SOTOMAYOR, J., dissenting 

_________________ 

_________________ 

Cite as: 573 U. S. ____ (2014) 1 

Order in Pending Case 

SUPREME COURT OF THE UNITED STATES 

No. 13A1284 

WHEATON COLLEGE v. SYLVIA BURWELL,
 

SECRETARY OF HEALTH AND HUMAN
 

SERVICES, ET AL. 

ON APPLICATION FOR INJUNCTION 

[July 3, 2014] 

The application for an injunction having been submitted

to JUSTICE KAGAN and by her referred to the Court, the 

Court orders: If the applicant informs the Secretary of 

Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and 

has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the 

Patient Protection and Affordable Care Act and related 

regulations pending final disposition of appellate review. 

To meet the condition for injunction pending appeal, the 

applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to 

health insurance issuers or third-party administrators. 

The Circuit Courts have divided on whether to enjoin

the requirement that religious nonprofit organizations use 

EBSA Form 700. Such division is a traditional ground for 

certiorari. See S. Ct. Rule 10(a).

Nothing in this interim order affects the ability of the

applicant’s employees and students to obtain, without cost, 

the full range of FDA approved contraceptives. The Government contends that the applicant’s health insurance

issuer and third-party administrator are required by

federal law to provide full contraceptive coverage regardless whether the applicant completes EBSA Form 700. 
 

2 WHEATON COLLEGE v. BURWELL 

SOTOMAYOR, J., dissenting 

The applicant contends, by contrast, that the obligations of

its health insurance issuer and third-party administrator 

are dependent on their receipt of notice that the applicant

objects to the contraceptive coverage requirement. But 

the applicant has already notified the Government—

without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage 

requirement on religious grounds. Nothing in this order

precludes the Government from relying on this notice, to 

the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.

In light of the foregoing, this order should not be construed as an expression of the Court’s views on the merits. 

JUSTICE SCALIA concurs in the result. 

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG 

and JUSTICE KAGAN join, dissenting. 

The Patient Protection and Affordable Care Act, 124 

Stat. 119, through its implementing regulations, requires

employer group health insurance plans to cover contraceptive services without cost sharing. Recognizing that people of religious faith may sincerely oppose the provision of

contraceptives, the Government has created certain exceptions to this requirement. Churches are categorically 

exempt. Any religious nonprofit is also exempt, as long as

it signs a form certifying that it is a religious nonprofit 

that objects to the provision of contraceptive services, and

provides a copy of that form to its insurance issuer or 

third-party administrator. The form is simple. The front 

asks the applicant to attest to the foregoing representations; the back notifies third-party administrators of their

regulatory obligations.

The matter before us is an application for an emergency 

injunction filed by Wheaton College, a nonprofit liberal

arts college in Illinois. There is no dispute that Wheaton 

is entitled to the religious-nonprofit exemption from the 
 

Cite as: 573 U. S. ____ (2014) 3 

SOTOMAYOR, J., dissenting 

contraceptive coverage requirement. Wheaton nonetheless asserts that the exemption itself impermissibly burdens Wheaton’s free exercise of its religion in violation of

the Religious Freedom Restoration Act of 1993 (RFRA), 

107 Stat. 1488, 42 U. S. C. §2000bb et seq., on the theory

that its filing of a self-certification form will make it complicit in the provision of contraceptives by triggering the

obligation for someone else to provide the services to 

which it objects. Wheaton has not stated a viable claim 

under RFRA. Its claim ignores that the provision of contraceptive coverage is triggered not by its completion of 

the self-certification form, but by federal law.

Even assuming that the accommodation somehow burdens Wheaton’s religious exercise, the accommodation is

permissible under RFRA because it is the least restrictive

means of furthering the Government’s compelling interests in public health and women’s well-being. Indeed, just

earlier this week in Burwell v. Hobby Lobby Stores, Inc., 

ante, at ___, the Court described the accommodation as “a 

system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to 

all [Food and Drug Administration (FDA)]-approved contraceptives as employees of companies whose owners have 

no religious objections to providing such coverage.” Ante, 

at 3. And the Court concluded that the accommodation 

“constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Ibid. Those who are bound by our decisions 

usually believe they can take us at our word. Not so today. After expressly relying on the availability of the

religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to

closely held for-profit corporations, the Court now, as the

dissent in Hobby Lobby feared it might, see ante, at 29–30 

(GINSBURG, J., dissenting), retreats from that position. 
 

