[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-12696

________________________

D.C. Docket No. 1:13-cv-00521-CG-C

ETERNAL WORD TELEVISION NETWORK, INC., 

 Plaintiff - Appellant,

STATE OF ALABAMA,

 Plaintiff,

versus

SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN 

SERVICES,

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,

SECRETARY OF THE U.S. DEPARTMENT OF LABOR, 

U.S. DEPARTMENT OF LABOR,

SECRETARY OF THE U.S. DEPARTMENT OF THE TREASURY,

U.S. DEPARTMENT OF THE TREASURY, 

 Defendants - Appellees.

________________________

Appeals from the United States District Court

for the Southern District of Alabama

________________________

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2

________________________

Nos. 14-12890; 14-13239

________________________

D.C. Docket No. 1:12-cv-03489-WSD

THE ROMAN CATHOLIC ARCHDIOCESE 

OF ATLANTA, 

an association of churches and schools, 

THE MOST REVEREND WILTON D. GREGORY, 

and his successors, Archbishop of the Roman 

Catholic Archdiocese of Atlanta, 

CATHOLIC CHARITIES OF THE ARCHDIOCESE 

OF ATLANTA, INC.,

a Georgia non-profit corporation,

THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, 

an ecclesiastical territory, 

THE MOST REVEREND JOHN HARTMAYER,

and his successors, Bishop of the Roman 

Catholic Diocese of Savannah, et al.,

 Plaintiffs - Appellees,

versus

SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, 

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, 

U.S. DEPARTMENT OF LABOR, 

U.S. DEPARTMENT OF TREASURY, 

SECRETARY, U.S. DEPARTMENT OF LABOR, 

SECRETARY, U.S. DEPARTMENT OF TREASURY, 

 Defendants - Appellants.

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________________________

Appeals from the United States District Court

for the Northern District of Georgia

________________________

(February 18, 2016)

Before TJOFLAT, JILL PRYOR and ANDERSON, Circuit Judges.

JILL PRYOR, Circuit Judge: 

The plaintiffs in these consolidated appeals challenge the regulations 

implementing what is known as the “contraceptive mandate” of the Affordable 

Care Act (“ACA”)—the requirement that employers provide health insurance 

coverage for preventive care (including contraception) to women.

1

 Specifically, 

the plaintiffs argue that the regulations’ accommodation for nonprofit 

organizations with a religious objection to providing contraceptive coverage 

violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et 

seq. They claim that the accommodation substantially burdens their religious 

exercise in violation of RFRA by forcing them to take actions that cause their 

health plan administrators to provide contraceptive coverage and to maintain a 

health plan that serves as a conduit for contraceptive coverage. We reject the 

 1 We consider in this opinion the following district court orders: Eternal World Television 

Network, Inc. v. Burwell, 26 F. Supp. 3d 1228 (S.D. Ala. 2014); Roman Catholic Archdiocese of 

Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 2441742 (N.D. Ga. May 30, 2014); and 

Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 

1256373 (N.D. Ga. Mar. 26, 2014). The government filed separate appeals from the two orders 

in Roman Catholic Archdiocese, which were consolidated before this Court.

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plaintiffs’ claims because we conclude that the regulations do not substantially 

burden their religious exercise and, alternatively, because (1) the government has 

compelling interests to justify the accommodation, and (2) the accommodation is 

the least restrictive means of furthering those interests.

Eternal Word Television Network (“EWTN”), the plaintiff in the first 

appeal, also raises several First Amendment challenges to the accommodation. 

Because the accommodation is a neutral, generally applicable law that does not 

discriminate based on religious denomination, we reject EWTN’s challenges under 

the Establishment and Free Exercise Clauses. We also reject EWTN’s challenge 

under the Free Speech Clause because, as discussed below, any speech restrictions 

that may flow from the accommodation are justified by a compelling governmental

interest and are thus constitutional.

I. BACKGROUND

A. The Affordable Care Act and the Contraceptive Mandate

Enacted in 2010, the ACA requires group health insurance plans to provide a 

minimum floor of coverage without imposing cost sharing (such as deductibles, 

co-payments, or co-insurance) on plan participants and beneficiaries. 42 U.S.C. 

§ 300gg-13(a). If an employer fails to provide such coverage in its group 

employee health plan, it is subject to penalties in the form of a tax of $100 per day 

per affected person. 26 U.S.C. § 4980D(b)(1). The Women’s Health Amendment

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to the ACA added to the minimum coverage requirements a mandate that group 

health plans provide women with coverage for preventive care and screenings. 

42 U.S.C. § 300gg-13(a)(4). The requirement was intended in part to “get[] rid of, 

or minimiz[e], high copays and high deductibles that are often overwhelming 

hurdles for women to access screening programs.” 155 Cong. Rec. S11987 (Nov. 

30, 2009) (statement of Sen. Mikulski). The ACA tasked the Health Resources 

and Services Administration (“HRSA”), an agency of the Department of Health 

and Human Services (“HHS”), with promulgating comprehensive guidelines 

determining which preventive services and screenings would be required. 

42 U.S.C. § 300gg-13(a)(4). HHS commissioned the Institute of Medicine 

(“IOM”) to assist with HRSA’s development of the guidelines.

The IOM released a full report in 2011 detailing its study of various 

preventive services and its recommendations for coverage under the mandate. Inst. 

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

(“IOM Report”). The IOM Report discussed at length the positive public health 

outcomes associated with reducing unintended pregnancies and giving women 

more control over birth spacing. The United States has a much higher rate of 

unintended pregnancies—49 percent of pregnancies in 2001—than other 

developed countries. Id. at 102. Unintended pregnancies correlate with health 

problems both for women who experience such pregnancies and for children born 

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as a result of them. Id. at 103. And because women may not realize immediately 

that they are pregnant, “their entry into prenatal care may be delayed[;] they may 

not be motivated to discontinue behaviors that present risks for the developing 

fetus; and they may experience depression, anxiety, or other conditions.” Id. 

Unintended pregnancies also frequently end in abortion. Id. at 102.2

The IOM Report also noted the health consequences of pregnancies

occurring too closely together in time. For infants, “[s]hort interpregnancy 

intervals in particular have been associated with low birth weight, prematurity, and 

small for gestational age births.” Id. at 103. For women, both pregnancy spacing 

and the ability to avoid pregnancy may significantly affect their health because, 

among other reasons, some “women with certain chronic medical conditions (e.g., 

diabetes and obesity) may need to postpone pregnancy until appropriate weight 

loss or glycemic control has been achieved.” Id. Pregnancy is also contraindicated 

for some women with serious medical conditions, for example, pulmonary 

hypertension or Marfan syndrome.

3

 Id. at 103-04. The IOM Report also found 

 2 A 2013 report from the Centers for Disease Control and Prevention estimated that 18 

percent of all pregnancies in the United States ended in abortion and noted that “unintended 

pregnancy precedes nearly all abortions.” Karen Pazol, et al., Centers for Disease Control & 

Prevention, Abortion Surveillance—United States, 2010 (Nov. 29, 2013), 

http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6208a1.htm. The IOM Report noted that in 

2001, 42 percent of unintended pregnancies in the United States were terminated by abortion. 

IOM Report at 102.

3 Marfan syndrome is a genetic disorder that affects the body’s connective tissue. 

Pregnancy can be difficult for women with the condition because of the additional strain 

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that “greater use of contraception within the population produces lower unintended 

pregnancy and abortion rates nationally.” Id. at 105.

Pursuant to its statutory authority, HRSA released binding guidelines, based 

on the IOM Report, that require coverage for “[a]ll Food and Drug Administration 

approved contraceptive methods, sterilization procedures, and patient education 

and counseling for all women with reproductive capacity.” U.S. Dep’t of Health & 

Human Servs., Health Res. & Servs. Admin., Women’s Preventive Services

Guidelines (“HRSA guidelines”), http://www.hrsa.gov/womensguidelines (last 

visited Feb. 12, 2016); see also 77 Fed. Reg. 8725, 8725-26 (Feb. 15, 2012)

(quoting the language in the HRSA guidelines regarding coverage). Implementing 

regulations developed by the Department of Labor, the Department of the 

Treasury, and HHS (collectively, the “Departments”) reiterate the contraceptive 

mandate’s requirement that health plans cover all services listed in the HRSA 

guidelines. 26 C.F.R. § 54.9815-2713(a)(1)(iv) (Treasury Regulation); 29 C.F.R 

§ 2590.715-2713(a)(1)(iv) (Labor Regulation); 45 C.F.R. § 147.130(a)(1)(iv)

(HHS Regulation).

4

 

pregnancy places on the cardiovascular system. Nat’l Heart, Lung, & Blood Inst., What is 

Marfan Syndrome? (Oct. 1, 2010), http://www.nhlbi.nih.gov/health/health-topics/topics/mar/.

4 The Departments have jointly developed regulations carrying out the ACA. To be 

concise, whenever possible we cite only to the regulations issued by HHS, codified at 45 C.F.R. 

pt. 147, and not to the corresponding identical regulations issued by the Departments of Labor 

and the Treasury.

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Mindful of religious freedom and the importance of respect for “the unique 

relationship between a house of worship and its employees in ministerial 

positions,” the Departments promulgated interim regulations that gave HRSA 

discretion to exempt from the contraceptive mandate certain group health plans 

established or maintained by religious employers. See 76 Fed. Reg. 46621, 46623 

(Aug. 3, 2011). The Departments defined “religious employer” by incorporating 

the Internal Revenue Service’s definition of a church or integrated auxiliary from 

26 U.S.C. § 6033(a)(3)(A)(i) and (iii). 45 C.F.R. § 147.130(a)(1)(iv)(B) (2011). 

The definition also required a religious employer to have a religious purpose and to 

both serve and employ primarily persons who share the religious tenets of the 

organization. Id. Exercising the discretion the regulations provided, HRSA 

amended its guidelines to exempt religious employers from the contraceptive 

mandate. The guidelines, issued on August 1, 2011, required compliance 

beginning on August 1, 2012. See id. § 147.130(b)(1).

The Departments finalized the implementing regulations in February 2012. 

See 77 Fed. Reg. 8725. At the same time, the Departments established a temporary 

safe harbor from the contraceptive mandate for nonprofit organizations with

religious objections to providing contraceptive coverage. See Dep’t of Health &

Human Servs., Guidance on the Temporary Enforcement Safe Harbor for Certain 

Employers, Health Plans & Group Health Insurance Issuers with Respect to the 

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Requirement to Cover Contraceptive Services Without Cost Sharing (Feb. 10, 

2012). The safe harbor remained in effect for the 2012 plan year, ending on 

August 1, 2013. See id. at 2.

The Departments intended to use the safe harbor period to “expeditiously 

develop and propose changes to the final regulations implementing” the 

contraceptive mandate. 77 Fed. Reg. 16501, 16503 (Mar. 21, 2012). The changes 

to the regulations needed to “meet two goals—accommodating non-exempt, nonprofit religious organizations’ religious objections to covering contraceptive 

services and assuring that participants and beneficiaries covered under such 

organizations’ plans receive contraceptive coverage without cost sharing.” Id. In 

March 2012, the Departments began the rulemaking process and solicited 

comments on potential regulations that could achieve these two goals. Id. at 

16501.

At the conclusion of the rulemaking process in July 2013, the Departments 

promulgated revised regulations that retained HRSA’s authority to exempt

religious employers. See 78 Fed. Reg. 39870 (July 2, 2013). The same day, 

HRSA released revised guidelines that tracked the Departments’ changes to the 

religious employer exemption. The final regulations simplified the definition of a 

“religious employer,” making the term coextensive with the IRS’s statutory 

definition and removing the additional qualifications regarding a religious 

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employer’s mission, programs, and employees. 45 C.F.R. § 147.131(a) (2013); see 

also 78 Fed. Reg. at 39873-74. Religious employers remained categorically 

exempt from the contraceptive mandate out of “respect [for] the religious interests 

of houses of worship and their integrated auxiliaries.” 78 Fed. Reg. at 39874. The 

Departments noted that the exemption did not undermine their goal of making

contraceptive coverage available because religious employers and their integrated 

auxiliaries “are more likely than other employers to employ people of the same 

faith who share the same objection, and who would therefore be less likely than 

other people to use contraceptive services even if such services were covered under 

their plan.” Id.

The revised regulations, which took effect on Aug. 1, 2013, added an 

accommodation for organizations that do not qualify as religious employers under 

the exemption. See 45 C.F.R. § 147.131(b) (2013). So long as an organization is a 

nonprofit entity holding itself out as a religious organization and has a religious 

objection to providing contraceptive coverage (we refer to such entities as “eligible 

organizations”), it may opt out of the contraceptive mandate. Id.

5

 5 Under 45 C.F.R. § 147.131(b), an organization is eligible for the accommodation if:

(1) The organization opposes providing coverage for some or all of any 

contraceptive items or services required to be covered under § 147.130(a)(1)(iv) 

on account of religious objections.

(2) (i) The organization is organized and operates as a nonprofit entity and 

holds itself out as a religious organization; or

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Eligible organizations can take advantage of the accommodation via one of 

two procedures. The first procedure requires the organization to complete

Employee Benefits Security Administration Form 700 (“Form 700”). See EBSA 

Form 700–Certification (Aug. 2014), 

http://www.dol.gov/ebsa/preventiveserviceseligibleorganizationcertificationform.doc.

6

 To complete the two-page form, the eligible organization must provide its name 

and the name, title, and contact information of the individual signing the form on 

behalf of the organization. The person signing the form must certify that the 

organization “has a religious objection to providing coverage for some or all of any 

contraceptive services that would otherwise be required to be covered.” Id.

 

(ii) The organization is organized and operates as a closely held for-profit 

entity, as defined in paragraph (b)(4) of this section, and the organization’s 

highest governing body (such as its board of directors, board of trustees, or 

owners, if managed directly by its owners) has adopted a resolution or similar 

action, under the organization’s applicable rules of governance and consistent 

with state law, establishing that it objects to covering some or all of the 

contraceptive services on account of the owners’ sincerely held religious beliefs.

(3) The organization must self-certify in the form and manner specified by the 

Secretary of Labor or provide notice to the Secretary of Health and Human 

Services as described in paragraph (c) of this section. The organization must 

make such self-certification or notice available for examination upon request by 

the first day of the first plan year to which the accommodation in paragraph (c) of 

this section applies. The self-certification or notice must be executed by a person 

authorized to make the certification or notice on behalf of the organization, and 

must be maintained in a manner consistent with the record retention requirements

under section 107 of ERISA.

6 Form 700 is included as the appendix to this opinion.

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The form’s recipient depends on the type of health plan the eligible 

organization maintains. Employers can provide health benefits either through an 

insured health plan or a self-insured health plan.

7

 See Cong. Budget Office, Key 

Issues in Analyzing Major Health Insurance Proposals 6 (2008). If the eligible 

organization has an insured plan, it gives Form 700 to the insurance company that 

provides its health plan (“plan provider”); if the organization has a self-insured 

plan, it gives Form 700 to its third-party administrator (“TPA”). The plaintiffs in 

both cases before us provide health benefits to their employees through selfinsured group health plans, and all employ TPAs to administer their plans.

Alternatively, an eligible organization may directly notify HHS of its 

religious objection to complying with the contraceptive mandate. This more 

recently developed method of taking advantage of the accommodation arose from

the United States Supreme Court’s order granting a preliminary injunction in 

Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). After the regulations 

concerning the exemption and accommodation procedures were finalized, the 

Supreme Court in Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2759-60

(2014), extended the accommodation for nonprofit religious organizations to 

 7 For insured health plans, the employer contracts with an insurance company that 

administers the group plan and pays claims. For self-insured plans, the financial risk of 

providing health insurance lies with the organization itself; the organization directly pays for the 

plan participants’ and beneficiaries’ claims. Usually, organizations with self-insured plans hire a 

third party to handle administrative tasks, such as developing provider networks and processing 

claims.

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closely held for-profit corporations whose owners have religious objections to 

complying with the contraceptive mandate. Three days after the Hobby Lobby

decision was issued, the Supreme Court in Wheaton College granted a request for a 

preliminary injunction pending appellate review to a plaintiff challenging the 

accommodation itself under RFRA, the same challenge the plaintiffs mount here. 

Wheaton Coll., 134 S. Ct. at 2807. The Supreme Court’s order enjoined HHS from 

enforcing the accommodation procedure against the college, so long as the college

“inform[ed] the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to 

providing coverage for contraceptive services.” Id. The Supreme Court warned, 

however, that the injunction order “should not be construed as an expression of the

Court’s views on the merits.” Id.

8

In response to the order in Wheaton College, the Departments issued interim 

final regulations in August 2014 to allow an eligible organization to opt out by 

sending a letter to HHS, instead of giving Form 700 to its plan provider or TPA. 

79 Fed. Reg. 51092, 51094-95 (Aug. 27, 2014); see Ctr. for Medicare & Medicaid 

Servs., Model Notice, https://www.cms.gov/CCIIO/Resources/Regulations-and-

 8 The Seventh Circuit recently resolved Wheaton College’s appeal, affirming the district 

court’s denial of the college’s request for a preliminary injunction. Wheaton Coll. v. Burwell, 

791 F.3d 792 (7th Cir. 2015).

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Guidance/Downloads/Model-Notice-8-22-14.pdf (last visited Feb. 12, 2016).9 

There is no prescribed format for the letter, but it must include: 

the name of the eligible organization and the basis on which it 

qualifies for an accommodation; its objection based on its sincerely 

held religious beliefs to coverage of some or all contraceptive 

services, as applicable (including an identification of the subset of 

contraceptive services to which coverage the eligible organization 

objects, if applicable); the plan name and type . . . ; and the name and 

contact information for any of the plan’s third party administrators 

and health insurance issuers. 

45 C.F.R. § 147.131(c)(1)(ii).

The regulations became final, without substantial changes, in a set of new 

rules effective on September 14, 2015. 80 Fed. Reg. 41318 (July 14, 2015). Under 

the current rules, if an eligible organization directly notifies HHS of its intent to 

opt out of the contraceptive mandate, the government then alerts the organization’s 

health plan provider or TPA that the organization has opted out and describes the 

plan provider’s or TPA’s resulting obligations. See 26 C.F.R. § 54.9815-

2713A(b)(1)(ii)(B), (c)(1)(ii).

For insured plans, once an eligible organization avails itself of the 

accommodation, the plan provider must (1) “[e]xpressly exclude contraceptive 

 9 The interim final regulations also removed a provision (known as the non-interference 

provision) requiring that eligible organizations “‘must not, directly or indirectly[,] seek to 

interfere with a third party administrator’s arrangements to provide or arrange for separate 

payments for contraceptive services,’ and ‘must not, directly or indirectly, seek to influence a 

third party administrator’s decision to make any such arrangements.’” 79 Fed. Reg. at 51095 

(quoting 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii)).

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coverage from the group health insurance coverage” and (2) “[p]rovide separate 

payments for any contraceptive services required to be covered” for the plan 

participants and beneficiaries. 45 C.F.R. § 147.131(c)(2)(i). 

For self-insured plans, the regulations provide that when an eligible 

organization invokes the accommodation, its TPA is designated as the plan 

administrator under the Employee Retirement Income Security Act (“ERISA”), 

29 U.S.C. § 1002(16), with respect to contraceptive services. Under the 

regulations, the TPA is designated as the plan administrator in one of two ways. If 

the eligible organization provides a copy of Form 700 to its TPA, then the 

regulations treat the form “as a designation of the [TPA] as the plan administrator” 

for ERISA purposes. 29 C.F.R. § 2510.3-16(b). If the eligible organization 

instead notifies HHS of its intent to opt out, then the Department of Labor notifies 

the TPA that it shall be the plan administrator with respect to contraceptive 

services for ERISA purposes. Id. 

Upon receiving notification, the TPA has the option of terminating its 

contractual relationship with the eligible organization.10 See 26 C.F.R. § 54.9815-

 10 If the TPA terminates the relationship, the organization must (1) contract with a new 

TPA to administer its self-insured plan, (2) convert to an insured plan by contracting with a plan 

provider, or (3) administer the plan itself. If the eligible organization contracts with a new TPA, 

then it remains subject to the mandate and must provide contraceptive coverage, seek an 

accommodation, or pay a penalty. Alternatively, the organization could restructure its plan and 

contract with a plan provider that would assume the risk of providing health insurance (that is, 

change from a self-insured to an insured plan). In this scenario, the organization would have to

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2713A(b)(2). If it remains as the TPA, then it must provide (or arrange for another 

insurer to provide) contraceptive benefits to participants and beneficiaries of the 

self-insured plan. Id.; 29 C.F.R. § 2510.3-16(c).

11

Significantly, plan providers and TPAs “may not impose any cost-sharing 

requirements (such as a copayment, coinsurance, or a deductible), or impose any 

premium, fee, or other charge, or any portion thereof, directly or indirectly, on the 

eligible organization, the group health plan, or plan participants or beneficiaries.” 

26 C.F.R. § 54.9815-2713A(c)(2)(i); 45 C.F.R. § 147.131(c)(2)(ii).12 Plan 

providers “must segregate premium revenue collected from the eligible 

organization from the monies used to provide payments for contraceptive 

 

comply with the mandate, seek an accommodation, or pay a penalty. Finally, the organization 

could continue with its self-insured plan without a TPA, meaning the organization would assume 

responsibility for administering claims. Although the Departments are unaware of the existence 

of a single self-insured plan without a TPA, they have created a safe harbor that excuses such a 

plan from complying with the contraceptive mandate so long as it annually notifies HHS that it 

has no TPA and plan participants and beneficiaries that contraceptive coverage is not provided. 

The Departments will provide this safe harbor while considering an additional accommodation. 

78 Fed. Reg. at 39880-81. 

11 Self-insured plans run by houses of worship and certain organizations controlled by or 

associated with a house of worship, known as “church plans,” are not subject to the provisions of 

ERISA unless they elect otherwise. See 26 U.S.C. §§ 410(d), 414(e). The government lacks 

authority to compel the TPA of a church plan not subject to ERISA to provide contraceptive 

coverage. See 29 U.S.C. § 1003(b)(2). Nonetheless, the TPA for a church plan may voluntarily 

provide contraceptive services; the government incentivizes these TPAs to provide the coverage 

by offering larger reimbursements. See 80 Fed. Reg. at 41323 n.22; 45 C.F.R. § 156.50(d).

12 The government reimburses plan providers and TPAs for providing contraception 

benefits. Plan providers receive a downward adjustment to the user fees they must pay to the 

federal government to sell plans on the federally-facilitated health exchanges. The process for 

TPAs can be more complicated. If the TPA is not itself a participating insurer, then it must 

contract for contraceptive coverage with a participating insurer, and the insurer then passes on 

the reimbursement to the TPA. See 80 Fed. Reg. at 41328.

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services.” 45 C.F.R. § 147.131(c)(2)(ii). A plan provider or TPA also must notify 

plan participants and beneficiaries (contemporaneously with the delivery of other 

plan materials, if possible) “that the eligible organization does not administer or 

fund contraceptive benefits,” but that the plan provider or TPA instead “provides 

separate payments for contraceptive services.” 26 C.F.R. § 54.9815-2713A(d); 

45 C.F.R. § 147.131(d).

B. The Parties and Procedural History

This opinion addresses two cases: one brought by EWTN and one brought 

by two Catholic Dioceses and a group of related persons and entities. Below, we 

briefly discuss the plaintiffs and the procedural history of each case in turn.

1. Eternal Word Television Network

Plaintiff-appellant EWTN is a non-profit worldwide Catholic media network

founded in 1981 by Mother Mary Angelica, a Catholic nun. EWTN, based in 

Irondale, Alabama, has approximately 350 employees. The network consists of 11

television feeds and two radio stations that reach 230 million homes in 144 

countries and territories. Its programming includes daily Mass, Catholic devotions, 

coverage of Catholic Church events, documentaries, children’s programs,

educational series, and other television and radio shows that support EWTN’s 

mission of “serv[ing] the orthodox belief and teaching of the Church as proclaimed 

by the Supreme Pontiff and his predecessors.” Compl. at 5, No. 1:13-cv-00521-

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CG-C, Doc. 1. EWTN has a self-insured group health plan to provide health 

insurance benefits to its employees. Blue Cross Blue Shield of Alabama serves as 

the TPA for the plan.

EWTN, together with the State of Alabama,13 filed a complaint challenging 

the contraceptive mandate and accompanying regulations under RFRA, the First 

Amendment, the Due Process Clause of the Fifth Amendment, and the 

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The complaint

alleged that “EWTN cannot facilitate access to health care insurance . . . that 

covers artificial contraception, sterilization, or abortion, or related education and 

counseling, without violating its deeply held religious beliefs.” Compl. at 7, No. 

1:13-cv-00521-CG-C, Doc. 1. To EWTN, this means that its religious beliefs 

prevent it both from providing contraceptive coverage in its health plan and from 

using the accommodation. As a result, EWTN alleged, the contraceptive mandate 

“imposes government pressure and coercion on EWTN to change or violate its 

religious beliefs” because if it does not provide coverage or use the 

accommodation, it faces fines for non-compliance with the mandate. Id. at 27.

EWTN and Alabama moved for partial summary judgment on five of the 17

counts in the complaint, including: Count One, alleging a violation of RFRA 

 13 Alabama was a party throughout the district court proceedings, but the State did not 

join EWTN in this appeal.

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based on the regulations’ burden on religious exercise; Count Two, alleging a 

violation of the Free Exercise Clause based on the same burden; Count Three, 

alleging a violation of the Free Exercise Clause based on intentional discrimination 

among religious organizations; Count Five, alleging a violation of the 

Establishment Clause based on the selective imposition of a burden on some 

religious organizations; and Count Nine, alleging a violation of the Free Speech 

Clause based on compelled speech. Alabama joined in EWTN’s motion and 

additionally moved for summary judgment on Count Seventeen, which sought a 

declaration that the contraceptive mandate does not preempt Alabama law. 

The defendants-appellees—the Departments and their Secretaries—filed a

motion to dismiss the complaint or, in the alternative, for summary judgment on all 

of the plaintiffs’ claims. The district court denied EWTN’s and Alabama’s 

motions for summary judgment and granted the defendants’ motion for summary 

judgment as to Counts One, Two, Five, and Nine. On a motion by the plaintiffs, 

the district court entered a final judgment on those four counts pursuant to Federal

Rule of Civil Procedure 54(b) and stayed litigation of the remaining claims 

pending appeal.

EWTN timely appealed. On EWTN’s motion, we issued an injunction 

pending appeal, preventing the defendants from enforcing the mandate or the 

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accommodation against EWTN. Eternal Word Television Network, Inc. v. Sec’y, 

U.S. Dep’t of Health & Human Servs., 756 F.3d 1339 (11th Cir. 2014).

