiny in its subsequent review of an equal protection fundamental right to religious free exercise claim based on the same facts.” Wirzburger v. Galvin, 412 F.3d 271, 282-83 (1st Cir. 2005) (citing Locke v. Davey, 540 U.S. 712, 721 (2004). Applying rational basis scrutiny to the fundamental rights-based claim that the regulations violate equal protection, the Court has no trouble determining that the contraceptive services mandate is rationally related to the legitimate government purposes of promoting public health and
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gender equality. See, e.g., Dep’t of Agriculture v. Moreno, 413 U.S. 528, 533 (1973). Indeed, Plaintiffs do not argue that the regulations would fail such review.
The Plaintiffs have failed to state a claim under the Establishment Clause or the Equal Protection Clause. Therefore, Counts IV and V will be dismissed.
IV. CONCLUSION For the foregoing reasons, the defendants’ motion to dismiss all counts of Plaintiffs’ Complaint is GRANTED; accordingly, the parties’ cross motions for summary judgment are DENIED AS MOOT. An appropriate Order accompanies this Memorandum Opinion.

Signed:

Emmet G. Sullivan United States District Judge December 19, 2013

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 Case 1:13-cv-01261-EGS Document 37 Filed 12/19/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PRIESTS FOR LIFE, et al., Plaintiffs,
-vDEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants.

Case No. 1:13-cv-01261-EGS NOTICE OF APPEAL

Notice is hereby given this 19th day of December 2013, that Plaintiffs Priests for Life,
Father Frank Pavone, Alveda King, and Janet Morana (collectively referred to as “Plaintiffs”)
hereby appeal to the United States Court of Appeals for the District of Columbia Circuit from the
Order (Doc. No. 35) entered in this action on the 19th day of December 2013, granting
Defendants’ Motion to Dismiss and denying as moot Plaintiffs’ Cross-Motion for Summary
Judgment, and the associated Memorandum Opinion (Doc. No. 36), which grant judgment in
favor of Defendants and against said Plaintiffs.
Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise Robert J. Muise, Esq. (D.C. Court Bar No. MI 0052) P.O. Box 131098 Ann Arbor, Michigan 48113 Tel: (734) 635-3756 rmuise@americanfreedomlawcenter.org
/s/ David Yerushalmi David Yerushalmi, Esq. (D.C. Bar No. 978179) 1901 Pennsylvania Avenue NW, Suite 201 Washington, D.C. 20001 dyerushalmi@americanfreedomlawcenter.org Tel: (646) 262-0500 Fax: (801) 760-3901
- 1 -

Case 1:13-cv-01261-EGS Document 37 Filed 12/19/13 Page 2 of 2 CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I further certify that a copy of the foregoing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically: none.
AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq.
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2014

Decided November 14, 2014

No. 13-5368

PRIESTS FOR LIFE, ET AL., APPELLANTS

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., APPELLEES

Consolidated with 13-5371, 14-5021

Appeals from the United States District Court for the District of Columbia (No. 1:13-cv-01261) (No. 1:13-cv-01441)

Robert J. Muise argued the cause for appellants/crossappellees Priests For Life, et al. Noel J. Francisco argued the cause for appellants/cross-appellees Roman Catholic Archbishop of Washington, et al. With them on the briefs were Eric Dreiband and David Yerushalmi.
Kimberlee Wood Colby was on the brief for amici curiae The Association of Gospel Rescue Missions, et al. in support of cross-appellants/cross-appellees.

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Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellees/cross-appellants. With him on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Alisa B. Klein and Adam C. Jed, Attorneys.
Martha Jane Perkins was on the brief for amici curiae National Health Law Program, et al. in support of appellees/cross-appellants.
Marcia D. Greenberger and Charles E. Davidow were on the brief for amici curiae The National Women’s Law Center, et al. in support of appellees/cross-appellants.
Ayesha N. Khan was on the brief for amici curiae Americans United for Separation of Church and State, et al. in support of appellees/cross-appellants.
Before: ROGERS, PILLARD and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: These consolidated cases present the question whether a regulatory accommodation for religious nonprofit organizations that permits them to opt out of the contraceptive coverage requirement under the Patient Protection and Affordable Care Act (“ACA”), 42 U.S.C. § 300gg-13(a)(4), itself imposes an unjustified substantial burden on Plaintiffs’ religious exercise in violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. Plaintiffs’ principal claim is that the accommodation does not go far enough. They believe that, even if they opted out, they would still play a role in

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facilitating contraceptive coverage. They view the regulation as thereby substantially burdening their religious exercise by involving them in what the Plaintiffs and their faith call “scandal,” i.e., leading others to do evil. Plaintiffs claim that the government lacks a compelling interest in requiring them to use the specific accommodation the regulations authorize, making the burden unjustified and unlawful. They contend that RFRA gives them a right to exclude contraceptive coverage from their employees’ and students’ plans without notice, and requires that the government be enjoined from implementing the contraceptive coverage requirement.
* * *
As a consequence of a period of wage controls after World War II during which employers created new fringe benefits, the majority of people in the United States with health insurance receive it under plans their employers arrange through the private market. Congress chose in the ACA not to displace that basic system. It sought instead to expand the number of Americans insured and to improve and subsidize health insurance coverage, in part by building on the market-based system of employer-sponsored private health insurance already in place. The contraceptive coverage requirement and accommodation operate through that system.
The regulations implementing the ACA and its Women’s Health Amendment impose a range of standard requirements on group health plans, including that they cover contraceptive services prescribed by a health care provider without imposing any cost sharing on the patient. The contraceptive coverage requirement derives from the ACA’s prioritization of preventive care, and from Congress’ recognition that such care has often been modeled on men’s health needs and thus left women underinsured. As discussed below, Congress

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included the Women’s Health Amendment in the ACA to remedy the problem that women were paying significantly more out of pocket for preventive care and thus often failed to seek preventive services, including consultations, prescriptions, and procedures relating to contraception. The medical evidence prompting the contraceptive coverage requirement showed that even minor obstacles to obtaining contraception led to more unplanned and risky pregnancies, with attendant adverse effects on women and their families.
Some employers, including the Catholic nonprofits in this case, oppose contraception on religious grounds. The Catholic Church teaches that contraception violates God’s design because the natural and non-sinful purpose of sex is to conceive a child within a marriage: Plaintiff Priests for Life, quoting the Papal Encyclical Humanae Vitae, declares that “‘any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means’—including contraception and sterilization—is a grave sin.” J.A. 49. In the view of the Catholic Church expressed through Humanae Vitae, contraception enables the separation of sex from reverence for the sexual partner, the understanding that sex makes children, and the imperative of deep commitment to marriage and family.
The Catholic Church itself is exempt from the contraceptive coverage requirement, but Catholic nonprofits have a long and broad history of service that goes far beyond worship or proselytizing. Nationally, Catholic hospitals, clinics, universities, schools, and social services groups provide many services that are not inherently religious. Catholic-identified nonprofits employ and enroll as students millions of adults, not all of whom are co-religionists or share the Catholic Church’s religious opposition to contraception.

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Faced with an employer-based health insurance system, forceful impetus to require coverage of contraceptive services, and religious opposition by some employers to contraception, the government sought to accommodate religious objections. As detailed below, the ACA’s implementing regulations allow religious nonprofits to opt out of including contraception in the coverage they arrange for their employees and students. The regulations assure, however, that the legally mandated coverage is in place to seamlessly provide contraceptive services to women who want them, for whom they are medically appropriate, and who personally have no objection to using them.
The regulatory opt out works simply: A religious organization that objects on religious grounds to including coverage for contraception in its health plan may so inform either the entity that issues or administers its group health plan or the Department of Health and Human Services. Delivery of the requisite notice extinguishes the religious organization’s obligation to contract, arrange, pay, or refer for any coverage that includes contraception. The regulations then require group health plan insurers or administrators to offer separate coverage for contraceptive services directly to insured women who want them, and to inform beneficiaries that the objecting employer has no role in facilitating that coverage.
Plaintiffs, the Roman Catholic Archbishop of Washington and nonprofits affiliated with the Catholic Church, arrange for group health coverage for their employees and students. Plaintiffs oppose the ACA’s contraceptive coverage requirement on religious grounds and do not want to provide the requisite contraceptive coverage.

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Instead of taking advantage of the accommodation, Plaintiffs filed suit to challenge it as a violation of their religious rights.
Plaintiffs’ principal claim arises under RFRA. Congress enacted RFRA in response to the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), that the Free Exercise Clause of the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” Id. at 879 (internal quotation marks omitted). Congress sought to reinstate as a statutory matter the pre-Smith free exercise standard. Under RFRA, the federal government may not “substantially burden” a person’s religious exercise—even where the burden results from a religiously neutral, generally applicable law that is constitutionally valid under Smith—unless the imposition of such a burden is the least restrictive means to serve a compelling governmental interest.
The contraceptive coverage opt-out mechanism substantially burdens Plaintiffs’ religious exercise, Plaintiffs contend, by failing to extricate them from providing, paying for, or facilitating access to contraception. In particular, they assert that the notice they submit in requesting accommodation is a “trigger” that activates substitute coverage, and that the government will “hijack” their health plans and use them as “conduits” for providing contraceptive coverage to their employees and students. Plaintiffs dispute that the government has any compelling interest in obliging them to give notice of their wish to take advantage of the accommodation. And they argue that the government has failed to show that the notice requirement is the least restrictive means of serving any such interest.
We conclude that the challenged regulations do not impose a substantial burden on Plaintiffs’ religious exercise

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under RFRA. All Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or twopage form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms. The ACA shifts to health insurers and administrators the obligation to pay for and provide contraceptive coverage for insured persons who would otherwise lose it as a result of the religious accommodation.
Even if, as Plaintiffs aver, we must take as dispositive their conviction that the accommodation involves them in providing contraception in a manner that substantially burdens their religious exercise, we would sustain the challenged regulations. A confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it. That coverage offers adults and children the benefits of planning for healthy births and avoiding unwanted pregnancy, and it promotes preventive care that is as responsive to women’s health needs as it is to men’s. The accommodation requires as little as it can from the objectors while still serving the government’s compelling interests. Because the regulatory opt-out mechanism is the least restrictive means to serve compelling governmental interests, it is fully consistent with Plaintiffs’ rights under RFRA. We also find no merit in Plaintiffs’ additional claims under the Constitution and the Administrative Procedure Act.

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I. Background
A. The ACA & Accommodation
The ACA requires group health plans, including both insured and self-insured employer-based plans, to include minimum coverage for a variety of preventive health services without imposing cost-sharing requirements on the covered beneficiary.1 42 U.S.C. § 300gg-13(a); see also id. § 300gg91(a) (defining “group health plan”); 45 C.F.R. § 147.131(c)(2)(ii) (cost-sharing includes copayments, coinsurance, and deductibles). In view of the greater preventive health care costs borne by women, the Women’s Health Amendment in the ACA specifically requires coverage for women of “such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(4).
To determine which preventive services should be required, the Health Resources and Services Administration (“HRSA”), a component of HHS, commissioned a study from the independent Institute of Medicine (“IOM” or “Institute”). The Institute is an arm of the National Academy of Sciences established in 1970 to inform health policy with available scientific information. In reliance on the work of the Institute, HRSA established guidelines for women’s
1 An employer “self-insures” if it bears the financial risk of paying its employees’ health insurance claims (as opposed to contracting with an insurance company to provide coverage and bear the associated financial risk). Many “self-insured” employers hire third-party administrators (“TPAs”) to perform administrative functions, such as developing provider networks and processing claims. See generally Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals 6 (2008).

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preventive services that include any “[FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling.” Health Resources & Servs. Admin., Women’s Preventive Services Guidelines, http://www.hrsa.gov/womensguidelines/, quoted in 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012).
The three agencies responsible for the ACA’s implementation—the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury (collectively, the “Departments”)—issued regulations requiring coverage of all preventive services contained in the HRSA guidelines, including contraceptive services. See 45 C.F.R. § 147.130(a)(1)(iv) (HHS); 29 C.F.R. § 2590.715-2713(a)(1)(iv) (Labor); 26 C.F.R. § 54.98152713(a)(1)(iv) (Treasury). The Departments determined that contraceptives prevent unintended pregnancies and the negative health risks associated with such pregnancies; they “have medical benefits for women who are contraindicated for pregnancy,” and they offer “demonstrated preventive health benefits . . . relating to conditions other than pregnancy . . . .” 77 Fed. Reg. at 8,727. Inadequate coverage for women not only fails to protect women’s health, but “places women in the workforce at a disadvantage compared to their male coworkers.” Id. at 8,728. Providing contraceptive coverage within the preventive-care package, the Departments observed, supports the equal ability of women to be “healthy and productive members of the job force.” Id. Because of the importance of such coverage, and because “[r]esearch . . . shows that cost sharing can be a significant barrier to effective contraception,” the Departments included contraceptive coverage among the services to be provided without cost sharing. Id.

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Objections by religious nonprofits to the use of contraception, and to arranging health insurance for their employees that covers contraceptive services, prompted the Departments to create two avenues for religious organizations to exclude themselves from any obligation to provide such coverage. Those avenues track a longstanding and familiar distinction between houses of worship (e.g., temples, mosques, or churches) and religious nonprofits (e.g., schools, hospitals, or social service agencies with a religious mission or affiliation). First, in order to “respect[] the unique relationship between a house of worship and its employees in ministerial positions,” the Departments categorically exempted “religious employers,” defined as churches or the exclusively religious activities of any religious order, from the contraceptive coverage requirement.2 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011); see 45 C.F.R. § 147.131(a). Second, the Departments created a mechanism for nonprofit “eligible organizations,” i.e., groups that are not houses of worship but nonetheless present themselves as having a religious character, to opt out of having to “contract, arrange, pay, or refer for [contraceptive] coverage.” 78 Fed. Reg. 39,870, 39,871 (July 2, 2013). This opt-out mechanism was designed to dissociate the objecting organizations from contraceptive coverage while ensuring that the individuals covered under those organizations’ health plans—people not fairly presumed to share the organizations’ opposition to
2 An organization qualifies as a “religious employer” under the regulations if it is “organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). Those provisions, in turn, refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3)(A)(i), (iii).

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contraception or to be co-religionists—could obtain coverage for contraceptive services directly through separate plans from the same plan providers. See id. at 39,874. Plaintiffs challenge this second mechanism, which the regulations refer to as the “accommodation.”
The government designed the accommodation to avoid encumbering Plaintiffs’ sincere religious belief that providing, paying for, or facilitating insurance coverage for contraceptives violates their religion, but the government sought at the same time to preserve unhindered access to contraceptives for insured individuals who use them. Many religiously affiliated educational institutions, hospitals, and social-service organizations have taken advantage of the accommodation, and courts of appeals have uniformly sustained it against challenges under RFRA and the Constitution. See Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372 (6th Cir. 2014); Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014) petition for cert. filed (Oct. 3, 2014) (No. 13-3853).
B. The Plaintiff Nonprofits Offer Health Insurance in Various Ways
Plaintiffs are eleven Catholic organizations that employ both Catholics and non-Catholics and provide a range of spiritual and charitable services in the Washington, D.C. area.3 They fall into four categories that differ in ways that affect how the accommodation applies to them, and that are thus relevant to some aspects of our analysis.
3 Father Frank Pavone, Alveda King, and Janet Morana, employees of Plaintiff Priests for Life, are also individually Plaintiffs in this action. We refer to them, along with the organization, collectively as “Priests for Life” or the “Priests for Life Plaintiffs.”

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First, the Roman Catholic Archbishop of Washington (the “Archdiocese”), a corporation sole, is part of the Catholic Church. It provides pastoral care and spiritual guidance to nearly 600,000 Catholics. It is undisputed that the Archdiocese itself is a religious employer and thus is categorically exempt from the requirement to include coverage for contraceptive services for its employees in its self-insured health plan. The Archdiocese operates a selfinsured health plan that is considered a “church plan.” Church plans are exempt from the Employee Retirement Income Security Act of 1974 (“ERISA”), which regulates private, employer-sponsored benefit plans, including health insurance plans. See 29 U.S.C. § 1002(33) (defining “church plan”); id. at § 1003(b)(2) (exempting church plans from ERISA); see generally id. § 1001 et seq. (governing employee benefit plans). The ACA amended ERISA by establishing new requirements for large group health plans and insurers, but the church’s provision of benefits to its employees via its church plan is exempt from ERISA, which distinguishes the Archdiocese’s claims here from those of the other Plaintiffs. The Archdiocese need not submit any written notice in order to be exempt, and the employees of the Archdiocese are not entitled to contraceptive coverage under the ACA. The Archdiocese nonetheless participates as a Plaintiff in this case in its role as the sponsor of the church plan that some of the other Plaintiffs also use to provide insurance to their employees—a role that the Archdiocese contends makes it complicit in providing them with contraceptive coverage.
The remaining Plaintiffs are all religious nonprofits. It is undisputed that, under the government’s regulations, each is eligible for the accommodation, but not the exemption extended to houses of worship.

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Comprising the second of the four categories are the socalled “church-plan Plaintiffs,” nonprofits affiliated with the Archdiocese that provide educational, housing, and social services to the community and arrange for health insurance coverage for their employees through the Archdiocese’s selfinsured plan.4
Plaintiff Thomas Aquinas College falls under a third category. It also self-insures. It offers its employees health insurance coverage through an organization called the RETA trust, which oversees an ERISA-covered plan set up by the Catholic bishops of California and run by a third-party administrator (“TPA”). The parties agree that the College’s plan is not exempt from ERISA as a church plan.
In the fourth category are those Plaintiffs that provide insurance coverage through group health insurance plans they negotiate with private insurance companies. Catholic University of America offers its students and employees health insurance through two separate group insurance plans offered by AETNA and United Healthcare. Priests for Life, a religious nonprofit that encourages clergy to emphasize the value and inviolability of human life, also provides its employees with health insurance through a group insurance plan offered by United Healthcare.
It is undisputed that Plaintiffs all sincerely believe that life begins at conception and that contraception is contrary to
4 The church-plan Plaintiffs are the Consortium of Catholic Academies of the Archdiocese of Washington, Archbishop Carroll High School, Inc., Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc., Mary of Nazareth Roman Catholic Elementary School, Inc., Catholic Charities of the Archdiocese of Washington, Inc., Victory Housing, Inc., and the Catholic Information Center, Inc.

