United States Court of Appeals

For the Eighth Circuit

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No. 14-2726

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Dordt College; Cornerstone University

lllllllllllllllllllll Plaintiffs - Appellees

v.

Sylvia M. Burwell, in her official capacity as Secretary of the United States

Department of Health and Human Services; Thomas Perez, in his official capacity

as Secretary of the United States Department of Labor; Jack Lew, in his official

capacity as Secretary of the United States Department of the Treasury; United

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

Labor; United States Department of the Treasury

lllllllllllllllllllll Defendants - Appellants

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Americans United For Separation of Church and State; American Civil Liberties

Union; American Civil Liberties Union of Iowa

lllllllllllllllllllllAmici on Behalf of Appellant(s)

Association of American Physicians & Surgeons; American Association of

Pro-Life Obstetricians & Gynecologists; Christian Medical Association; Catholic

Medical Association; The National Catholic Bioethics Center; Alabama

Physicians for Life; National Association of Pro Life Nurses; National Association

of Catholic Nurses

lllllllllllllllllllllAmici on Behalf of Appellee(s)

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Appeal from United States District Court 

for the Northern District of Iowa - Sioux City

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 Submitted: December 10, 2014

 Filed: September 17, 2015

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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

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WOLLMAN, Circuit Judge.

The Departments of Health and Human Services (HHS), Labor (DOL), and

Treasury, as well astheir respective Secretaries, (collectively,the government) appeal

from the district court’s order granting a motion for a preliminary injunction that 1

enjoins the government from enforcing certain provisions of the Patient Protection

and Affordable Care Act (ACA), 42 U.S.C. § 300gg-13(a)(4), and its implementing

regulations against Dordt College and Cornerstone University, each of which is a

nonprofit religious educational institution that offers healthcare coverage to its

employees—Dordt through a self-insured plan and Cornerstone through an insured

plan. The district court’s order also enjoined the government from enforcing the

2

The Honorable Mark W. Bennett, United States District Judge for the

1

Northern District of Iowa. 

A self-insured employer bears the financial risk of paying its employees’ 2

health-insurance claims and often hires a third-party administrator to manage

administrative functions like processing insurance claims. An insured employer, by

contrast, contracts with a separate insurance company to provide healthcare coverage,

bear the financial risk of insurance claims, and manage related administrative

functions. See, e.g., 1A Steven Plitt, et al., Couch on Insurance § 10:1 n.1 (3d ed.

2013). 

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challenged provisions against “any insurance provider (including insurance issuers

and third-party administrators) offering health insurance to Dordt or Cornerstone.” 

D. Ct. Order of May 21, 2014, at 8. Dordt and Cornerstone raised objections to the

ACA and its implementing regulations that are substantially similar to those

addressed by this court in the opinion issued today in Sharpe Holdings, Inc. v. U.S.

Department of Health and Human Services, No. 14-1507, slip op. (8th Cir. Sept. 17,

2015). For purposes of this opinion, we provide only a brief discussion of the

legislative and administrative background of the ACA and its implementing

regulations, as well as an abbreviated summary of the argumentsraised by the parties. 

For a more detailed examination, we directreadersto our opinion in Sharpe Holdings. 

Dordt and Cornerstone challenged provisions oftheACAand its implementing

regulationsrequiring themeither to provide their employees with healthcare coverage

for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods,

sterilization procedures, and patient education and counseling for all women with

reproductive capacity” (the contraceptive mandate), or to apply for an

accommodation excusing them from providing such coverage. 77 Fed. Reg. 8725,

8725 (Feb. 15, 2012); see 29 C.F.R. § 2590.715-2713(a). Although the ACA

provides an exemption from the contraceptive mandate for “grandfathered” health

plans, i.e., those in existence at the time of the ACA’s adoption, 42 U.S.C. § 18011;

29 C.F.R. § 2590.715-1251, and for health plans sponsored by “religious employers,”

i.e., “churches, their integrated auxiliaries, and conventions or associations of

churches,” as well as “the exclusively religious activities of any religious order,” 45

C.F.R. § 147.131(a) (citing the Internal Revenue Code, 26 U.S.C. § 6033(a)(3)(A)(i),

(iii)), it does not provide a similar exemption for nonprofit religious organizations

like Dordt and Cornerstone. 

