- i - 

PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

LITTLE SISTERS OF THE POOR HOME 

FOR THE AGED, DENVER, COLORADO, 

a Colorado non-profit corporation; LITTLE 

SISTERS OF THE POOR, BALTIMORE, 

INC., a Maryland non-profit corporation, by 

themselves and on behalf of all others 

similarly situated; CHRISTIAN BROTHERS 

SERVICES, a New Mexico non-profit 

corporation; CHRISTIAN BROTHERS 

EMPLOYEE BENEFIT TRUST, 

 Plaintiffs - Appellants, 

v. 

SYLVIA MATHEWS BURWELL, Secretary 

of the United States Department of Health and 

Human Services; UNITED STATES 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES; THOMAS E. PEREZ, Secretary 

of the United States Department of Labor; 

UNITED STATES DEPARTMENT OF 

LABOR; JACOB J. LEW, Secretary of the 

United States Department of the Treasury; 

UNITED STATES DEPARTMENT OF THE 

TREASURY, 

Defendants - Appellees. 

––––––––––––––––––––––––––––––––––– 

SOUTHERN NAZARENE UNIVERSITY; 

OKLAHOMA WESLEYAN UNIVERSITY; 

OKLAHOMA BAPTIST UNIVERSITY; 

MID-AMERICA CHRISTIAN 

UNIVERSITY; REACHING SOULS 

INTERNATIONAL, INC., an Oklahoma not 

No. 13-1540 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 14, 2015

Elisabeth A. Shumaker 

Clerk of Court
- ii - 

for profit corporation; TRUETTMCCONNELL COLLEGE, INC., a Georgia 

nonprofit corporation, by themselves and on 

behalf of all others similarly situated; 

GUIDESTONE FINANCIAL RESOURCES 

OF THE SOUTHERN BAPTIST 

CONVENTION, a Texas nonprofit 

corporation, 

Plaintiffs - Appellees. 

v. 

SYLVIA MATHEWS BURWELL, Secretary 

of the United States Department of Health and 

Human Services; UNITED STATES 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES; THOMAS E. PEREZ, Secretary 

of the United States Department of Labor; 

UNITED STATES DEPARTMENT OF 

LABOR; JACOB J. LEW, Secretary of the 

United States Department of the Treasury; 

UNITED STATES DEPARTMENT OF THE 

TREASURY, 

Defendants - Appellants. 

------------------------------ 

67 CATHOLIC THEOLOGIANS AND 

ETHICISTS; ALABAMA PHYSICIANS 

FOR LIFE; AMERICAN ASSOCIATION 

OF PRO-LIFE OBSTETRICIANS & 

GYNECOLOGISTS; AMERICAN 

ASSOCIATION OF UNIVERSITY 

WOMEN; AMERICAN BIBLE SOCIETY; 

AMERICAN CENTER FOR LAW AND 

JUSTICE; AMERICAN CIVIL LIBERTIES 

UNION OF COLORADO; AMERICAN 

CIVIL LIBERTIES UNION OF 

OKLAHOMA; AMERICAN CIVIL 

LIBERTIES UNION; AMERICAN 

FEDERATION OF STATE, COUNTY AND 

MUNICIPAL EMPLOYEES (AFSCME); 

Nos. 14-6026 & 14-6028 
- iii - 

AMERICAN PUBLIC HEALTH 

ASSOCIATION; AMERICANS UNITED 

FOR SEPARATION OF CHURCH AND 

STATE; ASIAN & PACIFIC ISLANDER 

AMERICAN HEALTH FORUM; ASIAN 

AMERICANS ADVANCING JUSTICE | 

AAJC; ASIAN AMERICANS ADVANCING 

JUSTICE | LOS ANGELES; ASSOCIATION 

OF AMERICAN PHYSICIANS & 

SURGEONS; ASSOCIATION OF 

CHRISTIAN SCHOOLS 

INTERNATIONAL; ASSOCIATION OF 

GOSPEL RESCUE MISSIONS; BLACK 

WOMEN'S HEALTH IMPERATIVE; 

CALIFORNIA WOMEN'S LAW CENTER, 

NATIONAL WOMEN'S LAW CENTER; 

CALIFORNIA WOMEN'S LAW CENTER; 

CATHOLIC MEDICAL ASSOCIATION; 

CHRISTIAN LEGAL SOCIETY; 

CHRISTIAN MEDICAL ASSOCIATION; 

CHRISTIE'S PLACE; CONCERNED 

WOMEN FOR AMERICA; DR. R. ALBERT 

MOHLER, JR.; ETHICS & RELIGIOUS 

LIBERTY COMMISSION OF THE 

SOUTHERN BAPTIST CONVENTION; 

FEMINIST MAJORITY FOUNDATION; 

FORWARD TOGETHER; HIV LAW 

PROJECT; IBIS REPRODUCTIVE 

HEALTH; INSTITUTIONAL RELIGIOUS 

FREEDOM ALLIANCE AND CHRISTIAN 

LEGAL SOCIETY; INTERNATIONAL 

MISSION BOARD OF THE SOUTHERN 

BAPTIST CONVENTION; IPAS; LEGAL 

MOMENTUM; LIBERTY COUNSEL; 

LIBERTY UNIVERSITY; LIBERTY, LIFE, 

AND LAW FOUNDATION; LUTHERAN 

CHURCH - MISSOURI SYNOD; MERGER 

WATCH; NARAL PRO-CHOICE 

AMERICA; NARAL PRO-CHOICE 

COLORADO; NARAL PRO-CHOICE 

WYOMING; NATIONAL ASIAN PACIFIC 

AMERICAN WOMEN'S FORUM; 
- iv - 

NATIONAL ASSOCIATION OF 

CATHOLIC NURSES; NATIONAL 

ASSOCIATION OF EVANGELICALS; 

NATIONAL ASSOCIATION OF PRO LIFE 

NURSES; NATIONAL CATHOLIC 

BIOETHICS CENTER; NATIONAL 

FAMILY PLANNING & REPRODUCTIVE 

HEALTH ASSOCIATION; NATIONAL 

HEALTH LAW PROGRAM; NATIONAL 

LATINA INSTITUTE FOR 

REPRODUCTIVE HEALTH; NATIONAL 

ORGANIZATION FOR WOMEN (NOW) 

FOUNDATION; NATIONAL 

PARTNERSHIP FOR WOMEN AND 

FAMILIES; NATIONAL WOMEN AND 

AIDS COLLECTIVE; NATIONAL 

WOMEN'S HEALTH NETWORK; 

NATIONAL WOMEN'S LAW CENTER; 

PLANNED PARENTHOOD 

ASSOCIATION OF UTAH; PLANNED 

PARENTHOOD OF KANSAS AND MIDMISSOURI; PLANNED PARENTHOOD OF 

THE HEARTLAND; PLANNED 

PARENTHOOD OF THE ROCKY 

MOUNTAINS, INC.; POPULATION 

CONNECTION; PRISON FELLOWSHIP 

MINISTRIES; RAISING WOMEN'S 

VOICES FOR THE HEALTH CARE WE 

NEED; SERVICE EMPLOYEES 

INTERNATIONAL UNION (SEIU); 

SEXUALITY INFORMATION AND 

EDUCATION COUNCIL OF THE U.S. 

(SIECUS); SOUTHERN BAPTIST 

THEOLOGICAL SEMINARY; UNITED 

STATES CONFERENCE OF CATHOLIC 

BISHOPS, 

 Amici Curiae. 

_________________________________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO (D.C. No. 1:13-CV-02611-WJM-BNB) & 
- v - 

THE UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF OKLAHOMA 

(D.C. Nos. 5:13-CV-01015-F & 5:13-CV-01092-D)

_________________________________ 

Mark L. Rienzi, Becket Fund for Religious Liberty, Washington, DC (Daniel Blomberg 

and AdPle Auxier Keim, Becket Fund for Religious Liberty, Washington, DC; Carl C. 

Scherz and Seth Roberts, Locke Lord LLP, Dallas, Texas; and Kevin C. Walsh, 

University of Richmond Law School, Richmond, Virginia, with him on the briefs), 

appearing for Little Sisters of the Poor Home for the Aged, Little Sisters of the Poor, 

Baltimore, Inc., Christian Brothers Services, Christian Brothers Employee Benefit Trust, 

Reaching Souls International, Inc., Truett-McConnell College, Inc., and GuideStone 

Financial Resources of the Southern Baptist Convention. 

Adam C. Jed, Attorney, Appellate Staff, Civil Division (Stuart F. Delery, Assistant 

Attorney General; Sanford C. Coats and John F. Walsh, United States Attorneys; Beth S. 

Brinkmann, Deputy Assistant Attorney General; Mark B. Stern, Alisa B. Klein, Patrick 

G. Nemeroff, and Megan Barbero, Attorneys, Appellate Staff Civil Division, with him on 

the briefs), United States Department of Justice, Washington, DC, appearing for Sylvia 

Mathews Burwell, United States Department of Health and Human Services, Thomas E. 