4 WHEATON COLLEGE v. BURWELL 

SOTOMAYOR, J., dissenting 

That action evinces disregard for even the newest of this 

Court’s precedents and undermines confidence in this 

institution. 

Even if one accepts Wheaton’s view that the selfcertification procedure violates RFRA, that would not 

justify the Court’s action today. The Court grants

Wheaton a form of relief as rare as it is extreme: an interlocutory injunction under the All Writs Act, 28 U. S. C.

§1651, blocking the operation of a duly enacted law and 

regulations, in a case in which the courts below have not 

yet adjudicated the merits of the applicant’s claims and in 

which those courts have declined requests for similar

injunctive relief. Injunctions of this nature are proper 

only where “the legal rights at issue are indisputably 

clear.” Turner Broadcasting System, Inc. v. FCC, 507 

U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers) 

(internal quotation marks omitted). Yet the Court today

orders this extraordinary relief even though no one could 

credibly claim Wheaton’s right to relief is indisputably

clear. 

The sincerity of Wheaton’s deeply held religious beliefs

is beyond refute. But as a legal matter, Wheaton’s application comes nowhere near the high bar necessary to

warrant an emergency injunction from this Court. For 

that reason, I respectfully dissent. 

I 

A 

The Affordable Care Act requires certain employer

group health insurance plans to cover a number of preventative-health services without cost sharing. These services 

include “[a]ll Food and Drug Administration . . . approved 

contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity, as prescribed by a provider.” 77 Fed. 

Reg. 8725 (2012) (brackets and internal quotation marks 
Cite as: 573 U. S. ____ (2014) 5 

SOTOMAYOR, J., dissenting 

omitted). As a practical matter, the provision ensures that

women have access to contraception at no cost beyond 

their insurance premiums. Employers that do not comply 

with the mandate are subject to civil penalties. 

Recognizing that some religions disapprove of contraceptives, the Government has sought to implement the 

mandate in a manner consistent with the freedom of 

conscience. It has categorically exempted any group

health plan of a “religious employer,” as defined by reference to the Tax Code provision governing churches. See 

45 CFR §147.131(a); http://hrsa.gov/womensguidelines (as 

visited July 2, 2014, and available in Clerk of Court’s case

file). And it has extended a further accommodation to 

religious nonprofits that do not satisfy the categorical 

exemption. All agree that Wheaton qualifies as a religious 

nonprofit.

To invoke the accommodation and avoid civil penalties,

a religious nonprofit need only file a self-certification form

stating (1) that it “opposes providing coverage for some or

all of any contraceptive services required to be covered

under [the regulation] on account of religious objections,”

(2) that it “is organized and operates as a nonprofit entity,” and (3) that it “holds itself out as a religious organization.” §147.131(b). The form is reprinted in an appendix 

to this opinion. Any organization that completes the form

and provides a copy to its insurance issuer or third-party

administrator1 need not “contract, arrange, pay, or refer 

for contraceptive coverage” to which it objects. 78 Fed. 

Reg. 39874 (2013); see 29 CFR §2590.715–2713A(b)(1) and 

(c)(1). Instead, the insurance issuer or third-party admin-

—————— 

1Typically, an employer contracts to pay a health insurer to provide 

coverage; the insurer both covers the cost of medical claims and manages the process for administering those claims. Employers who

maintain self-insured plans cover the cost of claims for medical treatment directly. Such employers often contract with third-party administrators to administer the claims process. 
 

 

 

6 WHEATON COLLEGE v. BURWELL 

SOTOMAYOR, J., dissenting 

istrator must provide contraceptive coverage for the organization’s employees and may not charge the organization 

any premium or other fee related to those services. The

back of the self-certification form reminds third-party 

administrators that receipt of the form constitutes notice 

that they must comply with their regulatory obligations.