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Catholic tenets.5 Priests for Life, for example, was founded to spread the Gospel of Life, which “affirms and promotes the culture of life and actively opposes and rejects the culture of death.” Pls.’ Br. 11. Catholic doctrine prohibits “impermissible cooperation with evil,” and thus opposes providing access to “contraceptives, sterilization, and abortion-inducing products,” which the Church views as “immoral regardless of their cost.” Id. at 12. The specific acts to which Plaintiffs object are “provid[ing], pay[ing] for, and/or facilitat[ing] access to contraception,” any of which they believe would violate the Catholic Church’s teachings. Id. at 15.
In the past, in accordance with their religious beliefs, Plaintiffs have offered health care coverage to their employees6 that excluded coverage for “abortion-inducing products, contraception [except when used for noncontraceptive purposes], sterilization, or related counseling.” Id. at 16. They structured the coverage in a variety of ways, including through self-insured health plans and group health plans, which they directed to exclude all contraceptive services. Plaintiffs object to the contraceptive coverage requirement and the accommodation’s opt-out mechanism because, they assert, the accommodation fails adequately to dissociate them from the provision of contraceptive coverage and, by making them complicit with evil, substantially burdens their religious exercise in violation of RFRA. In
5 For ease of reference, we refer to contraception, sterilization, and related counseling services as “contraception” or “contraceptive services.” 6 Throughout this opinion we discuss Plaintiffs’ “employees.” We use this term to refer to all individuals covered by Plaintiffs’ insurance plans, including employees, students, and other beneficiaries, such as covered dependents.

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particular, they contend that the regulations, by requiring the plans or TPAs with which they contract to provide the coverage, effectively require Plaintiffs to facilitate it.

C. Procedural History

Plaintiffs brought two separate suits that proceeded on parallel tracks in district court. The Priests for Life Plaintiffs filed their complaint in August 2013 and promptly moved for a preliminary injunction. They challenged the contraceptive coverage requirement and the accommodation as an unjustified substantial burden on their religious exercise in violation of RFRA and raised a variety of constitutional challenges under the Speech and Religion Clauses of the First Amendment and the Equal Protection Clause of the Fifth Amendment.

The district court considered Plaintiffs’ request for a

preliminary injunction together with the merits, granted the

government’s motion to dismiss the complaint for failure to

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

for summary judgment.

Reasoning that “[t]he

accommodation specifically ensures that provision of

contraceptive services is entirely the activity of a third

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

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

Plaintiffs failed to show a substantial burden on their religious

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

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

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

104-111.

The remaining Plaintiffs—the Archdiocese, Thomas Aquinas College, Catholic University of America, and the church-plan Plaintiffs (referred to collectively as the “RCAW

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Plaintiffs”)—filed their complaint and moved for a preliminary injunction in September 2013, challenging the accommodation under RFRA and the First Amendment. The RCAW Plaintiffs further claimed that the government’s implementation of the regulations violates the APA, including by adopting an erroneous interpretation of the “religious employer” categorical exemption that precludes the churchplan Plaintiffs from qualifying for it. They also claimed in supplemental briefing that the interim final rule was invalidly promulgated without notice and comment.7 The RCAW case was assigned to a different district judge who also consolidated proceedings on the preliminary injunction and the merits, but who granted in part and denied in part the parties’ cross-motions for summary judgment.
The court rejected Catholic University’s RFRA claim and granted that of Thomas Aquinas College. Roman Catholic Archbishop of Wash. v. Sebelius (RCAW), No. 131441, 2013 WL 6729515, at *15-24 (D.D.C. Dec. 20, 2013). The court held that the accommodation did not impose a substantial burden on Catholic University’s religious exercise because “the accommodation effectively severs an organization that offers its employees or students an insured group health plan from participation in the provision of the contraceptive coverage.” Id. at *15. The court determined that Thomas Aquinas College was entitled to summary judgment on its RFRA claim, however, because, as the court understood the regulations, “a series of duties and obligations” constituting a substantial burden could fall on the self-insured College if, after the College opted out, its current TPA were to decline to serve as the plan administrator for
7 The RCAW Plaintiffs abandoned on appeal their other APA claims.

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purposes of the contraceptive coverage requirement.8 Id. at *24. The court granted the government’s cross-motion for summary judgment on the other constitutional and APA claims.9
All Plaintiffs appealed and sought injunctions pending appeal, while the government cross-appealed the rulings in favor of the RCAW Plaintiffs. We consolidated the appeals and granted an injunction pending appeal.
II. Standard of Review
Whether claims are decided on a motion to dismiss or for summary judgment, we review the district courts’ determinations de novo. Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012); Potter v. District of Columbia, 558 F.3d 542, 547 (D.C. Cir. 2009). A motion to dismiss for failure to state a claim should be granted if the complaint does not
8 The court also granted summary judgment to both Thomas Aquinas College and the church-plan Plaintiffs on their challenge to the so-called “non-interference” regulation, which prevented a self-insured organization from seeking to “influence” a TPA. The court concluded that the regulation imposed an unconstitutional content-based limitation that “directly burdens, chills, and inhibits” Plaintiffs’ free speech. RCAW, 2013 WL 6729515, at *37-38. That regulation has since been rescinded, 79 Fed. Reg. 51,092, 51,095 (Aug. 27, 2014), rendering that claim moot. 9 The district court believed that, because the Archdiocese is exempt from the contraceptive coverage requirement, it was “not joined in” the RFRA claim, RCAW, 2013 WL 6729515, at *8, and that the church-plan Plaintiffs lacked standing to bring such a claim, id. at *24-27. The court also concluded that some Plaintiffs lacked standing to raise some of the other claims alleged in the complaint. See, e.g., id. at *43-44, 47. To the extent necessary to establish this Court’s subject matter jurisdiction, we address standing below.

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contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986).
III. Standing
The RCAW district court concluded that the church-plan Plaintiffs lack standing to challenge the accommodation. 2013 WL 6729515, at *26. The government does not press that issue on appeal, but we have an independent obligation to confirm our jurisdiction. See Ams. for Safe Access v. DEA, 706 F.3d 438, 442 (D.C. Cir. 2013). “[I]n determining whether plaintiffs have standing, we must assume that on the merits they would be successful in their claims.” Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir. 2008) (internal alterations and quotation marks omitted).
Plaintiffs contend that they are injured by the challenged regulations because they are forced to choose among options, each of which, they argue, would require them to violate their sincerely held religious beliefs: They may either directly provide contraceptive coverage to their employees, or pay onerous penalties for failing to include contraceptive coverage in their plans. The government has offered them a third option in the form of the accommodation: exclude contraceptive coverage from their plans. They object to that, too, however, because if they exclude contraceptive coverage

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from their plans, the regulations require someone else to provide it in a way that they contend amounts to their facilitation of the objected-to coverage. Plaintiffs further claim that they are faced with those impossible choices as a result of the ACA regulations, and that a ruling from this Court invalidating those regulations would redress their injury. As a general matter, the government does not contest that Plaintiffs’ claimed injury is legally cognizable and concrete.
In successfully challenging the church-plan Plaintiffs’ standing in district court, the government argued that it lacks authority to impose on those particular Plaintiffs the harm of which they complain and that they thus cannot allege sufficient injury to support standing. Specifically, the government contended that it could not require a TPA—the firm the Archdiocese hired to administer its plan and process its claims—to provide contraceptive coverage to the churchplan Plaintiffs’ employees.10 In those circumstances, the government contended, a legal victory in this case would change nothing.
10 That is because church plans (such as the Archdiocese’s) are exempt from ERISA, 29 U.S.C. § 1003(b)(2), and ERISA is the only vehicle through which the government may enforce a TPA’s obligation to provide contraception coverage under the accommodation. See 29 C.F.R. § 2510.3-16(b). The government claimed that, in light of its lack of a governmental enforcement mechanism, the Archdiocese’s TPA could not be expected to provide the requisite coverage to the church-plan Plaintiffs’ employees. As a result of that regulatory loophole, the district court held that the church-plan Plaintiffs are not injured by either the contraceptive coverage requirement or the requirement that they complete the self-certification as a condition of opting out.

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Whether or not the obligation is enforceable, however, it is undisputed that, if the church-plan Plaintiffs want a religious accommodation, they are legally required to request it through the opt-out process. Like all the other Plaintiffs, the church-plan Plaintiffs allege that their religious beliefs forbid them from availing themselves of the accommodation because doing so would render them complicit in a scheme aimed at providing contraceptive coverage. They thus contend that the burden on their religious exercise is the same as the burden on any Plaintiff whose TPA or insurer provides coverage according to the regulations. Their burdens are equally concrete, even though the asserted burden on the other Plaintiffs is backed by a threat of enforcement against a potentially recalcitrant TPA, whereas the church-plan Plaintiffs’ asserted burden is not. Because the regulations require the church-plan Plaintiffs to take an action that they contend substantially burdens their religious exercise, they, like the other Plaintiffs, have alleged a sufficiently concrete injury.11 See In re Navy Chaplaincy, 697 F.3d 1171, 1176-77 (D.C. Cir. 2012) (holding that “policies and procedures” that plaintiff claimed produced future injury on the basis of religious belief were sufficient to confer standing).
The Archdiocese presents a distinct standing question because it is completely exempt from the challenged
11 Two of the church-plan Plaintiffs, Catholic Information Center and Don Bosco, have fewer than 50 employees and therefore are not subject to the ACA’s requirement that employers provide their employees with health insurance. See 26 U.S.C. § 4980H(a), (c)(2). We need not address whether that affects their standing, however, because the presence of other Plaintiffs with standing is sufficient to satisfy Article III. See, e.g., Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”).

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regulation. It contends that it has a RFRA claim because it sponsors the self-insured plan in which the church-plan Plaintiffs participate. It argues that, despite its own exemption, it faces an impossible choice of either sponsoring a plan that will provide the employees of the church-plan Plaintiffs with access to contraceptive services, or no longer extending its plan to those entities, leaving them exposed to penalties if they do not contract with another provider that will provide the coverage. The first option, in its view, substantially burdens its sincerely held religious beliefs in violation of RFRA, and the second option allows the government to interfere with what it casts as its internal operations, in violation of the Religion Clauses of the First Amendment. Our holding that the church-plan Plaintiffs have standing also supports the Archdiocese’s claim of redressable injury adequate to support its standing to sue.12
IV. RFRA Claim
The claim that lies at the heart of this case is Plaintiffs’ RFRA challenge to the accommodation. RFRA provides that the federal government may not “substantially burden” a person’s religious exercise, even if the burden results from a rule that applies generally to religious and non-religious persons alike, unless the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. In other words, if the law’s requirements do not amount to a substantial burden under RFRA, that is the end of the matter. Where a law does
12 Because the Archdiocese’s RFRA claim derives from its sponsorship of a plan that also insures employees of the churchplan Plaintiffs, the Archdiocese’s claim rises and falls with that of the church-plan Plaintiffs and so is not separately analyzed below.

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impose a substantial burden, Congress has instructed that “we must return to ‘the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972).’” Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C. Cir. 2008) (quoting 42 U.S.C. § 2000bb(b)(1)). Congress directly referenced and incorporated the legal standards the Supreme Court used in its pre-Smith line of cases in RFRA. Constitutional free exercise cases that predate Smith accordingly remain instructive when determining RFRA’s requirements. See id. at 678-80.
We pause at the outset to make some general observations about the contours of Plaintiffs’ claims. First, Plaintiffs’ case is significantly different from the recent, successful Supreme Court challenge brought by for-profit, closely-held corporations in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). There, the Court concluded that, in the absence of any accommodation, the contraceptive coverage requirement imposed a substantial burden on the religious exercise of for-profit corporations because those plaintiffs were required either to provide health insurance coverage that included contraceptive benefits in violation of their religious beliefs, or to pay substantial fines. Id. at 277576. A critical difference here is that the regulations already give Plaintiffs the third choice that the for-profit corporate plaintiffs in Hobby Lobby sought: They can avoid both providing the contraceptive coverage and the penalties associated with non-compliance by opting out of the contraceptive coverage requirement altogether.
Plaintiffs contend that, even with the choice to opt out, the regulations leave them with the same “Hobson’s choice” as the for-profit corporations in Hobby Lobby. In their view, availing themselves of the accommodation requires them to violate their sincerely held religious beliefs just as surely as

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would providing contraceptive coverage to their employees. But the opt out already available to Plaintiffs is precisely the alternative the Supreme Court considered in Hobby Lobby and assumed would not impinge on the for-profit corporations’ religious beliefs even as it fully served the government’s interest.13 Id. at 2782.
This case also differs from Hobby Lobby in another crucial respect: In holding that Hobby Lobby must be accommodated, the Supreme Court repeatedly underscored that the effect on women’s contraceptive coverage of extending the accommodation to the complaining businesses “would be precisely zero.” Id. at 2760; see also id. at 2781 n.37 (“Our decision in these cases need not result in any detrimental effect on any third party.”); id. at 2782 (extending accommodation to Hobby Lobby would “protect the asserted needs of women as effectively” as not doing so). Justice Kennedy in his concurrence emphasized the same point, that extending the accommodation to for-profit corporations “equally furthers the Government’s interest but does not
13 Plaintiffs also have a fourth option under the ACA: ceasing to offer health insurance as an employment benefit, and instead paying the shared responsibility assessment and leaving the employees to obtain subsidized health care coverage on a health insurance exchange. See 26 U.S.C. § 4980H. That is permitted by the Act and regulations and might well be less expensive to employers than contributing to employee health benefits. Plaintiffs, however, contend that declining to arrange health insurance benefits for their employees also would injure them because it would be inconsistent with their religious mission and would deny them the recruitment and retention benefits of providing taxadvantaged health care coverage to their employees. See Oral Arg. Tr. at 19:5-15; see also Pls.’ R. Br. 21 n.9; see generally Hobby Lobby, 134 S. Ct. at 2776-77 & n. 32. The government has not pressed the point here.

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impinge on the plaintiffs’ religious beliefs.” Id. at 2786. The relief Plaintiffs seek here, in contrast, would hinder women’s access to contraception. It would either deny the contraceptive coverage altogether or, at a minimum, make the coverage no longer seamless from the beneficiaries’ perspective, instead requiring them to take additional steps to obtain contraceptive coverage elsewhere.
Second, Plaintiffs’ claim is extraordinary and potentially far reaching: Plaintiffs argue that a religious accommodation, designed to permit them to free themselves entirely from the contraceptive coverage requirement, itself imposes a substantial burden. As the Seventh Circuit put the point, “[w]hat makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths.” Notre Dame, 743 F.3d at 557. As the Notre Dame court noted, it is analogous to a religious conscientious objector to a military draft claiming that the act of identifying himself as such on his Selective Service card constitutes a substantial burden because that identification would then “trigger” the draft of a fellow selective service registrant in his place and thereby implicate the objector in facilitating war. Id. at 556.
Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out. Cf. id. at 556. They have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors. See generally Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988) (distinguishing

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between right to avoid being “coerced . . . into violating their religious beliefs” and the lack of right to pursue “spiritual fulfillment according to their own religious beliefs”). “Government simply could not operate if it were required to satisfy every citizen’s religious needs and desires.” Id. at 453.
We now turn to the substance of Plaintiffs’ RFRA claims. We first consider their contention that the accommodation imposes a substantial burden on their religious exercise that is cognizable under RFRA. We then analyze the government’s claim that any such burden is justified under RFRA because it could not be made any lighter and still serve the government’s compelling interests.
A. The Accommodation Does Not Substantially Burden Plaintiffs’ Religious Exercise
In our cosmopolitan nation with its people of diverse convictions, freedom of religious exercise is protected yet not absolute. That is true under the heightened standard Congress enacted in RFRA as well as the constitutional baseline set by the Free Exercise Clause. The limitations that prove determinative here are that only “substantial” burdens on religious exercise require accommodation, and that an adherent may not use a religious objection to dictate the conduct of the government or of third parties. This Court explained in Kaemmerling that “[a] substantial burden exists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” 553 F.3d at 678 (quoting Thomas v. Review Bd., 450 U.S. 707, 718 (1981)). A burden does not rise to the level of being substantial when it places “[a]n inconsequential or de minimis burden” on an adherent’s religious exercise. Id. (citing Levitan v. Ashcroft, 281 F.3d 1313, 1320-21 (D.C. Cir.