Perez, Jacob J. Lew, and United States Department of the Treasury. 

Gregory S. Baylor, Alliance Defending Freedom, Washington, DC (Matthew W. 

Bowman, Alliance Defending Freedom, Washington, DC, David A. Cortman, Alliance 

Defending Freedom, Lawrenceville, Georgia, and Kevin H. Theriot, Alliance Defending 

Freedom, Leawood, Kansas, with him on the briefs), appearing for Southern Nazarene 

University, Oklahoma Wesleyan University, Oklahoma Baptist University, and MidAmerica Christian University. 

_________________________________ 

Before MATHESON, McKAY, and BALDOCK, Circuit Judges. 

_________________________________ 

MATHESON, Circuit Judge. 

_________________________________ 

TABLE OF CONTENTS 

Glossary ........................................................................................................................................ vii

I. Introduction .......................................................................................................................... 1
- vi - 

II. Hobby Lobby and this case .................................................................................................. 3

III. Background .......................................................................................................................... 4

A. Regulatory Background ................................................................................................ 4

1. The ACA Mandate and the Religious Employer Exemption ............................................... 4

2. The Accommodation Scheme for Religious Non-Profit Organizations .............................. 7

a. EBSA Form 700 ................................................................................................................... 9

b. Alternative notice ............................................................................................................... 11

3. The Mechanics of the Accommodation for Insured Plans, Self-Insured Plans, and SelfInsured Church Plans .............................................................................................................. 13

a. Insured plans ...................................................................................................................... 14

b. Self-insured plans ............................................................................................................... 15

c. Self-insured church plans .................................................................................................. 17

d. Legal obligation to provide coverage after the accommodation ....................................... 17

B. The Plaintiffs .............................................................................................................. 18

1. Little Sisters of the Poor .................................................................................................... 18

2. Southern Nazarene ............................................................................................................. 20

3. Reaching Souls ................................................................................................................... 22

C. Procedural History ...................................................................................................... 23

1. Little Sisters of the Poor .................................................................................................... 23

2. Southern Nazarene ............................................................................................................. 25

3. Reaching Souls ................................................................................................................... 26

IV. Unusual Nature of Plaintiffs’ Claim .................................................................................. 27

V. RFRA ................................................................................................................................. 30

A. Legal Background....................................................................................................... 33

1. Standard of Review ............................................................................................................ 33

2. RFRA and Free Exercise ................................................................................................... 34

3. Elements of RFRA Analysis .............................................................................................. 35

4. Courts Determine Substantial Burden ............................................................................... 36

5. Accommodations Can Lessen or Eliminate Burden .......................................................... 40

B. Substantial Burden Analysis ....................................................................................... 41

1. Plaintiffs’ RFRA Arguments ............................................................................................. 41

2. The Accommodation Scheme Eliminates Burdens on Religious Exercise ....................... 43

3. The Accommodation Scheme Does Not Impose a Substantial Burden ............................. 45

a. Opting out does not cause contraceptive coverage. .......................................................... 45
- vii - 

b. No substantial burden from complicity .............................................................................. 66

c. No burden from ongoing requirements .............................................................................. 72

C. Strict Scrutiny ............................................................................................................. 75

D. Conclusion .................................................................................................................. 75

VI. First Amendment ............................................................................................................... 75

A. Free Exercise Clause .................................................................................................. 77

1. Legal Background .............................................................................................................. 78

2. The Mandate and Accommodation Scheme are Neutral ................................................... 79

3. The Mandate and Accommodation Scheme are Generally Applicable ............................. 79

4. The Mandate and Accommodation Scheme Have a Rational Basis .................................. 81

B. Establishment Clause .................................................................................................. 83

1. Organizational Distinctions Well-Established in Federal Law .......................................... 83

2. Organizational Distinctions and Respecting the Religion Clauses .................................... 85

3. Organizational Distinctions Compatible with Larson and Colorado Christian ................ 86

4. Plaintiffs’ Argument Based on the Departments’ Rationale .............................................. 88

C. Free Speech Clause ..................................................................................................... 90

1. Compelled Speech ............................................................................................................. 91

2. Compelled Silence ............................................................................................................. 95

VII. Conclusion ......................................................................................................................... 95

GLOSSARY 

This opinion is heavily laden with terms from the applicable statute and 

regulations, types of health insurance arrangements, and names of numerous entities. We 

appreciate the challenge this presents to the reader and provide this glossary to help 

navigate the opinion.

Legal and Regulatory Terms: 

ACA: The Affordable Care Act, which encompasses the Patient Protection and 

Affordable Care Act, enacted on March 23, 2010, and the Health Care and Education 

Reconciliation Act, enacted on March 30, 2010. 

Accommodation scheme: A regulatory mechanism that allows religious non-profit 

organizations to relieve themselves of their obligation to provide contraceptive 
- viii - 

coverage for employees by either (a) sending a form to their health insurance issuer or 

third-party administrator or (b) sending a notification to the Department of Health and 

Human Services. 

ANPRM: Advance Notice of Proposed Rulemaking, which an administrative agency 

may issue to notify the public it is contemplating rulemaking and to invite comments. 

Departments: The Department of Health and Human Services, Department of Labor, and 

Department of the Treasury, which collectively implement the ACA. 

EBSA: The Employee Benefits Security Administration, an agency within the 

Department of Labor. 

ERISA: The Employee Retirement Income Security Act, codified at 29 U.S.C. § 1001 et 

seq., which is a federal law that sets minimum standards for certain employersponsored benefit plans. 

Form 700: A standardized notification that religious non-profit organizations may send 

to their health insurance issuer or third party administrator under the accommodation 

scheme to self-certify they object to providing contraceptive coverage. 

HHS: The Department of Health and Human Services, which is one of the three 

departments tasked with implementing the ACA and contraceptive coverage 

requirement. 

HRSA: The Health Resources and Services Administration, an agency within HHS, 

which issued guidelines requiring coverage of all FDA-approved contraceptive 

methods under the ACA. 

IOM: The Institute of Medicine, an independent body that reviewed evidence on 

women’s preventive services and issued a report used by the HRSA in formulating its 

guidelines. 

IRC: The Internal Revenue Code, codified at 26 U.S.C. § 1 et seq., which is a 

comprehensive compilation of the federal tax laws. 

Mandate: Regulations enacted under the ACA requiring employer-sponsored group 

health plans to cover contraceptive services for women as a form of preventive care. 

RFRA: The Religious Freedom Restoration Act, codified at 42 U.S.C. § 2000bb-1 et seq., 

which states that laws that substantially burden a person’s exercise of religion are 

only permissible if they are the least restrictive means of furthering a compelling 

governmental interest. 
- ix - 

RLUIPA: The Religious Land Use and Institutionalized Persons Act, codified at 42 

U.S.C. § 2000cc et seq., which states that laws that substantially burden religious 

exercise through land use restrictions or restrictions on prisoners are only permissible 

if they are the least restrictive means of furthering a compelling governmental 

interest. 

Religious employers: As defined by reference to §§ 6033(a)(3)(A)(i) or (iii) of the IRC, 

employers that are organized and operate as non-profit entities and are churches, their 

integrated auxiliaries, conventions or associations of churches, or the exclusively 

religious activities of any religious order. 

Religious non-profit organizations: Organizations that do not qualify as religious 

employers but are eligible for an accommodation from the contraceptive coverage 

requirement because they have religious objections to providing contraceptive 

coverage, are organized and operate as non-profit entities, hold themselves out as 

religious organizations, and self-certify that they satisfy these criteria. The Plaintiffs 

in these cases are religious non-profit organizations. 

Health Insurance Terms:

Group health plan: A benefit plan established or maintained by an employer that 

provides health insurance to employees and their dependents either directly—a selfinsured group health plan—or through a health insurance issuer—an insured group 

health plan. 

Health insurance issuer: A health insurance company, service, or organization that must 

be licensed to engage in the insurance business and is subject to state laws regulating 

insurance. 

Insured group health plan: A benefit plan in which the employer employs a health 

insurance issuer to assume the risk of providing health insurance. 

Plan participants and beneficiaries: Individuals who are covered by a group health plan. 

Self-insured group health plan: A benefit plan in which the employer assumes the risk of 

providing health insurance. 

Self-insured church plan: A self-insured group health plan established by a church or 

association of churches covering the church or association’s employees, which is not 

subject to regulation under ERISA unless it has elected to opt in to ERISA’s 

provisions. 

TPA: A third-party administrator, which is an entity that processes insurance claims and 

provides administrative services for employers with self-insured group health plans. 
- x - 

Plaintiffs and Related Entities:

Little Sisters of the Poor: 

Little Sisters of the Poor: A religious non-profit organization that provides health care to 

employees through the Christian Brothers Employee Benefit Trust. 

Christian Brothers Employee Benefit Trust: A self-insured church plan that is not subject 

to ERISA and uses Christian Brothers Services as its TPA. 