Instead, the ACA provides an “accommodation” for nonprofit religious

organizations that have religious objections to the contraceptive mandate but do not

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qualify for the religious-employer exemption. 78 Fed. Reg. 39,870, 39,871 (July 2, 3

2013); see also 29 C.F.R. § 2590.715-2713A. The accommodation is intended to

protect religious organizations “from having to contract, arrange, pay, or refer for”

contraceptive coverage. 78 Fed. Reg. at 39,872. It is available for a religious

organization that (1) has religious objections to providing healthcare coverage for

some or all contraceptive services, (2) “is organized and operates as a nonprofit

entity,” (3) “holds itself out as a religious organization,” and (4) complies with a selfcertification process. 29 C.F.R. § 2590.715-2713A(a). A religious organization may

self-certifyby completing and submitting directly to its insurance issuer orthird-party

administrator (TPA) an EBSA Form 700–Certification (Form 700), certifying that it

is a religious nonprofit entity that has religious objections to providing coverage for

some or all of the contraceptives required by the mandate, 29 C.F.R. § 2590.715-

2713A(a)-(b), or by providing notice to HHS stating the organization’s name; the

basis on which it qualifiesfor an accommodation; its religious objections to providing

coverage for some or all contraceptives, including the specific contraceptives to

which it objects; its insurance plan name and type; and its insurance issuer’s or TPA’s

name and contact information (HHS Notice), see 79 Fed. Reg. 51,092, 51,094-95

4

After the Supreme Court’s decision in Burwell v. Hobby Lobby, 134 S. Ct.

3

2751 (2014), the government revised the relevant regulations effective September 14,

2015, to extend this accommodation to certain closely held for-profit entities that

have a religious objection to providing coverage for some or all of the FDA-approved

contraceptive methods. See 80 Fed. Reg. 41,318 (July 14, 2015).

Self-certification using HHS Notice was included in the regulations after the

4

Supreme Court’s order in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). 

Wheaton College, a religious organization, challenged the accommodation process,

arguing that completing Form 700 and forwarding the Form to its insurance issuer

made it complicit in the provision of contraceptive coverage in violation of its

religious beliefs. The Supreme Court granted injunctive relief, enjoining the

government from enforcing the contraceptive mandate while the college’s challenge

to the accommodation process was pending, provided that the college inform HHS

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(Aug. 27, 2014); 80 Fed. Reg. 41,318, 41,323 (July 14, 2015); 29 C.F.R. § 2590.715-

2713A(b)(1)(ii)(B). After HHS receives the Notice, it provides the information to

DOL, which sends a separate notification to inform the religious organization’s

insurance issuer or TPA of the organization’s objections to certain coverage. See id.

Once an insurance issuer or TPA receives Form 700 from the religious

organization or the separate notification from DOL it must “provide or arrange

payments for contraceptive services” for beneficiaries of the organization’s group

health plan either by providing those paymentsitself or by arranging for another party

to do so. 29 C.F.R. § 2590.715-2713A(b)(2) (TPA); 45 C.F.R. § 147.131(c)(1)(i)

(insurance issuer). With respect to TPAs, Form 700 or HHS notice also designates

the TPA “plan administrator and claims administrator for contraceptive benefits” for

the religious organization. 78 Fed. Reg. at 39,879;see also 29 C.F.R. § 2510.3-16(b)

(providing that Form 700 becomes “an instrument under which the plan is operated

[and is] treated as a designation of the [TPA] as the plan administrator under section

3(16) of ERISA[, 29 U.S.C. § 1002(33),] for any contraceptive services required to

be covered”); 79 Fed. Reg. at 51,095 (providing that DOL’s notification to the TPA

under HHS Notice also operatesto “designate” the TPA “as plan administrator” under

ERISA for contraceptive benefits). The insurance issuer or TPA must provide

separate notice regarding contraceptive services to participants and beneficiaries

enrolled in the religious organization’s group health plan. 29 C.F.R. § 2590.715-

2713A(b)(2). 