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2002)). An asserted burden is also not an actionable substantial burden when it falls on a third party, not the religious adherent. See, e.g., Bowen v. Roy, 476 U.S. 693, 699 (1986).
Plaintiffs’ objection rests on their religious belief that “they may not provide, pay for, and/or facilitate access to contraception, sterilization, abortion, or related counseling in a manner that violates the teachings of the Catholic Church.” Pls.’ Br. 15. But the regulations do not compel them to do any of those things. Instead, the accommodation provides Plaintiffs a simple, one-step form for opting out and washing their hands of any involvement in providing insurance coverage for contraceptive services.
1. The Court Must Evaluate Assertions of Substantial Burden
The sincerity of Plaintiffs’ religious commitment is not at issue in this litigation. Plaintiffs are correct that they—and not this Court—determine what religious observance their faith commands. There is no dispute about the sincerity of Plaintiffs’ belief that providing, paying for, or facilitating access to contraceptive services would be contrary to their faith.
Accepting the sincerity of Plaintiffs’ beliefs, however, does not relieve this Court of its responsibility to evaluate the substantiality of any burden on Plaintiffs’ religious exercise, and to distinguish Plaintiffs’ duties from obligations imposed, not on them, but on insurers and TPAs. Whether a law substantially burdens religious exercise under RFRA is a question of law for courts to decide, not a question of fact. See Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011) (stating that judicial inquiry into the substantiality of the

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burden “prevent[s] RFRA claims from being reduced into questions of fact, proven by the credibility of the claimant”); Kaemmerling, 553 F.3d at 679 (“[a]ccepting as true the factual allegations that Kaemmerling’s beliefs are sincere and of a religious nature—but not the legal conclusion, cast as a factual allegation, that his religious exercise is substantially burdened”). “[A]lthough we acknowledge that the [plaintiffs] believe that the regulatory framework makes them complicit in the provision of contraception, we will independently determine what the regulatory provisions require and whether they impose a substantial burden on [plaintiffs’] exercise of religion.” Mich. Catholic Conf., 755 F.3d at 385; see also Notre Dame, 743 F.3d at 558 (“Notre Dame may consider the [self-certification] process a substantial burden, but substantiality—like compelling governmental interest—is for the court to decide.”).
Our own decision in Kaemmerling requires that we determine whether a burden asserted by Plaintiffs qualifies as “substantial” under RFRA. In Kaemmerling, a federal prisoner sought to enjoin the Bureau of Prisons under RFRA from collecting a sample of his blood, claiming a religious objection to “DNA sampling, collection and storage with no clear limitations of use.” 553 F.3d at 678. We observed that “Kaemmerling’s objection to ‘DNA sampling and collection’” was not “an objection to the [Bureau] collecting any bodily specimen that contains DNA material . . . , but rather an objection to the government extracting DNA information from the specimen.” Id. at 679. We did not simply accept Kaemmerling’s characterization of his burden as “substantial,” but instead independently evaluated the nature of the claimed burden on his religious beliefs. See id. at 678-79. The plaintiff failed to “allege facts sufficient to state a substantial burden on his religious exercise because he [could not] identify any ‘exercise’ which is the subject of the

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burden to which he objects.” Id. at 679. The court acknowledged that “the government’s activities with his fluid or tissue sample after the [Bureau] takes it may offend Kaemmerling’s religious beliefs,” but it rejected the substantial burden contention because “Kaemmerling alleges no religious observance that the DNA Act impedes, [n]or acts in violation of his religious beliefs that it pressures him to perform.” Id.
In Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001), this Court similarly rejected the plaintiffs’ formulation of the substantial-burden test as forbidding the government’s general application of religiously neutral law where it would impose any burden on religiously motivated conduct because doing so would “read out of RFRA the condition that only substantial burdens on the exercise of religion trigger the compelling interest requirement.” As RFRA sponsor Senator Orrin Hatch explained, the Act “does not require the Government to justify every action that has some effect on religious exercise. Only action that places a substantial burden on the exercise of religion must meet the compelling State interest . . . .” 139 Cong. Rec. 26,180 (1993) (statement of Sen. Hatch).
Under free exercise precedents that RFRA codified, the Supreme Court distinguished between substantial burdens on religious exercise, which are actionable, and burdens that are not. Burdens that are only slight, negligible, or de minimis are not substantial. And burdens that fall only on third parties not before the court do not substantially burden plaintiffs. See, e.g., Bowen, 476 U.S. at 699 (“The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.”); Lyng, 485 U.S. at 447 (finding it undisputed that the government’s action “will

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have severe adverse effects on the practice of [plaintiffs’] religion,” but disagreeing that such burden was “heavy enough” to subject that action to strict scrutiny).
In Bowen, a Native American plaintiff brought a free exercise challenge to a statute requiring the state to use his daughter’s social security number to process welfare benefits requests. 476 U.S. at 695-96. Roy, the father, believed that the government’s use of the social security number of his daughter, Little Bird of the Snow, would serve to “‘rob the spirit’ of his daughter and prevent her from attaining greater spiritual power.” Id. at 696. The Court rejected Roy’s claim on the basis that, rather than complaining about a restriction on his own conduct, Roy sought to “dictate the conduct of the Government’s internal procedures.” Id. at 700. Roy’s claim failed because, even though it seriously offended Roy’s religious sensibilities, “[t]he Federal Government’s use of a Social Security number for Little Bird of the Snow d[id] not itself in any degree impair Roy’s freedom to believe, express, and exercise his religion.” Id. at 700-01 (internal quotation marks omitted).
Building on the analysis in Bowen, the Supreme Court refused to apply strict scrutiny to the government’s land use decision in Lyng. 485 U.S. at 450. There, members of Indian tribes claimed that the federal government violated their right to free exercise by permitting timber harvesting and construction on land they used for religious purposes. Id. at 441-42. The Court stated that its free exercise jurisprudence “does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions.” Id. at 450-51.

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According to Plaintiffs, this Court is bound to accept their understanding of the obligations the regulations impose—including their view of the existence and substantiality of any burden on their own religious exercise— because to do otherwise would be tantamount to questioning the sincerity of their beliefs. Indeed, under Plaintiffs’ view, we must accept a RFRA claimant’s understanding of what the challenged law requires her to do (or to refrain from doing), even if that subjective understanding is at odds with what the law actually requires.14 Plaintiffs’ approach collapses the distinction between sincerely held belief and substantial burden. We must give effect to each term in the governing statute, however, including the requirement that only “substantial” burdens on religious exercise trigger strict
14 Plaintiffs elaborated their position in their responses to a hypothetical posed during oral argument. We posited a situation in which an adherent, similar to the plaintiff in Thomas, objected to working in a factory on the grounds that the tools he was manufacturing were being used to support a war effort that his sincere religious beliefs prohibited him from supporting. See Thomas, 450 U.S. at 710 (after being transferred to a department that “fabricated turrets for military tanks, . . . [Thomas] quit, asserting that he could not work on weapons without violating the principles of his religion”). Unlike the facts in Thomas, however, in our hypothetical, the adherent was not manufacturing tools used for war, but rather farm equipment that had no relationship whatsoever to any military effort. Counsel for both the Priests for Life Plaintiffs and the RCAW Plaintiffs conceded that, under their view, if the religious objection was to war machinery, not farm tools, a plaintiff who misperceived the facts underlying his challenge would be entitled nonetheless to a determination that requiring him to continue working in a farm tools factory imposed a substantial burden on his religious observance merely because he sincerely believed that it did. Oral Arg. Tr. at 9:3-11:16; 22:1623:24.

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scrutiny. We cannot accept Plaintiffs’ proposal to prevent the court from evaluating the substantiality of the asserted burden.
2. The Accommodation Frees Eligible Organizations from the Contraceptive Coverage Requirement
A review of the regulatory accommodation shows that the opt-out mechanism imposes a de minimis requirement on any eligible organization: The organization must send a single sheet of paper honestly communicating its eligibility and sincere religious objection in order to be excused from the contraceptive coverage requirement. Once an eligible organization has taken the simple step of objecting, all action taken to pay for or provide its employees with contraceptive services is taken by a third party.
Specifically, the regulations require that, to be eligible for the accommodation, an organization must certify that it has a sincere religious objection to arranging contraceptive coverage.15 See 45 C.F.R. § 147.131(b); 29 C.F.R. § 2590.715-2713A(a). The organization opts out under the regulations by affirming that it meets those eligibility criteria via a “self-certification” form sent to its group health plan issuer or TPA, or a letter to the Secretary of HHS (the “alternative notice”). 45 C.F.R. § 147.131(c)(1); 29 C.F.R. § 2590.715-2713A(b)(1)(ii); see also 79 Fed. Reg. 51,092,
15 The Supreme Court, in Hobby Lobby, 134 S. Ct. at 2782, characterized the accommodation HHS designed for eligible organizations as a less restrictive means of serving the government’s interest in the contraceptive coverage requirement that should be made available to the closely-held, for-profit religious corporate plaintiffs in that case. The government accordingly is extending the accommodation to such companies. See 79 Fed. Reg. at 51,094.

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51,094-95 (Aug. 27, 2014). An alternative notice to HHS must identify the forms of contraceptive services to which the employer objects, and specify, among other things, the name of the plan, the plan type, and the contact information for the plan issuer or TPA.16 45 C.F.R. § 147.131(c)(1)(ii); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B). Once an eligible organization avails itself of the accommodation, that organization has discharged its legal obligations under the challenged regulations. See 45 C.F.R. § 147.131(c)(1), (e)(2); 29 C.F.R. § 2590.715-2713A(b)(1); 79 Fed. Reg. at 51,09495.
The accommodation here works in the way such mechanisms ordinarily do: the objector completes the written equivalent of raising a hand in response to the government’s query as to which religious organizations want to opt out. Once the eligible organization expresses its desire to have no involvement in the practice to which it objects, the government ensures that a separation is effectuated and arranges for other entities to step in and fill the gap as required to serve the legislatively mandated regime. Specifically, the regulations:
 require that the group health plan insurer expressly exclude contraceptive coverage from the eligible
16 Initially, an eligible organization could only avail itself of the accommodation by completing the self-certification form. The Supreme Court issued an interim order in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), however, permitting an eligible organization to notify the Secretary of HHS in writing of its objection instead of sending the self-certification directly to the insurer or TPA. Id. at 2807. The Departments accordingly issued interim final regulations to authorize opting out using that alternative notice. 79 Fed. Reg. at 51,094-95.

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organization’s group health plan,17 45 C.F.R. § 147.131(c)(2)(i)(A);
 fully divorce the eligible organization from payments for contraceptive coverage, see 45 C.F.R. § 147.131(c)(2); 29 C.F.R. § 2590.7152713A(b)(2)(i);
 require that the insurer or TPA notify the beneficiaries in separate mailings that it will be providing separate contraceptive coverage, 45 C.F.R. § 147.131(d); 29 C.F.R. § 2590.7152713A(d);
 require that the insurer or TPA specify to the beneficiaries in those separate mailings that their employer is in no way “administer[ing] or fund[ing]” the contraceptive coverage. (The regulations include model language for such notice, suggesting that the insurer or TPA specify to employees that “your employer will not contract, arrange, pay, or refer for contraceptive coverage.”) 45 C.F.R. § 147.131(d); 29 C.F.R. § 2590.715-2713A(d); and
 demand separate mailings and accounting on the part of the insurer or TPA, keeping contraceptive coverage separate for all purposes from the eligible organization’s plan that exclude it, 45
17 There is no analogous requirement for TPAs because it is the self-insured employer that controls the scope of coverage provided under its plan. Once it has opted out, a self-insured employer has satisfied its legal obligation under the contraceptive-coverage regulations. 29 C.F.R. § 2590.715-2713A(b)(1).

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C.F.R. § 147.131(c)(2)(ii), (d); 29 C.F.R. § 2590.715-2713A(b)(2), (d).
The regulations leave eligible organizations free to express to their employees their opposition to contraceptive coverage. In sum, both opt-out mechanisms let eligible organizations extricate themselves fully from the burden of providing contraceptive coverage to employees, pay nothing toward such coverage, and have the providers tell the employees that their employers play no role and in no way should be seen to endorse the coverage.
Plaintiffs’ opposition to the consequences of the ACA’s Women’s Health Amendment, even with the accommodation, amounts to an objection to the regulations’ requirement that third parties provide to Plaintiffs’ beneficiaries products and services that Plaintiffs believe are sinful. What Plaintiffs object to here are “the government’s independent actions in mandating contraceptive coverage, not to any action that the government has required [Plaintiffs] themselves to take.” Notre Dame, 743 F.3d at 559 (quoting Order at 3, Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 13-5368 (Dec. 31, 2013) (Tatel, J., statement) (hereinafter “Emergency Injunctions Order”)). But RFRA does not grant Plaintiffs a religious veto against plan providers’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties. See, e.g., Lyng, 485 U.S. at 452; Bowen, 476 U.S. at 699-700; Kaemmerling, 553 F.3d at 679; see also Mich. Catholic Conf., 755 F.3d at 388-89; Notre Dame, 743 F.3d at 552.
Plaintiffs seek to distinguish Kaemmerling and Bowen on the ground that, unlike the plaintiffs in those cases, they object to what the regulations require of them. But the only

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action the regulations require of Plaintiffs—completion of the self-certification or alternative notice—imposes a de minimis administrative obligation.18 To the extent that their objection is to the role of that action in the broader regulatory scheme— a scheme that permits or requires independent coverage providers to take actions to which Plaintiffs object—their challenge is governed by Kaemmerling and Bowen. As in Bowen, even though Plaintiffs’ “religious views may not accept this distinction between individual and governmental conduct,” the Constitution does “recognize such a distinction.” 476 U.S. at 701 n.6. So, too, does RFRA. And just as the plaintiffs in Bowen and Kaemmerling could not successfully challenge what the government chose to do with their social security numbers or DNA specimens, respectively, Plaintiffs have no RFRA claim against the government’s arrangements with others to provide coverage to women left partially uninsured as a result of Plaintiffs’ opt out. RFRA does not treat the government requiring third parties to provide contraceptive coverage in the face of an employer’s religious disapproval as tantamount to the government requiring the employer itself to sponsor such coverage. See Mich. Catholic Conf., 755 F.3d at 388-89; Notre Dame, 743 F.3d at 554-55; id. at 559 (quoting Emergency Injunctions Order at 3 (Tatel, J., statement)).
Plaintiffs nonetheless insist that, even with the accommodation, the regulations substantially burden their religious exercise by continuing to require that they play a
18 Plaintiffs object that characterizing the accommodation as simply filling out a form ignores the meanings that Plaintiffs attach to the form. But the meaning Plaintiffs attach to the form derives from their contention that their completion of the form causes third parties to take action. The error of that contention is discussed more fully infra Section IV.A.2.a.

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role in the facilitation of contraceptive use. In particular, they contend that: (1) “signing and submitting the selfcertification” or alternative notice “triggers” or “impermissibly facilitates delivery of the objectionable coverage” to the beneficiaries of their health plans; (2) the regulations require “contracting with third parties authorized or obligated to provide the mandated coverage;” and (3) the regulations require “maintaining health plans that will serve as conduits for the delivery of the mandated coverage.” Pls.’ Br. 12, 18; Pls.’ Supp’l Br. 1. Additionally, self-insured Plaintiffs contend that their self-certification expressly and impermissibly authorizes their TPAs to provide contraceptive coverage.
Each of those separate, but related, arguments fails for fundamentally the same reason: Notwithstanding Plaintiffs’ contrary contentions, the regulations provide an opt-out mechanism that shifts to third parties the obligation to provide contraceptive coverage to which health insurance beneficiaries are entitled, and that fastidiously relieves Plaintiffs of any obligation to contract, arrange, pay, or refer for access to contraception in any way that might constitute a substantial burden on their religious exercise under RFRA.
a. Plaintiffs’ Opt-Out Does Not Trigger Contraceptive Coverage
Plaintiffs claim that the requirement that they submit the self-certification to their plan issuers or TPAs, or submit the alternative notice to the government, makes them “authorize” or “trigger” the provision of the contraceptive coverage they find religiously abhorrent. They characterize the selfcertification and alternative notice as “permission slips” for their plan issuers and TPAs to provide contraceptive coverage to Plaintiffs’ employees. Pointing to the regulatory

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requirements of an insurer or TPA after an eligible organization has availed itself of the accommodation, Plaintiffs argue that it is their own act of self-certifying or completing the alternative notice that “confers . . . both the authority and obligation” on the insurance companies and TPAs to provide the objected-to coverage to Plaintiffs’ employees. Pls.’ Br. 9.
Plaintiffs’ “permission slip” argument misstates how the regulations operate. As the Sixth and Seventh Circuits have also concluded, the insurers’ or TPAs’ obligation to provide contraceptive coverage originates from the ACA and its attendant regulations, not from Plaintiffs’ self-certification or alternative notice. See Mich. Catholic Conf., 755 F.3d at 387; Notre Dame, 743 F.3d at 554. The regulations require that “a group health plan, or a health insurance issuer offering group or individual health insurance coverage, must provide coverage” for a variety of types of preventive care, including the coverage to which Plaintiffs object. 45 C.F.R. § 147.130(a)(1). That obligation exists apart from any action that Plaintiffs take. “‘Because Congress has imposed an independent obligation on insurers to provide contraceptive coverage to [an eligible organization’s] employees, those employees will receive contraceptive coverage from their insurers even if [objectors] self-certify—but not because [objectors] self-certify.’” Notre Dame, 743 F.3d at 559 (quoting Emergency Injunctions Order at 3 (Tatel, J., statement)).
Indeed, contrary to Plaintiffs’ characterization, what the self-certification or alternative notice actually triggers is a series of steps designed to ensure that eligible organizations such as Plaintiffs do not contract, arrange, pay, or refer for access to contraceptive services. The regulations fully relieve Plaintiffs from the obligation to provide or pay for

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contraceptive coverage, and instead obligate a third party to provide that coverage separately.
The illogic of Plaintiffs’ “trigger” argument is highlighted by the conscientious objector scenario recounted above. The implication of Plaintiffs’ position is that the Selective Service could deny a religious conscientious objector’s RFRA claim against calling up the next draftee only if the government’s decision to do so survived strict scrutiny. That strikes us as “a fantastic suggestion.” Notre Dame, 743 F.3d at 556. There, as here, the feature that defeats Plaintiffs’ argument is plain: It was the government’s selective service draft quota, not the conscientious objector exercising his accommodation right, that determined whether a replacement would be called. So, too, it is the ACA that requires that plan issuers and TPAs fill the resulting gaps, not the opt-out notice. In neither case is the objecting party substantially burdened by, and thus entitled to accommodation from, the sequelae of opting out. Accurately understood, the opt-out mechanism imposes on Plaintiffs only the de minimis administrative burden associated with completing the self-certification form or the alternative notice. See id. As long as Plaintiffs complete either notice, the regulations excuse them from any further involvement in providing contraceptive coverage. As discussed above, the beneficiaries receive contraceptive coverage not because Plaintiffs have completed the self-certification or alternative notice, but because the ACA imposes an independent obligation on insurers and TPAs to provide this coverage.
b. Plaintiffs’ Contracts with Providers Do Not Authorize or Facilitate Contraceptive Coverage
Plaintiffs further contend that the regulations substantially burden their religious exercise by requiring