Christian Brothers Services: The TPA for the Christian Brothers Employee Benefit 

Trust. 

Southern Nazarene: 

Southern Nazarene University: A religious non-profit organization that is self-insured up 

to $100,000 and provides health care to employees through Blue Cross Blue Shield 

for claims above $100,000. 

Oklahoma Baptist University: A religious non-profit organization insured by Blue Cross 

Blue Shield of Oklahoma. 

Oklahoma Wesleyan University: A religious non-profit organization insured by 

Community Care of Oklahoma. 

Mid-America Christian University: A religious non-profit organization that provides 

health care to employees through plans provided by GuideStone Financial Resources. 

Reaching Souls: 

Reaching Souls: A religious non-profit organization that provides health care to 

employees through the GuideStone Plan. 

Truett-McConnell College: A religious non-profit organization that provides health care 

to employees through the GuideStone Plan. 

GuideStone Financial Resources: A religious non-profit organization that sponsors the 

GuideStone Plan and has arranged for TPAs to provide claims administration under 

that plan. 

GuideStone Plan: A self-insured church plan that is not subject to ERISA and uses 

entities like Connecticut General Life Insurance Company, Highmark Health 

Services, and Express Scripts, Inc. as its TPAs. 
- 1 - 

I. INTRODUCTION 

When Congress passed the Affordable Care Act (“ACA”) in 2010, it built upon 

the widespread use of employer-based health insurance in the United States.1

 The ACA 

and its implementing regulations require employers who provide health insurance 

coverage to their employees to include coverage for certain types of preventive care 

without cost to the insured. The appeals before us concern the regulations that require 

group health plans to cover contraceptive services for women as a form of preventive 

care (“Mandate”).2

 

In response to religious concerns, the Departments implementing the ACA—

Health and Human Services (“HHS”), Labor, and Treasury—adopted a regulation that 

exempts religious employers—churches and their integrated auxiliaries—from covering 

contraceptives. When religious non-profit organizations complained about their omission 

from this exemption, the Departments adopted a regulation that allows them to opt out of 

 1

 A majority of the nonelderly population in the United States receives health 

insurance as a job benefit through an employer. See Melissa Majerol, Vann Newkirk & 

Rachel Garfield, The Uninsured: A Primer – Key Facts About Health Insurance and the 

Uninsured in America, The Kaiser Commission on Medicaid and the Uninsured, 1 (Jan. 

2015), http://files.kff.org/attachment/the-uninsured-a-primer-key-facts-about-healthinsurance-and-the-uninsured-in-america-primer. 

2

 We use “Mandate” as shorthand for the ACA’s employer mandate, which 

requires employers who offer health benefits to comply with the coverage requirements 

detailed in the ACA and its implementing regulations. This Mandate is distinct from the 

individual mandate at issue in National Federation of Independent Business v. Sebelius, 

132 S. Ct. 2566 (2012), which generally requires individuals to maintain health 

insurance. 
- 2 - 

providing, paying for, or facilitating contraceptive coverage.3 Under this regulation, a 

religious non-profit organization can opt out by delivering a form to their group health 

plan’s health insurance issuer or third-party administrator (“TPA”) or by sending a 

notification to HHS. 

The Plaintiffs in the cases before us are religious non-profit organizations. They 

contend that complying with the Mandate or the accommodation scheme imposes a 

substantial burden on their religious exercise. The Plaintiffs argue the Mandate and the 

accommodation scheme violate the Religious Freedom Restoration Act (“RFRA”) and 

the Religion and Speech Clauses of the First Amendment.4

Although we recognize and respect the sincerity of Plaintiffs’ beliefs and 

arguments, we conclude the accommodation scheme relieves Plaintiffs of their 

obligations under the Mandate and does not substantially burden their religious exercise 

under RFRA or infringe upon their First Amendment rights. Exercising jurisdiction 

 3

 Plaintiffs object to the term “opt out” because their accommodation from the 

Mandate involves an act on their part—self-certification—that they deem objectionable. 

We believe “opt out” is accurate. Self-certifying for the accommodation expressly 

relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive 

coverage, and does so without substantially burdening their religious exercise. Under 

these conditions, the self-certification is accurately characterized as an “opt out.” By 

definition, all opt-out mechanisms require some affirmative act by objecting parties. 

4

 RFRA applies to all subsequent federal statutes absent a specific exemption by 

Congress. See 42 U.S.C. § 2000bb-3(b) (“Federal statutory law adopted after November 

16, 1993, is subject to this chapter unless such law explicitly excludes such application by 

reference to this chapter.”). The ACA, enacted in 2010, did not contain a specific 

exemption and is subject to RFRA. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 

1114, 1157 (10th Cir. 2013). 
- 3 - 

under 28 U.S.C. § 1292(a), we affirm the district court’s denial of a preliminary 

injunction to the plaintiffs in Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F. 

Supp. 3d 1225 (D. Colo. 2013), and reverse the district courts’ grants of a preliminary 

injunction to the plaintiffs in Southern Nazarene University v. Sebelius, No. CIV-13-

1015-F, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013), and Reaching Souls 

International, Inc. v. Burwell, No. CIV-13-1092-D, 2013 WL 6804259 (W.D. Okla. Dec. 

20, 2013). 

II. HOBBY LOBBY AND THIS CASE

 Last year, the Supreme Court decided Burwell v. Hobby Lobby Stores, Inc., 134 S. 

Ct. 2751 (2014), in which closely-held for-profit corporations challenged the Mandate 

under RFRA. The difference between Hobby Lobby and this case is significant and 

frames the issue here. In Hobby Lobby, the plaintiff for-profit corporations objected on 

religious grounds to providing contraceptive coverage and could choose only between (1) 

complying with the ACA by providing the coverage or (2) not complying and paying 

significant penalties. Id. at 2759-60. In the cases before us, the plaintiff religious nonprofit organizations can avail themselves of an accommodation that allows them to opt 

out of providing contraceptive coverage without penalty. Plaintiffs contend the process 

to opt out substantially burdens their religious exercise. 

 In other words, unlike in Hobby Lobby, the Plaintiffs 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. The Plaintiffs do 
- 4 - 

not claim the Departments have not tried to accommodate their religious concerns. They 

claim the Departments’ attempt is inadequate because the acts required to opt out of the 

Mandate substantially burden their religious exercise. As we discuss more fully below, 

however, the accommodation relieves Plaintiffs of their obligation to provide, pay for, or 

facilitate contraceptive coverage, and does so without substantially burdening their 

religious exercise. 

III. BACKGROUND 

We begin by providing background information on the ACA and its implementing 

regulations, the Plaintiffs objecting to the accommodation scheme, and the procedural 

history of the three cases before us. 

A. Regulatory Background 

The regulations at issue in these cases have evolved in significant ways since their 

initial promulgation. We review: (1) the exemption from the ACA’s contraceptive 

coverage requirement for churches and integrated auxiliaries, (2) the accommodation 

scheme for religious non-profit organizations, and (3) the mechanics of the 

accommodation scheme for different types of group health plans. 

1. The ACA Mandate and the Religious Employer Exemption 

Under the ACA, employer-sponsored group health plans must meet minimum 

coverage requirements. As part of these requirements, both group health plans and health 

insurance issuers must cover preventive health care services and cannot require plan 

participants and beneficiaries to share the costs of these services through co-payments, 
- 5 - 

deductibles, or co-insurance. 42 U.S.C. § 300gg-13. On July 19, 2010, the Departments 

issued interim final rules implementing the ACA’s requirements for preventive services. 

Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to 

Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 

75 Fed. Reg. 41,726 (July 19, 2010).

Among the services required by the ACA are preventive care and screenings for 

women “as provided for in comprehensive guidelines supported by the Health Resources 

and Services Administration” (“HRSA”), a federal agency within HHS. 42 U.S.C. 

§ 300gg-13(a)(4). On August 1, 2011, after receiving recommendations from the 

Institute of Medicine (“IOM”), the HRSA issued its guidelines for women’s preventive 

health services. The guidelines include coverage of “[a]ll Food and Drug Administration 

[(“FDA”)] approved contraceptives, sterilization procedures, and patient education and 

counseling for all women with reproductive capacity,” as prescribed by a health care 

provider. HRSA, Women’s Preventive Services Guidelines, 

http://www.hrsa.gov/womensguidelines (last visited Mar. 25, 2015). 

In accordance with the HRSA’s guidelines, the Departments require coverage of 

the full range of FDA-approved contraceptive 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). Not 

all employers, however, are required to comply with the Mandate. 

First, employers with 50 or fewer employees are exempt from the Mandate 

because they are not required to offer insurance under the ACA. See 26 U.S.C. 
- 6 - 

§§ 4980H(c)(2)(A), 4980D(d). 