See Appendix, infra. 

B 

Rather than availing itself of this simple accommodation, Wheaton filed suit, asserting that completing the 

form and submitting it to its third-party administrator 

would make it complicit in the provision of contraceptive 

coverage, in violation of its religious beliefs. On that 

basis, it sought a preliminary injunction, claiming that the 

law and regulations at issue violate RFRA, which provides 

that the Government may not “substantially burden a

person’s exercise of religion” unless the application of that 

burden “is the least restrictive means of furthering [a]

compelling governmental interest.” 42 U. S. C. §§2000bb– 

1(a) and (b).2 

The District Court denied a preliminary injunction on

the ground that the regulations exempting Wheaton from 

the contraceptive coverage requirement do not substantially burden its exercise of religion. App. to Emergency

Application for Injunction Pending Appellate Review 1–20.

Under Circuit precedent, the court reasoned, Wheaton’s 

act of “filling out the form and sending it to the [thirdparty administrator]” in no way “triggers” coverage of 

contraception costs. Id., at 9 (internal quotation marks

omitted). The Seventh Circuit in turn denied Wheaton’s 

motion for an injunction pending appeal. See Order in No. 

14–2396 (CA7, June 30, 2014). In doing so, it relied on 

—————— 

2Wheaton also raised claims under the First Amendment and the 

Administrative Procedure Act. Because it does not press those claims

in this Court as a basis for injunctive relief, I do not discuss them. 
 

Cite as: 573 U. S. ____ (2014) 7 

SOTOMAYOR, J., dissenting 

this Court’s pronouncement in Hobby Lobby “that the 

accommodation provision (applicable in this case) ‘constitutes an alternative that achieves all of the Government’s 

aims while providing greater respect for religious liberty.’” 

Ibid. 

Wheaton applied to JUSTICE KAGAN, in her capacity as

Circuit Justice for the Seventh Circuit, for an emergency

injunction against enforcement of the law and regulations

pending resolution of its legal challenge. She referred the 

matter to the Conference, which entered a temporary 

injunction and called for a response from the Government.

See ante, at ___. After receipt of the Government’s response, the Court today enters an order granting injunctive relief. 

II
 

A 

I disagree strongly with what the Court has done. 

Wheaton asks us to enjoin the enforcement of a duly enacted law and duly promulgated regulations before the

courts below have passed on the merits of its legal challenge. Relief of this nature is extraordinary and reserved

for the rarest of cases. With good reason. The only source

of authority for this Court to issue an injunction pending

review in the lower courts is the All Writs Act, which 

provides that this Court “may issue all writs necessary or

appropriate in aid of [its] . . . jurisdictio[n] and agreeable 

to the usages and principles of law.” 28 U. S. C. §1651(a). 

This grant of equitable power is a failsafe, “to be used 

‘sparingly and only in the most critical and exigent circumstances.’” Ohio Citizens for Responsible Energy, 

Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (SCALIA, J., in 

chambers).

Under our precedents, “[a]n injunction is appropriate

only if (1) it is necessary or appropriate in aid of our jurisdiction, and (2) the legal rights at issue are indisputably 
 

8 WHEATON COLLEGE v. BURWELL 

SOTOMAYOR, J., dissenting 

clear.” Turner Broadcasting System, 507 U. S., at 1303 

(brackets, internal quotation marks, and citations omitted).3 To understand how high a bar that second prong is,

consider that this Court has previously pointed to differences of opinion among lower courts as proof positive that 

the standard has not been met. See Lux v. Rodrigues, 561 

U. S. 1306, 1308 (2010) (ROBERTS, C. J., in chambers) 

(observing that “the courts of appeals appear to be reaching divergent results” respecting the applicant’s claim, and

that, “[a]ccordingly, . . . it cannot be said that his right to

relief is ‘indisputably clear’”). Neutral application of this

principle would compel the denial of Wheaton’s application 

without any need to examine the merits, for two Courts of

Appeals that have addressed similar claims have rejected 

them. See Notre Dame v. Sebelius, 743 F. 3d 547 (CA7

2014); Michigan Catholic Conference and Catholic Family 

Services v. Burwell, ___ F. 3d ___, 2014 WL 2596753 (CA6, 

June 11, 2014).4 Remarkably, the Court uses division 

—————— 

3 Indeed, some of my colleagues who act to grant relief in this case

have themselves emphasized the exceedingly high burden that an 

applicant must surmount to obtain an interlocutory injunction under

the All Writs Act. See Lux v. Rodrigues, 561 U. S. 1306, 1307 (2010) 