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contraceptive coverage to be provided for their employees and students by the same entities with which Plaintiffs have contracted to provide non-contraceptive health coverage. Once Plaintiffs opt out of the contraceptive coverage requirement, however, contraceptive services are not provided to women because of Plaintiffs’ contracts with insurance companies; they are provided because federal law requires insurers and TPAs to provide insurance beneficiaries with coverage for contraception. Plaintiffs’ contracts do not in any way authorize or condone the insurers’ or TPAs’ provision of the coverage. The separate interactions between nonobjecting insurance companies and beneficiaries do not substantially burden Plaintiffs’ religious exercise, just as third-party actions in other religious-exercise cases have been held not to burden plaintiffs. See, e.g., Bowen, 476 U.S. at 699-700; Kaemmerling, 553 F.3d at 679; see also Notre Dame, 743 F.3d at 552. We do not understand Plaintiffs to contend that RFRA privileges them generally to require that the extra-contractual rights and legal obligations of individuals and entities with whom they contract conform to Plaintiffs’ religious beliefs, nor could they.
c. Plaintiffs’ Plans Are Not Conduits for Contraceptive Coverage
Plaintiffs also argue that the regulations substantially burden their religious exercise by permitting their insurance plans to be used as conduits through which their employees receive contraception. Plaintiffs identify a number of acts— such as paying premiums and offering enrollment paperwork—that they contend they must take that ensure that the contraceptive “pipeline” remains open. None of those acts, however, requires Plaintiffs to contract, arrange, pay, or refer for access to contraception. Once Plaintiffs take advantage of the accommodation, they are dissociated from

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the provision of contraceptive services. The premiums and enrollment paperwork support the provision of health care coverage to which Plaintiffs have no objection—and nothing more.
Plaintiffs contend that their plans remain a conduit for the provision of contraceptives because they are required to pay premiums or fees to entities in charge of the plans that provide contraceptive benefits. The regulations, however, expressly prevent insurers and TPAs from directly or indirectly charging Plaintiffs for the cost of contraceptive coverage and obligate third parties to pay for the contraceptive services. 45 C.F.R. § 147.131(c)(2)(ii); 29 C.F.R. § 2590.715-2713A(b)(2). Therefore, although Plaintiffs are required to pay premiums and fees to their group health plan issuers or TPAs, those entities are legally prohibited from using Plaintiffs’ payments to fund contraceptive services.
Plaintiffs further contend that their plans are used as conduits because, they assert, they must provide their beneficiaries with enrollment paperwork to enable them to participate in a plan that provides coverage for contraceptives, and they must send, or tell their beneficiaries where to send, the enrollment paperwork. Under the regulations, however, the employer has no such obligation. The insurer or TPA is entirely responsible for any paperwork related to contraceptive coverage. The insurer or TPA must provide beneficiaries with notice of the availability of contraceptive coverage, the notice must be separate from any materials distributed in connection with the individual’s enrollment in the employer’s plan, and the notice must make clear that the employer is not playing any role in the contraceptive coverage. 45 C.F.R. § 147.131(d); 29 C.F.R. § 2590.7152713A(d).

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Plaintiffs also argue that their plans serve as conduits because they must identify their health plan beneficiaries to their insurers or TPAs. No regulation related to the accommodation imposes any such duty on Plaintiffs. See Mich. Catholic Conf., 755 F.3d at 389. Plaintiffs will have necessarily provided their plans or TPAs with the names of employees enrolling in their health care plan so that those individuals may be provided with health care coverage. To the extent that Plaintiffs object to the actions the insurers or TPAs will take after receiving those names, Plaintiffs are objecting to an independent obligation imposed on a third party by the government. As discussed above, RFRA does not protect parties from obligations imposed on third parties by outside sources. In short, none of the actions that Plaintiffs identify is actually required of them under the regulations, and none of those actions makes their plans conduits for contraceptive coverage.19
d. Regulations Specific to the Self-Insured Plaintiffs Do Not Create a Substantial Burden
Finally, the self-insured Plaintiffs object to the regulatory provisions that apply particularly to self-insured organizations. They object that their self-certification forms are what designate their TPAs as the plan administrators for contraceptive benefits under section 3(16) of ERISA and also
19 On a related note, Plaintiffs contend that they must refrain from canceling their contract with a third party authorized to provide coverage for contraceptive services and from attempting to influence a third party’s decision to provide the coverage for contraception. The government denied that the regulations would require Plaintiffs to refrain from taking either of those actions. Gov. Br. 33-34; Oral. Arg. Tr. at 46:15-48:1. In any event, as discussed infra note 28, the regulations have been revised to remove the provision that Plaintiffs alleged so constrained them.

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serve as instruments under which the health plans are operated. See 29 C.F.R. § 2510.3-16(b). They argue that the regulations thus put them in the position of facilitating the provision of contraceptives by authorizing the TPAs to take actions they previously could not have taken.
That argument miscasts the regulations, which do not require the self-insured Plaintiffs to name their TPAs as ERISA plan fiduciaries. Plaintiffs submit forms to communicate their decisions to opt out, not to authorize TPAs to do anything on their behalf. The regulatory treatment of the form as sufficient under ERISA does not change the reality that the objected-to services are made available because of the regulations, not because Plaintiffs complete a self-certification. 29 C.F.R. § 2510.3-16(b); see Notre Dame, 743 F.3d at 554-55; 78 Fed. Reg. at 39,880.
The self-insured Plaintiffs raise a parallel objection to the alternative process established by the revised regulations. Under the revised regulations, once the government receives an alternative notice from an eligible organization, the government sends the TPA a notification that will “designate the relevant [TPA] as plan administrator under section 3(16) of ERISA for those contraceptive benefits that the [TPA] would otherwise manage.” 79 Fed. Reg. at 51,095; see also 29 C.F.R. § 2510.3-16(b). The regulations make the government’s notification to the TPA “an instrument under which the plan is operated.” 29 C.F.R. § 2510.3-16(b).
The self-insured Plaintiffs contend that the revised regulations thereby violate ERISA because the government lacks authority to name a plan administrator or amend Plaintiffs’ plan instruments. Plaintiffs do not contend, however, that the government lacks authority to author a plan instrument or designate a particular writing as a plan

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instrument, and it is this authority the regulations deploy. Once the government receives the alternative notice, it directs the TPA to cover contraceptive services and, treating its own direction as the new plan instrument, the government names the TPA as the plan administrator of contraceptive coverage. ERISA expressly permits a plan instrument to name a plan administrator. 29 U.S.C. § 1002(16)(A)(i) (defining “administrator” as “the person specifically so designated by the terms of the instrument under which the plan is operated”).20 By naming the plan administrator in the plan instrument, the government complies with ERISA. The government’s approach does not, contrary to Plaintiffs’ contention, amend or alter Plaintiffs’ own plan instruments; the government directs only the contraceptive coverage.
The self-insured Plaintiffs also contend that they are required to facilitate access to contraceptive coverage because, if their existing TPAs decline to assume the responsibility to provide contraceptive coverage, the regulations obligate Plaintiffs to take affirmative steps to identify and contract with new TPAs. The district court granted summary judgment for Plaintiff Thomas Aquinas College on this ground. RCAW, 2013 WL 6729515, at *24. Upon de novo review, we reject Thomas Aquinas’s argument as premature. Thomas Aquinas has not made any showing that its TPA has any intention of refusing to provide contraceptive coverage to its employees.21 Moreover, the
20 ERISA also states that “in the case of a plan for which an administrator is not designated and a plan sponsor cannot be identified,” the administrator is “such other person as the Secretary [of Labor] may by regulation prescribe.” 29 U.S.C. § 1002(16)(A)(iii). 21 See 29 C.F.R. § 2590.715-2713A(b)(2) (“If a [TPA] receives a copy of the self-certification . . . and agrees to enter into or remain

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government has clarified that, if an eligible organization’s existing TPA were to decline to assume responsibility for providing contraceptive coverage, the regulations do not require the eligible organization to identify and contract with a new one. See 78 Fed. Reg. at 39,880-81. We believe that clarification requires us to vacate the district court’s grant of summary judgment for Thomas Aquinas.
* * *
In sum, RFRA grants Plaintiffs a right to be free of any unjustified substantial governmental burden on their religious exercise. The regulatory requirement that they use a sheet of paper to signal their wish to opt out is not a burden that any precedent allows us to characterize as substantial. It is as a result of the ACA, and not because of any actions Plaintiffs must take, that Plaintiffs’ employees are entitled to contraceptive coverage provided by third parties and that their insurers or TPA must provide it; RFRA does not entitle Plaintiffs to control their employees’ relationships with other entities willing to provide health insurance coverage to which the employees are legally entitled. A religious adherent’s distaste for what the law requires of a third party is not, in itself, a substantial burden; that is true even if the third party’s conduct towards others offends the religious adherent’s sincere religious sensibilities. The regulations go to great lengths to separate Plaintiffs from the provision of contraceptive coverage. Plaintiffs have failed to demonstrate a substantial burden on their religious exercise that would
in a contractual relationship with the eligible organization or its plan to provide administrative services for the plan, the [TPA] shall provide or arrange payments for contraceptive services . . .” (emphasis added)); 78 Fed. Reg. at 39,880.

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subject the contraceptive coverage requirement to strict judicial scrutiny.
B. The Accommodation Survives Strict Scrutiny
When the parties filed their initial briefs on appeal, the government conceded that this Court’s decision in Gilardi v. U.S. Department of Health & Human Services, 733 F.3d 1208 (D.C. Cir. 2013), vacated, 134 S. Ct. 2902 (2014), controlled the compelling-interest inquiry here. Gov. Br. 44. In Gilardi, we held at the preliminary injunction stage that, while a closely-held, for-profit business corporation was not a “person” whose religious exercise was protected by RFRA, its individual owners had RFRA rights that were injured by application of the contraceptive coverage requirement to their firm. 733 F.3d at 1214-19. Lack of a regulatory accommodation applicable to such religious objectors constituted a substantial burden, and the government failed to establish a compelling interest that justified it. Id. at 1219-22.
While this appeal was pending, the Supreme Court vacated Gilardi in view of its decision in Hobby Lobby. 134 S. Ct. 2902 (2014). The Court also, in Wheaton College v. Burwell, 134 S.Ct. 2806 (2014), preliminarily enjoined the requirement that a party seeking to opt out use the selfcertification form as specified in the regulations. The plaintiff in that case already had notified the government of its eligibility and desire for exemption without using that form, and the Court required HHS to accept that as adequate notice. Because the Court’s decisions and a new Interim Final Rule responding to the Wheaton College order (see 79 Fed. Reg. at

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51,092) unsettled the governing law, we requested supplemental briefing.22
We directed the parties to brief the implications for this appeal of the intervening legal developments. We specifically requested briefing on the substantial-burden and strict-scrutiny issues, and received such briefing from both parties.
Hobby Lobby’s analysis is instructive, even though the substantial-burden and least-restrictive-means questions posed by the lack of any accommodation available to the plaintiffs in Hobby Lobby are very different from those presented here, where the government has provided an accommodation. As discussed above, we conclude that the accommodation does not impose a substantial burden on Plaintiffs in this case. See Mich. Catholic Conf., 755 F.3d at 390; Notre Dame, 743 F.3d at 554-559. To the extent that the Supreme Court’s recent order in Wheaton College might be read to signal a different conclusion, analysis of the strict scrutiny question is also called for. The Hobby Lobby Court’s discussion of the weightiness of the government’s interests is in substantial tension with Gilardi’s approach to the strict scrutiny analysis. We thus proceed in light of the intervening decisions to analyze whether the accommodation is the least restrictive means to serve a compelling governmental interest.
The challenged regulations seek to ensure timely and effective access to contraception for all women who want it and for whom it is medically appropriate. The government contends that the regulations are amply supported because they arise at the intersection of overlapping governmental interests, each of which is compelling: public health, and
22 See supra notes 15 & 16.

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women’s well-being. The government claims an interest in independently assuring seamless contraceptive coverage, regardless of whether the insured woman receives her other health insurance coverage through her (or her family member’s) employment at a religious nonprofit that objects to providing it.
The Supreme Court’s characterizations of the government’s asserted compelling interest and the narrow tailoring of the accommodation were dicta in Hobby Lobby. The accommodation was not challenged there; it was only adverted to as a potential remedy for the non-accommodated plaintiffs in that case. As next discussed, however, the Court’s characterizations are consistent with our conclusions that (1) the contraceptive coverage requirement—and, specifically, its guarantee for employees whose employers partake of the accommodation—is supported by compelling governmental interests, and (2) it imposes no unnecessary constraints on Plaintiffs’ religious exercise.
1. The Government Has Demonstrated Compelling Interests That Support Seamless Provision of Contraceptive Coverage
In promulgating the challenged regulations, the government asserted an interest in supporting women’s unhindered, cost-free access to contraceptive services. See 78 Fed. Reg. at 39,887-88. The Supreme Court in Hobby Lobby assumed, without deciding, that the governmental interest in “guaranteeing cost-free access” to contraception was “compelling.” Hobby Lobby, 134 S. Ct. at 2780. Five members of the Court separately signed onto opinions that appear to be more affirmative. Justice Kennedy, concurring, found it “important to confirm” that the “premise of the Court’s opinion is its assumption that the HHS regulation

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here at issue furthers a legitimate and compelling interest in the health of female employees.” Id. at 2786. He noted that the government “makes the case” that the contraceptive coverage requirement “serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee.” Id. at 2785-86. Justice Ginsburg, writing for four dissenting justices, recounted the government’s evidence establishing the importance of contraception to a range of women’s health needs, and concluded that contraceptive coverage under the ACA “furthers compelling interests in public health and women’s well being.” Id. at 2799-2800.
There is no simple formula for identifying which governmental interests rank as compelling, but certain touchstones aid our analysis. Interests in public health, safety, and welfare—and the viability of public programs that guard those interests—may qualify as compelling, as may legislative measures to protect and promote women’s well being and remedy the extent to which health insurance has not served women’s specific health needs as fully as those of men.
The government’s asserted compelling interest here, writ large, is in a sustainable system of taxes and subsidies under the ACA to advance public health. That interest is as strong as those asserted in cases such as United States v. Lee, 455 U.S. 252, 258 (1982), and Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 699-700 (1989), recognizing governmental interests in broad participation in public tax and benefits systems as sufficiently compelling to outweigh countervailing claims that they unjustifiably burdened religious exercise.

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In Lee, the Supreme Court held that the government’s interest in a nationwide social security system was sufficiently weighty to require that an Amish employer pay unemployment and social security taxes, even though the Court acknowledged that doing so would burden the Amish employer’s religious beliefs. 455 U.S. at 258. The Court observed that the social security system “serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees.” Id. The system would not have been viable unless broad participation was required, and the Court held that the governmental interest “in assuring mandatory and continuous participation in and contribution to the social security system” sufficed to justify the acknowledged burden on the employer’s religious exercise. Id. at 258-59.
So, too, in Hernandez, the Court rejected a claim that denial of certain tax deductions violated the plaintiffs’ religious exercise because “even a substantial burden [on the exercise of religion] would be justified by the broad public interest in maintaining a sound tax system.” 490 U.S. at 699700 (internal quotation marks omitted). The government concluded that the success of the ACA’s effort to expand access to health care, improve outcomes, and control costs similarly depends on widespread use of preventive care, which the Act encourages by requiring that particular preventive measures be provided free of cost. See 78 Fed. Reg. at 39,872.
The Supreme Court’s recognition of compelling governmental interests in the physical health and safety of the public, albeit in factually very different contexts, further supports the gravity of the government’s interest in the contraceptive coverage requirement. See, e.g., Prince v.

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Massachusetts, 321 U.S. 158, 165-67 (1944); Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). The Court in Prince sustained child labor laws against a free exercise challenge based on the government’s paramount interest in protecting the health and welfare of children. 321 U.S. at 165-71. In Jacobson, a mandatory, mass vaccination program withstood a constitutional liberty challenge because it served the government’s interest in “the public health and the public safety.” 197 U.S. at 25-26. Those cases support the strength of health interests behind the contraceptive coverage regulations, which include interests in avoiding health risks to women and children from unplanned pregnancies. Indeed, these very same interests—pediatric care and immunizations—are protected by companion provisions to the Women’s Health Amendment in the ACA. See 42 U.S.C. § 300gg-13(a)(2), (3). Under Plaintiffs’ argument, and contrary to Prince and Jacobson, those interests could fall to the same type of religious challenge as is leveled here by organizations that sincerely object to the types of care they cover.
The Supreme Court has recognized the interest in eliminating discrimination against women as sufficiently compelling to justify incursions on rights to expressive association. See Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 625-26 (1984) (recognizing compelling interest in creating “rights of public access” to private goods and services in order to promote women’s equal enjoyment of leadership skills, business contacts, and employment promotions). Those cases lend gravitas to the government’s interest in the contraceptive coverage requirement as an effort to eradicate lingering effects of sex discrimination. See generally Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003).