2. The Diocesan Plaintiffs, CENGI, and Catholic Charities

A group of Catholic entities—the Roman Catholic Archdiocese of Atlanta, 

the Archbishop of Atlanta, Christ the King Catholic School,Catholic Charities of 

the Archdiocese of Atlanta (“Catholic Charities”), the Roman Catholic Diocese of 

Savannah, and the Bishop of Savannah—filed a lawsuit against the Departments 

and their Secretaries. Both the Archdiocese of Atlanta and the Diocese of 

Savannah (collectively with the Bishop and Archbishop, “the Dioceses”) are 

associations of Catholic parishes and organizations, including Catholic schools. 

Catholic Charities is a nonprofit organization that provides social services, 

including immigration counseling, mental health counseling, marriage counseling, 

and pregnancy support services. The second amended complaint added as a 

plaintiff Catholic Education of North Georgia (“CENGI”) and removed Christ the 

King Catholic School. CENGI is a nonprofit organization that oversees five 

Catholic schools in the Atlanta area.

The Atlanta Archdiocese operates a self-insured health plan, which covers 

employees of the Archdiocese, Catholic Charities, and CENGI. The Savannah

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Diocese operates two self-insured health plans for its employees. Meritain Health 

serves as the TPA for all three plans.14

The second amended complaint alleged that the contraceptive mandate and 

accompanying regulations violate RFRA, the First Amendment, the non-delegation 

doctrine,15 and the APA. The plaintiffs alleged that the regulations require them 

“to provide, pay for, and/or facilitate insurance coverage for abortion-inducing 

drugs, sterilization, and contraception, in violation of their religious beliefs.” 

Second Am. Compl. at 6, No. 1:12-cv-03489-WSD, Doc. 56. They alleged that the 

regulations further burden religious exercise “by driving a wedge between 

religious organizations, like the Atlanta Archdiocese, and their equally religious 

charitable arms, such as Plaintiffs Catholic Charities and CENGI.” Id. Because 

the charitable arms do not qualify as “religious employers,” the Dioceses alleged

 14 The parties disagree over whether these health plans qualify as “church plans” for 

purposes of ERISA. We need not decide whether the plans at issue are church plans because 

their ERISA status does not impact our conclusion that the accommodation does not 

substantially burden religious exercise. If the plans are not church plans, then our analysis as to 

EWTN’s self-insured plan applies, and the accommodation presents no burden on religious 

exercise. See infra Part III.A.2.b. If the plans are church plans, then the government lacks 

authority to enforce the contraceptive mandate against the plaintiffs’ TPAs, rendering the 

plaintiffs’ assertion that their actions trigger such coverage even weaker. See, e.g., Little Sisters 

of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1188 (10th Cir.) (“The lack of 

enforcement authority makes any burden on plaintiffs with church plans even less substantial 

than the burden on plaintiffs with self-insured plans that are subject to ERISA.”), cert. granted 

sub nom., S. Nazarene Univ. v. Burwell, 136 S. Ct. 445, and cert. granted, 136 S. Ct. 446 (2015).

15 The non-delegation doctrine is the constitutional principle that prevents Congress from 

delegating its legislative authority to another body with “unfettered discretion to make whatever 

laws” the body sees fit. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-38 

(1935).

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they must expel the charities’ employees from their health plans if the Dioceses

wish to take advantage of the religious exemption.16

The Departments filed a motion to dismiss the second amended complaint 

or, alternatively, for summary judgment on all counts. The plaintiffs cross-moved 

for summary judgment as to seven of their eight counts, which alleged that the 

mandate and accompanying regulations: burden religious exercise in violation of 

RFRA (Count One); violate the Free Exercise Clause, based on the same burden 

(Count Two); compel speech in violation of the Free Speech Clause (Count Three); 

prohibit speech in violation of the Free Speech Clause (Count Four); favor certain 

religious groups and entangle the government in religion in violation of the 

Establishment Clause (Count Five); interfere with internal church governance in 

violation of both the Free Exercise and Establishment Clauses (Count Six); and 

involve an impermissible delegation of unchecked legislative authority to the 

Departments (Count Seven). 

The district court granted summary judgment to Catholic Charities and 

CENGI on their RFRA claims, holding that the contraceptive mandate and 

accommodation substantially burden the organizations’ religious exercise and are

not the least restrictive means to accomplish a compelling governmental interest. 

 16 We note that there is no dispute that EWTN, CENGI, and Catholic Charities qualify for 

the accommodation and not for the religious employer exemption.

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The court enjoined the Departments from enforcing the mandate or the 

accommodation against Catholic Charities and CENGI. In addition, the court 

granted the plaintiffs’ motion for summary judgment on their claim that the noninterference provision created a content-based speech restriction in violation of the 

First Amendment.

As to the Dioceses’ RFRA claim, the court granted summary judgment to 

the Departments. The Dioceses had argued first that they might at some point have 

to pay more in premiums to help cover their plan providers’ cost of contraceptive 

coverage, in violation of their religious beliefs, and second that the distinction 

between religious employers and organizations eligible for the accommodation 

would force the Dioceses to remove unaffiliated Catholic schools from their 

insurance plans. Rejecting both arguments, the district court ruled that the first 

argument was merely speculative (and the outcome on which the Dioceses 

speculated would, in any event, be prohibited by law) and the second argument 

failed to assert a legitimate religious exercise. The district court granted the 

Departments’ summary judgment motion as to all of the plaintiffs’ remaining

claims based on the First Amendment, the non-delegation doctrine, and the APA.

Despite the split judgment, only the Departments appealed the district 

court’s decision. Because revisions to the regulations have rendered the plaintiffs’ 

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compelled speech claim based on the non-interference provision moot,17 the appeal 

in this case concerns only the district court’s grant of summary judgment to

Catholic Charities and CENGI on their RFRA claim.

II. STANDARD OF REVIEW

“This court reviews the district court’s disposition of cross-motions for 

summary judgment de novo, applying the same legal standards used by the district 

court, viewing the evidence and all factual inferences therefrom in the light most 

favorable to the non-movant, and resolving all reasonable doubts about the facts in 

favor of the non-moving party.” Am. Bankers Ins. Group v. United States, 408 

F.3d 1328 (11th Cir. 2005). Summary judgment is proper if the movant can show 

“that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where the material facts 

are undisputed and all that remains are questions of law, summary judgment may

be granted. See Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir. 

2011).

 17 As noted above, in 2014 the Departments removed the regulations’ requirement that 

organizations “must not, directly or indirectly, seek to influence the third party administrator’s 

decision to” provide contraceptive coverage to the objecting organization’s health plan 

participants and beneficiaries. 26 C.F.R. § 54.9815-2713A(b)(1)(iii) (2013); see 79 Fed. Reg. at 

51095; supra note 9.

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III. DISCUSSION

A. RFRA Claims

1. Legal Background

a. RFRA

RFRA provides that the federal government “shall not substantially burden a 

person’s exercise of religion” unless it demonstrates that the burden “is in 

furtherance of a compelling governmental interest” and “is the least restrictive 

means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb1(a)-(b). Congress passed RFRA in 1993 in response to the Supreme Court’s 

decision in Employment Division, Department of Human Resources of Oregon v. 

Smith, 494 U.S. 872 (1990), which held that “a law that is neutral and of general 

applicability need not be justified by a compelling governmental interest even if 

the law has the incidental effect of burdening a particular religious practice.” 

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) 

(characterizing Smith). In Smith, the Supreme Court reasoned that “[t]o make an 

individual’s obligation to obey [a neutral and generally applicable] law contingent 

upon the law’s coincidence with his religious beliefs, except where the State’s 

interest is ‘compelling[,]’ . . . contradicts both constitutional tradition and common 

sense.” Smith, 494 U.S. at 885 (internal quotation marks and citation omitted). 

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Congress stated that the purpose of RFRA was “to restore the compelling 

interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin 

v. Yoder, 406 U.S. 205 (1972).” 42 U.S.C. § 2000bb(b)(1). Congress declared the 

strict scrutiny standard provided “a workable test for striking sensible balances 

between religious liberty and competing prior governmental interests.” Id.

§ 2000bb(a)(5). Indeed, RFRA “provide[s] even broader protection for religious 

liberty than was available under” Sherbert or Yoder because the government must 

also show that it used the least restrictive means to achieve its compelling interest. 

Hobby Lobby, 134 S. Ct. at 2761 n.3.

b. Hobby Lobby

In Hobby Lobby, the Supreme Court held that enforcing the contraceptive 

mandate without an accommodation against closely held for-profit corporations 

that objected on religious grounds to providing contraceptive coverage violated 

RFRA. The corporations and their owners challenged the mandate as substantially 

burdening their religious exercise. Id. at 2764-66. The owners of the corporations 

sincerely believed that life begins at conception and that it is a sin to facilitate 

access to contraceptive drugs or devices that could destroy an embryo. Id. It was 

undisputed that the mandate required the plaintiffs to provide health insurance that 

covered methods of contraception that could result in the destruction of an embryo. 

Id. at 2775. The plaintiffs asserted that the mandate left them with only two 

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options: (1) provide coverage for contraception in violation of their religious 

beliefs or (2) pay significant penalties. Given these choices, the Supreme Court 

held that the mandate “impose[d] a substantial burden.” Id. at 2779. 

The government argued there was no substantial burden because the 

connection between what the mandate required the plaintiffs to do (provide health

insurance that covered contraception) and the end that they found morally wrong

(the destruction of an embryo) was too attenuated. Id. at 2777. The premise of the 

government’s attenuation argument was that “providing the coverage would not 

itself result in the destruction of an embryo; that would occur only if an employee 

chose to take advantage of the coverage and to use one of the four [contraceptive] 

methods at issue.” Id. In other words, the government asserted that the plaintiffs’ 

belief—that providing insurance coverage for contraception facilitated the 

destruction of embryos—was unreasonable. The Supreme Court rejected this 

argument, which would have required the Court to determine the “circumstances 

under which it is wrong for a person to perform an act that is innocent in itself but 

that has the effect of enabling or facilitating the commission of an immoral act by 

another.” Id. at 2778. The Supreme Court cautioned that “federal courts have no 

business addressing” such questions of religion and moral philosophy. Id. Instead, 

the Supreme Court deferred to the plaintiffs’ religious belief that the coverage “is 

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connected to the destruction of embryo in a way that is sufficient to make it 

immoral for them to provide the coverage.” Id. 

The Court then considered whether the mandate survived strict scrutiny. 

The majority assumed that the mandate furthered a compelling governmental 

interest18 but held that it was not the least restrictive means of doing so. Id. at 

2779-80. The Court pointed to the accommodation, which at the time applied only 

to nonprofit organizations with religious objections, as a less restrictive alternative. 

 18 The majority opinion assumed without deciding that the government has a compelling 

interest. In separate opinions, five members of the Court appeared to go further, suggesting that 

a majority of the Court would agree that there is, in fact, a compelling interest. 

The four dissenting justices concluded that the government carried its burden in showing 

that the mandate “furthers compelling interests in public health and women’s well being.” 

Hobby Lobby, 134 S. Ct. at 2799 (Ginsburg, J., dissenting). Justice Kennedy, who joined the 

majority, offered a separate concurrence in which he emphasized the importance of the 

majority’s assumption that there is a compelling interest without explicitly stating that he agreed 

with that premise: “[it is] important to confirm that a premise of the Court’s opinion is its 

assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in 

the health of female employees.” Id. at 2786 (Kennedy, J., concurring). He also reiterated the 

government’s position that the mandate “provid[ed] insurance coverage that is necessary to 

protect the health of female employees, coverage that is significantly more costly than for a male 

employee.” Id. at 2785-86. 

Justice Ginsburg in her dissent and other courts have treated Justice Kennedy’s 

concurrence as recognizing that the government has a compelling interest. See id. at 2800 n.23 

(Ginsburg, J., dissenting) (writing that Justice Kennedy “recognize[d], without reservation,” the 

existence of a compelling interest); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 624 (7th Cir. 

2015) (Hamilton, J., concurring) (“Justice Kennedy’s concurring opinion made clear that he 

viewed the governmental interests as compelling.”); Priests for Life v. U.S. Dep’t of Health & 

Human Servs., 772 F.3d 229, 257 (D.C. Cir. 2014) (explaining why Justice Kennedy’s 

concurrence was “more affirmative” than the majority opinion in recognizing a compelling 

interest), cert. granted sub nom., Roman Catholic Archbishop of Wash. v. Burwell, 136 S. Ct. 

444 (2015), and cert. granted, 136 S. Ct. 446 (2015). We are inclined to agree that Justice 

Kennedy’s concurring opinion can be read as recognizing a compelling interest. Nonetheless, 

even if Justice Kennedy merely assumed (but did not decide) there is a compelling interest, such 

that a majority of the Supreme Court has not reached that conclusion, we conclude that there is a 

compelling interest here. See infra Part III.B.2.c.(i). 

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The Court explained that after an organization opts out, the plan provider (for 

insured plans) or TPA (for self-insured plans) must exclude contraceptive coverage 

from the group health plan and provide separate payments for contraceptive 

coverage without imposing cost sharing requirements on the organization, plan, or 

plan participants or beneficiaries. Id. at 2782. Although the Court declined to 

answer whether the accommodation complied with RFRA, it lauded the 

accommodation as “seek[ing] to respect the religious liberty of religious nonprofit 

corporations while ensuring that the employees of these entities have precisely the 

same access to all FDA-approved contraceptives as employees of companies 

whose owners have no religious objections to providing such coverage.” Id. at 

2759. The Court further recognized that “[t]he effect of the HHS-created 

accommodation on the women employed by Hobby Lobby and the other 

companies involved in these cases would be precisely zero.”19 Id. at 2760. 

c. Wheaton College

After Hobby Lobby, the Court considered the accommodation itself in the 

context of an injunction sought under RFRA in Wheaton College. The Court

enjoined the government from enforcing the mandate but required the plaintiff to 

 19 Justice Kennedy praised how the accommodation reconciled the competing priorities 

of ensuring that “no person may be restricted or demeaned by government in exercising his or 

her religion” and that the same exercise does not “unduly restrict other persons . . . in protecting 

their own interests, interests the law deems compelling.” Hobby Lobby, 134 S. Ct. at 2786-87 

(Kennedy, J., concurring).

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inform HHS in writing that it had religious objections to providing coverage for 

contraceptive services. 134 S. Ct. at 2807. The Court explained that the 

government could “rely[] on this notice . . . to facilitate the provision of full 

contraceptive coverage.” Id. The practical effect of the Wheaton College decision 

was twofold: the plaintiff received an accommodation, and HHS could rely on the 

notification to provide contraceptive coverage to the participants and beneficiaries

of the plaintiff’s plan. 

d. Other RFRA Challenges to the Accommodation

After Hobby Lobby and Wheaton College, federal courts around the country 

considered RFRA challenges to the accommodation. Applying these two Supreme 

Court decisions, seven of the eight circuits to review these cases held that the 

accommodation does not violate RFRA. See Mich. Catholic Conf. & Catholic 

Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015); Catholic Health Care Sys. 

v. Burwell, 796 F.3d 207 (2d Cir. 2015); Little Sisters of the Poor Home for the 

Aged v. Burwell, 794 F.3d 1151 (10th Cir.), cert. granted sub nom., S. Nazarene 

Univ. v. Burwell, 136 S. Ct. 445, and cert. granted, 136 S. Ct. 446 (2015); E. Tex. 

Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir.), cert. granted, 136 S. Ct. 444 

(2015); Univ. of Notre Dame v. Burwell (“Notre Dame II”), 786 F.3d 606 (7th Cir. 

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2015);20 Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422 

(3d Cir.), cert. granted sub nom., Zubik v. Burwell, 136 S. Ct. 444, and cert. 

granted, 136 S. Ct. 445 (2015); Priests for Life v. U.S. Dep’t of Health & Human 

Servs. (“Priests for Life I”), 772 F.3d 229 (D.C. Cir. 2014), reh’g en banc denied, 

(“Priests for Life II”), 808 F.3d 1 (D.C. Cir. 2015), cert. granted sub nom., Roman 

Catholic Archbishop of Wash. v. Burwell, 136 S. Ct. 444 (2015), and cert. granted, 

136 S. Ct. 446 (2015). These circuits concluded that the accommodation does not 

substantially burden religious exercise.21 The Eighth Circuit disagreed, holding 

that the accommodation substantially burdens religious exercise and cannot survive 

strict scrutiny. Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., 

801 F.3d 927 (8th Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3350 (U.S. Dec. 

15, 2015) (No. 15-775). Recently, the Supreme Court granted certiorari in several 

of these cases. 

The seven circuits that upheld the accommodation recognized that the RFRA 

claim in Hobby Lobby was fundamentally different from challenges to the 

 20 Before Hobby Lobby was decided, the Seventh Circuit affirmed the denial of a 

preliminary injunction to enjoin the enforcement of the mandate and accommodation in 

University of Notre Dame v. Sebelius (“Notre Dame I”), 743 F.3d 547 (7th Cir. 2014). 

Subsequently, the Supreme Court granted certiorari, vacated the Seventh Circuit’s judgment in 

Notre Dame I, and remanded for consideration in light of Hobby Lobby. Univ. of Notre Dame v. 

Burwell, 135 S. Ct. 1528 (2015). After considering Hobby Lobby, the Seventh Circuit issued 

Notre Dame II again affirming the denial of a preliminary injunction. 

21 Two circuits have held, in the alternative, that even assuming the accommodation 

imposes a substantial burden, it survives strict scrutiny under RFRA. See Notre Dame II, 

786 F.3d at 616-17; Priests for Life I, 772 F.3d at 256-57.

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accommodation itself. In Hobby Lobby, the plaintiffs challenged the mandate—

that is, the requirement that they provide contraceptive coverage—when their only 

options were to provide the coverage or pay significant penalties. But in the 

accommodation cases, the plaintiffs have challenged the regulatory scheme that 

allows them to opt out of the mandate without penalty. Put another way, the 

plaintiffs in the accommodation cases “do not challenge the general obligation 

under the ACA to provide contraceptive coverage. They instead challenge the 

process they must follow to get out of complying with that obligation.” Little 

Sisters of the Poor, 794 F.3d at 1160. Because they assert that “the exemption 

process itself imposes a substantial burden on their religious faiths,” their 

challenges are somewhat “paradoxical and virtually unprecedented.” Priests for 

Life I, 772 F.3d at 246 (internal quotation marks omitted). 

The circuits upholding the accommodation recognized that the question of 

whether there is a substantial burden involves an objective inquiry. After 

interpreting the ACA and its regulations, they held that the act of opting out does 

not trigger contraceptive coverage. See, e.g., Notre Dame II, 786 F.3d at 614

(explaining that “[i]t is federal law, rather than the religious organization’s signing 

and mailing the form, that requires . . . third-party administrators of self-insured 

health plans[] to cover contraceptive services”). Although the eligible

organizations asserted that the act of opting out makes them complicit in providing 

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coverage, these courts explained that this objection could not constitute a 

substantial burden because individuals “have no RFRA right to be free from the 

unease, or even anguish, of knowing that third parties are legally privileged or 

obligated to act in ways their religion abhors.” Priests for Life I, 772 F.3d at 246. 

In Sharpe Holdings, the Eighth Circuit reached the opposite conclusion, 

holding that the accommodation substantially burdened religious exercise, and 

enjoined the government from enforcing the accommodation. Relying on Hobby 

Lobby, the Eighth Circuit held that it was bound to accept the plaintiffs’ “assertion 

that self-certification under the accommodation process—using either Form 700 or 

HHS Notice—would violate their sincerely held religious beliefs.”22 Sharpe 

Holdings, 801 F.3d at 941. Because the plaintiffs faced a substantial penalty if 

they failed to seek an accommodation or provide contraceptive coverage, the 

Eighth Circuit concluded there was a substantial burden. Id. at 942. 

The Eighth Circuit then applied strict scrutiny. The court assumed that the 

government had a compelling interest but held that the government had failed to 

carry its burden to show that it lacked other means to achieve its interest without 

imposing a substantial burden on religion. Id. at 943. The Eighth Circuit 

 22 Although the Eighth Circuit deferred to the plaintiffs’ understanding of how the 

accommodation functioned, it agreed that the act of opting out triggered coverage. See Sharpe 

Holdings, 801 F.3d at 942 (TPAs have no “wholly independent obligation” to provide 

contraceptive coverage). 

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concluded that less restrictive alternatives included the government: (1) requiring 

less information from eligible organizations seeking an accommodation; (2) 

assuming the cost of providing contraceptives through subsidies, reimbursements, 

tax credits, or tax deductions to employees; (3) paying for distribution of 

contraceptives at community health centers, public clinics, and hospitals; or (4) 

making contraceptive coverage available through the healthcare exchanges. Id. at 

944-45. Given these alternatives, the Eighth Circuit concluded that the 

accommodation failed to survive strict scrutiny.

2. RFRA Analysis

With this legal landscape in mind, we now consider the plaintiffs’ RFRA 

challenge. We hold that their challenge fails because (1) the accommodation does 

not substantially burden their religious exercise, and (2) in the alternative, even if 

there is a substantial burden, the accommodation survives strict scrutiny.

a. The Plaintiffs Allege a Sincere Religious Belief.

A threshold question we must ask is whether the plaintiffs’ religious beliefs 

on which their RFRA claims are based are sincere. See Hobby Lobby, 134 S. Ct. at 

2774 n.28 (“To qualify for RFRA’s protection, an asserted belief must be 

‘sincere’. . . .”). It is well established that we defer to a plaintiff’s statement of its

own belief, so long as the plaintiff actually holds that belief. See id. at 2779 (“[I]t 

is not for [courts] to say that [the plaintiffs’] religious beliefs are mistaken or 

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insubstantial.”); Davila v. Gladden, 777 F.3d 1198, 1204 (11th Cir.) (“[W]e look 

only to see whether the claimant . . . actually holds the beliefs he claims to hold.”

(internal quotation marks omitted)), cert. denied sub nom., Davila v. Hayes, 136 S. 

Ct. 78 (2015).

Each plaintiff states that its religious beliefs prevent it from paying for, 

providing, or facilitating the distribution of contraceptives. Each plaintiff also

asserts that it cannot be complicit in the provision of contraception. The

government does not contest the sincerity of these religious beliefs, nor is there any

indication whatsoever in the record that the stated beliefs are insincere. We thus 

conclude that the plaintiffs’ religious beliefs at issue are sincere.

b. The Accommodation Does Not Substantially Burden the 

Plaintiffs’ Religious Exercise.

We now consider whether, accepting the plaintiffs’ sincere religious beliefs,

the accommodation substantially burdens their religious exercise. The plaintiffs 

assert that the act of notifying HHS or their TPAs of their religious objection will 

either trigger contraceptive coverage or make them complicit in a system that 

provides such coverage. Due to the significance they attach to opting out, the 

plaintiffs contend that the accommodation itself imposes a substantial burden 

because it puts them to the choice of violating their sincerely held religious beliefs

or paying a substantial penalty. We accept the plaintiffs’ sincere belief that 

triggering coverage or being complicit in coverage violates their religious beliefs

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and that the accommodation puts them to a choice between honoring their religious 

beliefs and facing significant penalties. We nonetheless conclude that the 

accommodation imposes no substantial burden. 

(i) The Substantial Burden Analysis Involves an 

Objective Inquiry. 

“[A] ‘substantial burden’ must place more than an inconvenience on 

religious exercise.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 

1227 (11th Cir. 2004).23 A law is substantially burdensome when it places 

“significant pressure” on an adherent to act contrary to her religious beliefs, 

meaning that it “directly coerces the religious adherent to conform . . . her 

behavior.” Id. Thus, the government imposes a substantial burden when it places

“pressure that tends to force adherents to forego religious precepts.” Id.

This inquiry involves both subjective and objective dimensions. Hobby 

Lobby made clear that there is a subjective aspect to this inquiry: courts must 

accept a religious adherent’s assertion that his religious beliefs require him to take 

or abstain from taking a specified action. See 134 S. Ct. at 2779. But the 

 23 Midrash concerned the Religious Land Use and Institutionalized Persons Act 

(“RLUIPA”), which Congress enacted after the Supreme Court struck down RFRA as applied to 

the states in City of Boerne v. Flores, 521 U.S. 507 (1997). RLUIPA imposes the same 

requirement as RFRA—that the government refrain from substantially burdening religious 

exercise unless the burden is the least restrictive means of achieving a compelling government 

interest—on programs and activities that receive federal funding. 42 U.S.C. § 2000cc-1. We 

apply the same substantial burden analysis under both RLUIPA and RFRA. See generally

Davila, 777 F.3d at 1204; Midrash, 366 F.3d at 1237.

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substantial burden analysis does not end there. We agree with our seven sister 

circuits that the question of substantial burden also presents “a question of law for 

courts to decide.” Priests for Life I, 772 F.3d at 247. 

The objective inquiry requires courts to consider whether the government

actually “puts” the religious adherent to the “choice” of incurring a “serious” 

penalty or “engag[ing] in conduct that seriously violates [his] religious beliefs.” 

Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (second alteration in original and 

internal quotation marks omitted). Put another way, courts must determine what 

the challenged law actually requires of the plaintiff. For example, in Holt, a 

Muslim inmate asserted that prison grooming policy substantially burdened his 

religious exercise because it prohibited him from growing a beard, which his 

religion required. The Supreme Court explained that because the “grooming 

policy requires petitioner to shave his beard,” the policy “put[]” him to the choice 

of violating his religious beliefs or facing serious disciplinary action. Id. In Holt, 

as in many RFRA cases, this inquiry was straightforward because there was no 

dispute about what the government’s policy objectively required of the religious 

adherent. But when there is a dispute about what a law or governmental policy 

objectively requires, it is for the courts to construe the law or policy.

The plaintiffs here contend that under Hobby Lobby no such objective 

inquiry is required. In their view, a religious adherent’s mere assertion that she is 

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being compelled to violate her sincerely held religious belief means that the 

government has put her to such a choice, regardless of what the law objectively

requires.

24 We disagree. In Hobby Lobby, the plaintiffs challenged the 

contraceptive mandate. It was undisputed that the mandate gave the plaintiffs just 

two options: provide contraceptive coverage or pay a substantial penalty. 