(ROBERTS, C. J., in chambers) (an applicant must demonstrate that “the

legal rights at issue are indisputably clear” in order to obtain such

injunctive relief) (internal quotation marks omitted); Respect Maine 

PAC v. McKee, 562 U. S. ___, ___ (2010) (unlike a stay of a lower court’s

order, a request for an injunction against the enforcement of a law 

“ ‘does not simply suspend judicial alteration of the status quo but 

grants judicial intervention that has been withheld by lower courts’ ”)

(quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 

1312, 1313 (1986) (SCALIA, J., in chambers)). 4To be sure, two other Courts of Appeals have recently granted temporary injunctions similar to the one Wheaton seeks here. See Order in 

Eternal Word Television Network, Inc. v. Secretary, U. S. Dept. of 

Health and Human Services, No. 14–12696–CC (CA11, June 30, 2014) 

(granting injunction pending appeal); Order in Diocese of Cheyenne v. 

Burwell, No. 14–8040 (CA10, June 30, 2014) (same). Although denying

the injunction in this case would produce a different outcome, the 

Government could of course move to vacate those injunctions were we 
Cite as: 573 U. S. ____ (2014) 9 

SOTOMAYOR, J., dissenting 

among the Circuits as a justification for the issuance of its 

order, noting that “division is a traditional ground for 

certiorari.” Supra, at 1. But a petition for writ of certiorari is not before us. Rather, given the posture of this application—for an emergency injunction under the All Writs 

Act—division of authority is reason not to grant relief. 

B 

Wheaton’s RFRA claim plainly does not satisfy our 

demanding standard for the extraordinary relief it seeks.

For one thing, the merits of this case are not before this 

Court for full review; adjudication of the merits is still 

pending in the District Court. So nothing necessitates 

intervention in order to “‘aid . . . our jurisdiction,’” Turner 

Broadcasting System, 507 U. S., at 1301 (alterations omitted), over any eventual certiorari petition from a decision 

rendered below. If the Government is allowed to enforce 

the law, either Wheaton will file the self-certification form, 

or it will not. Either way, there will remain a live controversy that this Court could adjudicate after the case is

decided on the merits below. And either way, if Wheaton 

is correct in its challenge to the law, its rights will be

vindicated and it will obtain the relief it seeks. 

As to the merits, Wheaton’s claim is likely to fail under

any standard, let alone the standard that its entitlement 

to relief be “‘indisputably clear,’” ibid. Wheaton asserts 

that filing the self-certification form might ultimately

result in the provision of contraceptive services to its

employees, thereby burdening its religious exercise. And 

it points out that if it does not file the form, it will face 

civil penalties. But it is difficult to understand how these 

arguments make out a viable RFRA claim. 

RFRA requires Wheaton to show that the accommoda-

—————— 

to deny this one. Moreover, while uniformity certainly is important,

uniform error is not. 
 

 

 

 

10 WHEATON COLLEGE v. BURWELL 

SOTOMAYOR, J., dissenting 

tion process “substantially burden[s] [its] exercise of religion.” §2000bb–1(a). “Congress no doubt meant the modifier ‘substantially’ to carry weight.” Hobby Lobby, 573 

U. S., at ___ (GINSBURG, J., dissenting) (slip op., at 20).

Wheaton, for religious reasons, categorically opposes the

provision of contraceptive services. The Government has 

given it a simple means to opt out of the contraceptive 

coverage mandate—and thus avoid any civil penalties for 

failing to provide contraceptive services—and a simple

means to tell its third-party administrator of its claimed 

exemption.