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The Supreme Court majority in Hobby Lobby characterized the government’s interests in “promoting public health and gender equality” as “broadly framed” and noted that RFRA “contemplates a more focused inquiry.” 134 S. Ct. at 2779 (internal quotation marks omitted). The government has pathmarked the more focused inquiry by explaining how those larger interests inform and are specifically implicated in its decision to support women’s unhindered access to contraceptive coverage. We do not take the government to suggest that its interests in “public health” and “gender equality” necessarily render compelling every subsidiary governmental action that advances them. Each of those interests, however, specifically undergirds the government’s decision here to provide seamless coverage of contraceptive services for women who want them and whose doctors prescribe them.
As we explain below, compelling interests converge to support the government’s decision, reflected in the challenged regulations, to provide cost-free contraceptive coverage and to remove administrative and logistical obstacles to accessing contraceptive care. Those compelling governmental interests suffice to support requiring eligible organizations to ask for an accommodation if they want to take advantage of one, so that the government can protect its interests by ensuring that the resulting coverage gaps are filled.
a. Improving Public Health Through Contraceptive Coverage
The ACA is an ambitious effort to reform the health care system in the United States. It is designed to expand access to comprehensive insurance coverage as a means of controlling spiraling health care costs while improving health. See Cong. Budget Office, Key Issues in Analyzing Major

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Health Insurance Proposals 1 (2008) (“CBO Report”); see also Remarks by the President at the Annual Conference of the American Medical Association (June 15, 2009), http://www.whitehouse.gov/the-press-office/remarkspresident-annual-conference-american-medical-association. The United States in recent years spent far more on health care than did many other developed nations. At the same time, the quality of care Americans received was lower and our population was no healthier than people in countries that spent less. CBO Report at 1.

Congress understood that improved health at affordable

cost cannot be attained without increased reliance on

preventive care. Most people underestimate the importance

of prevention and are easily hindered from undertaking

preventive steps because the costs and effort of preventive

health care are immediate while benefits typically are

uncertain and deferred. Many adverse health conditions and

an enormous amount of costly care can be avoided if people

better understand risky behavior, plan more carefully, and

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

Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps 16-17 (2011) (“IOM Report”).23 Providing

preventive care—including patient education, screenings,

preventive medications and devices, and early treatment—can

be less costly than treating advanced diseases and conditions.

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

Disease

Control

and

Prevention,

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

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

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

23 As noted above, the government directed the HRSA, in consultation with IOM, to develop guidelines for women’s preventive care services. This report was part of that effort.

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spending went to prevention. See Centers for Disease Control and Prevention, The Power of Prevention (2009), available at http://www.cdc.gov/chronicdisease/pdf/2009-power-ofprevention.pdf.
Congress and the Executive Branch determined that serving the government’s compelling public health interests depends on overcoming the human behavioral tendencies of denial and delay documented in the legislative and regulatory record. People tend to eschew preventive care when they have to pay for it, make even minor efforts to learn about and enroll in new programs, keep multiple appointments, or follow new routines. Because “[i]ndividuals are more likely to use preventive services if they do not have to satisfy costsharing requirements,” 78 Fed. Reg. at 39,872, the ACA requires group or individual health plans to include coverage for a variety of preventive health services without cost sharing. 42 U.S.C. § 300gg-13(a). “Studies have . . . shown that even moderate copayments for preventive services” can “deter patients from receiving those services.” IOM Report at 19.
The government further determined that the imperative of providing broad access to preventive care applies with full force to women’s health. Congress was informed during debates on the ACA that “too many women are delaying or skipping preventive care because of the costs of copays and limited access. In fact, more than half of women delay or avoid preventive care because of its costs.” 155 Cong. Rec. 28,843 (2009) (statement of Sen. Gillibrand); see also 155 Cong. Rec. 28,842-43 (2009) (statement of Sen. Mikulski). In light of this reality, Senator Mikulski proposed the Women’s Health Amendment, which expanded the list of preventive health services the ACA required that insurers cover without cost sharing to include preventive health care

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and screenings for women. 155 Cong. Rec. 28,800-02 (2009) (codified at 42 U.S.C. § 300gg-13(a)(4)). Congress in the ACA directed the HRSA to develop the list of covered preventive services. The HRSA commissioned the IOM to identify preventive health services with strong scientific evidence of health benefits. The IOM’s report recommended preventive services it deemed necessary for women’s health and well-being. HRSA accepted IOM’s findings and recommendations, and the Departments relied on them when crafting both the exemption and the accommodation.
The HRSA and IOM concluded that, given women’s reproductive health needs, preventive health services for women should include contraceptive coverage. IOM Report at 109-10; see also 77 Fed. Reg. at 8,725. The government recognized that the cost of reproductive health care, including contraceptives, is significant, and it falls disproportionately on women. 78 Fed. Reg. at 39,873, 39,887. The vast majority of women who have sex with men use contraceptives at least some of the time. See IOM Report at 103. Most contraceptives used by women, and the forms that are most effective and fully reversible, are available only with a prescription and in some cases must be administered by a medical professional. See id. at 105; Kimberly Daniels, et al., Contraceptive Methods Women Have Ever Used: United States, 1982-2010, 62 Nat’l Health Stat. Rep. 1 (2013), available at http://www.cdc.gov/nchs/data/nhsr/nhsr062.pdf (hereinafter “Daniels”). Those forms—including birth control pills, injectable methods, contraceptive patches, and intrauterine devices (“IUD”)—have been used at one time or another by 88 percent of women who have had sexual intercourse. Daniels at 1.
The Institute of Medicine observed that high costs regularly cause women to forego contraception completely or

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to choose less effective methods: “Even small increments in cost sharing have been shown to reduce the use of preventive services . . . . The elimination of cost sharing for contraception therefore could greatly increase its use, including the use of the more effective and longer-acting methods, especially among poor and low-income women most at risk for unintended pregnancy.” IOM Report at 109; see also 78 Fed. Reg. at 39,873. Prescription methods of contraception have lower failure rates than non-prescription methods such as condoms, IOM Report at 105, but can be quite expensive. The cost of an IUD, one of the most convenient and effective forms of reversible contraception, is nearly a month’s full-time pay for workers earning the minimum wage, and its cost makes it less likely that women will use it. Hobby Lobby, 134 S. Ct. at 2800 (Ginsburg, J., dissenting).

Thus the government decided to require contraceptive

coverage without cost sharing because appropriate and

consistent use of contraceptives furthers women and

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

control the timing and spacing of pregnancies improves

women’s health outcomes. Short intervals between

pregnancies increase maternal mortality and pregnancy-

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

and healthy pregnancy is a demanding physical process for a

woman. Pregnancy increases risks of health complications,

such as anemia, gestational diabetes, hypertension,

hyperemesis gravidarum, and even death. See generally 78

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

covering preventive care to respond to women’s unique health

needs); Pregnancy Complications, Centers for Disease

Control

and

Prevention,

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

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

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Related Deaths, Centers for Disease Control and Prevention, http://www.cdc.gov/reproductivehealth/MaternalInfantHealth/ Pregnancy-relatedMortality.htm (last visited Nov. 5, 2014).
A core reason the government sought under the ACA to expand access to contraception is that use of contraceptives reduces unintended pregnancies. According to the Institute of Medicine, in 2001, “49 percent of all pregnancies in the United States were unintended.” IOM Report at 102. There is “an 85 percent chance of an unintended pregnancy within 12 months among couples using no method of contraception.” Id. at 105. Unintended pregnancies elevate health risks for women and children and impose other costs on society. Women whose pregnancies are unintended are more likely to experience depression, anxiety, or domestic violence during those pregnancies. IOM Report at 103; see also Korte v. Sebelius, 735 F.3d 654, 725 (7th Cir. 2013) (Rovner, J., dissenting). “In 2001, 42 percent of U.S. unintended pregnancies ended in abortion.” IOM Report at 102. Reducing the frequency of unintended pregnancies would reduce the frequency of abortions. 78 Fed. Reg. at 39,872; see also IOM Report at 105. Supporting access to contraception empowers women to avoid the physical burdens and risks of pregnancy unless and until they decide to undertake them.
The government further relied on the ways that contraceptive use can promote and improve women’s health apart from their procreative health needs. Women contraindicated for pregnancy, such as those with certain heart conditions, hypertension, diabetes, Marfan Syndrome, or lupus, face health hazards from pregnancy that can be life threatening. See 78 Fed. Reg. at 39,872; IOM Report at 10304; Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J., concurring), id. at 2799 (Ginsburg, J., dissenting). Women

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with those conditions have especially critical needs to time their pregnancies appropriately, such as by waiting until their conditions are under control. Doctors also recommend that women taking certain medications that pose risk to maternal and fetal health avoid getting pregnant. Hormones manufactured and sold as contraception are also used to treat, manage, or prevent other diseases, such as “certain cancers, menstrual disorders, and pelvic pain.” Hobby Lobby, 134 S. Ct. at 2799 (Ginsburg, J., dissenting); see also 78 Fed. Reg. 39,872; IOM Report at 107.
The Institute of Medicine reported that, for similar reasons, contraceptive use also promotes the health of infants and children. Children who are born as the result of unintended pregnancy suffer increased health risks on average, including preterm birth and low birth weight and associated complications. IOM Report at 103. Women who do not immediately know they are pregnant, or are ambivalent about bearing children, are more likely to delay prenatal care or engage in behaviors that pose pregnancy related risks. 78 Fed. Reg. at 39,872; IOM Report at 103. Short intervals between pregnancies also can have serious health consequences for infants, such as low birth weight, prematurity, and small-for-gestational age. 78 Fed. Reg. at 38,872; IOM Report at 103. Women in hazardous jobs or precarious or dangerous living situations may need to delay pregnancy in order to reduce the health risks for a child. Permitting women to control the timing and spacing of their pregnancies improves the health and welfare of women, children, and infants.

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b. Assuring Women Equal Benefit of Preventive Care By Requiring Coverage of Their Distinctive Health Needs
The government also relied on evidence that advancing women’s well being by meeting their health needs as fully as those of men was a compelling reason for a contraceptive coverage requirement. In enacting and implementing the ACA, the government sought to provide coverage that offers equal benefit for men and women. 78 Fed. Reg. at 39,887. Before the ACA, insurance coverage for a female employee was “significantly more costly than for a male employee.” Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J., concurring). Women paid more for the same health insurance coverage available to men and “in general women of childbearing age spen[t] 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. 28,843 (2009) (statement of Sen. Gillibrand); see 78 Fed. Reg. at 39,887.
The government recognized that women pay more for the same health benefits in part because services more important or specific to women have not been adequately covered by health insurance. See 155 Cong. Rec. 28,843 (2009) (statement of Sen. Gillibrand). Contraception is a key element of preventive care for many women, yet the methods that are most reliable and are under a woman’s control require prescriptions and are disproportionately more expensive than non-prescription forms of contraception. See IOM Report at 105, 108. Condoms, which are inexpensive and widely available over the counter, require men’s cooperation and are substantially less effective in pregnancy prevention than prescription methods. See id. at 105. When Congress added the Women’s Health Amendment to the ACA, which requires group health plans to include preventive health care services for women without cost sharing, it did so precisely to end “the

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punitive practices of the private insurance companies in their gender discrimination.” 155 Cong. Rec. 28,842 (daily ed. Dec. 1, 2009) (statement of Sen. Mikulski). The government concluded that a preventive care package that failed to cover contraception would not give women access, equal to that enjoyed by men, to the full range of health care services recommended for their specific needs. See 78 Fed. Reg. at 39,887.
For most women, whether and under what circumstances to bear a child is the most important economic decision of their lives. An unintended pregnancy is virtually certain to impose substantial, unplanned-for expenses and time demands on any family, and those demands fall disproportionately on women. As the Supreme Court has recognized “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 856 (1992); 78 Fed. Reg. at 39,873 (“[A]ccess to contraception improves the social and economic status of women.”). Congress noted when enacting the Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000e et seq.), and Family and Medical Leave Act, Pub. L. No. 103-3, 107 Stat. 6 (codified at 29 U.S.C. § 2601 et seq.), a woman’s ability to get pregnant has led to pervasive discrimination in the workplace.24
24 See Hibbs, 538 U.S. at 736 (“‘Historically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women’s roles has in turn justified discrimination against women when they are mothers or mothers-to-be.’” (quoting The Parental and Medical

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The government has amply substantiated its compelling interests in the accommodation. The government has overlapping and mutually reinforcing compelling interests in promoting public health and gender equality. The contraceptive coverage requirement specifically advances those interests. It was adopted to promote women’s equal access to health care appropriate to their needs, which in turn serves women’s health, the health of children, and women’s equal enjoyment of their right to personal autonomy without unwanted pregnancy. We hold that the accommodation is supported by the government’s compelling interest in providing women full and equal benefits of preventive health coverage, including contraception and other health services of particular relevance to women.
2. The Regulations Use the Least Restrictive Means to Ensure Contraceptive Coverage While Accommodating Religious Exercise
In addition to calling on us to inquire whether the challenged contraceptive coverage requirement serves a compelling interest, RFRA demands that we guard against unnecessary impositions on religious exercise by carefully examining the particular way the government has gone about serving that interest. The Departments designed the challenged accommodation for eligible organizations fully cognizant of RFRA’s mandate. See 78 Fed. Reg. at 39,886-
Leave Act of 1986: Joint Hearing before the Subcommittee on Labor–Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., 100 (1986)); see also S. Rep. No. 95-331, at 3 (1977) (“A failure to address discrimination based on pregnancy, in fringe benefits or in any other employment practice, would prevent the elimination of sex discrimination in employment.”).

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88. As already described, the accommodation excuses eligible organizations from the contraceptive coverage requirement, severs them from any involvement in the separate contraceptive coverage to which the employees are entitled, and specifies that employees must be notified that the objecting organizations have no involvement in providing their contraceptive coverage.
Adverting to this accommodation in Hobby Lobby, the Supreme Court stressed that it alleviates the burden on the plaintiffs of having to provide contraceptive coverage and “serves HHS’s stated interests equally well.” Hobby Lobby, 134 S. Ct. at 2782. The Court described the accommodation as “an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Id. at 2759; see id. at 2786 (Kennedy, J., concurring) (the “accommodation equally furthers the Government’s interest but does not impinge on the plaintiff’s religious beliefs”). In fact, the Court explained that the effect of the accommodation on women “would be precisely zero.” Id. at 2760.
In determining whether the government has used the least restrictive means, the Supreme Court has instructed that we focus on the context of the religious objectors, and consider whether and how the government’s compelling interest is harmed by “‘granting specific exemptions to particular religious claimants.’” Hobby Lobby, 134 S. Ct. at 2779 (quoting Gonzales v. O Centro Espírita Beneficiente Uniao Do Vegetal, 546 U.S. 418, 431 (2006)). We must “look to the marginal interest in enforcing” the regulation to which the plaintiffs object. Id. (citing O Centro, 546 U.S. at 431).
The government’s compelling interests in the contraceptive coverage requirement are met with the least

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imposition on religious exercise by allowing eligible organizations to opt out, but requiring them to identify themselves when they do. Only if the eligible organizations communicate that they are dropping contraceptive coverage from the health insurance they have arranged for their employees will the government be able to ensure that the resultant gaps in employees’ coverage are otherwise filled. The government contends that its interests would be impaired if eligible organizations were entitled to exempt themselves from the contraceptive coverage requirement without notifying either HHS, or their insurers or TPAs.
The government has an interest in the uniformity of the health care system the ACA put in place, under which all eligible citizens receive the same minimum level of coverage. Like the Social Security system at issue in Lee, the ACA “serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants.” 455 U.S. at 258. Contraceptive coverage must be effective if it is to serve the government’s compelling interests, and the Departments were justified in concluding that, to be effective, the coverage must be provided to all women who want it, on the same terms as other preventive care. Providing contraceptive services seamlessly together with other health services, without cost sharing or additional administrative or logistical burdens and within a system familiar to women, is necessary to serve the government’s interest in effective access. Imposing even minor added steps would dissuade women from obtaining contraceptives and defeat the compelling interests in enhancing access to such coverage. See 78 Fed. Reg. at 39,888.
The evidence shows that contraceptive use is highly vulnerable to even seemingly minor obstacles. Plaintiffs suggest that the government could offer tax deductions or

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credits for the purchase of contraceptive services, expand eligibility for existing federal programs that provide free contraception, allow women to submit receipts to the federal government for reimbursement, or provide incentives for pharmaceutical companies to provide contraceptives free of charge to women. Pls.’ R. Br. 22. Those alternatives would substantially impair the government’s interest. Plaintiffs’ proposed alternatives each would add steps—requiring women to identify different providers or reimbursement sources, enroll in additional and unfamiliar programs, pay out of pocket and wait for reimbursement, or file for tax credits (assuming their income made them eligible)—or pose other financial, logistical, informational, and administrative burdens. See 78 Fed. Reg. at 39,888. Even assuming that any alternative program had or would develop the capacity to deal with an enormous additional constituency, it would not serve the government’s compelling interest with anywhere near the efficacy of the challenged accommodation and would instead deter women from accessing contraception. See id.
Plaintiffs also dispute the government’s compelling interest in applying the contraceptive coverage requirement to them on the ground that there is “no evidence” showing that Plaintiffs’ employees lack access to or want contraception. Pls.’ Supp’l Br. 16-17. The data upon which the government relies support its conclusion that women generally benefit from access to contraceptive coverage, and are unlikely to use such coverage when it is costly or complicated to obtain. See 78 Fed. Reg. at 39,887-88. There is no reason to believe that the health needs of Plaintiffs’ employees or spouses and other covered beneficiaries in their families are materially different from those of other women. Religious nonprofits like the Plaintiff organizations employ millions of Americans— including individuals who do not share their beliefs. As the government recognized, “[e]mployers that do not primarily

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employ employees who share the religious tenets of the organization are more likely to employ individuals who have no religious objection to the use of contraceptive services and therefore are more likely to use contraceptives.” 77 Fed. Reg. at 8,728. The evidence justifying the contraceptive coverage requirement equally supports its application to Plaintiffs.
Accommodating religious entities need not come at the cost of the compelling interests the government program serves. When the interests of religious adherents collide with an individual’s access to a government program supported by a compelling interest, RFRA calls on the government to reconcile the competing interests. In so doing, however, RFRA does not permit religious exercise to “unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.” Hobby Lobby, 134 S. Ct. at 2786-87 (Kennedy, J., concurring); see also id. at 2781 n.37 (“It is certainly true that in applying RFRA ‘courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.’”). The opt out offered to religious adherents allows the government to further its compelling interests with the least restriction on religious exercise. Under the accommodation, eligible organizations are relieved of the obligation to include contraceptive coverage in their health care plans, but “women would still be entitled to all FDA-approved contraceptives without cost sharing.” Id. at 2760. Allowing eligible organizations to exempt themselves completely from the contraceptive coverage requirement, without so much as notifying their plan or HHS that they have done so, would undermine the government’s interest in the breadth of the scheme established in the ACA.
The government’s interest in a comprehensive, broadly available system is not undercut by the other exemptions in