Although the Supreme Court engaged in no objective analysis about what the 

mandate required, such analysis was unnecessary because the parties agreed that 

the government, through the mandate, put the plaintiffs to the choice of providing 

contraceptive coverage or paying a hefty fine. See Hobby Lobby, 134 S. Ct. at 

2777-79; see also Priests for Life II, 808 F.3d at 2 (Pillard, J.) (concurring in denial 

of reh’g en banc) (“The parties in Hobby Lobby did not dispute what the law 

required, nor its practical effects . . . .”). 

Here, the parties agree that the plaintiffs have at least three options: provide 

contraceptive coverage, pay a penalty, or use the accommodation to opt out of 

providing contraceptive coverage.25 But they disagree about whether opting out 

 24 The Eighth Circuit similarly interpreted Hobby Lobby as requiring courts to “accept 

[the plaintiffs’] assertion that self-certification under the accommodation process . . . would 

violate their sincerely held religious beliefs.” Sharpe Holdings, 801 F.3d at 941.

25 We agree with the dissent that the plaintiffs have a fourth option, as well: to terminate 

their TPAs and take over the costs and responsibilities of running their self-insured plans. See 

Dissent at 109-10. But, the Departments contend there is no evidence of the existence of any 

self-insured plan without a TPA. See 78 Fed. Reg. at 39880 (“[T]he Departments continue to 

believe that there are no self-insured group health plans in this circumstance.”). If an eligible 

organization elected to become the first self-insured plan without a TPA, it would enjoy at least a 

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39

puts the plaintiffs to the choice of violating their religious beliefs or paying a 

substantial fine. The plaintiffs contend that because an eligible organization’s TPA 

only becomes obligated to provide coverage when the organization opts out, by 

opting out they will be triggering coverage. The government argues to the contrary 

that plan participants and beneficiaries are entitled to contraceptive coverage under 

the ACA regardless of any opt out. We conclude that it is for the courts to 

determine objectively what the regulations require and whether the government 

has, in fact, put plaintiffs to the choice of violating their religious beliefs by 

seeking the accommodation or incurring a substantial penalty. 

We reject a framework that takes away from courts the responsibility to 

decide what action the government requires and leaves that answer entirely to the 

religious adherent. Such a framework improperly substitutes religious belief for 

legal analysis regarding the operation of federal law. Indeed, the plaintiffs have 

identified nothing in RFRA or case law that allows a religious adherent to dictate 

to the courts what the law requires. The plain language of RFRA simply does not 

support reducing the role of federal courts to “rubber stamps” that automatically 

 

temporary safe harbor so long as the plan notifies (1) HHS that it has no TPA and (2) plan 

participants and beneficiaries that the plan provides no benefits for contraceptive services. Id.

We assume for purposes of this appeal that if the government forced an eligible 

organization to have a self-insured plan without a TPA, it would be imposing a substantial 

burden. Nonetheless, we conclude there is no substantial burden because eligible organizations 

can instead select the accommodation. 

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40

recognize a substantial burden whenever a religious adherent asserts there is one. 

Catholic Health Care Sys., 796 F.3d at 218. If Congress had intended strict 

scrutiny to be triggered in all circumstances by a religious adherent’s claim that 

there is a burden, it would have said so. Instead, it required that the federal 

government “substantially burden” the adherent’s religious exercise.

Our dissenting colleague concedes that the question of substantial burden 

involves an objective inquiry but asserts that the inquiry should be limited to 

whether the government has imposed a substantial penalty. See Dissent at 113-15. 

This analysis would require courts to defer to a religious adherent’s sincere belief 

that the government is forcing her to choose between her religious belief and 

paying a substantial fine, even when the religious adherent is objectively wrong 

about how the law operates and what action the government requires her to take. 

The dissent’s view is flawed because any burden (even an objectively insubstantial 

one) becomes a substantial burden if the penalty is heavy enough. 

We acknowledge that in Hobby Lobby the Supreme Court cautioned courts 

against dictating to religious adherents “the circumstances under which it is 

immoral for a person to perform an act that is innocent in itself but that has the 

effect of enabling or facilitating the commission of an immoral act by another.” 

134 S. Ct. at 2778. In some cases, a court’s objective analysis interpreting a statute 

or regulation may contradict a religious adherent’s sincerely held belief about what 

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41

that law requires. But such questions about what a law means are not the type of 

“difficult and important question of religion and moral philosophy” for which 

courts must defer to religious adherents. Id.; see Notre Dame II, 786 F.3d at 623 

(Hamilton, J., concurring) (explaining that the interpretation of the regulations that 

give rise to the accommodation “is an issue not of moral philosophy but of federal 

law”). 

Deciding how the law functions is not the only objective part of the 

substantial burden inquiry. The Supreme Court’s free exercise cases (prior to 

Smith) distinguished between substantial burdens on religious exercise, which are 

protected, and de minimis burdens, which are not. For example, a religious 

adherent may not “require the Government to conduct its own internal affairs in 

ways that comport” with the person’s religious beliefs, even if the government 

action interferes with that person’s religious exercise. Bowen v. Roy, 476 U.S. 693, 

699-700 (1986); see Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 

451 (1988) (recognizing that government’s decision to log and build roads would 

“have severe adverse effects” on practice of Native American religion but

concluding this burden was not “heavy enough” to trigger strict scrutiny under the 

Free Exercise Clause). 

In Bowen, Native American parents challenged federal statutes requiring 

them to provide their daughter’s social security number to state welfare agencies as 

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a condition of seeking benefits on the ground that it impinged upon their free 

exercise of religion. They sought an accommodation to keep the government from 

using her social security number in administering benefits, which they believed 

would rob their daughter of her spirit. 476 U.S. at 695-96. 

Even recognizing that the parents had a sincere belief that by using her 

social security number the government would be stealing their daughter’s spirit, 

the Supreme Court rejected their claim, holding that the government’s “use of a 

Social Security number . . . does not itself in any degree impair [the parents’] 

freedom to believe, express, and exerc[ise their] religion.’” Id. at 700 (internal 

quotation marks omitted). The Court rejected the parents’ attempt to use the Free 

Exercise Clause to “demand that the Government join in their chosen religious 

practices.” Id. at 699-700. The Court explained that “[t]he Free Exercise Clause 

affords an individual protection from certain forms of governmental compulsion,” 

yet does not extend so far to “afford an individual a right to dictate the conduct of 

the Government’s internal procedures.” Id. at 700. The Court acknowledged that 

the parents’ “religious views may not accept” the line that the Court drew 

“between individual and governmental conduct,” but it drew a line nonetheless. 

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Id. at 701 n.6. Likewise, under RFRA courts must determine whether the burden 

on a religious adherent is, in fact, substantial.

26 

As we alluded to above, the plain language of RFRA supports our 

conclusion that there is a distinction between a burden and a substantial burden. 

RFRA requires strict scrutiny only when the government “substantially burden[s] a 

person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). Congress chose to 

modify “burden” with “substantial[],”27 and we must of course interpret RFRA to 

give full effect to its every word. See TRW Inc. v. Andrews, 534 U.S. 19, 31 

(2001) (recognizing that statutes should be construed whenever possible so that 

“no clause, sentence, or word shall be superfluous, void, or insignificant” (internal 

quotation marks omitted)). 

 26 We reiterate that in Hobby Lobby the Supreme Court did not grapple with this aspect of 

the substantial burden analysis. But it was plain that the action required of the plaintiffs in that 

case—paying to provide health insurance that included contraceptive coverage—imposed a 

substantial burden. Accordingly, the Court had no occasion to address the more difficult 

question presented here, where the plaintiffs’ claims of substantial burden rest on their assertion 

that seeking an accommodation results in another entity (the TPA) providing contraceptive 

coverage and thus makes them complicit in a system that achieves an end to which they have a 

religious objection. In other words, Hobby Lobby did not pose the issue whether courts must 

defer to a religious adherent’s assertion that seeking an accommodation (opting out) itself 

imposes a substantial burden.

27 Congress used “substantial burden” instead of “burden” in order “to clarify [that] the 

compelling interest required by the Religious Freedom [Restoration] Act applies only where 

there is a substantial burden placed on the individual free exercise of religion.” 139 Cong. Rec. 

S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch) (emphasis added). Limiting RFRA’s 

application to substantial burdens was intended to ensure that the government was not required 

“to justify every action that has some effect on religious exercise.” Id.

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We recognize that the distinction between burden and substantial burden is 

not implicated in every RFRA case. Nonetheless, there are cases brought under 

RFRA in which the purported burden is too slight to trigger strict scrutiny. For 

example, in Kaemmerling v. Lappin, an inmate challenged under RFRA the Bureau 

of Prison’s collection and analysis of his DNA. 553 F.3d 669, 673-74 (D.C. Cir. 

2008). He claimed that the government’s sampling, collection, and analysis of his 

DNA violated his sincerely held religious beliefs about the proper use of DNA. 

The D.C. Circuit concluded there was no substantial burden. Importantly, the 

inmate had no religious objection to the collection of his bodily material; he 

challenged only how the government would subsequently use that specimen to 

extract his DNA information. Id. at 678-79. There was no question that the 

Bureau of Prisons required the inmate to submit a bodily specimen that would be 

used for an end to which he had a strong religious objection (that is, the collection 

and analysis of his DNA). But the D.C. Circuit held there was no substantial 

burden because the inmate “suggest[ed] no way in which these government acts 

pressure[d] him to modify his own behavior in any way that would violate his 

beliefs.” Id. at 679. Kaemmerling reinforces that a religious adherent cannot use 

RFRA to stop the government or third parties from taking subsequent actions to 

which he objects when the acts required of him impose a de minimis burden.

28 

 28 Our dissenting colleague worries that our framework creates a “Bizarro World” in 

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(ii) No Substantial Burden Exists.

To determine whether the accommodation objectively puts plaintiffs to the 

choice of violating their religious beliefs or paying a significant fine, we must 

understand how the accommodation functions and what it requires of these 

plaintiffs. The only act that the regulations require the plaintiffs to take is to seek 

the accommodation—that is, filling out and sending Form 700 to their TPAs or 

writing a letter to HHS letting it know of their objections. The plaintiffs do not 

contend that notifying HHS or their TPAs itself constitutes a substantial burden 

because of the time or effort involved. Rather, their objection is based on the 

significance they attribute to this act. They contend that the act of opting out

triggers contraceptive coverage for plan participants and beneficiaries or makes

them complicit in a system that provides contraceptive coverage. We accept that 

the plaintiffs truly believe that triggering contraceptive coverage or being complicit 

in a system providing contraceptive coverage violates their religious beliefs. But

 

which courts determine whether the burden imposed by a law or regulation violates the 

adherent’s beliefs. Dissent at 117-18. The dissent overstates our position. We are not saying 

that courts may determine that when a prison requires a Muslim inmate to shave his beard or the 

government forces a Seventh-Day Adventist to work on the Sabbath, the religious adherent’s 

claim that the government is coercing him to forego his religious precepts is wrong. But when a 

dispute exists about whether the challenged governmental policy actually requires an inmate to 

shave his beard or a person to work on Saturday, it is for the courts to determine what the law 

requires. See, e.g., Sherbert, 374 U.S. at 403-04 (Supreme Court performed its own analysis to 

determine whether challenged policy compelled Seventh-Day Adventist to work on Saturdays). 

Likewise, when a religious adherent challenges an accommodation scheme as imposing a 

substantial burden on the religious adherent based on subsequent actions taken by the 

government or third parties, it is for the courts to determine whether the burden is substantial. 

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our objective inquiry leads us to conclude that the government has not put 

plaintiffs to the choice of violating their religious beliefs or facing a significant 

penalty. We hold there is no substantial burden. 

Here’s why: the ACA and HRSA guidelines are what entitle plan 

participants and beneficiaries to contraceptive coverage. The ACA provides that 

the plaintiffs’ self-insured plans “shall, at a minimum provide coverage for and 

shall not impose any cost sharing requirements for . . . with respect to women, such 

additional preventative care and screenings . . . as provided for in” the HRSA 

guidelines. 42 U.S.C. § 300gg-13(a)(4). The HRSA Guidelines, in turn, “require 

coverage, without cost sharing, for ‘[a]ll . . . [FDA] approved contraceptive 

methods, sterilization procedures, and patient education and counseling for all 

women with reproductive capacity.’” 77 Fed. Reg. at 8725 (alterations in original) 

(quoting HRSA guidelines).

The plaintiffs and the dissent take a different view of the statutory and 

regulatory scheme, contending that an eligible organization’s act of opting out 

triggers the TPA’s designation as plan administrator and, without it, plan 

participants or beneficiaries would not receive contraceptive coverage.29 Indeed, 

 29 Because the plaintiffs here have only self-insured plans, we consider only the 

accommodation procedures that apply to self-insured health plans. 

For an eligible organization with a plan insured by a third party, the accommodation 

imposes no new coverage obligation. The eligible organization’s act of opting out simply makes 

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the dissent asserts that opting out requires an eligible organization’s “affirmative 

participation” because the act of opting out is the “linchpin on which the 

contraceptive mandate rests.” Dissent at 125. We disagree. 

The ACA and the HRSA guidelines—not the opt out—are, to borrow the 

dissent’s term, the “linchpins” of the contraceptive mandate because they entitle 

women who are plan participants and beneficiaries covered by group health 

insurance plans to contraceptive coverage without cost sharing. In other words, 

women are entitled to contraceptive coverage regardless of their employers’ action 

(or lack of action) with respect to seeking an accommodation. Because a woman’s 

entitlement to contraceptive benefits does not turn on whether her eligible 

organization employer chooses to comply with the law (by providing contraceptive 

coverage or seeking an accommodation) or pay a substantial penalty (in the form 

of a tax) for noncompliance, we cannot say that the act of opting out imposes a 

substantial burden.30 

 

the coverage the plan provider’s “sole responsibility rather than one shared with the group health 

plan itself.” Little Sisters of the Poor, 794 F.3d at 1181.

30 The dissent complains that our reading renders the act of opting out “meaningless.” 

Dissent at 128 (internal quotation marks omitted). The dissent misses our point. Although plan 

participants and beneficiaries are entitled to contraceptive coverage under federal law regardless

of any opt out, notification of the opt out allows the government to identify the plan participants 

and beneficiaries who will not receive contraceptive coverage from a self-insured eligible 

organization because of that organization’s religious objection to the mandate. In other words, 

the act of opting out aids the government in identifying these women and making sure that they 

receive the contraceptive coverage to which they are legally entitled. Thus, the act of opting out 

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We do not mean to imply that the act of opting out plays no causal role in 

the ultimate provision of contraceptive coverage. We acknowledge that an eligible 

organization’s act of notifying HHS or its TPA of its objection results in the TPA’s

designation as the plan administrator and gives rise to the TPA’s obligation to 

provide contraceptive coverage.

31 See 29 C.F.R. § 2510.3-16(b). But we view an 

eligible organization’s act of opting out as, at most, an incidental cause of plan 

participants and beneficiaries receiving contraceptive coverage because these 

women are entitled to contraceptive coverage under the ACA and HRSA 

guidelines regardless of whether the eligible organization opts out. Accordingly, 

even if the act of opting out in some way leads to women receiving the 

contraceptive coverage to which they were entitled under federal law, the plaintiffs 

have failed to establish that the act of opting out substantially burdens their 

religious exercise. Importantly, the government does not force an eligible 

organization to provide contraceptive coverage, pay costs related to contraceptive 

coverage, notify plan participants and beneficiaries of the existence of such 

coverage, or even include the availability of such coverage from a separate source 

in information the plan provides to plan participants and beneficiaries. Instead, all 

 

has significance in the regulatory scheme, but not because it creates a woman’s entitlement to 

contraceptive coverage. 

31 Indeed, the government has admitted that an eligible organization’s opt out results in a 

TPA’s designation as plan administrator and the TPA providing plan participants and 

beneficiaries contraceptive benefits. 

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of these responsibilities fall upon the TPA. Rather, the only action required of the 

eligible organization is opting out: literally, the organization’s notification of its 

objection. Such an opt out requirement is “typical of religious objection 

accommodations that shift responsibility to non-objecting entities only after an 

objector declines to perform a task on religious grounds.” Little Sisters of the 

Poor, 794 F.3d at 1183. 

The plaintiffs’ challenge is in substance indistinguishable from an objection 

to the government’s requiring another entity to provide coverage in their stead. 

See Catholic Health Care Sys., 796 F.3d at 224 (characterizing an identical 

challenge as seeking a “blanket religious veto over the government’s interactions 

with others”). Put differently, the plaintiffs’ opposition to opting out is an 

objection to their inability to keep the TPA with which they have contracted to 

provide services in connection with healthcare coverage from complying with the 

relevant regulations. The plaintiffs point to a but-for causal relationship between 

their opting out and the conduct that they find religiously objectionable. But, as 

the Supreme Court has explained, a religious adherent cannot claim a substantial 

burden based on the subsequent conduct of another party.32 See Bowen, 476 U.S. 

 32 The plaintiffs argue that under the accommodation they are facilitating access to 

contraceptives because their ongoing contractual relationship with their TPA leads the TPA to 

continue to provide contraceptive coverage to plan participants and beneficiaries. It is true that a 

TPA remains as plan administrator for purposes of contraceptive coverage only so long as the 

organization serves as the plan’s TPA. Nonetheless, the plaintiffs cannot show a substantial 

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at 699-700 (“Just as the government may not insist that appellees engage in any set 

form of religious observance, so appellees may not demand that the Government 

join in their chosen religious practices by refraining from using a number to 

identify their daughter.”).33 

We recognize that the plaintiffs sincerely abhor and object to the subsequent 

acts taken by the government and their TPA, which ultimately result in the TPA 

providing contraceptive coverage to their plan participants and beneficiaries. We 

acknowledge that they “may not accept [the] distinction” that we draw here 

between their conduct and the downstream, separate conduct of HHS and the TPAs 

to provide coverage. Id. at 701 n.6. But we simply cannot say that RFRA affords 

the plaintiffs the right to prevent women from obtaining contraceptive coverage to 

which federal law entitles them based on the de minimis burden that the plaintiffs 

face in notifying the government that they have a religious objection. 

As the Seventh Circuit first articulated, an analogy to a conscientious 

objector to the military draft illustrates why the accommodation does not impose a 

 

burden because, as explained above, their challenge is an objection to the TPA’s subsequent 

conduct. 

33 The dissent dismisses Bowen as distinguishable because the plaintiffs here object only 

to their own participation in the accommodation, not to any acts taken by the government. See 

Dissent at 126-27 n.32. We are not persuaded. The dissent’s position ignores that the plaintiffs 

object to opting out because it requires them to play a causal role (albeit, a small one) in a system 

in which the government requires contraceptive coverage. Put another way, their religious 

objection is, at its core, an objection to the government requiring the TPAs to provide coverage

upon their opting out. 

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substantial burden. See Notre Dame I, 743 F.3d at 556. A religious conscientious

objector to the military draft may opt of military service based on his belief that 

war is immoral. The objector sincerely believes that his act of opting out triggers 

the drafting of another person in his place, and thus renders him complicit in the 

very thing to which he objects. But we would reject the assertion that the 

government’s subsequent act of drafting another person in his place—even though 

the drafting was in some sense caused by the objector’s act of opting out—

transforms the act of lodging a conscientious objection into a substantial burden. 

See id. Likewise, we reject the plaintiffs’ assertion that opting out imposes a 

substantial burden because the government requires a third party to provide 

contraceptive coverage after an eligible organization opts out.

Accordingly, we conclude that through the accommodation the government 

has imposed no substantial burden on the plaintiffs. We thus hold that the 

accommodation does not violate RFRA. 

c. The Accommodation Survives Strict Scrutiny.

Even assuming that the accommodation imposes a substantial burden on 

plaintiffs’ religious exercise, RFRA allows the government to impose such a 

burden when it demonstrates that the burden “is in furtherance of a compelling 

governmental interest” and “is the least restrictive means of furthering that 

compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). Because the 

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government has carried its burden of showing that the accommodation is the least 

restrictive means of furthering its compelling interests, we hold in the alternative 

that the accommodation survives strict scrutiny under RFRA.

(i) Compelling Interests Justify the Accommodation.

In applying RFRA’s strict scrutiny test, we must first determine whether the

accommodation is “in furtherance of a compelling governmental interest.” Id. 

Because the mandate and accommodation require the provision of cost-free 

contraceptive coverage with little to no administrative burden on women, these 

regulations further compelling government interests in avoiding the adverse public 

health consequences of unintended pregnancies and in assuring women the equal 

benefit of preventative care by requiring coverage for their distinctive health 

needs.34 See Priests for Life I, 772 F.3d at 258-59.

 34 As we explained above, the majority in Hobby Lobby assumed without deciding that 

there was a compelling governmental interest. There is, however, an argument that five justices 

concluded there was a compelling interest. See supra note 18. But even if Justice Kennedy’s 

concurring opinion in Hobby Lobby did not recognize a compelling governmental interest, we 

would hold that the compelling interest test is satisfied here.

We acknowledge that the majority opinion in Hobby Lobby criticized the government’s 

purported interests in “promoting public health and gender equality” as “broadly framed.” 134 

S. Ct. at 2779 (internal quotation marks omitted). But we agree with the D.C. Circuit that the 

government has now provided a more focused analysis “by explaining how those larger interests 

inform and are specifically implicated in its decision to support women’s unhindered access to 

contraceptive coverage.” Priests for Life I, 772 F.3d at 259.

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(a) The Government’s Interests in Reducing the 

Rate of Unintended Pregnancies Are 

Compelling.

We begin our analysis with the facts: unintended or poorly spaced 

pregnancies have a host of negative impacts on women and children. See supra

Part I.A. Women who experience unintended pregnancies are often unaware of 

their condition in the early stages of their pregnancy, which leads them to delay 

prenatal care and cessation of behaviors such as smoking or alcohol consumption. 

78 Fed. Reg. at 39872. Babies born as a result of unintended pregnancies are at a 

greater risk of premature birth and low birth weight. Id. Short interpregnancy 

intervals also result in a greater risk of prematurity and low birth weight. Id. 

Contraceptive use can alleviate these public health problems.35 “[G]reater use of 

contraception within the population produces lower unintended pregnancy and 

abortion rates nationally.” IOM Report at 105.

During debate over the ACA, Congress was informed that “[i]n America 

today, too many women are delaying or skipping preventive care because of the 

costs of copays and limited access.” 155 Cong. Rec. S12027 (Dec. 1, 2009) 

(statement of Sen. Gillibrand). The IOM Report also found that “cost-sharing 

 35 Many contraceptives also carry significant positive health side effects. “[T]he noncontraceptive benefits of hormonal contraception include treatment of menstrual disorders, acne 

or hirsutism, and pelvic pain. Long-term use of oral contraceptives has been shown to reduce a 

woman’s risk of endometrial cancer, as well as protect against pelvic inflammatory disease and 

some benign breast diseases.” IOM Report at 107 (internal citations omitted).

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requirements, such as deductibles and copayments, can pose barriers to care and 

result in reduced use of preventive and primary care services, particularly for lowincome populations.” IOM Report at 109. The Women’s Health Amendment, 

which added to the ACA the requirement that group and individual health plans 

provide women with coverage for preventative care and screenings, aimed to 

increase women’s use of preventive care by removing administrative and financial 

barriers. See 155 Cong. Rec. S12027 (statement of Sen. Shaheen) (“Too often, 

women forgo their health care needs because they are not affordable. We know 

cost plays a greater role in preventing women from accessing health care than it 

does men. In 2007, more than half of all women reported problems accessing 

needed health care because of costs.”); see also Priests for Life I, 772 F.3d at 260 

(explaining that Congress and the Executive branch determined with the ACA and 

its regulations that “serving the government’s compelling public health interests 

depends on overcoming the human behavioral tendencies of denial and delay 

documented in the legislative and regulatory record”). 

Moreover, the Women’s Health Amendment, which added the contraceptive 

mandate to the ACA’s minimum coverage requirements, specifically addressed the 

need to provide preventive care to women to rectify past gender discrimination in 

health insurance. As the Departments noted, “the statute acknowledges that both 

existing health coverage and existing preventive services recommendations often 

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did not adequately serve the unique health needs of women. This disparity placed 

women in the workforce at a disadvantage compared to their male coworkers.”36 

78 Fed. Reg. at 39873; see also 155 Cong. Rec. S12027 (statement of Sen. 

Gillibrand) (“The prevention section of the bill before us must be amended so 

coverage of preventive services takes into account the unique health care needs of 

women throughout their lifespan.”). Indeed, before the ACA, “women of

childbearing age spent 68 percent more on out-of-pocket health care costs than 

men.” 78 Fed. Reg. at 39887. The Departments explained that this 

“disproportionate” financial burden “prevented women from achieving health 

outcomes on an equal basis with men.” Id. The Departments intended the 

contraceptive coverage requirement to “help[] to equalize the provision of 

preventative health care services to women and, as a result, help[] women 

contribute to society to the same degree as men.” Id. As the Departments 

explained, “[r]esearch shows that access to contraception improves the social and 

economic status of women.” Id. at 39873; see generally Claudia Goldin & 

Lawrence F. Katz, The Power of the Pill: Oral Contraceptives & Women’s Career 

& Marriage Decisions, 110 J. of Pol. Econ. 731 (2002).

 36 See also 155 Cong. Rec. S11987 (statement of Sen. Mikulski) (“Women are often 

faced with the punitive practices of insurance companies. No. 1 is gender discrimination. 

Women often pay more and get less. For many insurance companies, simply being a woman is a 

preexisting condition. . . . We pay more because of our gender, anywhere from 2 percent to over 

100 percent.”). 

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Based on this evidence, we conclude that the government’s interests in the 

public health of women and children, as well as in assuring women equal 

preventative care, are compelling.

(b) The Mandate and Accommodation Further 

These Compelling Interests. 

The mandate and accommodation achieve the government’s goals by 

making contraceptives affordable and otherwise accessible to women. As 

explained above, federal law generally guarantees women contraceptive coverage 

without cost sharing. See 42 U.S.C. § 300gg-13(a)(4); 77 Fed. Reg. at 8725 

(discussing HRSA guidelines). Importantly, under the mandate and 

accommodation, women covered by group health insurance plans generally are 

required to take no additional action to obtain this contraceptive coverage. This is 

because the coverage is delivered “through the existing employer-based system of 

health coverage.” 78 Fed. Reg. at 39888. Thus, under the mandate, women need 

not complete extra paperwork or sign up for an additional program because the 

contraceptive coverage is delivered with the health insurance they already have 

through their employers. 

This is true even when an employer opts out of providing contraceptive 

coverage by seeking an accommodation. Although objecting employers are not 

obligated to provide or pay for contraceptives, the women covered by their plans

seamlessly receive contraceptive coverage from the plans’ TPAs. This system was 

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carefully designed to make contraceptive coverage accessible by not requiring 

women to research plans that offer contraceptive coverage, purchase separate

contraceptive coverage, or even sign up with a different entity or program. See id. 