Second, “grandfathered” plans are exempt from the Mandate because the ACA 

allows individuals to temporarily maintain the health coverage they possessed before the 

ACA was enacted. See 42 U.S.C. § 18011.5

 

Third, and the most relevant here, is the exemption for religious employers. In 

response to concerns from religious organizations, the Departments amended the interim 

final regulations to give the HRSA authority to exempt group health plans established or 

maintained by religious employers. See Group Health Plans and Health Insurance Issuers 

Relating to Coverage of Preventive Services Under the Patient Protection and Affordable 

Care Act, 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). The Departments defined a 

“religious employer” as one that: “(1) Has the inculcation of religious values as its 

purpose; (2) primarily employs persons who share its religious tenets; (3) primarily 

serves persons who share its religious tenets; and (4) is a nonprofit organization described 

in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] 

Code.” Id. The cited sections “refer to churches, their integrated auxiliaries, and 

conventions or associations of churches, as well as the exclusively religious activities of 

 5

 The exception for grandfathered plans is temporary and transitional. A health 

plan loses its grandfathered status—and is subject to the Mandate—when it eliminates 

benefits, increases cost sharing requirements, or changes the terms of employer 

contributions. See 45 C.F.R. § 147.140(g). In 2011, 56 percent of individuals who 

receive health care from their employer were covered by grandfathered plans; in 2014, 

only 26 percent were covered by grandfathered plans. See Kaiser Family Foundation & 

Health Research & Educational Trust, Employer Health Benefits: 2014 Annual Survey, 7 

(2014), http://files.kff.org/attachment/2014-employer-health-benefits-survey-full-report. 
- 7 - 

any religious order.” Id. The Departments noted the definition was intended “to 

reasonably balance the extension of any coverage of contraceptive services under the 

HRSA Guidelines to as many women as possible, while respecting the unique 

relationship between certain religious employers and their employees in certain religious 

positions.” Id.

6

 They invited comments on the proposed definition of “religious 

employer” and potential alternatives. Id. 

 The Departments received more than 200,000 responses to their request for 

comments from a variety of entities both supporting and opposing expansion of the 

proposed exemption. See Group Health Plans and Health Insurance Issuers Relating to 

Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 

77 Fed. Reg. 8725, 8726 (Feb. 15, 2012). After reviewing these comments, they 

published final regulations on February 15, 2012, adopting their proposed definition of 

“religious employer.” Id. at 8727. They also created a one-year safe harbor for religious 

non-profit organizations, during which the Departments would not enforce the Mandate 

against them. Id. at 8728. 

2. The Accommodation Scheme for Religious Non-Profit Organizations 

In response to religious groups that were dissatisfied with the scope of the 

proposed religious employer exemption, the Departments issued an advance notice of 

 6

 A number of states have laws that require employers to cover contraceptive 

services but excuse some religious employers from complying. The Departments 

developed their definition to accord with these existing state laws. See 76 Fed. Reg. at 

46,623. 
- 8 - 

proposed rulemaking (“ANPRM”) in anticipation of creating additional accommodations 

for non-exempt religious non-profit organizations. Certain Preventive Services Under the 

Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). After reviewing the 

comments received from the ANPRM, the Departments published proposed rules 

creating an accommodation for a wider range of religious non-profit organizations. 

Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 

8456 (Feb. 6, 2013). 

The Departments received over 400,000 comments on the proposed rules, and 

finalized two notable changes. Coverage of Certain Preventive Services Under the 

Affordable Care Act, 78 Fed. Reg. 39,870, 39,871 (July 2, 2013). First, the Departments 

simplified and clarified the existing exemption for religious employers by eliminating the 

first three elements of the definition, thereby defining “religious employer” as “an 

employer 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 [(“IRC”)].” Id. at 39,874. 

Second, they created an accommodation for religious non-profit organizations that did 

not meet this simplified definition of a religious employer. Id. 

The regulations state a religious non-profit organization can receive this 

accommodation if it: (1) has religious objections to “providing coverage for some or all 

of the contraceptive services required to be covered” under the Mandate, (2) “is 

organized and operates as a nonprofit entity,” (3) “holds itself out as a religious 

organization,” and (4) “self-certifies that it satisfies the first three criteria.” Id. The 
- 9 - 

accommodation is available for both (1) insured group health plans, under which an 

employer contracts with a health insurance issuer to assume the risk of providing benefits 

to employees, and (2) self-insured group health plans, under which the employer itself 

assumes the risk of providing benefits to employees. Id. at 39,875-80.7

 As we explain 

below, religious non-profit organizations can self-certify their religious objection and 

receive the accommodation either by notifying their health insurance issuer or TPA or by 

notifying HHS directly. 

a. EBSA Form 700 

To self-certify under the accommodation scheme, the Departments initially 

required religious non-profit organizations to use the Employee Benefits Security 

Administration’s (“EBSA”) Form 700 (“Form”).8

 Objecting organizations are relieved 

from complying with the Mandate by delivering the executed Form to their health 

insurance issuer or TPA. The Form notifies the health insurance issuer or TPA that the 

organization self-certifies as exempt from the Mandate because it has a religious 

objection to providing coverage for some or all contraceptive services to its employees, 

and identifies the relevant federal regulations under which the organization is permitted 

to opt out of that obligation. See Dep’t of Labor, EBSA Form 700 (Aug. 2014), 

 7

 Employers with self-insured group health plans typically employ a TPA to 

coordinate logistics and deliver benefits. Cong. Budget Office, Key Issues in Analyzing 

Major Health Insurance Proposals, 6 (Dec. 2008), 

http://www.cbo.gov/sites/default/files/12-18-keyissues.pdf. 

8

 A copy of the Form appears at the end of this opinion. 
- 10 - 

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

(citing 26 C.F.R. § 54.9815-2713A(a); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R. 

§ 147.131(b)). 

The back of the Form notifies TPAs of their obligations.9

 Form at 2. It informs 

the TPA that the eligible organization “[w]ill not act as the plan administrator or claims 

administrator with respect to claims for contraceptive services, or contribute to the 

funding of contraceptive services.” Form at 2. It identifies regulations requiring the TPA 

to provide contraceptive coverage without cost sharing to plan participants and 

beneficiaries if the TPA agrees to continue providing administrative services for a group 

health plan. Id. (citing 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2510.3-16; 29 C.F.R. § 

2590.715-2713A). A TPA that receives the Form from an objecting employer is eligible 

for a government payment to cover the costs of providing contraceptive coverage. See 45 

C.F.R. § 156.50(d)(5). 

As part of this scheme, the regulations initially included a non-interference 

provision, which specified that objecting religious non-profit organizations “must not, 

directly or indirectly, seek to influence the third party administrator’s decision” whether 

to provide coverage for contraceptives. 26 C.F.R. § 54.9815-2713A(b)(iii) (2013). 

When the Plaintiffs filed their suits, they sought a preliminary injunction relieving them 

 9

 The notice of regulatory requirements on the back of the Form is specifically 

addressed to TPAs. See Form at 2. The legal obligations of health insurance issuers are 

evident from the text of the ACA itself. See 42 U.S.C. § 300gg-13. 
- 11 - 

from complying with this version of the accommodation scheme, arguing delivery of the 

Form to their health insurance issuer or TPA constituted a substantial burden on their 

religious exercise in violation of RFRA and the First Amendment. 

b. Alternative notice 

In response to litigation by Plaintiffs and others, the Departments have since 

expanded the accommodation scheme.10 The Supreme Court granted injunctions pending 

appeal in two suits brought by religious non-profit organizations, including the Little 

Sisters, that objected to the accommodation scheme. See Wheaton Coll. v. Burwell, 134 

S. Ct. 2806 (2014); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. 

Sebelius, 134 S. Ct. 1022 (2014). In a third suit, the Court declined to recall or stay a 

circuit court mandate in favor of the Government, but granted an injunction to religious 

non-profit organizations pending final disposition of their petition for certiorari. See 

Zubik v. Burwell, Nos. 14A1065, 14-1418, 2015 WL 3947586, at *1 (U.S. June 29, 

2015). The injunctions allowed the organizations to notify HHS directly of their religious 

objection to the Mandate rather than sending the Form to their health insurance issuers or 

TPAs. In response to the injunction in Wheaton College, the Departments issued an 

interim final rule on August 27, 2014, creating an alternative accommodation for 

religious non-profit organizations. Coverage of Certain Preventive Services Under the 

 10 As we explain in this section, the Departments did not expand the pool of actors 

who could claim an accommodation and obtain relief from the Mandate. They expanded 

the accommodation scheme by offering objecting organizations an alternative method of 

self-certification. 
- 12 - 

Affordable Care Act, 79 Fed. Reg. 51,092, 51,092 (Aug. 27, 2014).11 

These regulations relieve a religious non-profit organization from complying with 

the Mandate if it notifies HHS in writing of its religious objection to the provision of 

some or all contraceptive services. Id. at 51,094. The notice may be sent by letter or 

email, and must contain (1) “the name of the eligible organization and the basis on which 

it qualifies for an accommodation,” (2) “its objection based on sincerely held religious 

beliefs to providing coverage of some or all contraceptive services,” including any 

particular subset to which it objects; (3) the name and type of the group health plan; and 

(4) the name and contact information for any of the plan’s TPAs and/or health insurance 

issuers. Id. at 51,094-95. According to the Departments, these requirements constitute 

“the minimum information necessary for the Departments to determine which entities are 

covered by the accommodation, to administer the accommodation, and to implement the 

 11 We discuss the procedural history of the cases before us below, but note that this 

alternative accommodation is akin to the accommodation granted by the Supreme Court 

in the cases mentioned above—Little Sisters, 134 S. Ct. 1022; Wheaton College, 134 S. 