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the ACA, such as the exemptions for religious employers, small employers, and grandfathered plans. The government can have an interest in the uniform application of a law, even if that law allows some exceptions. See, e.g., Lee, 455 U.S. at 261. In any event, the exemptions to the ACA are limited and the rationales that support them do not extend to exempting Plaintiffs. Currently, only religious employers’ plans and grandfathered health plans (employer health plans that existed prior to March 23, 2010, and that have not made particular changes after that date) are not required to include coverage for preventive services. 42 U.S.C. § 18011(a), (e). Religious employers are exempt from the contraceptive coverage provision because the government reasonably assumed that if the church opposed contraception, the church’s employees would, too. See 77 Fed. Reg. at 8,728. The exception for grandfathered plans sought to limit disruption by enabling individuals temporarily to maintain their health care coverage as it existed prior to enactment of the ACA. That exception is a transitional measure and will be eliminated as employers make changes to their health care plans. See 45 C.F.R. § 147.140(g) (a health plan ceases to be a grandfathered plan when it eliminates benefits, increases cost-sharing requirements, or changes its employer-contribution terms). According to HHS estimates, 66 percent of small-employer plans and 45 percent of large-employer plans were expected to lose their grandfathered status by the end of 2013.25 75
25 According to a 2013 study conducted by Kaiser Health News, the grandfathering is already quickly phasing down. Thirty-six percent of individuals who receive health care coverage through their employer in 2013 were enrolled in a grandfathered health plan, as compared to 48 percent in 2012 and 56 percent in 2011. Employer Health Benefits: 2013 Annual Survey, Kaiser Family Foundation and Health Research & Educational Trust, at 221, available at

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Fed. Reg. 34,538, 34,552 (June 17, 2010). The exemption for small employers (those with fewer than 50 employees) is not an exemption from the contraceptive coverage requirement, but from the requirement to provide any health insurance to their employees. 26 U.S.C. § 4980H(c)(2). Employees who do not get insurance through their jobs because they work for exempt small employers are eligible to purchase it through the exchanges, where all listed plans are required to cover contraceptive services without cost sharing. None of the three exemptions is analogous to what the Plaintiffs here seek.
* * *
The accommodation is the least restrictive method of ensuring that women continue to receive contraceptive coverage in a seamless manner while simultaneously relieving the eligible organizations of any obligation to provide such coverage. Because the government has used the least restrictive means possible to further its compelling interest, RFRA does not excuse Plaintiffs from their duty under the ACA either to provide the required contraceptive coverage or avail themselves of the offered accommodation to opt out of that requirement. The accommodation meets the twin aims of respecting religious freedom and ensuring that women continue to receive contraceptive coverage without administrative, financial, or logistical burdens. The regulations thus respond appropriately to RFRA’s explicit demand for “sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. § 2000bb(a)(5).
http://kaiserhealthnews.files.wordpress.com/2013/11/8465employer-health-benefits-20131.pdf.

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V. Constitutional Claims
Plaintiffs raise several constitutional challenges to the regulations. We address each in turn, concluding that the regulations do not violate any of the constitutional provisions identified by Plaintiffs.
A. Free Exercise of Religion
Plaintiffs claim that the contraceptive coverage requirement violates the Free Exercise Clause of the First Amendment because it categorically exempts houses of worship from the contraceptive coverage requirement and temporarily relieves grandfathered plans from the requirement to cover any preventive services without cost sharing, while not similarly exempting Plaintiffs. The Free Exercise Clause embodies a “fundamental nonpersecution principle.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 523 (1993). But it “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Smith, 494 U.S. at 879 (internal quotation marks omitted). A Free Exercise Clause challenge, in contrast to a claim under RFRA, receives strict scrutiny only if the challenged law is either not neutral or not generally applicable. See Lukumi Babalu, 508 U.S. at 531. We have held that the regulations comply with RFRA; they readily satisfy the less stringent free exercise standard.
“Neutrality and general applicability are interrelated,” but distinct. Id. A law is not neutral if it facially “refers to a religious practice without a secular meaning discernable from the language or context,” or if “the object of a law is to infringe upon or restrict practices because of their religious

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motivation.” Id. at 533. A law is not generally applicable if, “in a selective manner,” it “impose[s] burdens only on conduct motivated by religious belief.” Id. at 543.
Plaintiffs do not contend that the challenged contraceptive coverage requirement is religiously non-neutral on its face, nor that it was enacted for an anti-religious purpose, but that the exemptions provided to houses of worship and grandfathered plans render the contraceptive coverage requirement non-neutral and not generally applicable. Those exemptions, however, do not impugn the contraceptive coverage requirement’s neutrality and generality: it is both, in the relevant sense of not selectively targeting religious conduct, whether facially or intentionally, and broadly applying across religious and nonreligious groups alike. See Mich. Catholic Conf., 755 F.3d at 394; RCAW, 2013 WL 6729515, at *27-31; Priests for Life, 7 F. Supp. 3d at 105-07.
The contraceptive coverage requirement is a religiously neutral part of a national effort to expand health coverage and make it more efficient and effective. The ACA’s limited or temporary exemptions do not amount to the kind of pattern of exemptions from a facially neutral law that demonstrate that the law was motivated by a discriminatory purpose. See supra Section IV.B.2. The Florida prohibition on animal killing invalidated in Lukumi Babalu, by contrast, responded to the opening of a Santeria church, which practiced religious animal-sacrifice rituals. 508 U.S. at 524. The ordinance elaborated a putatively general prohibition on animal killings with specific disapproval of killing for “sacrifice” as part of “any type of ritual,” while exempting as “necessary” killings for sport hunting, slaughtering animals to eat them, eradication of pests, and euthanasia—killings that were “no more necessary or humane” than the forbidden Santeria

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sacrifices. Id. at 536-37. That exemption for so many nonreligious types of animal killing helped to make clear that “suppression of the central element of the Santeria worship service was the object of the ordinances.” Id. at 534. The exemptions in the ACA do not single out any religion and are wholly consistent with the law’s neutral purpose. Indeed, the existence of an exemption for religious employers substantially undermines contentions that government is hostile toward such employers’ religion.26
The contraceptive coverage requirement also does not target religious organizations, but applies across the board. The exemptions do not render the law so under-inclusive as to belie the government’s interest in protecting public health and promoting women’s well-being or to suggest that disfavoring Catholic or other pro-life employers was its objective. See RCAW, 2013 WL 6729515, at *30. For example, the Supreme Court has held that, despite statutory exemptions for self-employed Amish employers, the social security system was “uniformly applicable to all.” United States v. Lee, 455 U.S. 252, 260-61 (1982); see also id. at 262 (Stevens, J., concurring in the judgment) (describing the challenged law as “a valid tax law that is entirely neutral in its general application”). As the Sixth Circuit recently explained: “General applicability does not mean absolute universality.”
26 See, e.g., RCAW, 2013 WL 6729515, at *28 (availability of the religious employer exemption “cuts against the conclusion that the contraceptive mandate was specifically designed to oppress those of the Catholic faith as plaintiffs suggest”); Catholic Diocese of Nashville v. Sebelius, No. 3:13-01303, 2013 WL 6834375, at *6 (M.D. Tenn. Dec. 26, 2013) (noting that exemption for religious employers and accommodation for eligible organizations “evidences an intent, not to burden Plaintiffs’ religious beliefs, but to recognize and respect them”).

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Mich. Catholic Conf., 755 F.3d at 394 (internal quotation marks omitted).
Plaintiffs contend that the ACA’s exemptions make it under-inclusive in a way that suggests that the government believes that “secular motivations [for providing an exemption] are more important than religious motivations,” Pls.’ Br. 50 (internal quotation marks omitted), evidencing that the government “devalues religious reasons,” Pls.’ R. Br. 25 (internal quotation marks omitted). But, for the same reasons the exemptions do not undermine the government’s interest in a uniform system, see supra Section IV.B.2, the exemptions do not demonstrate the government’s hostility toward religious concerns.
Because the contraceptive coverage requirement is a neutral law of general applicability, Plaintiffs’ free exercise claim fails.
B. Expressive Association
The Priests for Life Plaintiffs argue that the contraceptive coverage requirement violates their First Amendment rights to expressive association, which protects the “right to associate for the purpose of speaking.” See Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR), 547 U.S. 47, 68 (2006). The regulations infringe that right, the Priests for Life Plaintiffs contend, by requiring them to promote the government’s immoral objective of expanding access to contraceptives, which undermines the organization’s “very reason for its existence.” Pls.’ Br. 51. The Priests for Life Plaintiffs base their expressive association claim, like their RFRA claim, on a misreading of what the regulations require of them, suggesting that the regulations require them

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to disclose the identities of their employees and plan beneficiaries. See, e.g., Pls.’ Br. 52-53. They do not.
A law may violate the First Amendment right to expressive association where it directly interferes with an expressive association’s membership decisions or where it indirectly affects the group’s composition by making membership less attractive. FAIR, 547 U.S. at 69. In FAIR, the Supreme Court held that a law requiring law schools receiving federal funds to give military recruiters access to the schools’ facilities equal to the access it afforded other recruiting employers did not violate the objecting schools’ rights to associate. Id. at 69-70. The law schools’ nondiscrimination policies prohibited discrimination based on sexual orientation, and, because the United States Military refused at that time to hire any openly gay or lesbian applicants, the law schools were strongly opposed to hosting military recruiters and actively facilitating their access to the schools’ students. The Court rejected that claim, holding that the military recruiters’ presence on campus “does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message.” Id. at 70. The Court acknowledged that the plaintiffs there had to “‘associate’ with military recruiters in the sense that they interact with them,” but held that, because the recruiters were as an institutional matter outsiders who would “come onto campus for the limited purpose of trying to hire students,” they did not impinge on the schools’ expressive association. Id. at 69.
The same is true here: the Priests for Life Plaintiffs object to interacting with coverage providers that must make contraceptive coverage available, but such interaction does not make those providers part of the organization’s expressive association or otherwise impair its ability to express its

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message. Just as the students and faculty in FAIR remained “free to associate to voice their disapproval of” the military’s policy against gays or lesbians serving openly in the military, id. at 69-70, Priests for Life’s members and employees remain free to associate with each other to promote their religious views on contraception and other matters, and to voice their disapproval of health-care products and services that they believe to be immoral. “Nothing in the[] final regulations prohibits an eligible organization from expressing its opposition to the use of contraceptives.” 78 Fed. Reg. at 39,880 n.41. Accordingly, the Priests for Life Plaintiffs’ expressive association claim fails.
C. Compelled Speech
It is “a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2327 (2013) (internal quotation marks omitted); see Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2282 (2012) (“The government may not . . . compel the endorsement of ideas that it approves.”). Plaintiffs contend that the regulations impermissibly compel their speech in three ways.
First, Plaintiffs claim that the regulations require them to authorize and facilitate health care coverage for counseling that encourages and promotes contraception, in violation of their right against compelled speech. Plaintiffs appear to contend that the regulations commandeer them to echo or facilitate the words of medical professionals who might communicate to insured women the availability and potential appropriateness of various contraceptive methods. But the regulations do not require Plaintiffs to communicate any procontraceptive-coverage message, nor to authorize or facilitate

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counseling in favor of contraception. See supra Section IV.A.2; Mich. Catholic Conf., 755 F.3d at 391. They leave Plaintiffs free to voice their opposition to contraception.
Plaintiffs’ reliance on Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011), is misplaced. Arizona Free Enterprise Club concerned a state campaign finance law under which candidates for state office who accepted public funding could receive additional state funds in the event that privately financed candidates and independent expenditure groups exceeded spending limits. See id. at 2813. Under Arizona’s law, the volume of political expenditures by or in support of a privately financed candidate triggered funding to his or her opponent. See id. at 2818-19. Plaintiffs’ completion of the self-certification form has no similar triggering role, and there is no interest or effect here to level competing voices, which was a significant aspect of the constitutional infirmity of Arizona’s campaign finance law. See id. at 2825. Furthermore, contrary to Plaintiffs’ argument, nothing in Arizona Free Enterprise Club suggests that the prohibition on compelling a party to “help disseminate hostile views” the party opposes, id. at 2821 n.8 (internal quotation marks omitted), applies to laws that require a party to engage in non-expressive behavior, such as the provision of health insurance.
Second, Plaintiffs argue that completing the selfcertification form requires them to express a particular view, namely, that they oppose providing their plan participants with coverage for contraceptive services, and that it deprives them of the freedom to speak on this issue on their own

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terms.27 The self-certification form and alternative notice are the methods through which Plaintiffs can opt out of the requirement to provide their employees with health insurance coverage for contraceptive services. The filing of the form, though it may include “elements of speech,” is “a far cry from the compelled speech” that the Supreme Court previously has found to be unconstitutional. FAIR, 547 U.S. at 61-62 (citing W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), and Wooley v. Maynard, 430 U.S. 705, 717 (1977)). Just as the compelled speech that the law schools identified in FAIR was “plainly incidental to the Solomon Amendment’s regulation of conduct,” id. at 62, any speech required by the selfcertification or alternative notice is similarly incidental to the accommodation’s regulation of conduct. Compelling an organization to send a form to a third party to claim eligibility for an exemption “is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.” Id. Requiring Plaintiffs to give notice that they wish to opt out of the contraceptive coverage requirement no more compels their speech in violation of the First Amendment than does demanding that a conscientious objector selfidentify as such.
The regulations do nothing to deprive Plaintiffs of “the freedom to speak on the issue of abortion and contraception on their own terms, at a time and place of their own choosing.” Pls.’ Br. at 55. Completing the self-certification form does not limit what Plaintiffs may say about contraception—or any other topic—nor does it limit where,
27 Plaintiffs’ briefing contends only that their speech is impermissibly compelled by the self-certification form, and does not address their compelled speech claim to the alternative notice.

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when, or how they may say it. See Mich. Catholic Conf., 755 F.3d at 392. Indeed, unlike the law schools in FAIR that had to host military recruiters and thus might have mistakenly been viewed as endorsing the military’s discriminatory recruitment approach, the opt out here is designed to ensure that Plaintiffs do not have to express, in words or symbolic backing, any support for contraception. Cf. FAIR, 547 U.S. at 64-65 (government is limited in its “ability to force one speaker to host or accommodate another speaker’s message” where accommodating that message interferes with the plaintiff’s desired message).
Finally, Plaintiffs object to the regulations because they require that Plaintiffs’ plan participants receive notice of the availability of payments for contraceptive services. Thus, according to Plaintiffs, the regulations coerce them to provide access to their plan participants and either create the appearance that Plaintiffs agree with the notification or call on them to respond to the notice to inform participants of Plaintiffs’ objections to contraception.
But the regulations actually require quite the contrary: the plan issuer or TPA must send a message explicitly distancing the employer from the offered contraceptive coverage, and do so in a completely separate mailing from any communication regarding the employer-sponsored plan. 45 C.F.R. § 147.131(d) (insured group health plans); 29 C.F.R. § 2590.715-2713A(d) (self-insured plans). The regulations, therefore, take care to inform plan participants that the coverage for contraceptives is not paid for,

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administered by, or connected to Plaintiffs. That is a long way from unconstitutionally compelling Plaintiffs to speak.28
D. Establishment of Religion
Plaintiffs advance two Establishment Clause claims. They first contend that the regulations impermissibly discriminate between types of religious institutions by making a general distinction, familiar in tax law, between churches and other houses of worship (which are automatically exempt), and nonprofit organizations that may have a religious character or affiliation, such as universities and hospitals (which may use the accommodation to opt out). 26 U.S.C. § 6033(a)(3)(A)(i), (iii) (exempting “churches, their integrated auxiliaries, and conventions or associations of churches,” and “the exclusively religious activities of any
28 The RCAW Plaintiffs challenged the regulations’ “noninterference” provision as an unconstitutional speech restriction, but as that provision has been rescinded, their challenge is moot. The provision originally barred self-insured employers from “directly or indirectly, seek[ing] to influence the [TPA’s] decision” to provide or arrange separate payments for contraceptive services. 79 Fed. Reg. at 51,095. The government interpreted that bar as applicable only to the use of bribery, threats, or coercion to dissuade or hinder a TPA from fulfilling its legal obligation to provide contraceptive coverage. Id. The government has now rescinded the non-interference provision in its entirety. Id. Plaintiffs maintain that they still challenge the non-interference provision “to the extent the Government contends it continues to be unlawful to ‘say to the[ir] TPA, if you don’t stop making the payments for contraceptives, we’re going to fire you.’” Pls.’ Supp’l Br. 27 n.12 (internal brackets omitted). As the government asserted at oral argument, however, even when the non-interference provision was in effect, Plaintiffs were free to fire their insurers or TPAs as they wished. Oral. Arg. Tr. at 46:15-48:1.

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religious order” from an annual return filing requirement). Second, they contend that the regulations entail excessive entanglement between the government and religious institutions. Specifically, to the extent that the regulations seek to be more nuanced and context specific, looking at specific attributes of each organization in an effort accurately to distinguish among them, Plaintiffs contend the government impermissibly interferes with internal church governance.
The regulations draw a long-recognized and permissible distinction between houses of worship and religious nonprofits. The Seventh Circuit, in rejecting a similar challenge to the contraceptive coverage regulations, noted that “religious employers, defined as in the cited regulation, have long enjoyed advantages (notably tax advantages) over other entities, without these advantages being thought to violate the establishment clause.” Notre Dame, 743 F.3d at 560 (internal citation omitted). The churches gained the categorical exemption on the assumption that the relatively small numbers of employees who are employed by a church will, if their church’s mission opposes contraception, be ministers or clerics likely to share that view, or at least have knowingly joined a pervasively sectarian institution that expects them to. 77 Fed. Reg. at 8,728. The categorical exemption was not extended to the broader group of religious nonprofits, however, because religiously affiliated hospitals, universities and social service agencies employ a wide range of people of diverse faiths and are thus “more likely to employ individuals who have no religious objection to the use of contraceptive services and therefore are more likely to use contraceptives.” Id. Limiting the exemption, but making the opt out available, limits the burdens that flow from organizations “subject[ing] their employees to the religious views of the employer.” Id.