As the Supreme Court acknowledged in Hobby Lobby, the Departments designed 

the accommodation so that it has “precisely zero” impact on female plan 

participants and beneficiaries. 134 S. Ct. at 2760; see also id. at 2759 (explaining 

the accommodation “ensur[es] that the employees of [eligible organizations] have 

precisely the same access to all FDA-approved contraceptives as employees of 

companies whose owners have no religious objections to providing such 

coverage”).

37 

Providing women with such seamless coverage should result in a lower 

unintended pregnancy rate. Medical evidence reflects a causal relationship 

between the accessibility of contraceptives and the unintended pregnancy rate: 

“progress in reducing the rate of unintended pregnancy would be possible by 

making contraceptives more available, accessible, and acceptable.” IOM Report at 

104 (internal quotation marks omitted); see also id. at 109 (“[C]ost-sharing 

requirements, such as deductibles and copayments, can pose barriers to care and 

result in reduced use of preventative and primary care services, particularly for 

 37 We acknowledge that the Supreme Court in Hobby Lobby expressly declined to decide 

whether the accommodation violated RFRA. Nonetheless, our analysis is consistent with the 

Court’s dicta. 

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low-income populations.”); Dianne Greene Foster, et al., Number of Oral 

Contraceptive Pill Packages Dispensed & Subsequent Unintended Pregnancies, 

Obstetrics & Gynecology, March 2011, at 566 (concluding that when receipt of 

oral contraceptives was made more convenient by dispensing them annually rather 

than quarterly the unintended pregnancy rate dropped by 30% and the abortion rate 

dropped by 46%).

38 Because the government has demonstrated that the mandate 

and accommodation increase access to contraception, we conclude that the 

mandate and accommodation are effective ways to reduce the unintended 

pregnancy rate. Accordingly, they serve the government’s compelling interests of 

 38 The government’s evidence further shows that when contraception is easily accessible, 

women not only use it more often, they select more effective methods of contraception. In 

research studies, “when out-of-pocket costs for contraceptives were eliminated or reduced, 

women were more likely to rely on more effective long-acting contraceptive methods.” IOM 

Report at 109. These methods include intrauterine devices and contraceptive implants, which are 

long-lasting and have the additional advantage of not being dependent on user compliance. See 

Birth Control Methods Fact Sheet, Dep’t of Health & Hum. Servs., Office on Women’s Health, 

http://www.womenshealth.gov/publications/our-publications/fact-sheet/birth-controlmethods.html (July 16, 2012) (showing that implants and intrauterine devices have a failure rate 

of less than 1 percent, compared to 5 percent for oral contraceptives and 11 to 16 percent for 

male condoms).

These longer-acting contraceptive methods have been underutilized in the United States 

compared to other developed countries where unintended pregnancy rates are lower, Jeffrey F. 

Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, 

Obstetrics & Gynecology, Dec. 2012, at 1291, in large part because they pose higher up-front 

costs that discourage use. See IOM Report at 108. Evidence shows that women’s use of longacting contraceptive methods easily can be increased by making the methods cheaper and more 

readily available. In a study that provided intrauterine devices and implanted contraceptives at 

no cost to study participants, researchers found a significant decrease in unintended pregnancy 

and abortion rates in the study population. The study concluded that “[u]nintended pregnancies 

may be reduced by providing no-cost contraception and promoting the most effective 

contraceptive methods.” See Peipert, supra, at 1291. 

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improving the health of women and children and assuring that women receive 

health benefits that meet their needs as well as the health care provided to men

does. 

Of course, a compelling interest alone is insufficient to satisfy RFRA; we 

must also assess “the marginal interest in enforcing” the challenged law against the 

religious adherents in question. Hobby Lobby, 134 S. Ct. at 2779. “RFRA requires 

the Government to demonstrate that the compelling interest test is satisfied through 

application of the challenged law ‘to the person’—the particular claimant whose 

sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro 

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (quoting 42 

U.S.C. § 2000bb-1(b)); see also Yoder, 406 U.S. at 221 (“Where fundamental 

claims of religious freedom are at stake, however, we cannot accept such a 

sweeping claim [of compelling interest]; despite its admitted validity in the 

generality of cases, we must searchingly examine the interests that the State seeks 

to promote . . . and the impediment to those objectives that would flow from 

recognizing the claimed . . . exemption.”).

Yoder provides a good example of the application of this principle. There, 

the Amish plaintiffs challenged Wisconsin’s law requiring high school attendance

until the age of 16. Yoder, 406 U.S. at 207-08. The government asserted that the 

law was justified by a general interest in the virtues of universal education. Id. at 

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213-14. The Supreme Court was unsatisfied with this interest as it applied to the 

plaintiffs. “[T]he evidence adduced by the Amish . . . [was] persuasively to the 

effect that an additional one or two years of formal high school for Amish children

in place of their long-established program of informal vocational education would 

do little to serve [the government’s stated] interests.” Id. at 222 (emphasis added).

Similarly, the government’s argument in O Centro exemplifies an overly 

generalized interest. The plaintiffs, a religious sect with origins in the Amazon 

rainforest, challenged the Controlled Substances Act’s regulation of hoasca, a 

hallucinogenic tea they used in religious ceremonies. The federal government 

argued that it had “a compelling interest in the uniform application of the 

Controlled Substances Act, such that no exception to the ban on use of the 

hallucinogen can be made to accommodate the sect’s sincere religious practice.” O 

Centro, 546 U.S. at 423. The Supreme Court dismissed this slippery slope 

argument, which it said “could be invoked in response to any RFRA claim for an 

exception to a generally applicable law,” because it failed to consider the limited 

effect of an exception for the particular plaintiffs, and its stated need for universal 

application was undermined by the existence of other exceptions. Id. at 435-36. 

In contrast to Yoder and O Centro, here the government’s stated interests all 

concern the law’s application to these particular plaintiffs. The government argues 

that applying the accommodation procedure to the plaintiffs in these cases furthers 

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its interests because the accommodation ensures that the plaintiffs’ female plan 

participants and beneficiaries—who may or may not share the same religious 

beliefs as their employer—have access to contraception without cost sharing or 

additional administrative burdens as the ACA requires. Unlike the exception made 

in Yoder for Amish children, whom the Supreme Court found had an adequate 

substitute for additional formal education to refute the government’s compelling 

interest, here the IOM Report’s findings of poor health outcomes related to 

unintended or poorly timed pregnancies apply to the plaintiffs’ female plan 

participants or beneficiaries and their children just as they do to the general 

population. 

Moreover, the accommodation’s requirement that the plaintiffs inform their 

TPAs or HHS of their religious objection is essential to achieving the 

government’s compelling interests. It ensures that a TPA is aware when it has an 

obligation to provide contraceptive coverage so that the women covered by these 

plans can receive coverage if they want it, without gaps in such coverage. The 

notification also guarantees that the Departments will be able to identify objecting 

organizations, like the plaintiffs, to make sure that the accommodation procedures

work (that is, to independently ensure that the women covered by the plaintiffs’ 

plans are receiving the coverage to which they are entitled). Thus, the 

government’s interests are sufficiently particular to satisfy the O Centro standard.

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(c) The Exceptions to the Mandate and 

Accommodation Do Not Undermine the 

Government’s Compelling Interest.

The plaintiffs argue that the government’s interests in providing broad 

contraceptive coverage cannot be compelling because the ACA provides 

exemptions from the mandate for other types of employers—namely, those (1) 

with grandfathered health plans, (2) with fewer than 50 employees, and (3) that 

qualify as “religious employers.” We disagree. 

First, the existence of grandfathered plans does not undermine the 

government’s compelling interest in providing contraceptive coverage because 

grandfathered plans are only a short-lived, transitional measure intended to ease 

the burden of compliance with the ACA’s sweeping reforms. 78 Fed. Reg. at

39887 n.49 (“[T]he Affordable Care Act’s grandfathering provision is only 

transitional in effect, and it is expected that a majority of plans will lose their 

grandfathered status by the end of 2013.”). To be grandfathered, a plan must 

continue to provide virtually the same benefits for the same percentage cost 

sharing as the plan had in effect on March 23, 2010. 45 C.F.R. § 147.140(g)(1)(ii). 

It becomes difficult to comply with these requirements over time. See, e.g.,

Second Am. Compl. at 23-24, No. 1:12-cv-03489, Doc. 56 (describing the Atlanta 

Archdiocese’s inability to afford to maintain its grandfathered plan past January 1, 

2014). 

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Research by the Kaiser Family Foundation demonstrates that the percentage

of workers covered by grandfathered plans has rapidly declined: 26 percent in 

2014, down from 36 percent in 2013, 48 percent in 2012, and 56 percent in 2011. 

Kaiser Family Found. & Health Research & Ed. Trust, Employer Health Benefits 

2015 Annual Survey at 218 (Sept. 22, 2015).39 In addition, some employees

covered by grandfathered plans may in fact be receiving contraceptive benefits 

without cost sharing because, though not required to do so, their plans may include 

such a benefit. 

As an additional consideration, we do not wish to penalize the government

for phasing in the ACA’s requirements to help businesses adjust to a new health 

care regulatory landscape. Cf. Heckler v. Mathews, 465 U.S. 728, 746 (1984) 

(“We have recognized, in a number of contexts, the legitimacy of protecting 

reasonable reliance on prior law even when that requires allowing an 

unconstitutional statute to remain in effect for a limited period of time. . . . The 

protection of reasonable reliance interests is . . . a legitimate governmental 

objective.”). Accordingly, even if the mandate and accommodation are phased in 

 39 We acknowledge that the Kaiser Family Foundation’s 2015 data shows that 25% of 

covered workers are enrolled in a grandfathered plan, which is not much less than the 26% in 

2014. But the Foundation reported that many employers were confused and unsure about 

whether their plans remained grandfathered, suggesting that employers may have inaccurately 

reported that they had grandfathered plans. Kaiser Family Found., supra, at 214. 

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over time, the gradual implementation is insufficient to undermine the 

government’s compelling interest.

Second, the ACA’s treatment of employers with 50 or fewer employees as

exempt from the “employer mandate” and therefore not required to provide

employees with health insurance at all, see 26 U.S.C. § 4980H(a)(c)(2)(A), does 

not undercut the government’s compelling interests. If, on the one hand, smaller

employers do not provide insurance coverage, then their employees must purchase 

health plans on the health insurance exchanges or face tax penalties. See id.

§ 5000A(a), (b)(1). And plans purchased on the exchanges will include 

contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). If, on the other hand,

smaller employers choose to provide health insurance, then their plans are subject 

to the contraceptive mandate. See id. The employees of small businesses therefore 

will receive contraceptive coverage regardless of whether their employers are 

exempt from providing health insurance. This exemption reflects a practical 

recognition that small businesses have different financial realities from larger

businesses. It in no way undermines the government’s interest in providing 

contraceptive coverage without cost sharing because small businesses’ employees 

end up with health plans subject to the contraceptive mandate whether the 

employers provide health insurance or not.

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Third, the exemption from the contraceptive mandate for religious 

employers does not weaken the government’s stated interests. Under the HRSA 

guidelines, the contraceptive mandate does not apply to a group health plan run by

a religious employer, defined by the regulations as “an organization that is 

organized and operates as a nonprofit entity and is referred to in section 

6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 

45 C.F.R. § 147.131(a). In finalizing the regulations, the Departments declined to 

extend the exemption to other organizations that have religious objections to the 

mandate because: 

Houses of worship and their integrated auxiliaries that object to 

contraceptive coverage on religious grounds are more likely than 

other employers to employ people of the same faith who share the 

same objection, and who would therefore be less likely than other 

people to use contraceptive services even if such services were 

covered under their plan.

78 Fed. Reg. at 39874.

 The exemption for religious employers attempts to balance the need for 

contraceptive coverage with our nation’s longstanding history of deferring to a 

house of worship’s decisions about its internal affairs. See 76 Fed. Reg. at 46623 

(“[T]he Departments seek to provide for a religious accommodation that respects 

the unique relationship between a house of worship and its employees in 

ministerial positions.”); see also Hosanna-Tabor Evangelical Lutheran Church & 

Sch. v. EEOC, 132 S. Ct. 694, 704-06 (2012) (describing history of nonCase: 14-12696 Date Filed: 02/18/2016 Page: 65 of 148 
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interference with internal affairs of houses of worship). The government 

undoubtedly has a compelling interest in respecting the values of religious 

employers and their employees, and pursuing that interest does not undermine the 

government’s equally compelling interest in improving women’s and the public’s 

health by making contraceptives easier to obtain. Especially with regard to

sweeping legislation like the ACA, the government is often faced with competing 

compelling interests. Courts may allow the government to balance those interests 

without undermining any individual compelling interest. See Hobby Lobby, 

134 S. Ct. at 2780 (“Even a compelling interest may be outweighed in some 

circumstances by another even weightier consideration.”).

We also reject the plaintiffs’ argument that the Departments’ distinction 

between houses of worship (which are exempted from the mandate) and other 

organizations with religious affiliation (which must seek an accommodation) is 

illogical. Although it may not universally hold true,40 it is a common-sense notion 

that a church’s employees likely share more beliefs with the church than do the 

employees of, for example, a school linked to that church, and therefore the 

employees of a church that objects to contraception are less likely to use 

contraceptive coverage even if it is available. See 78 Fed. Reg. at 39874. Thus, 

 40 EWTN in particular argues that the Departments’ distinction between houses of 

worship and other religious organizations is illogical and does not hold for EWTN because, like 

employees of “religious employers,” its employees share its religious convictions. 

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the Departments distinguished between houses of worship and other religious 

groups using the readily available and well-established IRS tax status test. This 

test is predictable for affected organizations and easy for the Departments to

implement. See United States v. Lee, 455 U.S. 252, 260-61 (1982) (noting it was 

reasonable for Congress to exempt self-employed Amish from Social Security 

taxes because the exemption for “the self-employed provided for a narrow category 

which was readily identifiable . . . [and] distinguishable from the generality of 

wage earners employed by others”). We do not think that the Departments’ 

decision to exempt houses of worship based on a bright-line test while 

accommodating other religious organizations undercuts the government’s 

compelling interests in enforcing the contraceptive mandate.

In sum, the mandate and accommodation further the government’s 

compelling interests by ensuring that women have contraceptive coverage without 

cost sharing or additional administrative hurdles. Additionally, by requiring 

organizations that opt out of the mandate to identify themselves, the government 

ensures that these organizations’ health plan participants and beneficiaries can 

receive the coverage seamlessly through other channels. Although the government 

has attempted to accommodate religious freedom as well as the needs of 

businesses, it has not done so in a way that undermines its goal of ensuring access 

to contraception.

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(ii) The Mandate and Accommodation Are the Least 

Restrictive Means of Furthering the Government’s 

Compelling Interests.

As a final step, we must determine whether the mandate and accommodation 

are “the least restrictive means of furthering” the government’s compelling 

interests. 42 U.S.C. § 2000bb-1(b). This test is “exceptionally demanding.” 

Hobby Lobby, 134 S. Ct. at 2780. The government must show “that it lacks other 

means of achieving its desired goal without imposing a substantial burden on the 

exercise of religion by the [plaintiffs].” Id. When a less restrictive alternative 

serves the government’s compelling interest “equally well,” the government must 

use that alternative. Id. at 2782; see id. at 2786 (Kennedy, J. concurring) 

(considering whether alternative “equally furthers the Government’s interest”). 

In determining whether potential alternatives to the mandate and 

accommodation equally further the government’s interests, we must consider both 

the cost to the government and the burden the alternatives impose on the affected 

women. See id. at 2760 (majority opinion) (“[W]e certainly do not hold or suggest 

that RFRA demands accommodation of a for-profit corporation’s religious beliefs 

no matter the impact that accommodation may have on thousands of women 

employed by Hobby Lobby. The effect of the HHS-created accommodation on the 

women employed by Hobby Lobby and the other companies involved in these 

cases would be precisely zero.” (emphasis added) (alteration, footnote, citation, 

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and internal quotation marks omitted)); id. at 2760 (clarifying that the Court did

not hold that “corporations have free rein to take steps that impose disadvantages 

on others or that require the general public to pick up the tab” (alteration and 

internal quotation marks omitted)). Because there are no less restrictive means 

available that serve the government’s interests equally well, we hold that the 

mandate and accommodation survive strict scrutiny under RFRA.

Although the plaintiffs and the dissent suggest several potential less 

restrictive alternatives to the mandate and accommodation, their proposals fail to 

achieve the government’s interests as effectively. Indeed, their proposals impose 

burdens on women that would make contraceptives less accessible than they 

currently are. Because these proposals cannot be expected to reduce the rate of 

unintended pregnancies and thereby improve the health of women and children as 

effectively as the mandate and accommodation, they do not qualify as less 

restrictive alternatives under RFRA. 

Previously, the Supreme Court and a member of this Court suggested that a 

less restrictive alternative would be to allow eligible organizations to notify HHS 

of their opt out, instead of having to provide Form 700 to their plan providers or 

TPAs. See Wheaton Coll., 134 S. Ct. at 2807; Eternal Word Television Network, 

756 F.3d at 1349 (William Pryor, J., concurring) (“The United States, for example, 

could require the Network to provide a written notification of its religious 

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objection to the Department of Health and Human Services, instead of requiring 

the Network to submit Form 700—an instrument under which the health insurance 

plan is operated—to the third-party administrator.”). The Departments have 

responded to and addressed this concern by revising the accommodation 

procedures to allow eligible organizations notify HHS directly of their desire to opt 

out of the contraceptive mandate. 79 Fed. Reg. at 51094-95. With that potential 

alternative incorporated into the regulatory scheme, we turn to the alternatives 

proposed by the plaintiffs and the dissent.

(a) The Plaintiffs’ Proposals

The plaintiffs propose two less restrictive alternatives. First, they suggest

that the government could pay directly for all contraceptive coverage, in effect a 

single-payer system for contraceptives only,

41 either by creating a new government 

program or expanding an existing one.

42 Either way Congress would need to pass 

legislation that would fundamentally change how the majority of American women

 41 In a single-payer system, the government—as opposed to employers, health insurers, or 

patients—pays for healthcare services. See Notre Dame II, 786 F.3d at 615; Single-Payer,

Merriam Webster Dictionary, http://www.merriam-webster.com/dictionary/single-payer (last 

visited Feb. 12, 2016). Although the plaintiffs never call their proposal a “single-payer” system 

for contraceptives, the label applies because they propose a system in which the government

would be the sole payer for contraceptives and related services. It is important to note that all 

other health care would continue to be provided through our existing system. 

42 The plaintiffs suggest, for example, that Congress could expand Title X, which

currently benefits only low-income families; patients whose income exceeds 250 percent of the 

poverty level must pay for any services they receive through Title X programs. See 42 U.S.C. 

§ 300a-4(c); 42 C.F.R. § 59.5(a)(8).

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receive their healthcare coverage for contraception.43 See Jessica C. Smith & Carla

Medalia, U.S. Census Bureau, Health Insurance Coverage in the U.S.: 2014 at 3 

(2015) (55% of Americans had insurance coverage provided by an employer in 

2014). Among other things, adopting a single-payer system for contraception 

would require Congress to squeeze insurance companies out of an entire segment

of the health insurance business.44 Second, the plaintiffs assert that the 

government could provide tax credits to reimburse women for purchasing

contraceptive coverage.45 Under either the single-payer or tax credit proposals, all 

coverage for contraception and related services would operate outside the existing, 

largely employer-based, insurance system. 

 43 In Hobby Lobby, the government argued that RFRA does not permit the court to 

consider proposals that would require the government to create entirely new programs as less 

restrictive alternatives. The Court rejected this argument, explaining “we see nothing in RFRA 

that supports this argument.” Hobby Lobby, 134 S. Ct. at 2781. Accordingly, we consider this 

proposal even though it would require substantial congressional action to expand significantly an 

existing program or create a new one.

44 We may, of course, consider the burdens that a proposed alternative places on 

nonbeneficiaries, such as insurance companies. See Cutter v. Wilkinson, 544 U.S. 709, 720-722 

(2005) (“[A]pplying RLUIPA, courts must take adequate account of the burdens a requested 

accommodation may impose on nonbeneficiaries. . . . Our decisions indicate that an 

accommodation must be measured so that it does not override other significant interests.”). 

45 The plaintiffs suggest the government could require women to purchase separate 

contraceptive coverage on the healthcare exchanges and then offer tax credits to offset the cost of 

purchasing the coverage. This proposal would require Congress to amend the ACA because the 

exchanges are statutorily restricted to selling only full health insurance policies. See 42 U.S.C. 

§§ 18021(a)(1)(B), 18022(a), (b).

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Most importantly, these proposals are not less restrictive alternatives

because they would not serve the government’s interests “equally well.”46 Hobby 

Lobby, 134 S. Ct. at 2782. As the Departments explain, these proposals would 

cause all women who have existing contraceptive coverage through group health 

insurance plans to lose such coverage, forcing them instead to “take steps to learn 

about, and to sign up for, a new health benefit.” 78 Fed. Reg. at 39888. Indeed,

under these proposals, women would have one employer-provided health insurance 

plan covering healthcare other than contraception. Then, they would have to take 

additional, separate steps to secure contraceptives or contraceptive coverage. 

Under a single-payer system for contraceptives, they would have to research the 

federal entitlement for contraceptives and register for the program. Under a taxcredit system, they would have to research plans offering separate contraceptive 

coverage, select a plan, purchase coverage, and later file for a tax credit as part of 

their individual tax returns.

47 The mandate and accommodation present an easier, 

 46 We acknowledge dicta in Hobby Lobby suggesting as a less restrictive alternative that 

the government pay directly for contraception; however, the Supreme Court did not hold that 

such a program was a less restrictive alternative. 134 S. Ct. at 2871-82 (“[W]e need not rely on 

the option of a new, government-funded program in order to conclude that the HHS regulations 

fail the least-restrictive-means test.”). 

47 The tax-credit proposal is particularly problematic because it forces women to pay up 

front for contraceptives in exchange for tax credits later. But many women simply would not be 

able to afford to wait a year for a refund from the government in the form of a tax credit and, as 

the government’s evidence shows, would instead have to forgo using contraceptives. See IOM 

Report at 109 (recognizing that “cost-sharing requirements, such as deductibles and copayments, 

can pose barriers to care and result in reduced use of preventive . . . services”); see also supra

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73

simpler, and more certain path for women by ensuring that, by obtaining health 

insurance, they also secure contraceptive coverage, even when their employers opt 

out. 

Because plaintiffs’ proposals impose greater barriers to contraceptive access 

than exist under the mandate and accommodation, their proposals likely will lead 

to lower rates of contraceptive usage (along with use of less effective forms of 

contraception), meaning these proposals will be less effective at preventing

unintended pregnancies and concomitant health consequences.

48 See IOM Report 

at 104-09; Foster, supra, at 566 (reflecting that when obtaining contraceptives 

became less convenient, the rate of unintended pregnancy increased); see also 

78 Fed. Reg. at 39888 (recognizing that these proposals would be “less effective 

than the employer-based system of health coverage in advancing the government’s 

compelling interests”). 

Plaintiffs’ proposals would make contraception less accessible not only to

women who currently receive contraceptive coverage through a group insurance 

 

note 38. In contrast, the mandate and accommodation require women to pay nothing upfront for 

contraceptives. Accordingly, contraceptives are significantly more available to women under the 

mandate and accommodation than they would be under the tax-credit proposal.

48 The two other circuit courts to address this issue have rejected similar alternatives for 

the same reason. See Notre Dame II, 786 F.3d at 616-17 (rejecting similar proposed alternatives

because they “would impede the receipt of [contraceptive] benefits”); Priests for Life I, 772 F.3d 

at 265 (holding that proposed alternatives “would not serve the government’s compelling interest 

with anywhere near the efficacy of the challenged accommodation and would instead deter 

women from accessing contraception”). 

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plan, but also to women who currently purchase health insurance through the 

exchanges, including women who work for an employer with fewer than 50 fulltime employees. Under the current framework, these women must research and 

compare potential health insurance plans sold on the exchanges and then purchase

and sign up for a plan. As a result of their efforts, they receive health insurance 

that includes contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). Under the 

plaintiffs’ proposals, these women would still have to procure health insurance 

from the exchanges. But then they would have to take the additional steps 

described above to obtain coverage for contraceptives. In other words, women 

who currently purchase insurance through the exchanges would also face greater 

burdens accessing contraceptives under a single-payer system.

49 

 49 It is unclear whether our dissenting colleague advocates as a less restrictive alternative

replacing our insurance-based system with a single-payer system for contraceptive coverage. On 

the one hand, the dissent never states that a single-payer system would be a less restrictive 

alternative, instead proposing that the ACA and ERISA need only a “slight[] tweak,” not the 

jettisoning of our insurance-based system for contraceptives that a single-payer system would 

entail. Dissent at 137. On the one other hand, the dissent argues that the government should 

“provid[e] for contraceptive coverage directly without the accommodation’s administrative 

rigmarole” so that the government could “offer cost-free access to each and every woman in the 

United States.” Id. at 134. This sounds to us like a single-payer system. 

Indeed, the dissent suggests that a single-payer system would be as effective or more 

effective than the mandate and accommodation at making contraceptives accessible to women. 

Because under either system women pay nothing for contraceptives, to compare women’s access 

to contraceptives under the two systems, we must focus on the administrative burdens that 

women face under either system.

We conclude that, on the whole, women face fewer barriers to obtaining contraceptives 

under the mandate and accommodation than they would under a single-payer system. Most 

significantly, most women covered by group health insurance plans and all who purchase 

insurance on the exchanges seamlessly receive coverage under the mandate and accommodation. 

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After careful consideration, we conclude that the government has shown that 

contraceptives would be less accessible—and used less frequently or effectively—

under the plaintiffs’ proposals then they are under the mandate and 

 

Nonetheless, the dissent asserts that a single-payer system is a more effective way to improve 

access to contraceptives because three categories of women whose employers are exempt from 

the contraceptive mandate—(1) women employed by small businesses, (2) women covered by 

grandfathered plans, and (3) women employed by churches or church-affiliated organizations—

would have greater access to contraceptives under such a system. See id. at 50. After 

considering these three categories, we remain convinced that a single-payer system would be less 

effective than the mandate and accommodation. 