Yet Wheaton maintains that taking these steps to avail

itself of the accommodation would substantially burden its

religious exercise. Wheaton is “religiously opposed to

emergency contraceptives because they may act by killing 

a human embryo.” Emergency Application for Injunction

Pending Appellate Review 11. And it “believes that authorizing its [third-party administrator] to provide these 

drugs in [its] place makes it complicit in grave moral evil.” 

Ibid. Wheaton is mistaken—not as a matter of religious 

faith, in which it is undoubtedly sincere, but as a matter of

law: Not every sincerely felt “burden” is a “substantial” 

one, and it is for courts, not litigants, to identify which 

are. See Hobby Lobby, 573 U. S., at ___ (GINSBURG, J., 

dissenting) (slip op., at 21–22). Any provision of contraceptive coverage by Wheaton’s third-party administrator

would not result from any action by Wheaton; rather, in

every meaningful sense, it would result from the relevant 

law and regulations. The law and regulations require, in 

essence, that some entity provide contraceptive coverage. 

A religious nonprofit’s choice not to be that entity may 

leave someone else obligated to provide coverage instead—

but the obligation is created by the contraceptive coverage

mandate imposed by law, not by the religious nonprofit’s 
 

Cite as: 573 U. S. ____ (2014) 11 

SOTOMAYOR, J., dissenting 

choice to opt out of it.5 

Let me be absolutely clear: I do not doubt that Wheaton

genuinely believes that signing the self-certification form

is contrary to its religious beliefs. But thinking one’s 

religious beliefs are substantially burdened—no matter 

how sincere or genuine that belief may be—does not make

it so. 

An analogy used by the Seventh Circuit may help to

explain why Wheaton’s complicity theory cannot be legally 

sound: 

“Suppose it is wartime, there is a draft, and a Quaker

is called up. Many Quakers are pacifists, and their

pacifism is a tenet of their religion. Suppose the 

Quaker who’s been called up tells the selective service 

system that he’s a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective 

service office, he’s told: ‘you know this means we’ll 

have to draft someone in place of you’—and the Quaker 

replies indignantly that if the government does

that, it will be violating his religious beliefs. Because 

his religion teaches that no one should bear arms, 

drafting another person in his place would make him 

responsible for the military activities of his replacement, and by doing so would substantially burden his 

own sincere religious beliefs. Would this mean that 

by exempting him the government had forced him to 

—————— 

5Wheaton notes that the back of the self-certification form provides 

third-party administrators with notice of their regulatory obligations.

See Emergency Application for Injunction Pending Appellate Review 8;

see also Appendix, infra. That notice is merely an instruction to thirdparty administrators; it is not a part of any of the representations

required on the front of the form. No statement to which Wheaton 

must assent in any way reflects agreement with or endorsement of the 

notice. 
 

 

 

12 WHEATON COLLEGE v. BURWELL 

SOTOMAYOR, J., dissenting 

‘trigger’ the drafting of a replacement who was not a

conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption 

for both the Quaker and his non‐Quaker replacement?” Notre Dame, 743 F. 3d, at 556. 

Here, similarly, the filing of the self-certification form 

merely indicates to the third-party administrator that a

religious nonprofit has chosen to invoke the religious

accommodation. If a religious nonprofit chooses not to pay

for contraceptive services, it is true that someone else may 

have a legal obligation to pay for them, just as someone

may have to go to war in place of the conscientious objector. But the obligation to provide contraceptive services, 

like the obligation to serve in the Armed Forces, arises not 

from the filing of the form but from the underlying law 

and regulations.

It may be that what troubles Wheaton is that it must 

participate in any process the end result of which might be 

the provision of contraceptives to its employees. But that 

is far from a substantial burden on its free exercise of 

religion.