Ct. 2806; and Zubik, 2015 WL 3947586: 

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. 

Wheaton Coll., 134 S. Ct. at 2807. 
- 13 - 

policies in the July 2013 final regulations.” Id. at 51,095. 

The revised regulations also repeal the non-interference provision by deleting 

language prohibiting organizations from interfering with or seeking to influence their 

TPA’s decision to cover contraception. Id.

12 

We note again that the entirety of this accommodation scheme for religious nonprofit organizations—using either the Form or the alternative notice to HHS—was not 

available to the for-profit corporate plaintiff in Hobby Lobby. Here, an accommodation is 

available to Plaintiffs. In the cases before us, we consider whether their taking advantage 

of that accommodation to opt out of the Mandate is itself a substantial burden on their 

religious exercise. 

3. The Mechanics of the Accommodation for Insured Plans, Self-Insured Plans, and 

Self-Insured Church Plans 

The Plaintiffs use different types of employer-sponsored group health plans, which 

the Departments treat differently within the accommodation scheme. By its own terms, 

 12 The regulations explain the rationale for this change: 

The Departments interpret the July 2013 final regulations solely as 

prohibiting the use of bribery, threats, or other forms of economic coercion 

in an attempt to prevent a third party administrator from fulfilling its 

independent legal obligations to provide or arrange separate payments for 

contraceptive services. Because such conduct is generally unlawful and is 

prohibited under other state and federal laws, and to reduce unnecessary 

confusion, these interim final regulations delete the language prohibiting an 

eligible organization from interfering with or seeking to influence a third 

party administrator’s decision or efforts to provide separate payments for 

contraceptive services. 

79 Fed. Reg. at 51,095. 
- 14 - 

the ACA obligates both group health plans and health insurance issuers to provide 

contraceptive coverage. 42 U.S.C. § 300gg-13 (“A group health plan and a health 

insurance issuer offering group or individual health insurance coverage shall, at a 

minimum provide coverage for and shall not impose any cost sharing requirements 

for . . . with respect to women, such additional preventive care and screenings . . . as 

provided for in comprehensive guidelines supported by the Health Resources and 

Services Administration for purposes of this paragraph.”); 26 C.F.R. § 54.9815-

2713(a)(1); 29 C.F.R. § 2590.715-2713(a)(1); 45 C.F.R. § 147.130(a)(1). Because the 

differences among these arrangements are relevant to our discussion of the merits of 

Plaintiffs’ claims, we consider it helpful to explain how the Mandate and accommodation 

scheme affect insured plans, self-insured plans, and self-insured church plans. 

a. Insured plans 

When a religious non-profit organization offers its employees an insured plan, the 

statutory language not only requires the group health plan to cover contraception, but also 

obligates the plan’s health insurance issuer to ensure plan participants and beneficiaries 

receive contraceptive coverage. See 42 U.S.C. §§ 300gg-13; 300gg-22. Thus, even if a 

religious non-profit organization does not self-certify that it has an objection, its health 

insurance issuer is obligated to provide contraceptive coverage to plan participants and 

beneficiaries and charge the organization for the cost. See Priests for Life v. U.S. Dep’t 

of Health & Hum. Servs., 7 F. Supp. 3d 88, 95-96 & n.2 (D.D.C. 2013). The organization 

can free itself from complying with the Mandate and paying for that coverage, however, 
- 15 - 

“if the eligible organization or group health plan provides either a copy of the selfcertification to each issuer providing coverage in connection with the plan or a notice to 

the Secretary of Health and Human Services.” 26 C.F.R. § 54.9815-2713AT(c)(1); 29 

C.F.R. § 2590.715-2713A(c)(1); 45 C.F.R. § 147.131(c)(1). When an organization 

submits the Form expressing an objection to providing contraceptive coverage, “the 

issuer has sole responsibility for providing such coverage in accordance with § 147.130.” 

45 C.F.R. § 147.131(c)(1)(i); see also 26 C.F.R. § 54.9815-2713AT(c)(1)(i) (requiring 

coverage in accordance with § 54.9815-2713); 29 C.F.R. § 2590.715-2713A(c)(1)(i) 

(requiring coverage in accordance with § 2590.715-2713). Similarly, when an 

organization notifies HHS, the Department of Labor will send a separate notification to 

the organization’s issuer informing it of that notice and describing its regulatory 

obligations. 45 C.F.R. § 147.131(c)(1)(ii); see also 26 C.F.R. § 54.9815-

2713AT(c)(1)(ii); 29 C.F.R. § 2590.715-2713A(c)(1)(ii). 

In the context of insured plans, health insurance issuers are generally responsible 

for paying for contraceptive coverage when a religious non-profit organization opts out. 

See 45 C.F.R. § 156.50. The Departments expect this will be cost-neutral for issuers 

because of the cost savings that accompany improvements in women’s health and lower 

pregnancy rates. See 78 Fed. Reg. at 39,877. 

b. Self-insured plans 

When a religious non-profit organization offers its employees a self-insured plan, 

the accommodation works in a slightly different fashion. A self-insured group health 
- 16 - 

plan complies with the regulatory requirements and is excused from providing 

contraceptive coverage if “[t]he eligible organization or its plan contracts with one or 

more third party administrators” and “[t]he eligible organization provides either a copy of 

the self-certification to each third party administrator or a notice to the Secretary of 

Health and Human Services that it is an eligible organization and of its religious 

objection to coverage of all or a subset of contraceptive services.” 26 C.F.R. § 54.9815-

2713AT(b)(1); 29 C.F.R. § 2590.715-2713A(b)(1). 

Although the text of the ACA does not specify a role for TPAs, it expressly 

requires group health plans to include contraceptive coverage, and federal regulations 

impose obligations on TPAs that administer self-insured group health plans. See 42 

U.S.C. § 300gg-13; 26 C.F.R. § 54.9815-2713AT(b); 29 C.F.R. § 2590.715-2713A(b). 

The regulations require a TPA administering a group health plan to provide or arrange for 

contraceptive coverage without cost sharing with the organization or its beneficiaries 

when it: (1) receives a notification that an eligible employer has opted out of providing 

coverage and (2) decides to remain in a relationship with that employer or its plan to 

provide administrative services for the plan. 26 C.F.R. § 54.9815-2713AT(b)(2); 29 

C.F.R. § 2590.715-2713A(b)(2). The TPA’s obligations are enforceable under the 

Employee Retirement Income Security Act (“ERISA”). See 78 Fed. Reg. at 39,879-80. 

In the context of self-insured plans, a TPA may seek reimbursement if it has 

received the Form or a notification from the government and “provides or arranges 

payments for contraceptive services.” See 26 C.F.R. § 54.9815-2713AT(b)(3); 29 C.F.R. 
- 17 - 

§ 2590.715-2713A(b)(3); 45 C.F.R. § 156.50(d)(2)(ii)-(iii). TPAs do so by working 

through health insurance issuers, who receive adjustments to fees they pay to the 

government under the ACA and pass along the reimbursements to TPAs. See 45 C.F.R. 

§ 156.50(d). 

c. Self-insured church plans 

 Although federal regulations impose certain requirements on TPAs, the 

Departments concede they lack authority to enforce those requirements as to self-insured 

“church plans,” which are group health plans established by a church or association of 

churches covering the church’s or association’s employees. 29 U.S.C. § 1002(33). 

Organizations that provide health care coverage for employees through self-insured 

church plans are exempt from regulation under ERISA. 29 U.S.C. § 1003(b)(2). Unless 

a church plan has made an election under 26 U.S.C. § 410(d), which opts plans into 

provisions of ERISA, the Departments concede they lack authority to compel church plan 

TPAs to provide contraceptive coverage, and may not levy fines against those TPAs for 

failing to provide it. 

d. Legal obligation to provide coverage after the accommodation 

 Although the accommodation is available for both insured and self-insured group 

health plans, the source of the legal obligation to provide contraceptive coverage after a 

religious non-profit organization has opted out differs based on the type of insurance 

arrangement the organization uses. When an organization takes advantage of the 

accommodation, the ACA requires health insurance issuers to provide coverage for 
- 18 - 

insured group health plans, while federal regulations adopted pursuant to the ACA 

require TPAs to arrange coverage for self-insured group plans that are subject to ERISA. 

As we discuss below, these distinctions shape the claims advanced by different Plaintiffs 

in the cases before us. 