First, the dissent suggests that women whose employers have 50 or fewer full-time 

employees would receive better access to contraceptives under a single-payer system. But, as we 

explained above, these women receive contraceptive coverage under the mandate and 

accommodation regardless of whether their employers elect to provide health insurance coverage 

or they purchase a plan on the exchanges. See supra Part III.A.2.c.(i).(c). Given that these 

women currently have seamless access to contraceptives, we fail to see how this group supports 

the dissent’s argument.

Second, the dissent asserts that women whose health plans have a grandfathered 

exemption would have better access to contraceptives under a single-payer system. But the 

dissent overlooks that the grandfathered exemption is a temporary measure, meaning the number 

of women covered by plans subject to the exemption has rapidly declined and should continue to 

decline over time because it becomes more expensive for plans to maintain their grandfathered 

status. See 45 C.F.R. § 147.140(g)(1) (requiring grandfathered plans to provide virtually the 

same benefits for the same percentage cost sharing that the plan had in effect on March 2010). 

We cannot say that a single-payer system serves the government’s interest as effectively or more 

effectively simply because in the short term a subset of women may have easier access to 

contraceptives under a single-payer system. 

Third, the dissent argues that women employed by churches and church-affiliated 

organizations would have easier access to contraceptives under a single-payer system. Even if 

that is true for this relatively small group of women, the Departments have explained that these 

employees are likely to share their employer’s religious objection to contraception, meaning they 

are “less likely than other people to use contraceptive services even if such services were 

covered under the plan.” 78 Fed. Reg. at 39874. All together, we cannot say that a single-payer 

system serves the government’s interest as effectively as the mandate and accommodation when 

we consider that a single-payer system would impose greater barriers to accessing contraceptives 

for most women who purchase health insurance from an employer and all women who purchase 

plans on the exchanges. What’s more, the balance tips even further in favor of the mandate and 

accommodation when we consider the impact of imposing on non-beneficiaries a single-payer 

system for an entire segment of preventative care. See Cutter, 544 U.S. at 720.

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accommodation. Given the government’s compelling interest in minimizing the 

barriers women face in accessing contraceptives so that they will use 

contraceptives to lower the rate of unintended pregnancies, we conclude that the 

plaintiffs’ proposals would not serve the government’s interest equally as well as 

the mandate and accommodation. Thus, they fail to qualify as less restrictive 

alternatives. 

The dissent criticizes our position as giving the Departments a “free pass” on 

the least restrictive means requirement. Dissent at 139. Our dissenting colleague

takes our analysis to mean that the government can defeat a potential alternative 

merely by showing that the alternative would take away a benefit—any benefit—

that the government’s existing framework provides to “third parties” (here, the 

women who are the intended beneficiaries of the mandate and accommodation). 

Id. at 138. The dissent overstates our position. We are not saying that the 

government can always overcome strict scrutiny by showing that proposed 

alternatives would take away a benefit that the current framework provides. 

Rather, on the facts and record of this case—including the evidence that when 

women face greater burdens (whether financial or administrative) in accessing 

contraceptives or contraceptive coverage, they are less likely to use 

contraceptives—we must conclude that plaintiffs’ alternatives, which make

contraceptives less accessible, would be significantly less effective than the 

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mandate and accommodation at reducing the rate of unintended pregnancies and 

thus would thwart the government’s interests.

50

(b) The Dissent’s Proposal

The dissent suggests that Congress could “slightly tweak” the ACA and 

ERISA to “eliminate the need for eligible organizations to affirmatively designate 

the third-party administrators of their health plans.” Dissent at 137. We 

understand the dissent’s proposal to be that Congress should pass legislation and 

the Departments should enact regulations that would designate the TPA for a selfinsured eligible organization as plan administrator for purposes of contraceptive 

coverage without requiring the eligible organization to communicate its religious 

objection to anyone. 

The dissent’s proposal fails to serve the government’s interest equally as 

well as the accommodation because the alternative would make contraceptives less 

accessible to women covered by eligible organizations’ plans than would the 

accommodation. The dissent fails to explain—and we cannot imagine—how a 

TPA would know when an employer has a religious objection to providing 

contraceptive coverage under the proposal and thus that the TPA is required to 

 50 The Eighth Circuit’s proposal that “the government could pay for the distribution of 

contraceptives at community health centers, public clinics, and hospitals with income-based 

support” likewise would impose additional administrative burdens on women and thus in a 

similar way fails to satisfy the government’s interests. Sharpe Holdings, 801 F.3d at 945. 

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provide the coverage in the employer’s stead if the employer is not required to 

notify anyone. Like the TPAs, the government must also be able to identify 

women whose employers object on religious grounds to providing contraceptive 

coverage. Otherwise, the government will be unable to ensure that the participants 

and beneficiaries of the abstaining organization’s health insurance plan receive the 

coverage the law mandates. Without an effective way to identify any gaps, the 

government would be hamstrung in its ability to accommodate employers’ 

sincerely held religious beliefs while also pursuing the interests that Congress 

intended to achieve in passing the Women’s Health Amendment.51 

 51 The Eighth Circuit suggested as a less restrictive alternative that the Departments 

revise the regulations governing the accommodation to remove the requirement that when 

notifying HHS of its religious objection, an eligible organization must identify its TPA and 

provide the TPA’s contact information. Sharpe Holdings, 801 F.3d at 944. The Eighth Circuit 

concluded that this alternative would be “less onerous” than the current regulations yet “permit[] 

the government to further its interests.” Id. The Eighth Circuit relied on the fact that when the 

Supreme Court in Wheaton College created an accommodation, the Court required the college 

only to notify HHS that it had an objection to providing coverage for contraceptive services, and 

not to identify its TPA. Id. 

We disagree with the Eighth Circuit that this alternative would serve HHS’s interests 

equally well. As the Departments explained, the information required under the regulations is 

“necessary for the Departments to determine which entities are covered by the accommodation, 

to administer the accommodation, and to implement the policies in the . . . final regulations.” 

79 Fed. Reg. at 51095. The Eighth Circuit has not explained why this is not so. Although the 

Supreme Court in Wheaton College did not require the college to identify its TPA to HHS to 

receive an accommodation, the information was unnecessary because HHS already knew the 

identity of the college’s TPA. See Wheaton College, 134 S. Ct. at 2815 (Sotomayor, J., 

dissenting) (“HHS is aware of Wheaton’s third-party administrator in this case.”). Thus, 

Wheaton College does not suggest that HHS could administer the mandate and accommodation 

in other cases without requiring an eligible organization to identify its TPA. 

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The dissent’s proposal would create gaps or delays in contraceptive 

coverage for plan participants and beneficiaries of eligible organizations that refuse 

to provide contraceptive coverage or tell anyone of their objection. Until the 

insured, the TPA, or HHS learned of the silent omission of contraceptive coverage, 

these women would be denied the contraceptive coverage to which they are 

irrefutably entitled. During this period, such eligible organizations would, in 

effect, be imposing their religious beliefs on women who wish to take advantage of 

their rights under federal law. These gaps in contraceptive coverage would 

frustrate the government’s interests. Because the dissent’s proposal substantially 

burdens religious exercise and fails to meet the government’s compelling interests, 

it cannot constitute a less restrictive alternative.52 

 52 We pause to note that if we assume that the dissent’s substantial burden analysis is 

correct—meaning the only objective inquiry for determining whether there is a substantial 

burden is the magnitude of the penalty, see Dissent at 116—then the dissent’s proposal would 

substantially burden the plaintiffs’ religious exercise. Presumably the dissent’s position is that 

the proposal presents a satisfactory alternative because it requires no “affirmative participation” 

by the objecting organization. Id. at 139. In fact, though, a TPA’s obligation to provide 

contraceptive coverage to a specific plan participant or beneficiary would remain tied to and—in 

some limited way—“triggered” by actions taken by the organization. An eligible organization is 

required to take two actions before its TPA becomes obligated to provide contraceptive coverage 

to a specific plan participant or beneficiary: the eligible organization must (1) contract with a 

specific TPA to provide administrative services for its plan and (2) notify the TPA of the 

individuals covered by its plan. Unless an eligible organization hired a specific TPA and 

provided a list of its insureds, those insureds would never receive contraceptive coverage from 

the TPA, even under the dissent’s proposal. See Notre Dame II, 786 F.3d at 617 (explaining that 

under a similar proposal when a university hired an unemployed person who “by virtue of 

becoming employed by [the organization], obtained contraception coverage for the first time,” 

the university’s acts would “‘trigger[]’ the new employee’s access to contraception”). 

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We hold that, even if the accommodation substantially burdens the 

plaintiffs’ religious exercise, it does not violate RFRA because it is the least 

restrictive means of furthering the government’s compelling interests in the 

contraceptive mandate.

B. EWTN’S Free Exercise Claims

Plaintiff-appellant EWTN additionally claims that the contraceptive mandate 

violates the Free Exercise Clause of the First Amendment. The Supreme Court’s

Smith decision continues to apply to Free Exercise claims outside of the RFRA 

context; thus, neutral and generally applicable laws need not be justified by any 

compelling interest even if those laws incidentally burden religious exercise. 

Smith, 494 U.S. at 885. A law is neutral unless “the object of a law is to infringe 

upon or restrict practices because of their religious motivation.” Lukumi Babalu 

 

The plaintiffs’ religious objections to taking acts that “trigger[]” contraceptive coverage, 

“facilitat[e]” access to contraceptives, or render them “complicit” in a scheme that provides 

access to contraceptives apply with equal force to the dissent’s proposal. See EWTN Reply Br. 

at 5, 10-11; Catholic Charities and CENGI Appellee Br. at 10, 13, 20. Indeed, Catholic Charities 

and CENGI alleged in their complaint that their “religious beliefs prohibit them from contracting 

with [a] . . . third-party administrator that will, as a direct result, procure or provide the 

objectionable coverage to [their] employees.” Second Am. Compl. at 49, No. 1:12-cv-03489-

WSD, Doc. 56. We acknowledge that the dissent’s proposal does not require an eligible 

organization to tell HHS or its TPA that it has a religious objection to providing contraceptive 

coverage. But the plaintiffs do not claim that the government imposes a substantial burden by 

forcing them to state that they have a religious objection. Rather, they claim a substantial burden 

because, they assert, their objection would cause their TPAs to provide contraceptive coverage.

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Aye, 508 U.S. at 533. And a law is generally applicable if it does not “in a 

selective manner impose burdens only on conduct motivated by religious belief.” 

Id. at 543. “A law failing to satisfy these requirements must be justified by a 

compelling governmental interest and must be narrowly tailored to advance that 

interest.” Id. at 531-32. But if a law indeed is neutral and generally applicable, 

“then rational basis scrutiny should be applied, requiring that the plaintiff show 

that there is not a legitimate government interest or that the law is not rationally 

related to protect that interest.” GeorgiaCarry.Org, Inc v. Georgia, 687 F.3d 1244, 

1255 n.21 (11th Cir. 2012).

Congress included the contraceptive mandate in the ACA to improve 

women’s health and public health generally. There is no evidence whatsoever that 

the mandate was enacted in an attempt to restrict religious exercise. To the 

contrary, in implementing the contraceptive mandate the Departments have 

attempted to accommodate religious interests by granting exceptions for religious 

employers and those organizations with religious objections to providing 

contraceptive coverage. EWTN nonetheless argues that the mandate is non-neutral 

because the exemption and accommodation “discriminate[] among religious 

objectors, creating a three-tiered system.” EWTN Appellant Br. at 54. But the 

regulations do not discriminate between religious denominations or infringe upon 

or restrict conduct because of its religious motivation. Rather, the procedures 

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distinguish among organizations on the basis of their tax status. Thus EWTN has 

failed to show that the mandate is non-neutral.

EWTN also argues that the mandate is not generally applicable because the 

ACA carves out small employers and grandfathered plans. For the same reasons 

we rejected this argument as it pertains to the plaintiffs’ RFRA claim, we reject it 

here. Just as these exceptions do not undermine the government’s compelling 

interests justifying the contraceptive mandate, they do not prevent the mandate 

from being generally applicable as defined by Lukumi Babalu Aye. The exceptions 

for small businesses and grandfathered plans apply equally to religious employers 

and non-religious employers. The exceptions in no way “impose burdens only on 

conduct motivated by religious belief.” Lukumi Babalu Aye, 508 U.S. at 543.

Because the contraceptive mandate is neutral and generally applicable, to 

invalidate it the plaintiff must show that is it not rationally related to a legitimate 

government interest. See GeorgiaCarry.Org, 687 F.3d at 1255 n.21. EWTN 

cannot make such a showing. We have already concluded that the government has 

a compelling (and therefore legitimate) interest in ensuring women have access to 

contraceptives without cost sharing. See supra Part III.A.2.c.(i). The mandate is 

clearly rationally related to that interest and thus passes muster under the Free 

Exercise Clause.

C. EWTN’S Establishment Clause Claim

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EWTN next argues that the contraceptive mandate violates the 

Establishment Clause by discriminating among religious organizations. 

Specifically, EWTN objects to the way the exemption and accommodation 

distinguish between houses of worship and other types of religious organizations. 

As an initial matter, the Supreme Court “has long recognized that the government 

may (and sometimes must) accommodate religious practices and that it may do so 

without violating the Establishment Clause.” Hobbie v. Unemployment Appeals 

Comm’n of Fla., 480 U.S. 136, 144-145 (1987); see also Wallace v. Jaffree, 472 

U.S. 38, 83 (1985) (O’Connor, J., concurring) (“It is disingenuous to look for a 

purely secular purpose when the manifest objective of a statute is to facilitate the 

free exercise of religion by lifting a government-imposed burden. Instead, the 

Court should simply acknowledge that the religious purpose of such a statute is 

legitimated by the Free Exercise Clause.”). 

Like its claim based on the Free Exercise Clause, EWTN’s Establishment 

Clause claim fails because the accommodation does not distinguish among

religious groups on the basis of denomination, but rather on non-denominational 

attributes of an objecting organization. The accommodation relies on tax status, 

which is a permissible way to distinguish between organizations for the purpose of 

drafting a religious exemption. “[R]eligious employers, defined as in the cited 

regulation, have long enjoyed advantages (notably tax advantages) over other 

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entities, without these advantages being thought to violate the establishment 

clause.” Geneva Coll., 778 F.3d at 443 (alteration in original and internal 

quotation marks omitted); see also Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 

666, 672-73 (1970) (upholding a tax exemption on social welfare services that 

churches performed and emphasizing that “[t]he limits of permissible state 

accommodation to religion are by no means co-extensive with the noninterference 

mandated by the Free Exercise Clause.”). We therefore reject EWTN’s 

Establishment Clause challenge.

D. EWTN’S Free Speech Claim

Lastly, EWTN contends that the contraceptive mandate violates the Free 

Speech Clause by compelling the organization to speak in order to avail itself of

the accommodation.

53 “[T]he right of freedom of thought protected by the First 

Amendment against state action includes both the right to speak freely and the 

right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 

(1977). In Wooley, the plaintiff objected to the slogan on New Hampshire’s 

license plate: “Live Free or Die.” Id. at 707-08. He argued that by criminalizing 

his efforts to cover up the slogan, the government forced him to express a message 

contrary to his beliefs. The Supreme Court agreed that the license plate was forced 

 53 EWTN’s Free Speech claim that the regulations compel silence is moot because the 

Department removed the non-interference provisions from the regulations in 2014. 79 Fed. Reg. 

at 51095.

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speech. The Court then applied United States v. O’Brien, 391 U.S. 367 (1968), to 

hold that the government’s stated interest in identifying passenger cars was not 

sufficiently compelling because passenger cars could be identified in other ways. 

Id. at 715-17.

Assuming, arguendo, that the act of filling out Form 700 or notifying HHS 

implicates the Free Speech Clause, this Court must ask whether the government’s 

“countervailing interest is sufficiently compelling to justify” the forced speech. Id.

at 716. Our disposition of the plaintiffs’ RFRA claims decides the issue. Because

the government has a compelling interest in ensuring that women have access to

contraceptive care without additional financial or administrative burden, it may 

force the plaintiffs to speak simply to opt out of the mandate.

IV. CONCLUSION

We hold that the accommodation for the contraceptive mandate does not 

violate RFRA because it does not substantially burden the plaintiffs’ religious 

exercise and because the government’s regulatory scheme is the least restrictive 

means of furthering its compelling interests. The regulations also do not violate 

the Free Exercise, Establishment, and Free Speech Clauses of the First 

Amendment. With regard to EWTN, we affirm the district court’s grant of 

summary judgment to the government. With regard to CENGI and Catholic 

Charities, we vacate the district court’s grant of summary judgment on the 

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plaintiffs’ RFRA claim and remand to the district court with instructions to grant 

the government’s summary judgment motion.

* * *

The question of whether the mandate and accommodation violate RFRA is 

currently before the Supreme Court in Zubik v. Burwell, Nos. 14- 1376 and 14-

1377, and other consolidated cases. The Supreme Court will hold oral argument in 

these cases on March 23, 2016. Because the Supreme Court will soon render a 

decision addressing this issue, we believe it is appropriate to stay enforcement of 

the mandate and accommodation against the plaintiffs until the Supreme Court 

issues a decision. Accordingly, the Secretary of Health and Human Services is 

enjoined from enforcing against EWTN, Catholic Charities, and CENGI the 

substantive requirements set forth in 42 U.S.C. § 300gg-13(a)(4) and from 

assessing fines or taking other enforcement action against EWTN, Catholic 

Charities, or CENGI for non-compliance. The parties are directed to file a notice 

with this Court once the Supreme Court has issued its decision in Zubik.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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APPENDIX: FORM 700

EBSA FORM 700- CERTIFICATION

(revised August 2014)

This form may be used to certify that the health coverage established or maintained or arranged by the 

organization listed below qualifies for an accommodation with respect to the federal requirement to 

cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713 A, 29 CFR 

2590.715-2713A, and 45 CFR 147.131. Alternatively, an eligible organization may also provide 

notice to the Secretary of Health and Human Services.

Please fill out this form completely. This form should be made available for examination upon request 

and maintained on file for at least 6 years following the end of the last applicable plan year. |

Name of the objecting organization

Name and title of the individual who 

is authorized to make, and makes, I 

this certification on behalf of the 

organization

Mailing and email addresses and 

phone number for the individual 

listed above

I certify the organization is an eligible organization (as described in 26 CFR 54.9815-2713A(a), 

29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)) that has a religious objection to providing 

coverage for some or all of any contraceptive services that would otherwise be required to be 

covered.

Note: An organization that offers coverage through the same group health plan as a religious 

employer (as defined in 45 CFR 147.131(a)) and/or an eligible organization (as defined in 26 CFR 

54.9815-2713A(a); 29 CFR 2590.715-2713 A(a); 45 CFR 147.131(b)), and that is part of the same 

controlled group of corporations as, or under common control with, such employer and/or 

organization (within the meaning of section 52(a) or (b) of the Internal Revenue Code), is considered 

to meet the requirements of 26 CFR 54.9815-2713 A(a)(3), 29 CFR 2590.715-2713 A(a)(3), and 45 

CFR 147.131(b)(3).

I declare that I have made this certification, and that, to the best of my knowledge and belief, it is 

true and correct. I also declare that this certification is complete.

Signature of the individual listed above

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Date

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APPENDIX: FORM 700

The organization or its plan using this form must provide a copy of this certification to the plan's 

health insurance issuer (for insured health plans) or a third party administrator (for self-insured health 

plans) in order for the plan to be accommodated with respect to the contraceptive coverage 

requirement.

Notice to Third Party Administrators of Self-Insured Health Plans

In the case of a group health plan that provides benefits on a self-insured basis, the provision of 

this certification to a third party administrator for the plan that will process claims for 

contraceptive coverage required under 26 CFR 54.9815-2713(a)(l)(iv) or 29 CFR 2590.715-

2713(a)(l)(iv) constitutes notice to the third party administrator that the eligible organization:

(1) Will not act as the plan administrator or claims administrator with respect to claims for 

contraceptive services, or contribute to the funding of contraceptive services; and

(2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713 A, 29 CFR 

2510.3-16, and 29 CFR 2590.715-2713A.

As an alternative to using this form, an eligible organization may provide notice to the Secretary of 

Health and Human Services that the eligible organization has a religious objection to providing 

coverage for all or a subset of contraceptive services, pursuant to 26 CFR 54.9815-

2713A(b)(l)(ii)(B) and (c)(l)(ii), 29 CFR 2590.715-2713A(b)(l)(ii)(B) and (c)(l)(ii), and 45 CFR 

147.13l(c)(l)(ii). A model notice is available at: http://www.cms.gov/cciio/resources/Regulationsand-Guidance/index.html#Prevention.

This form or a notice to the Secretary is an instrument under which the plan is operated.

PRA Disclosure Statement

According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays 

a valid OMB control number. The valid OMB control number for this information collection is 1210-0150. An organization that seeks 

to be recognized as an eligible organization that qualifies for an accommodation with respect to the federal requirement to cover certain 

contraceptive services without cost sharing may complete this self-certification form, or provide notice to the Secretary of Health and 

Human Services, in order to obtain or retain the benefit of the exemption from covering certain contraceptive services. The selfcertification form or notice to the Secretary of Health and Human Services must be maintained in a manner consistent with the record 

retention requirements under section 107 of the Employee Retirement Income Security Act of 1974, which generally requires records to 

be retained for six years. The time required to complete this information collection is estimated to average 50 minutes per response, 

including the time to review instructions, gather the necessary data, and complete and review the information collection. If you have 

comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of 

Labor, Employee Benefits Security Administration, Office of Policy and Research, 200 Constitution Avenue, N.W., Room N-5718, 

Washington, DC 20210 or email ebsa.opr@dol.gov and reference the OMB Control Number 1210-0150.

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ANDERSON, Circuit Judge, concurring:

I join Judge Jill Pryor’s opinion for the court in its entirety. I write 

separately only to emphasize one point already made in the opinion. Plaintiffs 

seem to suggest, as a less restrictive means, that a religious employer be allowed to 

opt out without notifying anyone – without requiring even the de minimis notice to 

Health and Human Services (“HHS”) pursuant to the most recent alternative notice 

provided for in the Regulations. However, the necessary consequence of such an 

automatic opt-out would be the imposition of plaintiffs’ religious beliefs on their 

female employees. In other words, if HHS were not able to identify which 

employers have opted out, the employees of such employers would not receive 

contraceptive coverage, at least until they happened to sua sponte discover that 

their employer had opted out, and until such employees happened to sua sponte

discover their statutory entitlement. Only then would such employees be in 

position to notify HHS, and begin their coverage. Such an automatically exempted 

employer – notifying no one of its decision to opt out -- would at least temporarily 

impose its own religious beliefs on its employees and deprive them of the coverage 

to which they are entitled under the statute and regulations. RFRA does not 

require that construction of the law. Rather, the Supreme Court in Hobby Lobby

recognized that “RFRA took the position that ‘the compelling interest test as set 

forth in prior Federal rulings is a workable test for striking sensible balances 

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between religious liberty and competing prior governmental interests.’” Burwell v. 

Hobby Lobby Stores, Inc., 537 U.S. __, __, 134 S. Ct. 2751, 2785 (2014)(quoting 

from the express RFRA provision cited and quoted below). See also Cutter v. 

Wilkinson, 544 U.S. 709, 720, 125 S. Ct. 2113, 2121 (2005)(“Properly applying 

RLUIPA, courts must take adequate account of the burdens a requested 

accommodation may impose on nonbeneficiaries”); id. at 722, 125 S. Ct. at 2122-

23 (“Our decisions indicate that an accommodation must be measured so that it 

does not override other significant interests . . .. We have no cause to believe that 

RLUIPA would not be applied in an appropriately balanced way.”). Indeed, RFRA 

contains an express provision which incorporates the prior Federal case law 

contemplating a “sensible balance” between religious liberty and competing 

governmental interests. See 42 U.S.C. §2000bb(a)(5) (“the compelling interest test 

as set forth in prior Federal court rulings is a workable test for striking sensible 

balances between religious liberty and competing prior governmental interests.”) 

Plaintiffs’ position – and its necessary consequence of the imposition of plaintiffs’ 

religious views on others – clearly does not strike a “sensible balance” between 

religious liberty and the government’s compelling interests in this case. See

Hobby Lobby, 537 U.S. at __, 134 S. Ct. at 2786-87 (Kennedy, J., concurring) 

(“[N]o person may be restricted or demeaned by government in exercising his or 

her religion. Yet neither may that same exercise unduly restrict other persons, such 

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as employees, in protecting their own interests, interests the law deems 

compelling.”).

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TJOFLAT, Circuit Judge, dissenting:

I diverge from the majority on the question of whether the Religious 

Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., shields Eternal 

Word Television Network and the Archdiocese of Atlanta, the Diocese of 

Savannah, and their related schools and charities (the “Dioceses”) from the 

Government’s efforts to force them to participate in a complicated regulatory 

scheme. Doing so, these parties sincerely believe, would make them complicit in 

violating the sanctity of human life. As I understand RFRA’s plain meaning and 

the controlling precedent, on full display in the Supreme Court’s decision in 

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d 

675 (2014), the answer should be straightforward. Under RFRA’s demanding 

scrutiny, the Government cannot put religious believers to the choice of 

abandoning the commands of their faith or paying massive penalties unless it can 

show that it has no other way of achieving a compelling interest. Just as in Hobby 

Lobby, the Government has failed to make this showing. We are therefore bound 

to grant Eternal Word Television Network and the Dioceses the relief they seek.

“Great cases, like hard cases, make bad law.” N. Sec. Co. v. United States, 

193 U.S. 197, 364, 24 S. Ct. 436, 468, 48 L. Ed. 679 (1904) (Holmes, J., 

dissenting). In such circumstances, practical concerns “exercise a kind of 

hydraulic pressure” under which “even well settled principles of law will bend” as 

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a result of “some accident of immediate overwhelming interest.” Id. at 364, 401, 

24 S. Ct. at 468. In the background of this litigation rage many competing 

interests: What sort of legal regime would best preserve the American ideal of 

religious liberty? How can we most effectively expand healthcare access? When 

and where should the interests of society trump those of the individual? Who will 

be left holding the check for any newly minted social-welfare programs?

It is Congress’s responsibility—not the prerogative of courts—to balance 

these interests. And Congress made clear in RFRA how that balance is to be 

struck: the freedom of religious exercise is to be jealously guarded by subjecting, 

across the board, Congress’s own actions to the most rigorous scrutiny. Under that 

scrutiny, the Government’s attempt here to burden Eternal Word Television 

Network and the Dioceses’ religious exercise must give way. Concluding 

otherwise, the majority makes bad law. For that reason, I dissent.

I.