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Plaintiffs equate the familiar regulatory distinction between houses of worship and religiously affiliated organizations, based on organizational form and purpose, with constitutionally impermissible distinctions based on denomination. They quote Larson v. Valente, 456 U.S. 228, 231-32, 246 n.23 (1982) and Colorado Christian University v. Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008), for the notion that the Establishment Clause forbids distinguishing between “types of institutions” as surely as between “sects or denominations.” Pls.’ Br. 57-58 (internal quotation marks omitted). Both of the cases Plaintiffs rely on, however, were concerned with lines drawn based on denomination, rather than organizational form or purpose.29 In Larson, the Supreme Court invalidated a state law that imposed special registration requirements on churches that received a majority of their donations from non-members because it facially discriminated against religious denominations that were newer or chose to rely on public solicitation rather than financial support from members. 456 U.S. at 246-48. The distinction invalidated in Colorado Christian authorized public scholarships for students at Methodist and Roman Catholic universities while refusing them to students attending non-denominational evangelical Protestant or Buddhist universities. See 534 F.3d at 1258. The Colorado Christian court contrasted that denominational discrimination with the permissible exclusion “of all devotional theology majors equally.” Id. at 1256 (citing Locke v. Davey, 540 U.S. 712, 715-16 (2004)). This Court in University of Great Falls v. NLRB, 278 F.3d 1335, 1343 (D.C. Cir. 2002), similarly
29 Indeed, the Plaintiffs’ argument would call into question the tax advantages that have long been available to houses of worship, but not other types of religious organizations. Those tax advantages have not been thought to violate the Establishment Clause. See Notre Dame, 743 F.3d at 560.

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invalidated a regulatory line that effectively asked whether certain schools were “sufficiently religious” to be exempt from NLRB jurisdiction, administration of which line had drawn the government into questioning whether the university “was legitimately ‘Catholic.’” Id. University of Great Falls favors a test relying on more objective factors about the institution’s structure and activities. Id. The regulations at issue here draw distinctions based on organizational form and purpose, and not religious belief or denomination, in keeping with Larson, Colorado Christian, and University of Great Falls. See also Mich. Catholic Conf., 755 F.3d at 395; Notre Dame, 743 F.3d at 560.
Additionally, Plaintiffs assert that the regulations violate the Establishment Clause because they believe they call on the government impermissibly to “‘troll[] through a person’s or institution’s religious beliefs.’” Pls.’ Br. 60 (quoting Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion)). The regulations define a “religious employer” as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a); see also 78 Fed. Reg. at 8,461 (stating that the exemption is restricted primarily to “churches, synagogues, mosques, and other houses of worship, and religious orders”). The IRS has developed a non-exhaustive, non-binding list of fourteen factors to consider when determining whether an entity is in fact a religious employer. See Am. Guidance Found., Inc. v. United States, 490 F. Supp. 304, 306 n.2 (D.D.C. 1980); Found. of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (2009).
Plaintiffs contend that, in order to determine whether an entity is in fact a religious employer, the government asks intrusive questions about its religious beliefs in violation of

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the Establishment Clause. They complain that the IRS factors “favor some types of religious groups over others” and that “they do so on the basis of intrusive judgments regarding beliefs, practices, and organizational structures.” Pls.’ Br. at 61. It is undisputed in this case that the Archdiocese is a religious employer, and no other Plaintiff contends that it was improperly denied religious-employer treatment. As a result, Plaintiffs do not challenge a determination that has been made using those factors, nor can they argue that the factors were impermissibly applied to them. Therefore, we agree with the district court that this challenge is not ripe for review. RCAW, 2013 WL 6729515 at *43-44.
E. Internal Church Governance
Relying on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012), the RCAW Plaintiffs allege that the regulations violate the Religion Clauses of the First Amendment by impermissibly interfering with matters of internal church governance. They claim that the regulations “artificially split[]” the Catholic Church in two—into the Archdiocese (an exempt religious employer) and its related nonprofit organizations—and prevent the Archdiocese from “ensur[ing] that these organizations offer health plans consistent with Catholic beliefs.” Pls.’ Br. at 6364. Neither Hosanna-Tabor, nor any other precedent interpreting either of the Constitution’s Religion Clauses, supports this novel claim.
The ACA’s regulations do not address religious governance at all. The regulations’ separate treatment of functions that Plaintiffs might prefer to group together does not interfere with how the Plaintiffs govern themselves internally. Plaintiffs invoke Hosanna-Tabor, but that case does not stand for Plaintiffs’ proposition that the First

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Amendment precludes application of a law simply because it may affect different types of religious institution differently.
In Hosanna-Tabor, the Supreme Court recognized a “ministerial exception, grounded in the First Amendment, that precludes application of [Title VII and other employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.” 132 S. Ct. at 705 (internal quotation marks omitted); see id. at 710. The Court expressly limited its holding to “an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her.” Id. The language from Hosanna-Tabor that plaintiffs invoke, used there in the context of disapproving judicial review of ministers’ discrimination claims because it would interfere “with an internal church decision that affects the faith and mission of the church itself,” id. at 707, does not apply here. Unlike in that case, nothing about the regulation challenged here would “depriv[e] the church of control over the selection of those who [would] personify its beliefs”—the Church’s own ministers. Id. at 706. The Court’s reasoning in Hosanna-Tabor does not extend beyond ecclesiastical employment matters to regulations that may affect a church’s decision about its health care plan. Accordingly, the churchgovernance claim must fail.
F. Equal Protection
The Priests for Life Plaintiffs argue that the regulations violate equal protection as guaranteed by the Fifth Amendment, by discriminating on the basis of religion and impinging on their fundamental rights. This claim is largely duplicative of Plaintiffs’ Establishment Clause challenge and fails for similar reasons. The Priests for Life Plaintiffs cite no case in support of their contention that alleged discrimination

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between types of religious organizations within a denomination gives rise to an equal protection claim. Additionally, as the district court observed, the Priests for Life Plaintiffs’ fundamental rights claim is identical to their other First Amendment claims. Priests for Life, 7 F. Supp. 3d at 110. Because we have rejected those claims, we apply rational basis scrutiny to the regulations. See Locke v. Davey, 540 U.S. 712, 720 n.3 (2004) (applying rational-basis scrutiny to an Equal Protection Clause claim alleging discrimination based on religion where the plaintiffs’ Free Exercise Clause challenge failed). Because, as discussed supra Section IV.B, the regulations survive strict scrutiny, they necessarily survive this more limited form of review.
VI. Administrative Procedure Act
The RCAW Plaintiffs contend that the government violated the Administrative Procedure Act by erroneously interpreting the exemption to apply on an employer-byemployer basis, rather than a plan-by-plan basis. The regulations state that the HRSA “may establish an exemption from [the regulations] with respect to a group health plan established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer) with respect to any requirement to cover contraceptive services under such guidelines.” 45 C.F.R. § 147.131(a). With respect to “multiple employer plans”—plans established or maintained by an exempt religious employer as well as non-exempt organizations—the Departments concluded that “the availability of the exemption or an accommodation [will] be determined on an employer-by-employer basis.” 78 Fed. Reg. at 39,886. This means that “each employer [is] required to independently meet the definition of religious employer or

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eligible organization in order to avail itself of the exemption or an accommodation.” Id.
An agency’s interpretation of its own regulation is entitled to substantial deference. Auer v. Robbins, 519 U.S. 452, 461 (1997). The RCAW Plaintiffs contend that such deference is not appropriate here, however, for two reasons. First, they argue that, contrary to the government’s contention, the regulation unambiguously states that the exemption applies on a plan-by-plan basis. See Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000) (“Auer deference is warranted only when the language of the regulation is ambiguous.”). The regulation, however, is silent as to whether the exemption will apply on an employer-byemployer basis or a plan-by-plan basis. It uses the phrase “group health plan,” because the contraceptive-coverage requirement applies to group health plans (as opposed to employers), not because the regulatory unit for purposes of the exemption is the plan rather than the employer. Because the regulation does not speak to that issue, we reject the RCAW Plaintiffs’ claim that the Departments’ interpretation is not entitled to deference.
Second, the RCAW Plaintiffs assert that deference to the Departments’ interpretation is not warranted because it conflicts with a prior interpretation put forth by the government. See Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (“[D]eference is likewise unwarranted when there is reason to suspect that the agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on the matter in question.’ This might occur when the agency’s interpretation conflicts with a prior interpretation . . . .” (internal citations omitted)). But the Departments have not changed their position. When they issued the Notice of Proposed Rulemaking regarding

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“Coverage of Certain Preventive Services Under the Affordable Care Act,” the Departments made clear that they intended the exemption to apply on an employer-by-employer basis. See 78 Fed. Reg. at 8,467. (“The Departments propose to make the accommodation or the religious employer exemption available on an employer-by-employer basis. That is, each employer would have to independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents.”). The language on which the RCAW Plaintiffs rely to demonstrate that the Departments have changed their position does not support their argument. See 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012). All they point to is a hypothetical that specifies that an exempt religious school is categorically exempt from the contraceptive coverage requirement, whether it establishes and maintains its own plan or offers its employees coverage through a plan established by the exempt religious diocese with which it is affiliated. See id. Thus, contrary to the RCAW Plaintiffs’ contention, the Departments’ interpretation that the exemption applies on an employer-by-employer basis does not conflict with its earlier interpretation of the regulation, and is entitled to Auer deference.
Finally, in their supplemental brief, Plaintiffs contend that the government lacked the “good cause” required to promulgate the interim final rule without notice and comment. See 5 U.S.C. § 553(b)(3)(B) (authorizing promulgation of interim final rules without notice and comment when the agency finds on the record “that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”). Several reasons support HHS’s decision not to engage in notice and comment here. First, the agency made a good cause finding in the rule it

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issued. See 79 Fed. Reg. at 51,095-96. Second, the regulations the interim final rule modifies were recently enacted pursuant to notice and comment rulemaking, and presented virtually identical issues; moreover, HHS will expose its interim rule to notice and comment before its permanent implementation. See 5 U.S.C. § 553(b)(3)(B) (good cause exists when “notice and public procedure . . . are . . . unnecessary”). Third, the modifications made in the interim final regulations are minor, meant only to “augment current regulations in light of the Supreme Court’s interim order in connection with an application for an injunction in Wheaton College.” 79 Fed. Reg. at 51,092; see also Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir. 1992) (“We have . . . indicated that the less expansive the interim rule, the less the need for public comment.”). The government reasonably interpreted the Supreme Court’s order in Wheaton College as obligating it to take action to further alleviate any burden on the religious liberty of objecting religious organizations. See 79 Fed. Reg. at 51,095-96; see also Am. Fed’n of Gov’t Emp., AFL-CIO v. Block, 655 F.2d 1153, 1155-57 (D.C. Cir. 1981) (validating promulgation of interim rule without notice and comment because, inter alia, it would comply with a court order). As the agency explained, delay in implementation of the rule would interfere with the prompt availability of contraceptive coverage and delay the implementation of the alternative opt-out for religious objectors. See 5 U.S.C. § 553(b)(3)(B) (good cause exists when “notice and public procedure . . . are . . . contrary to the public interest”).
* * *
In sum, we reject all of Plaintiffs’ challenges to the regulations. Accordingly, we affirm the district court’s opinion in Priests for Life in its entirety. As to the RCAW

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decision, we vacate the district court’s grant of summary judgment for Thomas Aquinas and its holding as to the unconstitutionality of the non-interference provision, and affirm the remainder of the decision.
So ordered.

 
 Case: 1:13-cv-1261 As of: 11/03/2017 12:20 PM EDT 1 of 8
APPEAL,CLOSED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:13−cv−01261−EGS

PRIESTS FOR LIFE et al v. UNITED STATES

Date Filed: 08/19/2013

DEPARTMENT OF HEALTH AND HUMAN SERVICES et al Date Terminated: 12/20/2013

Assigned to: Judge Emmet G. Sullivan

Jury Demand: None

Case in other court: 13−05368

Nature of Suit: 440 Civil Rights: Other

Cause: 42:2000 Religion

Jurisdiction: U.S. Government Defendant

Plaintiff

PRIESTS FOR LIFE

represented by David Eliezer Yerushalmi LAW OFFICES OF DAVID YERUSHALMI, P.C. 2020 Pennsylvania Avenue, NW Suite 189 Washington, DC 20006 (646) 262−0500 Fax: (801) 760−3901 Email: dyerushalmi@americanfreedomlawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Joseph Muise AMERICAN FREEDOM LAW CENTER P.O. Box 131098 3000 Green Road Ann Arbor, MI 48113 (734) 635−3756 Fax: (801) 760−3901 Email: rmuise@americanfreedomlawcenter.org ATTORNEY TO BE NOTICED

Plaintiff FATHER FRANK PAVONE

represented by David Eliezer Yerushalmi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Joseph Muise (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ALVEDA KING

represented by David Eliezer Yerushalmi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Joseph Muise (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JANET MORANA

represented by David Eliezer Yerushalmi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Joseph Muise

Case: 1:13-cv-1261 As of: 11/03/2017 12:20 PM EDT 2 of 8
(See above for address) ATTORNEY TO BE NOTICED

V. Defendant UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant KATHLEEN SEBELIUS in her official capacity as Secretary, U.S. Department of Health & Human Services
Defendant UNITED STATES DEPARTMENT OF THE TREASURY
Defendant JACOB J. LEW in his official capacity as Secretary, U.S. Department of the Treasury
Defendant

represented by Benjamin Leon Berwick THE PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Avenue, NW Suite 163 Washington, DC 20006 (202) 305−8573 Fax: (202) 616−8470 Email: benjamin.l.berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth L. Kade U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 616−8491 Fax: (202) 616−8470 Email: elizabeth.l.kade@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth L. Kade (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth L. Kade (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth L. Kade (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:13-cv-1261 As of: 11/03/2017 12:20 PM EDT 3 of 8

UNITED STATES DEPARTMENT OF LABOR

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth L. Kade (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
THOMAS E. PEREZ in his official capacity as Secretary, U.S. Department of Labor

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth L. Kade (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
AMERICAN CIVIL LIBERTIES UNION

represented by Daniel Mach AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street, NW Suite 600 Washington, DC 20005 (202) 548−6604 Fax: (202) 546−0738 Email: dmach@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/19/2013
08/19/2013 08/19/2013 08/19/2013 08/20/2013
09/06/2013

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090−3437070) filed by ALVEDA KING, FRANK PAVONE, JANET MORANA, PRIESTS FOR LIFE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Department of Health & Human Services, # 3 Summons HHS Secretary Kathleen Sebelius, # 4 Summons U.S. Department of the Treasury, # 5 Summons Treasury Secretary Jacob J. Lew, # 6 Summons U.S. Department of Labor, # 7 Summons Labor Secretary Thomas E. Perez, # 8 Summons U.S. Attorney General, # 9 Summons U.S. Attorney)(Muise, Robert) (Entered: 08/19/2013)
2 Corporate Disclosure Statement by PRIESTS FOR LIFE. (Muise, Robert) (Entered: 08/19/2013)
Case Assigned to Judge Emmet G. Sullivan. (md, ) (Entered: 08/19/2013)
3 NOTICE of Appearance by David Eliezer Yerushalmi on behalf of ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE (Yerushalmi, David) (Entered: 08/19/2013)
4 ELECTRONIC SUMMONS ISSUED (8) as to JACOB J. LEW, THOMAS E. 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 and U.S. Attorney General (Attachments: # 1 Summons 2nd, # 2 Summons 3rd, # 3 Summons 4th, # 4 Summons 5th, # 5 Summons 6th, # 6 Summons 7th, # 7 Summons 8th, # 8 Notice of Consent, # 9 Consent Form)(md, ) (Entered: 08/20/2013)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JACOB J. LEW served on 8/28/2013; THOMAS E. PEREZ served on 8/26/2013; KATHLEEN

Case: 1:13-cv-1261 As of: 11/03/2017 12:20 PM EDT 4 of 8

09/16/2013 09/19/2013 09/20/2013 09/20/2013 09/23/2013 09/25/2013 09/25/2013
09/26/2013