B. The Plaintiffs 

The Plaintiffs13 in this litigation object to both means to receive an 

accommodation—sending the Form to their health insurance issuer or TPA or sending a 

notification to HHS. The Plaintiffs differ from each other in ways that are relevant to the 

Departments’ authority to require employers to provide contraceptive coverage and 

relieve objecting religious non-profit organizations from the Mandate when they use the 

accommodation scheme. 

1. Little Sisters of the Poor 

The Little Sisters of the Poor Home for the Aged, Denver, Colorado and Little 

Sisters of the Poor, Baltimore (“Little Sisters”) belong to an order of Catholic nuns who 

devote their lives to care for the elderly. The Little Sisters provide health insurance 

coverage to their employees through the Christian Brothers Employee Benefit Trust 

(“Trust”), a self-insured church plan that is not subject to ERISA. The Trust uses 

Christian Brothers Services (“Christian Brothers”), another Catholic organization, as its 

TPA. 

 13 When we refer to the plaintiffs in all three cases collectively, we use 

“Plaintiffs.” When we refer to a subset of the plaintiffs, we use “plaintiffs.” 
- 19 - 

The Little Sisters have always excluded coverage of sterilization, contraception, 

and abortifacients from their health care plan in accordance with their religious belief that 

deliberately avoiding reproduction through medical means is immoral. The Little Sisters 

“believe that it is wrong for them to intentionally facilitate the provision of these medical 

procedures, drugs, devices, and related counseling and services.” LS Br. at 10. They cite 

“well-established Catholic teaching that prohibits encouraging, supporting, or partnering 

with others in the provision of sterilization, contraception, and abortion.” LS Br. at 9-10. 

The Little Sisters contend they “cannot provide these things, take actions that directly 

cause others to provide them, or otherwise appear to participate in the government’s 

delivery scheme,” as the mere appearance of condoning these services “would violate 

their public witness to the sanctity of human life and human dignity and could mislead 

other Catholics and the public.” LS Br. at 10. 

The Little Sisters are subject to the Mandate unless they take advantage of the 

accommodation scheme by delivering the Form to the Christian Brothers, their TPA, or 

notifying HHS of their religious objection. If they do not take one of these steps and do 

not provide contraceptive coverage, they estimate a single Little Sisters home could incur 

penalties of up to $2.5 million per year, and allege the Trust could lose up to $130 million 

in plan contributions. The Little Sisters plaintiffs object that the accommodation scheme 

violates their sincerely held religious beliefs because they cannot take actions that 

directly cause others to provide contraception or appear to participate in the Departments’ 

delivery scheme. 
- 20 - 

2. Southern Nazarene 

Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist 

University, and Mid-America Christian University are “Christ-centered institutions of 

higher learning.” SN Br. at 1-2. Southern Nazarene is partially self-insured; it generally 

assumes the risks of providing coverage but contracts with a health insurance issuer to 

pay all claims over $100,000. For its insured employee coverage, it uses Blue Cross Blue 

Shield of Oklahoma. It offers separate coverage to students through an insured plan. 

Oklahoma Baptist is an insured university. It uses Blue Cross Blue Shield of Oklahoma, 

and offers separate coverage to students through an insured plan. Oklahoma Wesleyan is 

an insured university. It uses Community Care of Oklahoma. Mid-America Christian is 

a self-insured university on a church plan that is not subject to ERISA. It uses plans 

provided by GuideStone Financial Resources.14 

 14 The descriptions of Mid-America Christian’s insurance arrangements in the 

record before us are inconsistent. Before the district court, counsel described MidAmerica Christian’s plan as “insured by GuideStone,” App. in SN at A32, and suggested 

it would be obligated, like Oklahoma Baptist and Oklahoma Wesleyan, to deliver the 

Form to its health insurance issuer to opt out of the Mandate. In its opening brief on 

appeal, counsel described Mid-America Christian’s plan as “self-insured,” and suggested 

it would be obligated, like Southern Nazarene, to deliver the Form to its TPA. SN Br. at 

2, 18. In a supplemental brief and at oral argument, counsel now indicates Mid-America 

Christian has a self-insured church plan and is more akin to the Reaching Souls plaintiffs. 

SN Supp. Br. II at 9 n.2; Oral Arg. in SN at 20:24-20:32. 

We treat Mid-America Christian’s plan as a self-insured church plan. The parties 

in Southern Nazarene stipulated as fact that Mid-America Christian’s group health plan is 

provided by GuideStone Financial Resources. Southern Nazarene, 2013 WL 6804265, at 

*2. Because we understand GuideStone Financial Resources to be a sponsor of selfinsured church plans and not an insurer, we assume the latest characterization on appeal 

Continued . . . 
- 21 - 

The universities have brought suit collectively, but they are in slightly different 

positions insofar as Mid-America Christian University uses a church plan and contracts 

with a TPA, Oklahoma Baptist University and Oklahoma Wesleyan use health insurance 

issuers, and Southern Nazarene contracts with a TPA but uses a health insurance issuer 

for student coverage and employee claims above $100,000. 

The universities believe “it would be sinful and immoral for them to participate in, 

pay for, facilitate, enable, or otherwise support access to abortion, abortion-inducing 

drugs and devices, and related counseling.” SN Br. at 1-2. They object to the provision 

of contraceptives they consider abortifacients. The universities currently offer health 

plans to students and employees that do not cover the contraceptives the universities find 

objectionable. 

The universities are subject to the Mandate, but they may take advantage of the 

accommodation scheme by delivering the Form or notifying HHS of their religious 

objections to relieve themselves of the obligation to provide contraceptive coverage. 

They object to the accommodation, however, because they believe it requires them to 

expressly or functionally offer contraceptive coverage through their group health plan, 

interferes with the spiritual development of their communities, and requires them to 

facilitate behavior they consider sinful. If they do not take advantage of the 

______________________________________ 

Cont. 

is correct and treat Mid-America Christian’s group health plan as a self-insured church 

plan that is not subject to ERISA. 
- 22 - 

accommodation, each university must either provide coverage or incur penalties of $100 

per employee per day. 

3. Reaching Souls 

Reaching Souls is a non-profit corporation founded by a Southern Baptist minister 

and based in Oklahoma. The organization trains pastors and evangelists and provides 

care to orphans in Africa, India, and Cuba. Truett-McConnell College is a private liberal 

arts college based in Georgia. Both Reaching Souls and Truett-McConnell use the 

GuideStone Plan, a self-insured church plan that is not subject to ERISA. GuideStone 

Financial Resources, a Texas non-profit corporation, established the GuideStone Plan and 

holds the assets funding it in trust. GuideStone Financial Resources has entered into 

agreements with other entities to provide claims administration as TPAs under the 

GuideStone Plan, including Connecticut General Life Insurance Company, Highmark 

Health Services, and Express Scripts, Inc. 

Reaching Souls believes life begins at conception and objects to four of the twenty 

FDA-approved methods of contraception that Reaching Souls characterizes as 

abortifacients. Truett-McConnell has adopted the Southern Baptist Convention’s 

statement of faith and objects to the same four methods of contraception. GuideStone 

Financial Resources, as an arm of the Southern Baptist Convention, also opposes 

coverage of contraception methods it believes to be abortifacients. The organizations 

ground their beliefs in the sanctity of human life and opposition to elective abortion in the 

religious teachings of the Southern Baptist Convention. 
- 23 - 

Both Reaching Souls and Truett-McConnell College are subject to the Mandate, 

but they may take advantage of the accommodation scheme by delivering the Form or 

notifying HHS of their religious objections. If they do, GuideStone Financial Resources 

would have to pass the information to the TPAs of the GuideStone Plan to effectuate the 

coverage. The plaintiffs believe this would violate their religious beliefs “by making 

them complicit in the government’s scheme to provide abortifacients.” RS Br. at 4. If 

the organizations do not take advantage of the accommodation scheme or provide 

coverage, they contend they will incur millions of dollars in fines, which “would crush 

the ministries and force a mass exodus from GuideStone.” RS Br. at 3. 

C. Procedural History 

The district courts reached different results in the three cases before us, denying a 

preliminary injunction to the plaintiffs in Little Sisters but granting a preliminary 

injunction to the plaintiffs in Southern Nazarene and Reaching Souls. Reviewing the 

reasoning behind their determinations clarifies the claims before us on appeal. 

1. Little Sisters of the Poor 

In Little Sisters, the district court determined that complying with the 

accommodation scheme would not impose a substantial burden on the Little Sisters’ or 

Christian Brothers’ religious exercise. 6 F. Supp. 3d at 1239-45. The court’s analysis of 

the preliminary injunction factors began and ended by examining whether the plaintiffs 

would suffer irreparable injury if the requested relief were denied. Id. at 1236. After 

determining it was the court’s duty to determine how the regulations operate as a matter 
- 24 - 

of law, id. at 1239, the court concluded the accommodation scheme does not require the 

Little Sisters to provide contraceptive coverage or to participate in the provision of 

contraceptive coverage, id. at 1239-42. 