Even if one were to conclude that Wheaton meets the 

substantial burden requirement, the Government has 

shown that application of the burden is “the least restrictive means” to further a “compelling governmental interest,” §2000bb–1(b)(2). The contraceptive coverage requirement plainly furthers compelling interests in public

health and women’s well-being. See Hobby Lobby, ante, at 

2 (KENNEDY, J. concurring). And it is the “least restrictive 

means” of furthering those interests. Indeed, as justification for its decision in Hobby Lobby—issued just this

week—the very Members of the Court that now vote to

grant injunctive relief concluded that the accommodation 

“constitutes an alternative that achieves all of the Government’s aims while providing greater respect for reli-
 

 

Cite as: 573 U. S. ____ (2014) 13 

SOTOMAYOR, J., dissenting 

gious liberty.” Ante, at 3 (majority opinion); see also ante, 

at 4 (“The effect of the [Dept. of Health and Human Services (HHS)]-created accommodation on the women employed by Hobby Lobby and the other companies involved 

in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all 

FDA-approved contraceptives without cost sharing”); ante, 

at 44 (“At a minimum . . . [the accommodation] does not

impinge on the plaintiffs’ religious belief that providing 

insurance coverage for the contraceptives at issue here 

violates their religion, and it serves HHS’s stated interests 

equally well”); see also ante, at 4 (KENNEDY, J., concurring) (“[I]t is the Court’s understanding that an accommodation may be made to the employers without imposition 

of a whole new program or burden on the Government. As 

the Court makes clear, this is not a case where it can be 

established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is

already in place”). Today’s grant of injunctive relief simply does not square with the Court’s reasoning in Hobby 

Lobby. 

It should by now be clear just how far the Court has

strayed in granting Wheaton an interlocutory injunction

against the enforcement of the law and regulations before

the courts below have adjudicated Wheaton’s RFRA claim.

To warrant an injunction under the All Writs Act, the 

Court must have more than a bare desire to suspend the 

existing state of affairs; Wheaton’s entitlement to relief

must be indisputably clear. While Wheaton’s religious

conviction is undoubtedly entitled to respect, it does not

come close to affording a basis for relief under the law. 

C 

The Court’s approach imposes an unwarranted and 

unprecedented burden on the Government’s ability to

administer an important regulatory scheme. The Execu-
 

 

14 WHEATON COLLEGE v. BURWELL 

SOTOMAYOR, J., dissenting 

tive is tasked with enforcing Congress’ mandate that 

preventative care be available to citizens at no cost beyond

that of insurance. In providing the accommodation for

which Wheaton is eligible, the Government has done a 

salutary thing: exempt religious organizations from a 

requirement that might otherwise burden them. Wheaton 

objects, however, to the minimally burdensome paperwork 

necessary for the Government to administer this accommodation. If the Government cannot require organizations to attest to their views by way of a simple

self-certification form and notify their third-party administrators of their claimed exemption, how can it ever identify the organizations eligible for the accommodation and 

perform the administrative tasks necessary to make the 

accommodation work? The self-certification form is the 

least intrusive way for the Government to administer the

accommodation. All that a religious organization must do

is attest to the views that it holds and notify its thirdparty administrator that it is exempt. The Government 

rightly accepts that attestation at face value; it does not 

question whether an organization’s views are sincere. It is 

not at all clear to me how the Government could administer the religious nonprofit accommodation if Wheaton 

were to prevail.

The Court has different ideas, however. Stepping into

the shoes of HHS, the Court sets out to craft a new administrative regime. Its order grants injunctive relief so long 

as Wheaton “informs the Secretary of Health and Human 

Services 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.” Supra, at 

1. And it goes further—“[t]o meet the condition for injunction pending appeal,” the Court continues, Wheaton “need 

not use the [self-certification] form prescribed by the

Government . . . and need not send copies to health insurance issuers or third-party administrators.” Ibid. This 
Cite as: 573 U. S. ____ (2014) 15 