The devil, as they say, is in the details. Nowhere does this adage ring truer 

than in the administrative morass of the so-called “accommodation,” the regulatory 

mechanism by which religiously objecting employers can affirmatively opt out of 

the Affordable Care Act’s so-called “contraceptive mandate.” The resolution of 

this case turns on the exact functioning of an evolving set of overlapping and 

intricate regulations promulgated by three Executive-branch agencies. These 

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regulations overlay a particularly unsettled and murky region of the generally 

unsettled and murky landscape of federal healthcare regulation. Therefore, it is 

critical to get the details right. And they are devilish indeed.

A.

Under the Patient Protection and Affordable Care Act of 2010 (“the ACA”), 

covered employers, as part of their “[s]hared responsibility” for their employees’ 

healthcare needs, are required to provide qualifying employees with health plans 

that meet certain standards of “minimum essential coverage.” 26 U.S.C. 

§§ 4980H(a), 5000A(f)(2). Covered employers who fail to do so have to pay a 

“tax”1 of $100 per day for each affected employee. Id. § 4980D(a)–(b). For 

continued “noncompliance” after receiving a “notice of examination,” employers 

are subject to a minimum penalty in the amount of $2,500 or $15,000 per affected 

employee, depending on whether the violations “are more than de minimis.” Id. 

§ 4980D(b)(3).

Included in the ACA’s definition of “minimum essential coverage” are a 

number of preventive healthcare services. Relevant here is the requirement to 

provide “with respect to women, such additional preventive care and screenings ... 

as provided for in comprehensive guidelines supported by the Health Resources 

 1 It is ironic that the ACA refers to an annual penalty for noncompliance of $36,500 per 

employee as a “tax.” Cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. __, __, 132 S. Ct. 

2566, 2593–2600, 183 L. Ed. 2d 450 (2012).

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and Services Administration.” 42 U.S.C. § 300gg-13(4). To develop these 

guidelines, the Health Resources and Services Administration, a subpart of the 

Department of Health and Human Services, sought recommendations from the 

Institute of Medicine, a division of the National Academies of Sciences. The 

Institute of Medicine’s recommendations2

were ultimately adopted in identical 

regulations promulgated by the Department of Treasury, the Department of Labor, 

and the Department of Health and Human Services. See 26 C.F.R. § 54.9815-

2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. 

§ 147.130(a)(1)(iv).3

 As a result, nonexempt employers are responsible for 

providing their plan beneficiaries with coverage for “[a]ll Food and Drug 

Administration approved contraceptive methods, sterilization procedures, and 

patient education and counseling for all women with reproductive capacity.” 

Women’s Preventive Services Guidelines, U.S. Dep’t of Health and Human Servs., 

 2 The Institute of Medicine’s recommendations were laid out in its report Clinical 

Preventive Services for Women: Closing the Gaps, which was released on July 19, 2011. Like 

much of the ACA, that report and the process used to generate it sparked significant controversy, 

prompting public backlash and a dissent from one of the committee members. Inst. of Med., 

Clinical Preventive Services for Women: Closing the Gaps Appendix D at 231–35 (2011) 

(Anthony Lo Sasso, dissenting); see also Grace Sch. v. Burwell, 801 F.3d 788, 815–22 (7th Cir. 

2015) (Manion, J., dissenting); 77 Fed. Reg. 8725, 8725–26 (Feb. 15, 2012); Helen M. Alvaré, 

No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 Vill. L. Rev. 

379, 391–431 (2013). Because I assume that the Government has a compelling interest in 

providing the preventive services at issue in this case, I pass no judgment on the Institute of 

Medicine’s report or its contents.

3 As in the majority’s opinion, for convenience when discussing the Departments’ 

regulations I will cite only those of the Department of Health and Human Services unless 

otherwise indicated.

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Health Res. and Servs. Admin., http://hrsa.gov/womensguidelines/ (last visited 

Feb. 10, 2016).

These regulations, collectively known as the “contraceptive mandate,” did 

not apply as enacted to several categories of employers. As is true generally of the 

ACA, the contraceptive mandate does not cover employers with less than fifty fulltime employees. See 26 U.S.C. § 4890H(a), (c)(2). These employers are thus 

under no obligation to provide any health plan at all. Similarly, employers who 

maintain “grandfathered health plans”—health plans that have not undergone 

specified changes in the way they operated before March 23, 2010, see 75 Fed. 

Reg. 34538, 34540–41—are specifically exempted from the contraceptive 

mandate. 42 U.S.C. § 18011(a), (e). Other changes instituted by the ACA do 

apply to grandfathered health plans, including extensions of dependent coverage 

for adult children under the age of twenty-six and prohibitions on excessive 

waiting periods, lifetime benefits limits, and rescissions of coverage. Id. 

§ 18011(a)(4)(A)(i)–(iv). The ACA does not include a sunset provision for 

grandfathered health plans, which can continue their exempt status indefinitely.4

 4 The Government does predict that grandfathered health plans will be phased out over 

time as part of a planned “transition period” designed “to avoid undue disruption.” It is 

ultimately an empirical question how many grandfathered plans are currently in effect and how 

many will persist in the future. The record developed in this case, as in so many other respects, 

betrays no answer.

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Conscious of the bind in which the contraceptive mandate would place 

certain employers with religious objections, the Departments promulgated a series 

of further regulations to exempt these employers as well.5

 What emerged from 

several years of rulemaking were two distinct regimes for employers with religious 

objections: one for “religious employers” and another for “eligible organizations.” 

45 C.F.R. § 147.131(a), (b). “Religious employers” are defined, by reference to 

the Internal Revenue Code, as “churches, their integrated auxiliaries, and 

conventions or associations of churches” and any “nonprofit entit[ies]” engaged in 

“the exclusively religious activities of any religious order.” Id. § 147.131(a); 26

U.S.C. § 6033(a)(3)(A)(i), (iii).6

 Employers who object to the contraceptive 

mandate but are not considered “religious employers” can still qualify as “eligible 

organizations” if they meet the following requirements:

(1) The organization opposes providing coverage for some or all of 

any contraceptive items or services required to be covered under 

§ 147.130(a)(1)(iv) on account of religious objections.

 5 The development of the current iteration of the contraceptive mandate—which has 

changed multiple times since these suits was first brought, though not in ways that materially 

alter the RFRA inquiry—has been largely defined by how to treat religiously objecting

employers, inspiring hundreds of thousands of comments from interested stakeholders. See 75 

Fed. Reg. 41726, 41726–56 (July 19, 2010); 77 Fed. Reg. 8725, 8725–29 (Feb. 15, 2012); 77 

Fed. Reg. 16501, 16501–08 (Mar. 21, 2012); 78 Fed. Reg. 8456, 8456–72 (Feb. 6, 2013); 78 

Fed. Reg. 39870, 39870–92 (July 2, 2013); 79 Fed. Reg. 51092, 51092–98 (Aug. 27, 2014); 79 

Fed. Reg. 51118, 51118–25 (Aug. 27, 2014); 80 Fed. Reg. 41318, 41318–41 (July 14, 2015). 

6 As the term “church” is hardly self-defining, the IRS uses a fourteen-factor test to 

determine which organizations make the cut. See Internal Revenue Serv., Pub. 1828: Tax Guide 

for Churches & Religious Organizations 33 (2015), available at https://www.irs.gov/pub/irspdf/p1828.pdf.

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(2) (i) The organization is organized and operates as a nonprofit 

entity and holds itself out as a religious organization; or

(ii) The organization is organized and operates as a closely 

held for-profit entity ... that ... objects to covering some or all of the 

contraceptive services on account of the owners’ sincerely held 

religious beliefs.

(3) The organization must self-certify in the form and manner 

specified by the Secretary of Labor or provide notice to the Secretary 

of Health and Human Services as described [elsewhere in the 

regulations]...

45 C.F.R. § 147.131.7

 

 7 The current version of § 147.131 took effect on September 14, 2015. In response to the 

Supreme Court’s decisions in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751, 

189 L. Ed. 2d 675 (2014) and Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct. 2806, 189 L. 

Ed. 2d 856 (2014), § 147.131 now extends to cover qualifying “closely held for-profit entit[ies]” 

in addition to religious nonprofits, and expands the available methods of opting out of the 

contraceptive mandate. Compare 45 C.F.R. § 147.131, with 45 C.F.R. § 147.131 (effective Aug. 

27, 2014 to Sept. 13, 2015), and 45 C.F.R. § 147.131 (effective Aug. 1, 2013 to Aug. 26, 2014). 

The relevant portion of § 147.131 now provides in full:

(b) Eligible organizations. An eligible organization is an organization that meets 

the criteria of paragraphs (b)(1) through (3) of this section.

(1) The organization opposes providing coverage for some or all of any 

contraceptive items or services required to be covered under § 147.130(a)(1)(iv) 

on account of religious objections.

(2) (i) The organization is organized and operates as a nonprofit entity 

and holds itself out as a religious organization; or

(ii) The organization is organized and operates as a closely held 

for-profit entity, as defined in paragraph (b)(4) of this section, and the 

organization's highest governing body (such as its board of directors, board of 

trustees, or owners, if managed directly by its owners) has adopted a resolution or 

similar action, under the organization's applicable rules of governance and 

consistent with state law, establishing that it objects to covering some or all of the 

contraceptive services on account of the owners' sincerely held religious beliefs.

(3) The organization must self-certify in the form and manner specified by 

the Secretary of Labor or provide notice to the Secretary of Health and Human 

Services as described in paragraph (c) of this section. The organization must make 

such self-certification or notice available for examination upon request by the first 

day of the first plan year to which the accommodation in paragraph (c) of this 

section applies. The self-certification or notice must be executed by a person 

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Religious employers’ and eligible organizations’ bids to remove themselves 

from the contraceptive mandate fare differently. Religious employers are simply 

exempt; they are not required to participate, directly or indirectly, in providing 

access to contraceptive coverage to their female employees and beneficiaries, 

whether or not these women share their employers’ beliefs. 45 C.F.R. 

§ 147.131(a). Eligible organizations, in contrast, are required to affirmatively opt 

out of providing contraceptive coverage, if they wish to do so, by complying with a 

further series of regulations known as “the accommodation.” Id. § 147.131(c). 

How the accommodation functions turns on the eligible organization’s type 

of health plan. Broadly speaking, employer-sponsored health plans come in two 

types: insured plans and self-insured plans. Under an insured plan, the employer 

enters into a contract with an insurer. The insurer, in exchange for up-front 

premiums, becomes responsible for administering the plan and paying out claims. 

Under a self-insured plan, the employer remains responsible for paying its 

employees’ claims itself; in essence, the employer serves as its own insurer. For 

employers with self-insured plans, it is a common practice to contract with a thirdparty administrator—which may also be in the business of providing insured 

plans—to administer the self-insured plan, though the employer continues to bear 

 

authorized to make the certification or notice on behalf of the organization, and 

must be maintained in a manner consistent with the record retention requirements 

under section 107 of ERISA.

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the cost of paying claims.8

 Eligible organizations that maintain their own selfinsured plans without a third-party administrator are, like religious employers, 

exempt from the contraceptive mandate altogether.

Eligible organizations may, in line with the regulations currently in force, 

avail themselves of the accommodation in one of two ways.9

 The first option is to 

send a “self-certification” form, Employee Benefits Security Administration Form 

700 (“Form 700”), to the eligible organization’s insurer, if the organization has an 

insured plan, or to the organization’s third-party administrator, if the organization 

has a self-insured plan. 45 C.F.R. § 147.131(b)(3), (c)(1). Form 700 requires 

eligible organizations to identify themselves as qualifying for the accommodation; 

list the name, title, and contact information of the person authorized to make that 

certification; and sign and date the form.10 The second option is to send to the 

Secretary of Health and Human Services less-formal notice of the eligible 

organization’s intent to opt out. That notice must include “the name of the eligible 

organization and the basis on which it qualifies for an accommodation,” notice of 

 8 For example, Eternal Word Television Network has a self-insured health plan for which 

Blue Cross Blue Shield of Alabama serves as third-party administrator. The Dioceses 

collectively maintain three self-insured health plans, for all of which Meritain Health serves as 

third-party administrator. Though Blue Cross Blue Shield of Alabama and Meritain Health may 

separately offer insured plans, they are not responsible for paying the claims of Eternal Word 

Television Network’s and the Dioceses’ beneficiaries.

9 In the pre–Wheaton College iteration of the contraceptive mandate, there was only one 

way to opt out under the accommodation: submitting Employee Benefits Security 

Administration Form 700 to the relevant insurer or third-party administrator. See infra n.11. 10 A copy of Form 700 is appended to the majority’s opinion.

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its objection to the contraceptive mandate “based on [the eligible organization’s] 

sincerely held religious beliefs,” the name and type of the eligible organization’s 

health plan, and the identity and contact information of the eligible organization’s 

insurer or third-party administrator. Id. § 147.131(c)(1)(ii).

Under the first option provided for in the accommodation, whereby Form 

700 is sent directly to an eligible organization’s insurer or third-party 

administrator, the recipient insurer or third-party administrator becomes 

responsible for establishing separate contraceptive coverage for the eligible 

organization’s female employees and plan beneficiaries. The insurer or third-party 

administrator must, upon receipt of the eligible organization’s Form 700, 

“[e]xpressly exclude contraceptive coverage” from the eligible organization’s plan 

and “[p]rovide separate payments for any contraceptive services required to be 

covered” pursuant to the contraceptive mandate. Id. § 147.131(c)(2)(i)(A)–(B). 

Among other requirements, the insurer or third-party administrator must also 

“segregate premium revenue ... from the monies used to provide payments for 

contraceptive services” and is forbidden from “impos[ing] any cost-sharing 

requirements (such as a copayment, coinsurance, or a deductible), or impos[ing] 

any premium, fee, or other charge, or any portion thereof, directly or indirectly, on 

the eligible organization, the group health plan, or plan participants or 

beneficiaries.” Id. § 147.131(c)(2)(ii). And the insurer or third-party administrator 

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must provide to plan members and beneficiaries written notice outlining how the 

accommodation works and “specify[ing] that the eligible organization does not 

administer or fund contraceptive benefits.” See id. § 147.131(d) (proposing 

suggested language for this notice).

Under the second option provided for in the accommodation, whereby lessformal notice is sent instead to the Secretary of Health and Human Services, the 

Secretary is then tasked with alerting the eligible organization’s insurer or thirdparty administrator. The Department of Health and Human Services will “send a 

separate notification” to the insurer relaying that the eligible organization’s notice 

was received and “describing the [insurer’s or third-party administrator’s] 

obligations.” 45 C.F.R. § 147.131(c)(1)(ii). The insurer’s or third-party 

administrator’s obligations to provide separate coverage pursuant to the 

contraceptive mandate are identical whether it is alerted to the eligible 

organization’s objections directly by Form 700 or indirectly by the Government.11

 11 The reason that eligible organizations are given two similar-seeming options for opting 

out of the contraceptive mandate stems from the Supreme Court’s decision in Wheaton College 

v. Burwell, 573 U.S. __, 134 S. Ct. 2806, 189 L. Ed. 2d 856 (2014). In Wheaton College, the 

Supreme Court enjoined enforcement of the contraceptive mandate against an eligible 

organization that sent written notice to the Government but objected, based on the organization’s 

religious beliefs, to sending Form 700 to its insurer and third-party administrator. Id. at __, 134 

S. Ct. 2807. The Court did not address the situation presented here where an eligible 

organization objects, on religious grounds, both to completing Form 700 and to providing lessformal notice to the Secretary of Health and Human Services.

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The regulations require eligible organizations to affirmatively opt out of the 

contraceptive mandate because doing so enables the Government to require the 

eligible organizations’ insurers and third-party administrators to provide 

contraceptive coverage. For eligible organizations with insured plans,12 opting out 

under the accommodation notifies the insurers of their obligations to provide 

contraceptive coverage. 45 C.F.R. § 147.131(c)(2)(i). For eligible organizations 

with self-insured plans that contract with a third-party administrator,13 opting out 

of the contraceptive mandate under the accommodation makes the third-party 

administrator “the plan administrator” for purposes of the Employee Retirement 

Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., under regulations 

promulgated by the Department of Labor. 29 C.F.R. § 2510.3-16(b). If the 

eligible organization submits Form 700, that submission “shall be treated as a 

designation of the third party administrator as the plan administrator.” Id. If the 

eligible organization instead provides less-formal notice to the Secretary of Health 

and Human Services, “the Department of Labor, working with the Department of 

Health and Human Services, shall ... provide notification ... that such third party 

administrator shall be the plan administrator” under ERISA. Id. Once a thirdparty administrator becomes a “plan administrator” under ERISA, the relevant 

 12 Because this case does not involve eligible organizations with insured plans, I pass no 

judgment on the accommodation in that context.

13 As mentioned above, eligible organizations that administer their own self-insured plans 

are not subject to the contraceptive mandate under the regulations.

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administrative agencies gain the regulatory authority to require the third-party 

administrator to provide contraceptive coverage.14 Id. § 2510.3-16(c). 

The Government’s regulatory authority to require third-party administrators 

of self-insured plans to provide contraceptive coverage is limited. A third-party 

administrator may always decline to “agree[] to enter into or remain in a 

contractual relationship with the eligible organization.”15 26 C.F.R. § 54.9815-

2713A(b)(2). Only if it accepts the terms of the regulations does a third-party 

administrator incur the obligation “to provide or arrange payments for 

contraceptive services.” Id. § 54.9815-2713A(d). If a third-party administrator 

agrees to provide the contraceptive coverage, the costs it incurs to do so will be 

reimbursed from “Federally-facilitated Exchange” user fees, which are fees 

 14 Under ERISA, a third-party administrator that is neither the “plan sponsor” nor 

specifically designated as such can be considered the “plan administrator” only “as the Secretary 

[of Labor] may by regulation prescribe.” 29 U.S.C. § 1002(16)(A)(iii). The Government 

contends that, as currently written, the ACA’s implementing regulations also allow it to 

independently enforce the contraceptive mandate against third-party administrators of selfinsured plans without any further action from the eligible organization. The truth of this 

contention is far from certain. See ante at 44–45 & nn.30–31; Sharpe Holdings, Inc. v. U.S. 

Dep’t of Health and Human Servs., 801 F.3d 927, 935 n.8 (8th Cir. 2015) (collecting cases 

contrary to the Government’s position). In any event, I decline to pass judgment on this question 

because its resolution is unnecessary to decide this case.

15 If a third-party administrator declines to provide contraceptive coverage, eligible 

organizations with self-insured plans must select another willing third-party administrator, 

administer its own health plan, or become subject to the monetary penalties discussed above. 

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imposed on insurers offering health plans on exchanges established by the 

Government under the ACA.16 See 80 Fed. Reg. at 41328. 

B.

Inextricably intertwined with these evolving regulations is a series of cases 

challenging the various iterations of the contraceptive mandate under the Religious 

Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. RFRA provides 

that the federal government17 “may substantially burden a person’s exercise of 

religion” only if it does so “in furtherance of a compelling governmental interest” 

and the burden it imposes is “the least restrictive means of furthering that 

compelling governmental interest.” Id. § 2000bb-1(b). 

In 1993, Congress enacted RFRA in response to the Supreme Court’s pathbreaking approach to the First Amendment’s Free Exercise Clause taken in 

Employment Division, Department of Human Resources of Oregon v. Smith, 494 

 16 Specifically, the regulations contemplate “adjustments” to the third-party 

administrator’s own user fees, if the third-party administrator also offers health plans on a 

Federally-facilitated Exchange, or the user fees of another participating insurer that the thirdparty administrator contracts with to receive reimbursement. See 80 Fed. Reg. at 41328. Thirdparty administrators are to be reimbursed for the “total dollar amount of the payments for 

contraceptive services” and an “allowance for administrative costs and margin” of “no less than 

10 percent” for the amount spent on contraceptive services. 45 C.F.R. § 156.50(d)(3)(i), (ii). 

The Government does not address how reimbursement will be made, if at all, should these user 

fees prove insufficient. Cf. King v. Burwell, 576 U.S. __, __, 135 S. Ct. 2480, 2487, 192 L. Ed. 

2d 483 (2015) (noting that the ACA contemplates that each state will create its own exchange).

17 RFRA originally applied to the actions of state governments as well, but the Supreme 

Court held that extending RFRA’s mandate to the states exceeded Congress’s powers under § 5 

of the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. 

Ed. 2d 624 (1997).

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U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (holding that neutral laws of 

general applicability do not burden free exercise whether or not they are supported 

by a compelling interest). Congress declared that the standard of strict scrutiny 

RFRA imposes creates “a workable test for striking sensible balances between 

religious liberty and competing prior governmental interests.” 42 U.S.C. 

§ 2000bb(a)(5). RFRA’s stated purposes included “restor[ing] the compelling 

interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin 

v. Yoder, 406 U.S. 205 (1972)” and “provid[ing] a claim or defense to persons 

whose religious exercise is substantially burdened by government.” Id.

§ 2000bb(b)(1), (2). To the extent that it imposes a least-restrictive-means 

requirement not present in Sherbert or Yoder, however, RFRA “provide[s] even 

broader protection for religious liberty than was available under those decisions.” 

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __ n.3, 134 S. Ct. 2751, 2761 

n.3, 189 L. Ed. 2d 675 (2014).

Following the enactment of the ACA and the promulgation of the 

contraceptive mandate, a diverse set of employers brought suit to avoid providing 

what they viewed as objectionable contraceptive coverage.18 The Supreme Court 

 18 Though the bulk of this litigation has been brought under RFRA, at least one nonreligious employer has challenged the contraceptive mandate under the Fifth Amendment. See 

March for Life v. Burwell, No. 14-cv-1149(RJL), 2015 WL 5139099 (D.D.C. Aug. 31, 2015) 

(concluding that the contraceptive mandate violates equal-protection principles because it lacks a 

rational basis for discriminating between religious and non-religious objectors). Because this 

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first encountered the contraceptive mandate in Burwell v. Hobby Lobby Stores, 

Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014).19 The Court held in 

Hobby Lobby that enforcing the contraceptive mandate against a closely held forprofit company that had religious objections to providing contraceptive coverage 

would violate RFRA. Id. at __, 134 S. Ct. at 2785. The Court began by 

determining that, as a matter of statutory interpretation, RFRA covers certain forprofit companies because the term “person” was not limited only to natural 

persons. Id. at __, 134 S. Ct. at 2767–75. Moving to RFRA’s threshold inquiry, 

the Court “ha[d] little trouble concluding” that the contraceptive mandate imposes 

a substantial burden on religious exercise. Id. at __, 134 S. Ct. at 2775. The 

Hobby Lobby plaintiffs had an uncontested “sincere religious belief that life begins 

at conception” and understood that their belief would be violated if they were 

required to “provid[e] health insurance that covers methods of birth control” that 

“may result in the destruction of an embryo.” Id. By forcing them to choose 

between violating their deeply held convictions and “pay[ing] an enormous sum of 

money,” the contraceptive mandate “clearly imposes a substantial burden on those 

beliefs.” Id. at __, 134 S. Ct. at 2779. 

 

case involves only employers with religious objections and is resolved by RFRA’s clear dictates, 

I decline to address the constitutional propriety of applying the contraceptive mandate to nonreligious objectors. 

19 Justice Alito wrote the majority opinion in Hobby Lobby, joined by Chief Justice 

Roberts and Justices Scalia and Thomas. Justice Kennedy concurred. Justice Ginsburg 

dissented, joined in full by Justice Sotomayor and in relevant part by Justices Breyer and Kagan.

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The Court specifically and emphatically rejected any argument that the 

participation of religious objectors, by paying for contraceptive coverage, is 

“simply too attenuated” from the objectionable outcome, the destruction of 

embryos, to constitute a burden on religious exercise. Id. at __, 134 S. Ct. at 2777. 

Such an argument, which “implicates a difficult and important question of religion 

and moral philosophy,” would “in effect tell the plaintiffs that their beliefs are 

flawed”—and defining the scope of religious belief is a dangerous line-drawing 

inquiry “federal courts have no business addressing.” See id. at __, 134 S. Ct. at 

2778 (“Instead, our ‘narrow function ... in this context is to determine’ whether the 

line drawn reflects ‘an honest conviction’” (quoting Thomas v. Review Bd. of Ind. 

Emp’t Sec. Div., 450 U.S. 707, 716, 101 S. Ct. 1425, 1431, 67 L. Ed. 2d 624 

(1981))). Moreover, the Court noted, if the contraceptive mandate’s burden were 

not substantial, it would “be hard to understand” and “not easy to square” with the 

exemptions carved out for qualifying “religious employers” facing “exactly the 

same” burden. Id. at __ n.33, 134 S. Ct. at 2777 n.33.

The Court next declined to address whether the contraceptive mandate 

furthered a compelling interest because, even if it did, the contraceptive mandate 

was not the least restrictive means of doing so. Id. at __, 134 S. Ct. at 2779–80. 

The Court identified several less-restrictive alternatives that the Government could 

have used to achieve the assumed compelling interest, holding that the 

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contraceptive mandate foundered under RFRA’s “exceptionally demanding” 

standard. Id. at __, 134 S. Ct. at 2780. The “most straightforward” alternative 

“would be for the Government to assume the cost” of contraceptive coverage. Id. 

at __, 134 S. Ct. at 2780. In response to the Government’s contrary position, the 

Court observed that “it is hard to understand [the] argument that [the Government] 

cannot be required under RFRA to pay anything” for “a Government interest of the 

highest order.” Id. at __, 134 S. Ct. at 2781.20 The Court also strongly suggested 

that the Government’s direct provision of contraceptive coverage would still be a 

less-restrictive alternative if the Government were required to create “an entirely 

new program” rather than “modif[y] an existing program (which RFRA surely 

allows).” Id. 

In its analysis the Court decided it “need not rely on the option of a new, 

government-funded program” to identify a less-restrictive alternative because the 

regulations already provided one: the then-existing version of the accommodation 

for employers with religious objections. Id. at __, 134 S. Ct. at 2781–82. The for-

 20 Requiring the Government to, at times, spend additional monies to avoid imposing 

substantial burdens on the free exercise of religious objectors would accord with RFRA’s sister 

statute, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. 

§§ 2000cc, 2000cc-1. See id. § 2000cc-3(c) (“[T]his chapter may require a government to incur 

expenses in its own operations to avoid imposing a substantial burden on religious exercise.”).

Congress enacted RLUIPA pursuant to the Spending and Commerce Clauses after the Supreme 

Court in City of Boerne held that RFRA could not be applied to the actions of state governments

under § 5 of the Fourteenth Amendment. See supra note 17. The standard of RLUIPA mirrors 

that of RFRA and applies in two contexts: land-use regulation and the religious exercise of 

institutionalized persons.