The court noted that the Little Sisters—unlike the plaintiffs in Hobby Lobby—

could be relieved of the obligation to provide coverage by signing and delivering the 

Form to their TPA, the Christian Brothers. Id. at 1237.15 The court underscored that, 

while the Departments could require the Little Sisters to sign and deliver the Form to 

their TPA to avoid the Mandate, the Departments lacked enforcement authority under 

ERISA to levy fines or otherwise force the Christian Brothers to provide contraceptive 

coverage as the TPA for a self-insured, ERISA-exempt church plan. Id. at 1243-44. The 

court concluded that requiring the Little Sisters to sign and deliver the Form to opt out 

did not constitute a substantial burden on their religious exercise and declined to issue a 

preliminary injunction. Id. at 1242-45. 

The Little Sisters next asked the Tenth Circuit for an injunction pending appeal, 

which this court denied. The Supreme Court subsequently granted their request for an 

injunction pending appeal, allowing the Little Sisters to notify HHS of their religious 

objection instead of sending the Form to their TPA as the regulations at the time required. 

 15 At the time the district courts decided all three of the cases before us, the interim 

final rules allowing Plaintiffs to opt out by notifying HHS of their religious objection had 

not yet been issued. The district court decisions therefore focus on the Form and do not 

consider the expanded accommodation scheme in August 2014’s interim final rules. In 

supplemental briefing to this court, the Plaintiffs argue the expanded scheme does not 

adequately address the religious liberty concerns they have raised in this litigation. 
- 25 - 

See Little Sisters, 134 S. Ct. 1022. The Little Sisters now appeal the district court’s 

denial of a preliminary injunction. 

2. Southern Nazarene 

In Southern Nazarene, the district court granted a preliminary injunction to the 

plaintiffs. 2013 WL 6804265, at *11. The court’s analysis focused mainly on the 

plaintiffs’ likelihood of success on the merits.16 Id. at *7-10. The court characterized the 

Form as “in effect, a permission slip which must be signed by the institution to enable the 

plan beneficiary to get access, free of charge, from the institution’s insurer or third party 

administrator, to the products to which the institution objects.” Id. at *8. It determined 

the Form imposed a substantial burden on the plaintiffs’ sincere religious exercise and the 

Government had not articulated a compelling state interest or argued its approach was the 

least restrictive means of advancing that interest. Id. at *7-10. 

 16 The district court noted that, unlike in the recently decided Priests for Life, 7 F. 

Supp. 3d 88, the parties in Southern Nazarene “stipulated that the act of signing the 

certification is contrary to the religious beliefs to which these institutions subscribe.” 

Southern Nazarene, 2013 WL 6804265, at *8. The court’s characterization paraphrases 

the stipulation, which addresses only the litigation position taken by the Southern 

Nazarene plaintiffs. The parties specifically stipulated: “The Universities believe that, 

within the operation of the regulations, completing and delivering the self-certification to 

their issuers or third party administrators would violate the Universities’ sincere religious 

beliefs.” Id. at *5. The Government accepts that the Southern Nazarene plaintiffs take 

the position that completing the self-certification would violate their religious beliefs—a 

fairly straightforward characterization of their litigation position—but has never 

conceded that completing the self-certification actually would violate their religious 

beliefs. 
- 26 - 

The court concluded the plaintiffs had shown they were likely to succeed on the 

merits. Id. After reaching this conclusion, it briefly reviewed the other preliminary 

injunction factors and entered a preliminary injunction that prevented the Departments 

from enforcing the Mandate, requiring self-certification to opt out, or levying penalties. 

Id. at *10-11. The Government now appeals the district court’s ruling. 

3. Reaching Souls 

Like the district court in Southern Nazarene, the district court in Reaching Souls

granted a preliminary injunction to the plaintiffs. 2013 WL 6804259, at *8. The court 

primarily analyzed the likelihood of plaintiffs’ success on the merits. Id. at *6-8. It 

characterized the Government’s substantial burden argument as “simply another variation 

of a proposition rejected by the court of appeals in Hobby Lobby,” likening it to the 

argument that the Mandate was not a substantial burden on for-profit employers because 

it required intervening acts by third parties—employees deciding whether to acquire 

contraception. Id. at *7. It emphasized that regardless of whether the Form actually 

triggers the provision of contraceptive services, the plaintiffs believe that signing it would 

signal their tacit support or cooperation. Id. 

The court thus determined “the accommodation scheme applies substantial 

pressure on Plaintiffs to violate their belief that participating in or facilitating the 

accommodation is the moral equivalent of directly complying with the contraceptive 

mandate.” Id. at *8. It briefly reviewed the other preliminary injunction factors and 

enjoined the Government from requiring the plaintiffs to comply with the Mandate and 
- 27 - 

accommodation scheme or penalizing the plaintiffs for noncompliance. Id. The 

Government now appeals the district court’s ruling. 

IV. UNUSUAL NATURE OF PLAINTIFFS’ CLAIM 

Before we present our analysis of the issues, we wish to highlight the unusual 

nature of Plaintiffs’ central claim, which attacks the Government’s attempt to 

accommodate religious exercise by providing a means to opt out of compliance with a 

generally applicable law. 

Most religious liberty claimants allege that a generally applicable law or policy 

without a religious exception burdens religious exercise, and they ask courts to strike 

down the law or policy or excuse them from compliance. Our circuit’s three most recent 

RFRA cases fall into this category. In Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 

1114 (10th Cir. 2013) (en banc), aff’d sub nom. Hobby Lobby, 134 S. Ct. 2751, the ACA 

required the plaintiffs to provide their employees with health insurance coverage of 

contraceptives against their religious beliefs. In Yellowbear v. Lampert, 741 F.3d 48 

(10th Cir. 2014), a prison policy denied the plaintiff access to a sweat lodge, where he 

wished to exercise his Native American religion. In Abdulhaseeb v. Calbone, 600 F.3d 

1301 (10th Cir. 2010), a prison policy denied the plaintiff a halal diet, which is necessary 

to his Muslim religious exercise. In each instance, the law or policy failed to provide an 

exemption or accommodation to the plaintiff(s). 

The Supreme Court’s recent ruling in Holt v. Hobbs, 135 S. Ct. 853 (2015), which 

concerned a prison ban on inmates’ growing beards, is another recent example of the 
- 28 - 

more common RFRA claim. The plaintiff in Holt sought to grow a beard in accordance 

with his Muslim faith. In Holt, like in Hobby Lobby, the government defendants insisted 

on a complete restriction and did not attempt to accommodate the plaintiff’s religious 

exercise. The plaintiff in Holt proposed a compromise—he would be allowed to grow 

only a half-inch beard—which the prison refused. 135 S. Ct. at 861. The Court 

ultimately approved this compromise in its ruling. Id. at 867. 

In the cases before us, by contrast, the Departments have developed a religious 

accommodation rather than leaving it for the courts to fashion judicial relief. Plaintiffs 

not only challenge a law that requires them to provide contraceptive coverage against 

their religious beliefs, they challenge the exception that the law affords to them. The 

precedents Plaintiffs cite are instructive in some respects, but none of them involve a 

situation where the government offers religious objectors an accommodation.17 The 

Supreme Court and this circuit have suggested such accommodations might have 

eliminated or lessened burdens we otherwise deemed substantial. See, e.g., Hobby 

Lobby, 134 S. Ct. at 2759 (observing the accommodation scheme “constitutes an 

 17 The accommodation adds an additional consideration that makes this unlike the 

typical RFRA case. In Hobby Lobby, Yellowbear, Abdulhaseeb, and Holt, the 

government either required or prohibited acts of religious significance to the plaintiffs. In 

the cases before us, the government has freed Plaintiffs from the responsibility to perform 

the act they consider religiously objectionable—namely, providing contraceptive 

coverage. Nonetheless, the Plaintiffs argue an act they do not consider objectionable in 

itself—completing a form or writing to HHS—becomes objectionable because it either 

causes the provision of contraceptive coverage or renders them complicit in the provision 

of contraceptive coverage. Therefore, unlike the aforementioned cases, we are in the 

slightly different position of considering whether an otherwise unobjectionable act, 

understood in context, constitutes a substantial burden on Plaintiffs’ religious exercise. 
- 29 - 

alternative that achieves all of the Government’s aims while providing greater respect for 

religious liberty”); Yellowbear, 741 F.3d at 56 (underscoring that the case “isn’t a 

situation where the claimant is left with some degree of choice in the matter and we have 

to inquire into the degree of the government’s coercive influence on that choice”). Until 

now, however, we have not squarely considered a RFRA challenge to a religious 

accommodation. 