“in writing that it is a nonprofit organization that holds itself out as religious and has

religious objections to providing coverage for contraceptive services.” 134 S. Ct. at

2807. The college was not required to self-certify using Form 700. Id. The Court

also stated, “Nothing in this order precludes the Government from relying on this

notice, to the extent it considers it necessary, to facilitate the provision of full

contraceptive coverage under the” ACA to Wheaton College’s employees and

students. Id. 

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Dordt and Cornerstone, in accordance with their sincerely held religious

beliefs, oppose the use, funding, provision, or support of abortion, and they believe

that certain contraceptives required under the contraceptive mandate—Plan B, ella,

and copper IUDs—are functionally equivalent to abortion. See Burwell v. Hobby

Lobby, 134 S. Ct. 2751, 2762-63 (2104) (noting that these forms of contraceptive

“may have the effect of preventing an already fertilized egg from developing any

further by inhibiting its attachment to the uterus”). They brought suit against the

government, arguing that both the contraceptive mandate and the accommodation

process impose a substantial burden on their exercise of religion in violation of the

Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb-bb4. They

contend that the government is coercing them to violate their religious beliefs by

threatening to impose severe monetary penalties unless they either directly provide

coverage for objectionable contraceptives through their group health plans or

indirectly provide, trigger, and facilitate that objectionable coverage through the

accommodation process. As stated above, the district court granted their request for

a preliminary injunction to enjoin enforcement of the contraceptive mandate and the

accommodation regulations against them. 

The government raises arguments for reversal of the district court’s order that

are substantially similar to those asserted by the government in Sharpe Holdings. 

Specifically, the government argues that the contraceptive mandate and

accommodation process do not substantially burden Dordt and Cornerstone’s exercise

ofreligion, that it has compelling interestsin safeguarding public health and ensuring

equal access to health care for women, and that the contraceptive mandate and

accommodation process are the least restrictive means to further those compelling

interests. For the reasons set forth in Sharpe Holdings, we conclude that by coercing

Dordt and Cornerstone to participate in the contraceptive mandate and

accommodation process under threat ofsevere monetary penalty, the government has

substantially burdened Dordt and Cornerstone’s exercise of religion. Also for the

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reasons set forth in Sharpe Holdings, we conclude that, even assuming that the

government’s interests in safeguarding public health and ensuring equal access to

health care for women are compelling,the contraceptive mandate and accommodation

process likely are not the least restrictive means of furthering those interests. Thus, 5

based on our reasoning in Sharpe Holdings, we affirm the order granting injunctive

relief.

 ______________________________

Dordt and Cornerstone argue that the government’s asserted “compelling

5

interests” are fatally undermined in light of the exemptions to the contraceptive

mandate and accommodation process granted to grandfathered healthcare plans and

religious employers—exemptions that result in thousands of women without access

to contraceptive coverage through their employers’ healthcare plans. Because we

affirm the district court’s grant of injunctive relief on the basis that the government

has failed to establish that the contraceptive mandate and accommodation process are

the least restrictive means to accomplish their stated compelling interests, we decline

to address Dordt and Cornerstone’s assertions regarding the insufficiency of the

government’s compelling interests. See Hobby Lobby, 134 S. Ct. at 2780 (“We will

assume that the interest in guaranteeing cost-free access to the four challenged

contraceptive methods is compelling within the meaning of RFRA . . . .”). 

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