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profit Hobby Lobby plaintiffs did not object to the accommodation itself, so 

granting them the option for a third party to provide their female employees’ 

contraceptive coverage “serves [the Government’s] stated interests equally well.” 

Id. at __, 134 S. Ct. at 2781–82. Though derided as “‘noncommittal’” by the 

dissent for doing so, the Court expressly declined to rule on “whether an approach 

of this type complies with RFRA for purposes of all religious claims.” Id. at __ & 

n.40, 134 S. Ct. at 2782 & n.40.

Three days after it decided Hobby Lobby, the Supreme Court again ruled on 

the contraceptive mandate in Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct. 

2806, 189 L. Ed. 2d 856 (2014).21 In Wheaton College, the Court issued an order 

enjoining the Secretary of Health and Human Services, “pending final disposition 

of appellate review,” from enforcing the contraceptive mandate against an 

employer that submits “in writing that it is a non-profit organization that holds 

itself out as religious and has religious objections to providing coverage for 

contraceptive services.” Id. at __, 134 S. Ct. at 2807. The parties disputed whether 

the obligation to provide contraceptive coverage was “dependent” on submitting 

Form 700 to an insurer or third-party administrator. Id. The Court concluded in its 

two-page order that, because notice had already been given to the Government, the 

 21 Chief Justice Roberts and Justices Alito, Thomas, Kennedy, and Breyer joined the 

Court’s decision in Wheaton College. Justice Scalia concurred without issuing a separate 

opinion. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.

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Government “relying on this notice” could “facilitate the provision of full 

contraceptive coverage under the [ACA].” Id. The Court ended its order by noting 

that it “should not be construed as an expression of the Court’s views on the 

merits.” Id.

After Hobby Lobby and Wheaton College, the federal courts were inundated 

with cases posing the question presented here: whether RFRA provides relief to 

employers with religious objections to the accommodation itself. Our sister 

circuits are deeply divided. Like the majority, most circuits have concluded that, 

though RFRA requires deference to adherents’ sincerely held religious beliefs, “an 

objective inquiry” to determine whether a law presents a substantial burden reveals 

that the accommodation does not impose a substantial burden on religious 

exercise.22 Ante at 33–41; see also Catholic Health Care Sys. v. Burwell, 796 F.3d 

207, 216–18 (2d Cir. 2015); Geneva Coll. v. Sec’y U.S. Dep’t of Health and 

Human Servs., 778 F.3d 422, 435–40 (3d Cir. 2015), cert. granted sub nom. Zubik 

v. Burwell, 83 U.S.L.W. 3894 (U.S. Nov. 6, 2015) (No. 14-1418) and cert. 

granted, 84 U.S.L.W. 3096 (U.S. Nov. 6, 2015) (No. 15-191); E. Tex. Baptist 

Univ. v. Burwell, 793 F.3d 449, 456–58 (5th Cir. 2015), cert. granted, 84 U.S.L.W. 

3050 (U.S. Nov. 6, 2015) (No. 15-35); Mich. Catholic Conference & Catholic 

 22 Lumping together these decisions in this manner necessarily misses some of their 

nuance. Again, this case is limited to eligible organizations with self-insured health plans 

overseen by third-party administrators that object, on religious grounds, to the accommodation.

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Family Servs. v. Burwell, Nos. 13-2723, 13-6640, 2015 WL 4979692, at *7–8 (6th 

Cir. Aug. 21, 2015); Grace Sch. v. Burwell, 801 F.3d 788, 803–05 (7th Cir. 2015);

Univ. of Notre Dame v. Burwell, 786 F.3d 606, 614–19 (7th Cir. 2015); Little 

Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1176–77 (10th 

Cir. 2015), cert. granted sub nom. S. Nazarene Univ. v. Burwell, 84 U.S.L.W. 3061 

(U.S. Nov. 6, 2015) (No. 15-119) and cert. granted, 84 U.S.L.W. 3056 (U.S. Nov. 

6, 2015) (No. 15-105); Priests for Life v. U.S. Dep’t of Health and Human Servs., 

772 F.3d 229, 246–49 (D.C. Cir. 2014), cert. granted sub nom. Roman Catholic 

Archbishop v. Burwell, 83 U.S.L.W. 3936 (U.S. Nov. 6, 2015) (No. 14-1505) and 

cert. granted, 83 U.S.L.W. 3918 (U.S. Nov. 6, 2015) (No. 14-1453). The Eighth 

Circuit and a number of dissenting judges have concluded otherwise, determining 

that the accommodation substantially burdens religious exercise. See Sharpe 

Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 941–43 

(8th Cir. 2015), cert. granted, 84 U.S.LW. 3350 (U.S. Dec. 15, 2015 ) (No. 15-

775); E. Tex. Baptist Univ. v. Burwell, Nos. 14-20112, 14-10241, 14-40212, 2015 

WL 5773560, at *2–3 (5th Cir. Sept. 30, 2015) (Jones, J., dissenting from denial of 

rehearing en banc); Grace Sch., 801 F.3d at 810–15 (Manion, J., dissenting); Univ. 

of Notre Dame, 786 F.3d at 627–29 (Flaum, J., dissenting); Little Sisters of the 

Poor, 794 F.3d at 1208–10 (Baldock, J., dissenting in part); Little Sisters of the 

Poor Home for the Aged v. Burwell, 799 F.3d 1315, 1316–18 (10th Cir. 2015) 

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(Hartz, J., dissenting from denial of rehearing en banc); Eternal Word Television 

Network, Inc. v. Sec’y, U.S. Dep’t of Health and Human Servs., 756 F.3d 1339, 

1344–48 (11th Cir. 2014) (William Pryor, J., specially concurring in order granting 

injunction pending appeal); Priests for Life v. U.S. Dep’t of Health and Human 

Servs., Nos. 13-5368, 13-5371, 14-5021, 2015 WL 5692512, at *6–8 (D.C. Cir. 

May 20, 2015) (Brown, J., dissenting from denial of rehearing en banc); Priests for 

Life, 2015 WL 5692512, at *14–17 (Kavanaugh, J., dissenting from denial of 

rehearing en banc). 

C.

To summarize, when Congress enacted the ACA it ceded broad authority to 

three Executive-branch administrative agencies to promulgate rules governing the 

availability of women’s preventive health services in employer-sponsored health 

plans. The agencies ultimately determined that the Government had a compelling 

interest in providing women with cost-free access to a wide range of contraceptive 

services. In accordance with that determination, the agencies, through threat of 

large monetary penalties, mandated that certain employers must provide 

contraceptive coverage to their female employees. Though Congress had already 

exempted some types of employers—those with fewer than fifty employees and 

those with grandfathered health plans—the agencies decided that another group of 

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employers should be exempt too: churches and church-affiliated organizations, as 

defined by already-existing definitions in the Internal Revenue Code.

The agencies exempted churches and church-affiliated organizations from 

the contraceptive mandate because the agencies understood that the contraceptive 

mandate would impose a substantial burden on many of these organizations’ 

religious exercise. As a result, churches and church-affiliated organizations may 

choose what contraceptive coverage, if any, will be available in their female 

employees’ health plans. No such exemption, however, was thought necessary for 

other organizations with similar religious objections, whether for-profit or 

nonprofit. After much public outcry and litigation, the agencies changed course. 

At first, the agencies began offering an exemption-like option to certain nonprofits 

with religious objections. In response to the Supreme Court’s decision in Hobby 

Lobby, the agencies extended the same to for-profit religious objectors as well.

But the exemption-like option—the accommodation—did not truly exempt 

qualifying employers. Rather, it required qualifying employers to affirmatively opt 

out of providing contraceptive coverage, shifting the obligation to provide the 

required contraceptive coverage to the employers’ insurer or third-party 

administrator. Originally, qualifying employers had to opt out by sending Form 

700 to the insurer or third-party administrator responsible for the employers’ health 

plans, alerting the insurer or third-party administrator to its new obligations. After 

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the Supreme Court’s order in Wheaton College, the agencies also made available 

an option of providing less-formal notice to the Secretary of Health and Human 

Services. Under this option, the notice is rerouted to the insurer or third-party 

administrator, in lieu of the employer submitting Form 700 directly.

For employers that run self-insured health plans in conjunction with a thirdparty administrator and are eligible for the accommodation, opting out of the 

contraceptive mandate has the effect of designating the employers’ third-party 

administrators as “plan administrators” under ERISA. Once so designated, the 

agencies can require a third-party administrator to provide contraceptive coverage. 

Absent any affirmative action from the employer, third-party administrators remain 

outside of ERISA’s reach. Likewise outside of ERISA’s reach, and thus 

effectively exempt from the contraceptive mandate, are employers that run selfinsured health plans without a third-party administrator.

As a result, there are four discrete options facing employers like Eternal 

Word Television Network and the Dioceses, which operate self-insured plans and 

do not meet the Internal Revenue Code’s definition for churches or churchaffiliated organizations but nonetheless have religious objections to providing 

contraceptive coverage. First, these employers can provide the objectionable 

coverage in violation of their beliefs. Second, these employers can comply with 

the accommodation and affirmatively opt out of the contraceptive mandate, 

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shifting the obligation to provide the required coverage to their insurer or thirdparty administrator, also in violation of their beliefs. Third, these employers can 

drop their third-party administrators and assume the costs and responsibilities of 

running their own health plans. Fourth, these employers can do nothing and 

thereby become liable for annual fines of thousands of dollars per employee. 

This case requires two determinations. First, does the regulatory scheme 

discussed above impose a substantial burden on the religious exercise of Eternal 

Word Television Network and the Dioceses, which believe that opting out under 

the accommodation would violate the sanctity of human life? If so, does the 

regulatory scheme nonetheless survive RFRA’s demanding standard of strict 

scrutiny? Because I conclude that the answers to these questions are yes and no, 

while the majority says no and yes, I dissent.

II.

The threshold inquiry under RFRA requires a showing that the Government 

has “substantially burden[ed]” the plaintiff’s “exercise of religion.” 42 U.S.C. 

§ 2000bb-1. First, a RFRA plaintiff must identify religious exercise that the 

Government is burdening. The allegedly burdened exercise “must be sincerely 

based on a religious belief and not some other motivation.” Holt v. Hobbs, 574 

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U.S. __, __, 135 S. Ct. 853, 862, 190 L. Ed. 2d 747 (2015).23 When determining 

the content of a religious belief, including how and to what extent its attendant 

exercise may be burdened, we defer to the plaintiff’s understanding of what his 

faith requires of him because “[c]ourts are not arbiters of scriptural interpretation.” 

Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716, 101 S. Ct. 1425, 

1431, 67 L. Ed. 2d 624 (1981). So long as a religious adherent has drawn a line 

based on “an honest conviction,” “it is not for us to say that the line he drew was 

an unreasonable one.” Id. at 715–16, 101 S. Ct. at 1430–31. 

Next, we must determine whether, as an objective matter, the identified 

burden on religious exercise is substantial. The existence of a substantial burden, 

which “can result from pressure that tends to force adherents to forego religious 

precepts or from pressure that mandates religious conduct,” turns on whether the 

Government’s actions coerce a religious adherent to affirmatively violate his 

beliefs. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th 

Cir. 2004). To be substantial, a burden must be “akin to significant pressure which 

directly coerces the religious adherent to conform his or her behavior accordingly” 

and must be more than “an inconvenience on religious exercise.” Id. For example, 

a zoning ordinance that forces members of an Orthodox Jewish congregation to 

 23 Though Hobbs involved a claim brought under RLUIPA rather than RFRA, both 

statutes impose the same standard for substantial burdens of religious exercise. See, e.g., Midrash 

Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004).

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“walk[] a few extra blocks” to attend services on the Sabbath is not a substantial 

burden when there is no “religious significance” as to a particular synagogue site, 

though “walking may be burdensome.” Id. at 1221, 1227–28. In contrast, if the 

Government puts a religious adherent to the “choice” of incurring a “serious” 

penalty or “‘engag[ing] in conduct that seriously violates [his] religious beliefs,’” 

then the Government “substantially burdens his religious exercise.” See Hobbs, 

574 U.S. at __, 135 S. Ct. at 862 (quoting Burwell v. Hobby Lobby Stores, Inc., 573 

U.S. __, __, 134 S. Ct. 2751, 2775, 189 L. Ed. 2d 675 (2014) (second alteration in 

the original)). And a burden is no less substantial if the burdened party “is able to 

engage in other forms of religious exercise,” if the exercise in question is not 

“compelled” by the burdened party’s religion, or if the burdened party’s belief is 

“idiosyncratic.” Id. at __, 135 S. Ct. 862.

Here, it is overwhelmingly clear that the contraceptive mandate imposes on 

Eternal Word Television Network and the Dioceses a burden that the 

accommodation does not alleviate. Eternal Word Television Network and the 

Dioceses assert a religious belief—which the Government does not contest is 

sincerely held—that both complying with the contraceptive mandate and opting 

out under the accommodation, which requires the third-party administrators of 

their health plans to provide contraceptive coverage, would make them complicit 

in violating the sanctity of human life. The Government burdens that belief by 

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requiring Eternal Word Television Network and the Dioceses to affirmatively 

participate in its regulatory scheme.

And it is equally clear that the burden imposed is substantial. The 

Government puts Eternal Word Television Network and the Dioceses to the 

“choice” of either (1) complying with the contraceptive mandate, to which they 

object on religious grounds; (2) opting out under the accommodation, to which 

they also object on religious grounds; (3) dropping the third-party administrators of 

their health plans and becoming de facto insurance companies, incurring 

substantial costs and diverting the focus of their religiously motivated operations; 

or (4) incurring millions of dollars in penalties annually.24 Besides providing yet 

another way for the eligible organizations to violate their religious beliefs, the 

accommodation does nothing to change the Supreme Court’s holding in Hobby 

Lobby that the contraceptive mandate “clearly imposes a substantial burden on 

those beliefs.” 573 U.S. at __, 134 S. Ct. at 2779. Eternal Word Television 

Network and the Dioceses must either violate their beliefs or incur massive 

 24 Should it fail to comply with the contraceptive mandate, Eternal Word Television 

Network would face annual penalties of up to $12,775,000 for its 350 full-time employees. See 

Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health and Human Servs., 756 

F.3d 1339, 1341–42 (11th Cir. 2014) (William Pryor, J., specially concurring in order granting 

injunction pending appeal). The Dioceses’ three health plans are collectively responsible for 

almost 2,000 employees and would be subject to roughly $73,000,000 per year. See Roman 

Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 1256373, at *2 

(N.D. Ga. Mar. 26, 2014); 26 U.S.C. § 4890D(b)(1).

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monetary costs. On its face, such a “choice” is not a choice at all. Rather, it is a 

substantial burden on religious exercise. 

As I understand it, this straightforward application of RFRA’s substantialburden test should end the matter. The majority thinks otherwise, reaching the 

wrong conclusion for two reasons. First, the majority fails to give proper 

deference to Eternal Word Television Network and the Dioceses’ sincerely held 

religious beliefs. Second, the majority mischaracterizes how the contraceptive 

mandate works by understating the critical role that the accommodation forces 

employers to play in providing contraceptive coverage. 

Before explaining why the majority fails to give RFRA its proper meaning, 

it is helpful to clarify how our understandings of RFRA’s inquiry differ. Exactly 

where we differ is highlighted below:

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THE MAJORITY’S VIEW OF RFRA THE CORRECT VIEW OF RFRA

Step 1: Does the plaintiff hold a sincere 

religious belief?

 —Objective determination

What are the contents of that belief?

 —Deference to the plaintiff

Step 1: Does the plaintiff hold a sincere 

religious belief?

—Objective determination

What are the contents of that belief?

—Deference to the plaintiff

Step 2: Do the Government’s actions 

substantially burden the plaintiff’s 

religious exercise?

 —Objective determination

Step 2(a): Do the Government’s actions 

burden the plaintiff’s religious exercise?

—Deference to the plaintiff

Step 2(b): If so, is that burden 

substantial?

—Objective determination

Step 3: Is the Government acting to 

further a compelling interest?

 —Objective determination

Step 3: Is the Government acting to 

further a compelling interest?

 —Objective determination

Step 4: Is the Government’s chosen 

means the least-restrictive alternative of 

achieving that compelling interest?

 —Objective determination

Step 4: Is the Government’s chosen 

means the least-restrictive alternative of 

achieving that compelling interest?

 —Objective determination

A.

First, the majority fails to give the proper deference due Eternal Word 

Television Network and the Dioceses’ sincerely held belief that it would violate 

the sanctity of human life to comply with the Government’s regulatory scheme, 

either directly through the contraceptive mandate or indirectly through the 

accommodation. Though the majority purports to defer to these beliefs, its 

deference is largely illusory. The majority begins by correctly observing that 

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RFRA’s substantial-burden inquiry “involves both subjective and objective 

dimensions.” Ante at 34. The majority continues on, also correctly, to observe that 

“courts must accept a religious adherent’s assertion that his religious beliefs 

require him to take or abstain from taking a specified action.” Id. The majority 

falters, however, when it concludes that “it is for the courts to determine 

objectively . . . whether the government has, in fact, put plaintiffs to the choice of 

violating their religious beliefs . . . or incurring a substantial penalty.” Id. at 36–

37. 

Contrary to the majority’s position, RFRA does require deference to 

religious adherents’ determinations that their sincerely held beliefs are being 

burdened. “The narrow function of a reviewing court in this context” prevents 

unnecessary and improper judicial intrusion into highly sensitive matters of moral 

philosophy or theology, Thomas, 450 U.S. at 716, 101 S. Ct. at 1431, and this 

understanding of the substantial-burden standard is confirmed by the Supreme 

Court’s most recent religious-accommodation decisions. See Hobbs, 574 U.S. at 

__, 135 S. Ct. at 861–63 (granting an exemption to a prison’s grooming policy for 

a Muslim inmate’s proposed “‘compromise’” that he be allowed to grow a halfinch-long beard); Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 2775–79 (rejecting 

the argument that “the connection between” providing contraceptive coverage and 

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the “destruction of an embryo[] is simply too attenuated” because this “would in 

effect tell the plaintiffs their beliefs are flawed.”). 

The “objective inquiry” under RFRA focuses only on whether that burden is 

substantial. For example, courts must defer to a religious adherent’s belief, if it is 

sincerely held, that dancing is morally wrong.25 And courts must defer to the 

religious adherent’s understanding that this belief would be burdened if she were 

required to look upon, even if only for a moment, a single masquerade ball or sock 

hop. What courts must determine as an objective matter is whether the burden 

imposed by any pro-dancing Government action is a substantial one. Imposing 

millions of dollars in fines for failing to perform a Government-mandated jitterbug 

would, obviously, be a substantial burden on religious exercise. In contrast, there 

would be no substantial burden if the Government merely financed public 

dancefloors or had a hortatory policy of extolling the virtues of dance.26 

If the substantial-burden test were as the majority believes it to be, federal 

judges would have to decide whether the burden itself substantially violated the 

adherent’s beliefs. That is, the majority would necessarily shift the gaze of its 

“objective inquiry” to the merits of religious belief. In this Bizarro World, it 

 25 Many faith traditions proscribe some or all forms dancing, including various 

denominations of Christianity, Islam, and Judaism. 

26 Indeed, it appears that Congress has contemplated adopting such a measure. See H.R. 

Res. 667, 113th Cong. (2014) (as introduced in the House, July 11, 2014) (“Expressing support 

for dancing as a form of valuable exercise and artistic expression, and for the designation of July 

26, 2014, as National Dance Day.”).

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would be secular courts making ex cathedra pronouncements on whether Muslims 

are truly put out by requirements to shave their beards, Hobbs, 574 U.S. __, 135 S. 

Ct. 853; Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 

F.3d 359 (3d Cir. 1999), whether Seventh-day Adventists are sufficiently deterred 

from accepting employment by requirements to work on Saturdays, Sherbert v. 

Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), whether Santeria 

priests could just make do without ritual sacrifice or Ache-infused beads and 

shells, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 

113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993); Davila v. Gladden, 777 F.3d 1198 

(11th Cir. 2015), and whether the sacramental use of peyote is really that big of a 

deal to members of the Native American Church, Emp’t Div., Dep’t of Human Res. 

of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). But, of 

course, the Constitution does not vest in the judiciary the authority to declare 

winners and losers in matters of faith. And for good reason.

At bottom, the majority’s reasoning takes aim at the heart of RFRA itself. 

Implicit in the majority’s rationale is the notion that wily plaintiffs could game the 

system if religious adherents’ beliefs were given the full extent of the deference 

demanded by RFRA. In tailoring their stated beliefs, these plaintiffs could engage 

in strategic litigation unhampered, impairing the government’s ability to function 

efficiently. By expanding the limited scope of the objective portion of the 

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substantial-burden inquiry, the majority expressly seeks to avoid “reducing the . . . 

federal courts to ‘rubber stamps.’” Ante at 37. Here, despite conceding as the 

majority must that “the act of opting out plays [some] causal role in the ultimate 

provision of contraceptive coverage,” the majority runs roughshod over the 

sincerely held religious objections of Eternal Word Television Network and the 

Dioceses because, in line with the majority’s sense of things, the “de minimis 

burden that the plaintiffs face” resulting from their role as “an incidental cause of 

contraceptive coverage being provided” does not constitute a substantial burden. 

Id. at 44-45, 47. The majority through a nifty bit of legalistic legerdemain 

manages to transform the subjective content of religious adherents’ sincerely held 

beliefs into an objective question of federal law, undercutting the very deference to 

religious exercise it purports to extend.

The majority’s not-so-veiled implication that, if given its full effect, RFRA 

will be refashioned from a shield protecting the faithful into a sword wielded by 

cynical opportunists is troubling and at odds with RFRA’s fundamental respect for 

the deeply held convictions that guide the daily lives of hundreds of millions of 

Americans. As an initial matter, whether or not a belief is sincerely held remains 

an important part of RFRA’s substantial-burden inquiry. Courts are not, for 

example, compelled to entertain challenges from such obvious farces as a 

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hypothetical “Church of Marijuana and Pepperoni Pizza”27 or the satirical “Our 

Lady of Perpetual Exemption.”28 Separating the faithful sheep from the cynically 

opportunistic goats is well within our judicial capabilities. 

Moreover, to the extent that granting exemptions for religious adherents 

would impair the government’s ability to run programs and administer law 

efficiently, this is a feature of RFRA, not a bug. Congress made the clear policy 

choice that protecting the individual right of free religious exercise outweighed the 

costs imposed at the expense of administrative efficiency. And this choice—to 

preserve individual freedom by fettering the Government’s ability to act as 

expeditiously as possible—is at the core of our foundational notion of limited 

government. Permitting demonstrations in public parks, requiring police officers 

to secure a warrant before searching homes or seizing persons, and committing the 

Government to provide just compensation if it wishes to take private property all 

surely hamper the Government’s ability to pursue countless other important ends. 

These tradeoffs are the cost of liberty. And how best to balance these enhanced 

 27 Of course, people can and do sincerely believe that marijuana consumption serves a 

sacramental purpose. See, e.g., Olsen v. Drug Enf’t Admin., 878 F.2d 1458 (D.C. Cir. 1989).

28 See God bless John Oliver: late-night comedian forms his own church, The Guardian 

(Aug. 17, 2015), http://www.theguardian.com/tv-and-radio/2015/aug/17/john-oliver-last-weektonight-mega-church.

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protections against their added costs is exactly the sort of thorny policy decision 

best left to democratically responsive legislators, not unelected judges.29 

The majority is hardly alone in its implicit rejection of RFRA’s core 

purpose. Striking the proper balance between the collective needs of society and 

the individual freedom of religious exercise has been fraught with rancor and 

sectarian strife since time immemorial. Unsurprisingly then, the oft-embattled 

RFRA has proven a favorite whipping boy from all sides of the legal academy 

during its twenty-three-year existence. See, e.g., Douglas NeJaime & Reva B. 

Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and 

Politics, 124 Yale L.J. 2516 (2015); Mary Anne Case, Why “Live-And-Let-Live” is 

not a Viable Solution to the Difficult Problems of Religious Accommodation in the 

Age of Sexual Civil Rights, 88 S. Cal. L. Rev. 463 (2015); Douglas Laycock, 

Religious Liberty and the Culture Wars, 2014 U. Ill. L. Rev. 839; William P. 

Marshall, Bad Statutes Make Bad Law: Burwell v Hobby Lobby, 2014 Sup. Ct. 

Rev. 71; Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom 

and the U.S. Code, 56 Mont. L. Rev. 249 (1995). 

 29 “[T]hat one legislature cannot abridge the powers of a succeeding legislature” and, 

thus, “one legislature is competent to repeal any act which a former legislature was competent to 

pass” is a foundational principle that “can never be controverted.” Fletcher v. Peck, 10 U.S. (6 

Cranch) 87, 135, 3 L. Ed. 162 (1810). RFRA’s protections are statutory, not mandated by the 

Constitution. Should it wish to do so, Congress remains free to alter the scrutiny to be applied to 

any particular law challenged under RFRA or to repeal RFRA altogether.

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Judicial declarations that the sky will fall if exemptions were granted to 

religious objectors in a pluralistic society as diverse and vibrant as the United 

States are old hat as well. Consider the following statement of Chief Justice 

Morrison Waite, written almost one hundred and fifty years ago:

Laws are made for the government of actions, and while they cannot 

interfere with mere religious belief and opinions, they may with 

practices. ... Can a man excuse his practices to the contrary because 

of his religious belief? To permit this would be to make the professed 

doctrines of religious belief superior to the law of the land, and in

effect to permit every citizen to become a law unto himself. 

Government could exist only in name under such circumstances.

Reynolds v. United States, 98 U.S. 145, 166–67, 25 L. Ed. 244 (1878). After more 

than a century of wrestling with the First Amendment’s Free Exercise Clause, the 

Supreme Court brought constitutional religious-accommodation doctrine full circle 

in Smith, upholding without accommodation neutral laws of general applicability. 

Writing for the majority, Justice Scalia echoed Chief Justice Waite’s sentiment: 

If the “compelling interest” test is to be applied at all, then, it must be 

applied across the board, to all actions thought to be religiously 

commanded. Moreover, if “compelling interests” really means what it 

says (and watering it down here would subvert its rigor in the other 

fields where it is applied), many laws will not meet the test. Any 

society adopting such a system would be courting anarchy, but that 

danger increases in direct proportion to the society’s diversity of 

religious beliefs, and its determination to coerce or suppress none of 

them.

 

Smith, 494 U.S. at 888, 110 S. Ct. at 1605 (emphasis added). It is hard to fathom a 

plainer statement of the risks of reinstituting a policy of religious accommodation.