SEBELIUS served on 8/26/2013; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 8/26/2013; UNITED STATES DEPARTMENT OF LABOR served on 8/26/2013; UNITED STATES DEPARTMENT OF THE TREASURY served on 8/28/2013, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 8/27/2013., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/27/2013. ( Answer due for ALL FEDERAL DEFENDANTS by 10/26/2013.) (Muise, Robert) (Entered: 09/06/2013)
6 NOTICE of Appearance by Benjamin Leon Berwick on behalf of All Defendants (Berwick, Benjamin) (Entered: 09/16/2013)
7 MOTION for Preliminary Injunction by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE (Attachments: # 1 Exhibit 1−−Declaration of Father Pavone / Priests for Life, # 2 Exhibit 2−−Declaration of Dr. Alveda King, # 3 Exhibit 3−−Declaration of Janet Morana, # 4 Text of Proposed Order)(Muise, Robert) (Entered: 09/19/2013)
MINUTE ORDER. The parties are directed to place a joint conference call to chambers at 3:00 p.m. on September 24, 2013, for an on−the−record conference call to discuss plaintiffs' motion for a preliminary injunction. The dial−in number for the conference call is (800) 423−1988 and the passcode is 1623943. Signed by Judge Emmet G. Sullivan on September 20, 2013. (lcegs4) (Entered: 09/20/2013)
MINUTE ORDER. Plaintiffs' counsel contacted chambers and represented that government counsel consents to his request to reschedule the conference call to September 25, 2013. Accordingly, it is ORDERED that the conference call is rescheduled to September 25, 2013 at 3:30 PM. The parties are directed to place a joint conference call to chambers that time for an on−the−record conference call to discuss plaintiffs' motion for a preliminary injunction. The dial−in number for the conference call is (800) 423−1988 and the passcode is 1623943. Signed by Judge Emmet G. Sullivan on September 20, 2013. (lcegs4) (Entered: 09/20/2013)
Set/Reset Hearings: Telephone Conference set for 9/25/2013 03:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 09/23/2013)
Minute Entry for proceedings held before Judge Emmet G. Sullivan. Telephone Conference held on 9/25/2013. Status Conference set for 11/26/2013 at 10:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. Order To Be Issued. (Court Reporter BRYAN WAYNE.) (mac) (Entered: 09/25/2013)
MINUTE ORDER. During the scheduling conference held on the record September 25, 2013, the parties agreed to consolidate the plaintiffs' motion for preliminary injunction with the merits under Federal Rule of Civil Procedure 65(a)(2). The parties are directed to comply with the following briefing schedule. Plaintiffs shall file a motion for summary judgment and a statement of undisputed material facts by no later than October 1, 2013. Plaintiffs may incorporate by reference their preliminary injunction filings. Defendants' combined opposition to plaintiffs' motion and cross motion to dismiss or in the alternative for summary judgment shall be filed by no later than October 11, 2013. Plaintiffs shall file their combined reply in support of their motion for summary judgment and opposition to Defendants' cross motion by no later than October 25, 2013. Defendants shall file their reply in support of their cross motion by no later than November 8, 2013. Within one business day of each of the filings, the parties shall deliver to the chambers of the Honorable Emmet G. Sullivan two copies of their pleadings and exhibits as well as binders containing one copy of the principal points and authorities relied upon (i.e., counsel should provide copies of principal cases, statutes, regulations, etc. but need not provide copies of cases relied upon merely for the standard of review or other well established principles). The Court will hold a hearing on the cross motions November 26, 2013 at 10:00 a.m. in Courtroom 24A.Signed by Judge Emmet G. Sullivan on September 25, 2013. (lcegs4) (Entered: 09/25/2013)
Set/Reset Deadlines/Hearings: Plaintiff Summary Judgment motion due by 10/1/2013. Defendant's Response or Combined Opposition to Motion for Summary Judgment due by 10/11/2013. Plaintiff's Reply In Support of Motion for Summary Judgment due by

Case: 1:13-cv-1261 As of: 11/03/2017 12:20 PM EDT 5 of 8

10/01/2013 10/01/2013
10/01/2013 10/02/2013 10/17/2013
10/17/2013
10/17/2013
10/21/2013 10/21/2013 10/22/2013 10/22/2013 10/25/2013

10/25/2013. Defendant's Reply in support of cross motion due by 11/8/2013. Status Conference set for 11/26/2013 10:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 09/26/2013)
8 MOTION for Summary Judgment by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE (Attachments: # 1 Statement of Facts, # 2 Exhibit Declaration of Robert J. Muise with Exhibits A through D)(Muise, Robert) (Entered: 10/01/2013)
9 MOTION to Stay All Deadlines Pending Restoration of Appropriations by JACOB J. LEW, THOMAS E. 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)(Berwick, Benjamin) (Entered: 10/01/2013)
10 RESPONSE re 9 MOTION to Stay All Deadlines Pending Restoration of Appropriations filed by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE. (Muise, Robert) (Entered: 10/01/2013)
11 ORDER denying 9 Motion to Stay. Signed by Judge Emmet G. Sullivan on October 2, 2013. (lcegs1) (Entered: 10/02/2013)
12 ADMINISTRATIVE RECORD Notice of Filing by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Certification of Administrative Record, # 2 Index of Administrative Record)(Berwick, Benjamin) (Entered: 10/17/2013)
13 Memorandum in opposition to re 8 MOTION for Summary Judgment filed by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Statement of Facts Defendants' Response to Plaintiffs' Statement of Facts)(Berwick, Benjamin) (Entered: 10/17/2013)
14 MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction , Cross MOTION for Summary Judgment by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Text of Proposed Order)(Berwick, Benjamin) (Entered: 10/17/2013)
15 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN CIVIL LIBERTIES UNION (Mach, Daniel) (Entered: 10/21/2013)
16 MOTION for Leave to File Amicus Curiae Brief by AMERICAN CIVIL LIBERTIES UNION (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Text of Proposed Order)(Mach, Daniel) (Entered: 10/21/2013)
NOTICE OF ERROR re 16 Motion for Leave to File; emailed to dmach@aclu.org, cc'd 7 associated attorneys −− The PDF file you docketed contained errors: 1. DO NOT REFILE−When adding parties, addresses are never added (jf, ) (Entered: 10/22/2013)
17 RESPONSE re 16 MOTION for Leave to File Amicus Curiae Brief re ACLU filed by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE. (Attachments: # 1 Text of Proposed Order)(Yerushalmi, David) (Entered: 10/22/2013)
MINUTE ORDER granting 16 Motion for Leave to File Memorandum as Amicus Curiae. It is hereby ORDERED that the motion filed by the American Civil Liberties Union is GRANTED, and the Clerk shall accept the amicus curiae brief for filing in this case. It is further ORDERED that the plaintiffs shall file their opposition to the brief, if any, on or before November 1, 2013. Signed by Judge Emmet G. Sullivan on October 25, 2013. (lcegs4) (Entered: 10/25/2013)

Case: 1:13-cv-1261 As of: 11/03/2017 12:20 PM EDT 6 of 8

10/25/2013 10/28/2013 10/31/2013
10/31/2013 10/31/2013 11/01/2013
11/01/2013
11/02/2013
11/04/2013 11/12/2013 11/12/2013
11/15/2013
11/19/2013 11/25/2013

18 AMICUS BRIEF by AMERICAN CIVIL LIBERTIES UNION. (jf, ) (Entered: 10/27/2013)
Set/Reset Deadlines: Plaintiff's Opposition due by 11/1/2013. (mac) (Entered: 10/28/2013)
19 RESPONSE re 14 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction filed by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE. (Attachments: # 1 Statement of Facts Plaintiffs' Response to Defendants' Statement of Material Facts, # 2 Exhibit 5−−Supplemental Declaration of Priests for Life, # 3 Exhibit 6−−Supplemental Declaration of Robert J. Muise w/ Exhibits A through D)(Muise, Robert) Modified on 10/31/2013 (jf, ). (Entered: 10/31/2013)
8 as the motion (jf, ) (Entered: 10/31/2013)
20 REPLY to opposition to motion re 8 MOTION for Summary Judgment filed by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE. (Muise, Robert) (Entered: 10/31/2013)
MINUTE ORDER. In view of the D.C. Circuit's decision issued today in Gilardi v. HHS, Case 13−5069, the parties are hereby directed to address the impact, vel non, of the decision on this case. The parties shall file submissions, not to exceed ten pages each, by no later than November 5, 2013 at noon. SO ORDERED. Signed by Judge Emmet G. Sullivan on November 1, 2013. (lcegs4) (Entered: 11/01/2013)
21 Joint MOTION for Extension of Time to File Briefs Addressing the Impact of Gilardi v. HHS by JACOB J. LEW, THOMAS E. 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)(Berwick, Benjamin) (Entered: 11/01/2013)
MINUTE ORDER granting 21 Joint Motion for Extension of Time to address the impact of Gilardi v. HHS. The defendants shall address the decision in their reply in support of their motion to dismiss or for summary judgment, and the plaintiffs shall address the decision in a separate brief not to exceed 10 pages, to be filed by no later than November 12, 2013. Signed by Judge Emmet G. Sullivan on November 2, 2013. (lcegs4) (Entered: 11/02/2013)
Set/Reset Deadlines: Submissions due by 11/5/2013. (mac) (Entered: 11/04/2013)
22 SUPPLEMENTAL MEMORANDUM to re Order, directing the parties to address the impact of Gilardi v U.S. Dep't of Health & Human Services on the case filed by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE. (Muise, Robert) (Entered: 11/12/2013)
23 REPLY to opposition to motion re 14 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction Cross MOTION for Summary Judgment filed by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Berwick, Benjamin) (Entered: 11/12/2013)
MINUTE ORDER. Due to unforeseen circumstances, including the briefing delays which occurred as a result of the government shut down, the motions hearing in this matter is hereby rescheduled to December 9, 2013 at 10:00 AM in Courtroom 24A. The Court regrets any inconvenience to the parties. SO ORDERED. Signed by Judge Emmet G. Sullivan on November 15, 2013. (lcegs1) (Entered: 11/15/2013)
24 NOTICE OF SUPPLEMENTAL AUTHORITY by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE (Muise, Robert) (Entered: 11/19/2013)
25 NOTICE OF SUPPLEMENTAL AUTHORITY by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE (Muise, Robert) (Entered: 11/25/2013)

Case: 1:13-cv-1261 As of: 11/03/2017 12:20 PM EDT 7 of 8

11/25/2013 11/26/2013 11/27/2013 12/02/2013 12/02/2013 12/03/2013
12/08/2013 12/09/2013 12/10/2013 12/12/2013
12/13/2013 12/13/2013

26 RESPONSE re 24 NOTICE OF SUPPLEMENTAL AUTHORITY filed by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Berwick, Benjamin) (Entered: 11/25/2013)
MINUTE ORDER. The Court, sua sponte, directs the parties to address the impact on this case, vel non, of the Supreme Court's grant of the petitions for certiorari in the Hobby Lobby and Conestoga Wood cases. The parties shall file brief memoranda, not to exceed four pages, addressing this question by no later than December 3, 2013 at 4:00 PM. SO ORDERED. Signed by Judge Emmet G. Sullivan on November 26, 2013. (lcegs2) (Entered: 11/26/2013)
Set/Reset Deadlines: Brief Memoranda due by 12/3/2013. (mac) (Entered: 11/27/2013)
27 RESPONSE re 25 NOTICE OF SUPPLEMENTAL AUTHORITY filed by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Berwick, Benjamin) (Entered: 12/02/2013)
28 SUPPLEMENTAL MEMORANDUM to re Order, directing the parties to address the impact, vel non, of the U.S. Supreme Court granting petitions for writs of certiorari in Hobby Lobby & Conestoga cases filed by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE. (Muise, Robert) (Entered: 12/02/2013)
29 RESPONSE TO ORDER OF THE COURT re Order, directing the parties to address the impact, vel non, of the U.S. Supreme Court granting petitions for writs of certiorari in Hobby Lobby & Conestoga cases filed by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Berwick, Benjamin) (Entered: 12/03/2013)
MINUTE ORDER. In light of the ongoing snow and ice storm which is expected to last through Sunday night, the Court, sua sponte, reschedules the hearing currently scheduled for December 9, 2013 at 10:00 AM to December 9, 2013 at 12:00 PM in Courtroom 24A. PLEASE NOTE THE TIME CHANGE. Signed by Judge Emmet G. Sullivan on December 8, 2013. (lcegs4) (Entered: 12/08/2013)
Minute Entry for proceedings held before Judge Emmet G. Sullivan. Motion Hearing held on 12/9/2013 re 14 MOTION to Dismiss 8 MOTION for Summary Judgment and 7 MOTION for Preliminary Injunction. (Court Reporter BRYAN WAYNE.) (mac) (Entered: 12/09/2013)
30 NOTICE of Proposed Language for Injunction Per the Court's Request by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE (Muise, Robert) (Entered: 12/10/2013)
MINUTE ORDER. During the motions hearing on December 9, 2013, the government raised for the first time statutory/regulatory provisions which, according to the government, provide that if Priests for Life does not elect to proceed under the accommodations to the contraceptive services mandate, its issuer will be required to provide the coverage under Priests for Life's plan of benefits and may charge Priests for Life the costs of the coverage. The government is directed to file a supplemental memorandum identifying the relevant provisions, explaining their operation, and setting forth the consequences, if any, that they have on any portion of this case. The government shall file its memorandum, not to exceed 5 pages, by no later than 5:00 pm on December 13, 2013. If plaintiffs wish to respond, they may file a supplemental memorandum limited to this issue, not to exceed 5 pages, by no later than 5:00 pm on December 16, 2013. Signed by Judge Emmet G. Sullivan on December 12, 2013. (lcegs4) (Entered: 12/12/2013)
Set/Reset Deadlines: Government's Supplemental Memorandum due by 12/13/2013. Plaintiff Response due by 12/16/2013. (mac) (Entered: 12/13/2013)
31 SUPPLEMENTAL MEMORANDUM to re Order,,,, filed by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT

Case: 1:13-cv-1261 As of: 11/03/2017 12:20 PM EDT 8 of 8

12/16/2013 12/16/2013 12/17/2013 12/19/2013 12/19/2013 12/19/2013
12/22/2013 12/27/2013 01/02/2014 01/02/2014 01/14/2014
07/30/2015

OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Berwick, Benjamin) (Entered: 12/13/2013)
32 SUPPLEMENTAL MEMORANDUM to re Order,,,, filed by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE. (Muise, Robert) (Entered: 12/16/2013)
33 NOTICE OF SUPPLEMENTAL AUTHORITY by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE (Attachments: # 1 Memorandum Decision & Order)(Muise, Robert) (Entered: 12/16/2013)
34 RESPONSE re 33 NOTICE OF SUPPLEMENTAL AUTHORITY filed by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Berwick, Benjamin) (Entered: 12/17/2013)
35 ORDER granting 14 Defendants' Motion to Dismiss; denying as moot 8 , 14 the parties' cross motions for summary judgment. Signed by Judge Emmet G. Sullivan on December 19, 2013. (lcegs4) (Entered: 12/19/2013)
36 MEMORANDUM AND OPINION. Signed by Judge Emmet G. Sullivan on December 19, 2013. (lcegs4) (Entered: 12/19/2013)
37 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 35 Order on Motion for Preliminary Injunction, Order on Motion for Summary Judgment, Order on Motion to Dismiss, Order on Motion to Dismiss/Lack of Jurisdiction, by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE. Filing fee $ 505, receipt number 0090−3570500. Fee Status: Fee Paid. Parties have been notified. (Muise, Robert) (Entered: 12/19/2013)
38 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 37 Notice of Appeal to DC Circuit Court,. (jf, ) (Entered: 12/22/2013)
USCA Case Number 13−5368 for 37 Notice of Appeal to DC Circuit Court, filed by FRANK PAVONE, ALVEDA KING, JANET MORANA, PRIESTS FOR LIFE. (jf, ) (Entered: 12/27/2013)
39 NOTICE of Order of Transcript per D.C. Cir. L.R. 10(b)(1)(A)(iii) by ALVEDA KING, JANET MORANA, FRANK PAVONE, PRIESTS FOR LIFE (Yerushalmi, David) (Entered: 01/02/2014)
40 Supplemental Record on Appeal transmitted to US Court of Appeals re 39 Notice of Order of Transcript per D.C. Cir. L.R. 10(b)(1)(A)(iii) ) ;USCA Case Number 13−5368. (jf, ) (Entered: 01/02/2014)
41 TRANSCRIPT OF MOTIONS HEARING before Judge Emmet G. Sullivan, held on December 9, 2013. Page Numbers: 1−77. Date of Issuance: 01/14/2014. Court Reporter: Bryan A. Wayne, telephone number: 202−354−3186. Court Reporter email address: bryanawayne@yahoo.com. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov. Redaction Request due 2/4/2014. Redacted Transcript Deadline set for 2/14/2014. Release of Transcript Restriction set for 4/14/2014. (Wayne, Bryan) (Entered: 01/14/2014)
42 NOTICE of Appearance by Elizabeth Lanier Kade on behalf of All Defendants (Kade, Elizabeth) (Entered: 07/30/2015)

 
 (ORDER LIST: 577 U. S.)

FRIDAY, NOVEMBER 6, 2015

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

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

1

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

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

May 16, 2016

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

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

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

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

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

(Slip Opinion)

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

1

Per Curiam

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

SUPREME COURT OF THE UNITED STATES
_________________

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

DAVID A. ZUBIK, ET AL., PETITIONERS

14–1418

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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


PRIESTS FOR LIFE, ET AL., PETITIONERS

14–1453

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.;

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


ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,

ET AL., PETITIONERS

14–1505

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.;

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


EAST TEXAS BAPTIST UNIVERSITY, ET AL., 
 PETITIONERS 


2

ZUBIK v. BURWELL

Per Curiam

15–35

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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

LITTLE SISTERS OF THE POOR HOME FOR 


THE AGED, DENVER, COLORADO, ET AL., 


PETITIONERS 


15–105

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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

SOUTHERN NAZARENE UNIVERSITY, ET AL.,

PETITIONERS

15–119

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.; AND

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

GENEVA COLLEGE, PETITIONER

15–191

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

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

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

3

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

4

ZUBIK v. BURWELL

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

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

5

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

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

1

SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

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

DAVID A. ZUBIK, ET AL., PETITIONERS

14–1418

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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


PRIESTS FOR LIFE, ET AL., PETITIONERS

14–1453

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.;

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


ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,

ET AL., PETITIONERS

14–1505

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.;

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


EAST TEXAS BAPTIST UNIVERSITY, ET AL.,

PETITIONERS

15–35

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

2

ZUBIK v. BURWELL

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


LITTLE SISTERS OF THE POOR HOME FOR 


THE AGED, DENVER, COLORADO, ET AL., 


PETITIONERS 


15–105

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

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


SOUTHERN NAZARENE UNIVERSITY, ET AL.,

PETITIONERS

15–119

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.; AND

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


GENEVA COLLEGE, PETITIONER

15–191

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

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

[May 16, 2016]


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

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

3

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

4

ZUBIK v. BURWELL

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