SOTOMAYOR, J., dissenting 

Court has no business rewriting administrative regulations. Yet, without pause, the Court essentially does just 

that.6 

It is unclear why the Court goes to the lengths it does to

rewrite HHS’s regulations. Presumably the Court intends

to leave to the agency the task of forwarding whatever

notification it receives to the respective insurer or thirdparty administrator. But the Court does not even require

the religious nonprofit to identify its third-party administrator, and it neglects to explain how HHS is to identify

that entity. Of course, HHS is aware of Wheaton’s thirdparty administrator in this case. But what about other 

cases? Does the Court intend for HHS to rely on the filing

of lawsuits by every entity claiming an exemption, such

that the identity of the third-party administrator will

emerge in the pleadings or in discovery? Is HHS to undertake the daunting—if not impossible—task of creating a

database that tracks every employer’s insurer or third-

—————— 

6This case is crucially unlike Little Sisters of the Poor v. Sebelius, 571 

U. S. ___ (2014). There, the Court issued a comparable order “based on

all the circumstances of the case”—in particular, the fact that the 

applicants’ third-party administrator was a “church plan” that had no

legal obligation or intention to provide contraceptive coverage. See 

Little Sisters of the Poor v. Sebelius, 2013 WL 6839900, *10–*11, *13 (D 

Colo., Dec. 27, 2013). As a consequence, whatever the merits of that

unusual order, it did not affect any individual’s access to contraceptive 

coverage. Not so here. Wheaton’s third-party administrator bears the 

legal obligation to provide contraceptive coverage only upon receipt of a 

valid self-certification. See 26 CFR §54.9815–2713A(b)(2) (2013); 29

CFR §2510.3–16(b) (2013). Today’s injunction thus risks depriving

hundreds of Wheaton’s employees and students of their legal entitlement to contraceptive coverage. In addition, because Wheaton is 

materially indistinguishable from other nonprofits that object to the

Government’s accommodation, the issuance of an injunction in this case

will presumably entitle hundreds or thousands of other objectors to the 

same remedy. The Court has no reason to think that the administrative scheme it foists on the Government today is workable or effective

on a national scale. 
 

 

16 WHEATON COLLEGE v. BURWELL 

SOTOMAYOR, J., dissenting 

party administrator nationwide? And, putting that aside,

why wouldn’t Wheaton’s claim be exactly the same under 

the Court’s newly-fashioned system? Either way, the end 

result will be that a third-party administrator will provide 

contraceptive coverage. Surely the Court and Wheaton 

are not just objecting to the use of one stamp instead of 

two in order to avail itself of the accommodation. 

The Court’s actions in this case create unnecessary costs

and layers of bureaucracy, and they ignore a simple truth:

The Government must be allowed to handle the basic 

tasks of public administration in a manner that comports

with common sense. It is not the business of this Court to 

ensnare itself in the Government’s ministerial handling of

its affairs in the manner it does here. 

* * * 

I have deep respect for religious faith, for the important

and selfless work performed by religious organizations, 

and for the values of pluralism protected by RFRA and the 

Free Exercise Clause. But the Court’s grant of an injunction in this case allows Wheaton’s beliefs about the effects 

of its actions to trump the democratic interest in allowing

the Government to enforce the law. In granting an injunction concerning this religious nonprofit accommodation,

the availability of which served as the premise for the 

Court’s decision in Hobby Lobby, the Court cannot possibly

be applying our longstanding requirement that a party’s 

entitlement to relief be indisputably clear. 

Our jurisprudence has over the years drawn a careful

boundary between majoritarian democracy and the right

of every American to practice his or her religion freely. 

We should not use the extraordinary vehicle of an injunction under the All Writs Act to work so fundamental a 

shift in that boundary. Because Wheaton cannot justify

the relief it seeks, I would deny its application for an

injunction, and I respectfully dissent from the Court’s 

refusal to do so. 
SOTOMAYOR, J., dissenting 

 

Cite as: 573 U. S. ____ (2014) 17 

Appendix to opinion of SOTOMAYOR, J., dissenting 

APPENDIX7

—————— 

7 Source: United States Dept. of Labor, online at http://www.dol.gov/

ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf (as 

visited July 2, 2014, and available in Clerk of Court’s case file). 
 

SOTOMAYOR, J., dissenting 

18 WHEATON COLLEGE v. BURWELL 

Appendix to opinion of SOTOMAYOR, J., dissenting