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Yet it was against this very backdrop that Congress enacted RFRA in 1993. 

And Congress specifically declared that by adopting the demands of strict scrutiny 

it intended to depart from the less-protective constitutional standard announced in 

Smith. See 42 U.S.C. § 2000bb(4). To the extent that the standard RFRA imposes 

raises policy concerns, criticisms on this front are best addressed to Congress, and 

may find appropriate shelter in the pages of law reviews. But as federal judges we 

are duty-bound to follow and apply the laws Congress actually enacted, not as we 

might wish them to be. “The wisdom of Congress’s judgment on this matter is not 

our concern. Our responsibility is to enforce RFRA as written, and under the 

standard that RFRA prescribes,” Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 2785, 

the accommodation, no less than the contraceptive mandate itself, imposes a 

substantial burden on religious exercise. 

B.

Second, the majority fails to appreciate the crucial role in providing 

religiously objectionable contraceptive coverage that the accommodation foists on 

eligible organizations. The majority believes that the accommodation places no 

burden on the beliefs of Eternal Word Television Network and the Dioceses 

because the “significance they attribute to this act [of opting out]” is misguided, 

and thus the outcome of this case is not controlled by the otherwise-identical 

analysis in Hobby Lobby. See ante at 42. According to the majority, “[t]he ACA 

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and HRSA guidelines” are what “entitle women who are plan participants and 

beneficiaries covered by group health insurance plans to contraceptive coverage 

without cost sharing”—“not the opt out.” See id. at 43–44 . This is so even though 

the majority “acknowledge[s] that an eligible organization’s act of [opting out] 

results in the TPA’s designation as the plan administrator” under ERISA and “may 

be an incidental cause of contraceptive coverage being provided.” Id. at 44–45. 

Boiled down to its bare essentials, the majority’s position is that if the parties really 

understood what is going on, they would have no basis to object to their role in the 

contraceptive mandate’s regulatory scheme. 

It is the majority, however, that misunderstands the contraceptive mandate. 

Under its regulatory scheme, as bounded by the statutory requirements of the ACA 

and ERISA,30 the Government becomes empowered to require contraceptive 

coverage for an eligible organization’s self-insured health plan only if that 

organization affirmatively opts out under the accommodation. A third-party 

administrator of a self-insured health plan “bears the legal obligation to provide 

 30 Some doubts have been raised as to the Government’s exact ability to require thirdparty administrators to comply with the contraceptive mandate within the scope of its regulatory 

authority. See Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 

941–42 (8th Cir. 2015). To the extent such doubts linger, they are of no moment here. “We 

need look no further than to the government’s own litigation behavior to gauge the importance of 

self-certification in the regulatory scheme. If [third-party administrators] had a wholly 

independent obligation to provide contraceptive coverage to religious objectors’ employees and 

plan beneficiaries, there would be no need to insist on ... compliance with the accommodation 

process.” Id. at 942.

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contraceptive coverage only upon receipt of a valid self-certification.”31 Wheaton 

College v. Burwell, 573 U.S. __, __ n.6, 134 S. Ct. 2806, 2814 n.6, 189 L. Ed. 2d 

856 (2014) (Sotomayor, J., dissenting) (emphasis added). The majority is 

incorrect, then, to say that the contraceptive mandate “does not turn on whether 

[an] eligible organization employer chooses to comply with the law.” See ante at 

44. Federal law kicks in only after an eligible organization acts; should an eligible 

organization decline to do anything, the Government lacks an independent means 

to ensure the provision of contraceptive coverage. Because the regulations 

condition the provision of contraceptive coverage on eligible organizations’ 

affirmative participation, their participation is the linchpin on which the 

contraceptive mandate rests. 

To draw an analogy with which any first-year law student should be well 

acquainted, an eligible organization’s opting out under the accommodation is both 

an actual and proximate cause of the provision of contraceptive coverage. There 

can be no doubt that opting out under the accommodation is a “cause in fact” of 

providing contraceptive coverage. But for opting out, the Government would lack 

the requisite regulatory authority over the third-party administrators of the 

organizations’ health plans. Cf. Stacy v. Knickerbocker Ice Co., 54 N.W. 1091 

 31 Under the regulations currently in force, a valid self-certification is either Form 700 or 

the alternative notice sent to the Secretary of Health and Human Services. 45 C.F.R. 

§ 147.131(b)(3), (c).

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(Wis. 1893) (noting that without defendant’s cutting and removing of surface ice, 

uncontrolled horses would not have fallen through a frozen lake). The majority 

contests whether the act of opting out also meets some standard of “legal” or 

“proximate” cause. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 104 (N.Y. 

1928) (Andrews, J., dissenting) (“What we do mean by the word ‘proximate’ is 

that, because of convenience, of public policy, of a rough sense of justice, the law 

arbitrarily declines to trace a series of events beyond a certain point. That is not 

logic, it is practical politics.”). According to the majority, because federal law 

entails the authorization to require third-party administrators to provide 

contraceptive coverage, opting out is only “an incidental cause of contraceptive 

coverage being provided.” See ante at 44–45.

I fail to see, however, how affirmatively opting out of the contraceptive 

mandate under the accommodation could be deemed anything other than a 

“substantial factor” or “material concurring cause” directly leading to the provision 

of religiously objectionable coverage. Anderson v. Minneapolis, St. Paul & Sault 

Ste. Marie Ry. Co., 146 Minn. 430, 436–37, 439 (1920). Opting out under the 

accommodation sets in motion a chain of events leading to the provision of 

contraceptive coverage as inexorably as night follows day.32 Once an employer 

 32 Eternal Word Television Network and the Dioceses object only to their own, 

government-mandated participation under the contraceptive mandate. They do not—and indeed 

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opts out, only then does the Government become authorized to regulate third-party 

administrators. See Grace Sch. v. Burwell, 801 F.3d 788, 808 (7th Cir. 2015) 

(Manion, J., dissenting) (describing “the accommodation’s tangled mess” as “the 

long and winding extension cord the government uses to power its contraceptive 

mandate”). So authorized, there can be no doubt that the Government will in turn 

flex its newfound regulatory muscle to require the provision of contraceptive 

coverage. 

 

cannot—seek “to require the Government itself to behave” in accordance with their beliefs. See

Bowen v. Roy, 476 U.S. 693, 696–700, 106 S. Ct. 2147, 2150–52, 90 L. Ed. 2d 735 (1986) 

(denying relief to Abenaki man objecting on religious grounds to the Government’s “‘use’” of 

his daughter’s already-issued Social Security number). The majority’s reliance on Bowen and its 

ilk is, therefore, inapposite.

Likewise inapposite is the Majority’s analogizing the accommodation to the process used 

by conscientious objectors to opt of a military draft. See ante at 46. As Judge Manion puts it in 

his thorough debunking of this familiar trope,

This is not like the case of a conscientious objector who objects and the 

government finds a replacement. Under the regulations, the government does not 

find the replacement, the nonprofit does. The designation does not take place 

unless the nonprofit either delivers the self-certification form to its insurer or 

TPA, or uses the alternative notice to inform the government who its insurer or 

TPA is and which health plan is at issue. By insisting that the nonprofit deliver 

the form or supply the plan information for the government's use, the government 

uses the objecting nonprofit to do its dirty work. The government has not 

provided an exit—it offers a revolving door with only one opening.

. . .

This is not the case of a conscientious objector walking into the draft board, 

voicing his objection, being excused, and walking out. For the analogy to fit the 

HHS accommodation, the draft board must decide that every objector will be 

replaced by the objector’s friend, and the objector’s objection is only effective if 

the objector delivers written notice of his objection to his friend or tells the draft 

board who his friend is and where the board can find him. Then, the objector 

must send his friend money so that his friend will remain his friend for the 

purpose of being his replacement.

Grace Sch. v. Burwell, 801 F.3d 788, 812 & n.11 (7th Cir. 2015) (Manion, J., dissenting).

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This clear and uninterrupted causal chain holds whether an employer sends 

Form 700 directly to its third-party administrator or submits less-formal notice 

indirectly to the Secretary of Health and Human Services, just as a pilot reaches his 

destination as certainly flying direct as with a layover. An employer connecting 

these dots would hardly need the insight of Henry Friendly to conclude that its 

actions caused, in a direct and material fashion, the religiously objectionable 

outcome. “After all, if the form were meaningless, why would the Government 

require it?” Priests for Life v. U.S. Dep’t of Health and Human Servs., Nos. 13-

5368, 13-5371, 14-5021, 2015 WL 5692512, at *17 (D.C. Cir. May 20, 2015) 

(Kavanaugh, J., dissenting from denial of rehearing en banc)

But this analogy can be stretched only so far. Common-law principles of 

causation, however fundamental to our legal heritage, are simply too unreliable a 

light to guide RFRA’s substantial-burden analysis.33 Reading into RFRA some 

sort of proximate-cause limitation would reintroduce the exact same 

“attenuat[ion]” argument rejected by the Supreme Court in Hobby Lobby for 

“dodg[ing] the question that RFRA presents.” 573 U.S. at __, 134 S. Ct. at 2777–

78. To do so would be an illegitimate foray into the realm of personal faith, and 

 33 “There is perhaps nothing in the entire field of law which has called forth more 

disagreement, or upon which the opinions are in such a welter of confusion [as defining 

‘proximate cause’]. Nor, despite the manifold attempts which have been made to clarify the 

subject, is there yet any general agreement as to the best approach.” W. Page Keeton, Dan B. 

Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on Torts § 41 at 263 (5th ed. 

1984). 

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federal courts are “singularly ill equipped” to parse the moral reasoning and 

theological conclusions of religious believers, especially in light of secular judges’ 

unspecified and almost certainly inconsistent determinations of legal causation. 

Thomas, 450 U.S. at 715, 101 S. Ct. at 1431. No matter how elaborate the Rube 

Goldberg machine the Government manages to jerry-rig, it is simply not our place 

to decide for Eternal Word Television Network and the Dioceses their degree of 

complicity when forced to topple the initial domino. 

Accordingly, for eligible organizations that object to opting out under the 

accommodation, the contraceptive mandate burdens their religious exercise to the 

same impermissible extent as the plaintiffs’ in Hobby Lobby.

III.

Concluding that the contraceptive mandate substantially burdens Eternal 

Word Television Network’s and the Dioceses’ religious exercise does not end the 

matter. The Government can still prevail if it is able to show that the contraceptive 

mandate is “in furtherance of a compelling governmental interest” and the 

accommodation is “the least restrictive means of furthering that compelling 

governmental interest.” 42 U.S.C. § 2000bb-1(b). 

The Government fails to make this showing. For purposes of this opinion, I 

assume that the accommodation serves “a legitimate and compelling interest in the 

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health of female employees.”34 See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 

__, __, 134 S. Ct. 2751, 2786, 189 L. Ed. 2d 675 (2014) (Kennedy, J., concurring). 

There is no need to reach the merits of this assumed compelling interest, whatever 

its exact nature, because the accommodation is not the least-restrictive means 

capable of achieving any government interest that could conceivably be called 

compelling. Accord id. at __, 134 S. Ct. at 2779–80 (Alito, J.).

IV.

If the notion that the accommodation does not substantially burden religious 

exercise is “[r]ubbish,” Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t 

of Health and Human Servs., 756 F.3d 1339, 1347 (11th Cir. 2014) (William 

Pryor, J., concurring), then the majority’s further notion that the contraceptive 

mandate passes RFRA’s “exceptionally demanding” scrutiny is rubbish on stilts. 

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __, 134 S. Ct. 2751, 2780, 189 

L. Ed. 2d 675 (2014). In codifying the familiar language of strict scrutiny—the 

“most demanding test known to constitutional law,” City of Boerne v. Flores, 521 

U.S. 507, 534, 117 S. Ct. 2157, 2171, 138 L. Ed. 2d 624 (1997)—Congress erected 

 34 I pause to note my skepticism of the Government’s proposed gloss on the compelling 

interest allegedly served by the contraceptive mandate. Providing “seamless” contraceptive 

coverage—that is, providing coverage without cost sharing or additional administrative 

hurdles—and identifying organizations that opt out of the contraceptive mandate appear to me to 

be derivative considerations of feasibility and administrative convenience rather than compelling 

interests in their own right. As such, these considerations are better left to the least-restrictivemeans prong of the RFRA inquiry. 

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RFRA as a mighty bulwark, entrenching against Government incursion the 

freedom of religious liberty throughout the United States Code. To surmount these 

protections, the Government has the burden of “show[ing] that it lacks other means 

of achieving its desired goal without imposing a substantial burden on the exercise 

of religion by the objecting parties.” Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 

2780. Carrying this burden is no mean feat. “If a less restrictive means is 

available for the Government to achieve its goals, the Government must use it.” 

Holt v. Hobbs, 574 U.S. __, __, 135 S. Ct. 853, 864, 190 L. Ed. 2d 747 (2015) 

(quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815, 120 S. Ct. 

1878, 1887, 146 L. Ed. 2d 865 (2000)) (alteration omitted).

So, is there a less-restrictive alternative of ensuring that the female 

employees of employers with religious objections to the contraceptive mandate 

nonetheless continue to receive cost-free access to the challenged services? Of 

course there is. As the Hobby Lobby majority observed: “The most 

straightforward way of doing this would be for the Government to assume the cost 

of providing” the objectionable contraceptive coverage. 573 U.S. at __, 134 S. Ct. 

at 2780. Though the Court did not ultimately need to reach the question of 

whether direct Government provision of contraceptive coverage would constitute a 

less-restrictive alternative because the plaintiffs did not object to the 

accommodation, id. at __, 1354 S. Ct. at 2780–82, we must do so here. And I fail 

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to see any reason why the Court’s persuasive reasoning should not be adopted. 

The Government has not shown, as it must, that it would be able to provide the 

same access to contraceptive coverage to the same women only if it can force 

eligible organizations to violate their sincerely held religious beliefs. 

Speaking bluntly, RFRA makes the Government put its money where its 

mouth is. I see nothing in RFRA’s text or the subsequent case law that would 

allow the Government to claim a compelling interest without having to spend a 

single red cent to do anything about it. Significant here, the Government must 

necessarily agree that RFRA compels it to fund contraceptive coverage otherwise 

the accommodation would not exist at all. Indeed, the entire purpose of the 

accommodation is to make the provision of contraceptive coverage independent of 

the eligible organization, including segregating all the costs paid by the eligible 

organization from all the expenditures for the objectionable services. Aware of the 

fallacy of free-lunch thinking and absent any expectation of third-party 

administrators acting out of purely eleemosynary impulse, the Government 

committed itself to funding contraceptive coverage for certain religious objectors,35

albeit in roundabout fashion. 

 35 Notably, the Government did not similarly commit itself to fund contraceptive 

coverage for female employees of other employers with religious objections—either churches 

and church-affiliated organizations or eligible organizations that maintain self-insured health 

plans but do not use a third-party administrator. Nor did the Government commit itself to fund 

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To be clear, the Government is already committed to fund the contraceptive 

mandate under the current regulations. The Government reimburses third-party 

administrators required to fund contraceptive coverage through a reduction in 

Federally-facilitated Exchange user fees, the amount of money paid to be able to 

offer insurance products on exchanges established by the Government under the 

ACA.36 Money is fungible; the Government finds itself in the same financial 

position whether it declines to collect a tax liability of $500 or whether it collects 

the $500 and then immediately refunds the same. By forgoing revenue to fund the 

contraceptive coverage for the female employees of eligible organizations that opt 

out under the accommodation, the Government is effectively paying for the 

objectionable coverage. And in contrast to the half-measure of the 

accommodation—which covers only a limited set of religiously objecting 

employers and does not provide access to the female employees of churches and 

church-affiliated organizations, employers with grandfathered health plans, or 

 

contraceptive coverage for female employees of employers with grandfathered plans or 

employers with fewer than fifty full-time employees. 

Though there may be some level of backstop coverage provided by the other provisions 

of the ACA and Title X, see infra n.36, the Government’s failure to extend its largesse to these 

women may also call into question the contraceptive mandate’s asserted compelling interest—

which, again, I assume the Government would be able to show—but certainly raises an obvious 

question: If the Government is able and willing to pay for some women to receive access to 

contraceptive coverage, why would it not be a less-restrictive means to do so in a more 

straightforward manner for all women at risk of being denied such access?

36 As discussed above, third-party administrators may either reduce their own Federallyfacilitated Exchange user fees if they are also in the business of selling insurance or they may 

enter into a contractual arrangement with another insurer to recoup that insurer’s user fees. See 

80 Fed. Reg. at 41328. 

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employers with fewer than fifty full-time employees37—providing for 

contraceptive coverage directly without the accommodation’s administrative 

rigmarole would allow the Government to offer cost-free access to each and every 

woman in the United States should it choose to do so. And the Government has 

failed to shoulder its burden to show that it would be unable to grant women access 

to contraceptive coverage without the coerced involvement of Eternal Word 

Television Network and the Dioceses.

Again, this straightforward application of well-established legal principles 

should carry the day. But, again, the majority thinks otherwise. Specifically, the 

majority concludes that the current iteration of the contraceptive mandate has 

finally hit upon the least restrictive means of achieving the Government’s 

compelling interest when “the cost to the government” and “the burden the 

alternatives impose on the affected women” are taken into account. See ante at 63. 

Though I do not dispute that these concerns are relevant to the least-restrictive-

 37 For female employees whose health plans are not subject to the contraceptive mandate, 

the Government has stitched together a patchwork safety net under Title X and other provisions 

of the ACA. The record does not reveal how many women who would otherwise lack access to 

contraceptive services are eligible for coverage under this makeshift framework. Nor does the 

record reveal whether there are hundreds, thousands, or millions of women who will continue to 

go without such access, with or without the accommodation. Though a less-restrictive means 

need not be a perfect means, strict scrutiny demands that the Government’s chosen solution must 

be “neither seriously underinclusive nor seriously overinclusive.” Brown v. Entm’t Merchants 

Ass’n, 564 U.S. __, __, 131 S. Ct. 2729, 2741–42, 180 L. Ed. 2d 708 (2011).

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means inquiry, I cannot agree with the majority that they save the contraceptive 

mandate from RFRA’s exceptionally demanding scrutiny.

The arguments advanced in the majority’s apology for the contraceptive 

mandate seem to rest largely on speculative and overblown logistical problems the 

Government might face if it were held responsible for furthering its asserted 

compelling interest. According to the majority, if the Government were forced to 

provide contraceptive coverage “outside the existing, largely employer-based, 

insurance system,” whether directly or through tax credits, “Congress would need 

to pass legislation that would fundamentally change how the majority of 

Americans receive” contraceptive coverage specifically, if not healthcare 

generally. See id. at 66–67. Likewise, if forced to keep the current model of 

providing contraceptive coverage through eligible organizations’ health plans, “the 

government would be hamstrung” because of the “gaps” in institutional knowledge 

that would spring up regarding which female employees of which employers 

would be covered by the Government and which are not. Id. at 72. As a result, 

because the majority believes that adopting any of the alternatives it considers 

would incur various administrative and transactions costs, the result would be less 

access to contraceptive coverage, undermining the Government’s asserted 

compelling interest. See id. at 70–71, 74.

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The majority’s insistence on assuming a virtually immutable regulatory and 

statutory status quo is fundamentally misplaced. RFRA makes clear that it is the 

“Government” that “shall not substantially burden a person’s exercise of religion,” 

42 U.S.C. § 2000bb-1(a) (emphasis added), not just constituent parts acting within 

their respective spheres of authority. In Gonzales v. O Centro Espirita Beneficente 

Uniao do Vegetal, for example, the Supreme Court specifically rejected the 

Government’s position “that the Controlled Substances Act is [not] amenable to 

judicially crafted exceptions [for the hallucinogen hoasca]” because of “the 

existence of a congressional exemption for peyote.” 546 U.S. 418, 434, 126 S. Ct. 

1211, 1222, 163 L. Ed. 2d 1017 (2006). It would be absurd to say, then, that we 

cannot grant a judicially crafted exception here because the relevant administrative 

agencies lacked the regulatory authority to promulgate exceptions that would have 

been equally effective in achieving an allegedly compelling interest had there been 

congressional action allowing them to do so. In short, if the Government as a 

whole has a less-restrictive alternative available, the Government must use it. 

The majority’s radically revisionist account of RFRA, in contrast, would 

limit the universe of less-restrictive means to what the Executive Branch can 

accomplish unilaterally by administrative fiat. This is a shocking reversal of our 

Constitution’s prime directive: “All legislative Powers herein granted shall be 

vested in a Congress of the United States.” U.S. Const. art. I, § 1. To the extent 

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that the Government claims an interest of the highest order, it is only reasonable 

that Congress be expected to pitch in when freewheeling regulators encounter 

statutory roadblocks. The practical hurdles to providing the access to 

contraceptive coverage the Government seeks would simply disappear if Congress

were to slightly tweak the contraceptive mandate’s statutory authorization under 

ERISA and the ACA. By having Congress eliminate the need for eligible 

organizations to affirmatively designate the third-party administrators of their 

health plans—thus becoming directly involved in the provision of the 

objectionable coverage—the Departments of Labor, Treasury, and Health and 

Human Services would no longer need to substantially burden eligible 

organizations by putting them to the “choice” of affirmatively violating their 

sincerely held beliefs or paying massive penalties. And the Government has failed 

to show why this could be accomplished without imposing any additional burden 

on female employees only if eligible organizations were required to use the 

accommodation.38

 38 To the extent that there may be additional administrative costs incurred in crafting an 

appropriately tailored exception to the contraceptive mandate, RFRA contemplates such costs 

and places them squarely on the Government’s shoulders. Even if the Government were to 

require female employees of exempt employers to fill out the sort of all-too-familiar paperwork 

associated with receiving health insurance, such a “burden”—in contrast to being forced to either 

violate a sincere religious conviction or face steep monetary penalties—would be, at most, “de 

minimis.” Cf. Catholic Health Care Sys. v. Burwell, 796 F.3d 207, 220 (2d Cir. 2015).

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Finally, the fate of the contraceptive mandate under RFRA is complicated by 

the Government’s decision to condition benefits flowing to third parties on actions 

taken by religious objectors in violation of their beliefs. I agree that granting an 

exemption that would impose costs on third parties could, under certain 

circumstances, run afoul of the Establishment Clause of the First Amendment. See 

Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. 

Amos, 483 U.S. 327, 334–35, 107 S. Ct. 2862, 2868, 97 L. Ed. 2d 273 (1987) (“At 

some point, accommodation may devolve into ‘an unlawful fostering of religion.’” 

(quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 145, 

107 S. Ct. 1046, 1051, 94 L. Ed. 2d 190 (1987))). But such an eventuality alone 

does not automatically transform the Government’s chosen means into the leastrestrictive alternative required by RFRA. As the Supreme Court reiterated in 

upholding the constitutionality of RLUIPA, RFRA’s sister statute, “‘there is room 

for play in the joints between’ the Free Exercise and Establishment Clauses, 

allowing the government to accommodate religion beyond free exercise 

requirements, without offense to the Establishment Clause.” Cutter v. Wilkinson, 

544 U.S. 709, 713, 125 S. Ct. 2113, 2117, 161 L. Ed. 2d 1020 (2005) (quoting 

Locke v. Davey, 540 U.S. 712, 718, 124 S. Ct. 1307, 1311, 158 L. Ed. 2d 1 (2004)). 

Granting Eternal Word Television Network and the Dioceses an exemption from 

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the contraceptive mandate falls well within the space allowed for “play in the

joints,” wherever those exact boundaries may lie.

Here, the Government is essentially asking for a free pass on RFRA’s leastrestrictive-means requirement because the administrative agencies responsible for 

crafting the contraceptive mandate decided—for administrative convenience—to 

tie the provision of contraceptive coverage to eligible organizations’ affirmative 

participation in an elaborate regulatory scheme. If we were to honor the 

Government’s request, anytime regulators wanted to immunize their slapdash 

efforts, regardless of the potential alternatives, they need only condition a benefit 

to third parties on any substantial burden placed on religious exercise. Lest RFRA 

is understood to have ushered in the apotheosis of the administrative state, surely 

the rigorous standard of strict scrutiny cannot be so easily evaded. 

Without a doubt, there are sundry ways for the Government to provide 

women with cost-free access to contraceptive coverage. The administrative 

agencies tasked with promulgating the regulatory structure that undergirds the 

contraceptive mandate chose, because of convenience and their bounded statutory 

authority, to do so in a manner that substantially burdens religious adherents. We 

have been presented insufficient evidence to hold that the goal of increasing access 

to contraceptive coverage could be reached only through the circuitous regulatory 

pathways that have been cobbled together here. The Government, therefore, has 

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failed to carry its burden to show that the contraceptive mandate is the least 

restrictive means of furthering any assumed compelling interest.

V.

The sweeping protections for religious exercise Congress contemplated 

when it enacted RFRA should not be denied to Eternal Word Television Network 

and the Dioceses. RFRA’s text and purpose, as confirmed by well-established 

precedent, extend these protections to religious adherents forced to choose between 

affirmatively participating in a regulatory scheme that they sincerely believe would 

make them complicit in denigrating the sanctity of human life and paying millions 

of dollars in noncompliance penalties. Because the Government cannot show that 

the latest iteration of its constantly evolving “accommodation” survives strict 

scrutiny, RFRA bars enforcing the contraceptive mandate against those employers 

whose religious exercise it substantially burdens. 

By concluding otherwise, the majority diminishes the full range of religious 

liberty that Congress sought to protect when it enacted RFRA. Recasting and 

enfeebling RFRA’s standard as nothing more than “good enough for government 

work” is a far cry from strict scrutiny’s typical charge of fiat justitia ruat caelum.

39 

Perhaps the majority’s desire to bring RFRA’s statutory protections for religious 

liberty closer in line with the less-demanding constitutional standard represents a 

 39 Let justice be done though the heavens may fall.

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superior policy judgment. Perhaps not. In any event, the majority’s application of 

“water[ed] down” strict scrutiny is exactly the sort of wishy-washy treatment likely 

to “subvert its rigors in the other fields where it applies” that motivated the 

Supreme Court’s Smith decision in the first place. See Emp’t Div., Dep’t of Human 

Res. of Or. v. Smith, 494 U.S. 872, 888, 110 S. Ct. 1595, 1605, 108 L. Ed. 2d 876 

(1990). But by enacting RFRA, Congress confirmed that strict scrutiny “really 

means what it says.” Id.; see also Hobby Lobby, 573 U.S. at __ n.3, 134 S. Ct. at 

2761 n.3. Regardless of individual judges’ views of the wisdom motivating 

RFRA, that was Congress’s call to make. 

Respectfully, I DISSENT.

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