The closest Tenth Circuit case we have found is United States v. Friday, 525 F.3d 

938 (10th Cir. 2008), in which defendant Winslow Friday argued his conviction for 

shooting a bald eagle without a permit violated RFRA because he shot the eagle for use 

in a tribal religious ceremony. The Bald and Golden Eagle Protection Act forbids killing 

a bald eagle, but an applicant can obtain a permit to “take” a live eagle for a religious 

ceremony. See 16 U.S.C. §§ 668, 668a. We recognized the potential question of 

“whether it substantially burdens Mr. Friday’s religion to require him to obtain a permit 

in advance of taking an eagle.” Friday, 525 F.3d at 947. We said we were “skeptical that 

the bare requirement of obtaining a permit can be regarded as a ‘substantial burden’ 

under RFRA,” id., but Mr. Friday did not make that specific argument, and we decided 

the permit accommodation otherwise met RFRA’s strict scrutiny element, id. at 948. 

We spoke favorably of the government’s accommodation scheme in Friday, even 

though “[t]hat accommodation may be more burdensome than the [religious objectors] 

would prefer, and may sometimes subordinate their interests to other policies not of their 

choosing.” Id. at 960. As we noted in conclusion: “Law accommodates religion; it 
- 30 - 

cannot wholly exempt religion from the reach of the law.” Id. We therefore turn to 

uncharted Tenth Circuit terrain. 

* * * * 

The Plaintiffs in the three cases before us assert claims against the Mandate and 

accommodation scheme under RFRA and the First Amendment’s Free Exercise, 

Establishment, and Free Speech Clauses.18 Because we determine the accommodation 

scheme relieves Plaintiffs from complying with the Mandate and does not substantially 

burden their religious exercise under RFRA or infringe upon their First Amendment 

rights, we affirm the district court’s denial of a preliminary injunction to the plaintiffs in 

Little Sisters and reverse the district courts’ grants of a preliminary injunction to the 

plaintiffs in Southern Nazarene and Reaching Souls.

V. RFRA 

Under RFRA, the government “shall not substantially burden a person’s exercise 

of religion even if the burden results from a rule of general applicability” unless “it 

demonstrates that application of the burden to the person—(1) is in furtherance of a 

compelling governmental interest; and (2) is the least restrictive means of furthering that 

compelling governmental interest.” 42 U.S.C. § 2000bb-1. 

Plaintiffs argue the ACA and its implementing regulations violate RFRA because 

 18 We refer to “Plaintiffs” throughout the discussion, but in the First Amendment 

context, “Plaintiffs” refers only to the plaintiffs in Little Sisters and Reaching Souls. See 

infra note 51. 
- 31 - 

they substantially burden their religious exercise by forcing them to do one of three 

things: (a) comply with the Mandate and provide contraceptive coverage, (b) take 

advantage of the accommodation scheme, or (c) pay steep fines for non-compliance.19 

We conclude that the accommodation scheme relieves Plaintiffs of complying with the 

Mandate or paying fines and does not impose a substantial burden on Plaintiffs’ religious 

exercise for the purposes of RFRA. 

To explain why the accommodation is permissible under RFRA, we first review 

the RFRA framework and consider how religious accommodations may lessen or 

eliminate the substantiality of a burden on religious exercise. We then apply this 

framework to the accommodation scheme before us, which exempts religious non-profits 

 19 The Government identifies a fourth option: by declining to sponsor a group 

health plan, Plaintiffs could avoid complying with the Mandate, using the 

accommodation, or paying the fines. The Government frames the Plaintiffs’ provision of 

health insurance as an economic expenditure, and notes that regulations may make a 

business activity more expensive or onerous without violating the freedom of religion. 

See Tony & Susan Alamo Found. v. Sec. of Labor, 471 U.S. 290, 303-05 (1985); 

Braunfeld v. Brown, 366 U.S. 599, 605-06 (1961); but see Hobby Lobby, 134 S. Ct. at 

2777. Plaintiffs respond that they consider the provision of health insurance a religious 

obligation, not merely an economic expenditure. Plaintiffs “believe they have a religious 

obligation to care for the employees who join in their ministry, and they cannot throw 

those people off their insurance policies without violating that obligation and harming 

their ministry.” LS Reply Br. at 8. 

Because we determine the accommodation scheme is not a substantial burden, we 

need not decide whether this fourth option constitutes a substantial burden on religious 

exercise—or, if it does, whether it survives strict scrutiny. 

For similar reasons, we need not address the safe harbor provision detailed in the 

June 2013 regulations, which indicates organizations with self-insured group health plans 

that bring administration of their plans in-house and thereby do not use third-party 

administrators currently are not subject to enforcement of the contraceptive coverage 

requirement. 78 Fed. Reg. at 39,880-81. 
- 32 - 

from providing contraceptive coverage and instead assigns that task to health insurance 

issuers and TPAs. 

We conclude the accommodation does not substantially burden Plaintiffs’ 

religious exercise. The accommodation relieves Plaintiffs from complying with the 

Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive 

coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because 

federal law, not the act of opting out, entitles plan participants and beneficiaries to 

coverage. Although Plaintiffs allege the administrative tasks required to opt out of the 

Mandate make them complicit in the overall delivery scheme, opting out instead relieves 

them from complicity. Furthermore, these de minimis administrative tasks do not 

substantially burden religious exercise for the purposes of RFRA. 

The dissent parts ways with our majority opinion on the self-insured plaintiffs’ 

RFRA claims. It stresses that, by opting out, the self-insured plaintiffs would cause the 

legal responsibility to provide contraceptive coverage to shift to their TPAs.20 We agree. 

As we observe below, the regulations are clear on that point.21 But shifting legal 

 20 Plaintiffs make causation the centerpiece of their RFRA claim. They allege that 

opting out of the Mandate would cause or make them complicit in providing 

contraceptive coverage, and thus substantially burdens their religious exercise. Much of 

our opinion assesses and ultimately rejects the merits of this claim. 

21 Indeed, this is an unremarkable feature of the accommodation scheme. An opt 

out religious accommodation typically contemplates that a non-objector will replace the 

religious objector and take over any legal responsibilities. 
- 33 - 

responsibility to provide coverage away from the plaintiffs relieves rather than burdens 

their religious exercise. The ACA and its implementing regulations entitle plan 

participants and beneficiaries to coverage whether or not the plaintiffs opt out. And the 

government has established a scheme where, if the law is followed, self-insured plaintiffs 

that opt out are relieved of providing, paying for, and facilitating coverage; the 

government assigns that responsibility to their TPAs; and plan participants and 

beneficiaries receive the coverage to which they are entitled by federal law. Such an 

arrangement is among the common and permissible methods of religious accommodation 

in a pluralist society, and does not constitute a substantial burden under RFRA. 

A. Legal Background 

1. Standard of Review 

Each appeal before us seeks review of a district court order granting or denying a 

preliminary injunction. We review orders granting or denying a preliminary injunction 

for abuse of discretion. See Hobby Lobby, 723 F.3d at 1128; Aid for Women v. Foulston, 

441 F.3d 1101, 1115 (10th Cir. 2006). 

A preliminary injunction may be granted if the party seeking it shows: “(1) a 

likelihood of success on the merits; (2) a likely threat of irreparable harm to the movant; 

(3) the harm alleged by the movant outweighs any harm to the non-moving party; and (4) 

an injunction is in the public interest.” Hobby Lobby, 723 F.3d at 1128. A district court 

abuses its discretion by granting or denying a preliminary injunction based on an error of 

law. See id.; Aid for Women, 441 F.3d at 1115. 
- 34 - 

2. RFRA and Free Exercise 

RFRA was enacted in 1993 in response to Employment Division, Department of 

Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), in which the Supreme Court

held that burdens on religious exercise are constitutional under the Free Exercise Clause 

if they result from a neutral law of general application and have a rational basis. Id. at 

878-80; United States v. Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002). Congress 

enacted RFRA to restore the pre-Smith standard, which permitted legal burdens on an 

individual’s religious exercise only if the government could show a compelling need to 

apply the law to that person and that the law did so in the least restrictive way. Smith, 

494 U.S. at 882-84; see also Hobby Lobby, 134 S. Ct. at 2792-93 (Ginsburg, J., 

dissenting). Congress specified the purpose of RFRA was to restore this compelling 

interest test as it had been recognized in Sherbert v. Verner, 374 U.S. 398 (1963), and 

Wisconsin v. Yoder, 406 U.S. 205 (1972). See 42 U.S.C. § 2000bb(b)(1). 

By restoring the pre-Smith compelling interest standard, Congress did not express 

any intent to alter other aspects of Free Exercise jurisprudence. See id.; Hobby Lobby, 

723 F.3d at 1133 (“Congress, through RFRA, intended to bring Free Exercise 

jurisprudence back to the test established before Smith. There is no indication Congress 

meant to alter any other aspect of pre-Smith jurisprudence . . . .”). Notably, pre-Smith 

jurisprudence allowed the government “wide latitude” to administer large administrative 

programs, and rejected the imposition of strict scrutiny in that context. As the Supreme 

Court indicated in Bowen v. Roy, 
- 35 - 

In the enforcement of a facially neutral and uniformly applicable 

requirement for the administration of welfare programs reaching many 

millions of people, the Government is entitled to wide latitude. The 

Government should not be put to the strict test applied by the District 

Court; that standard required the Government to justify enforcement of the 

use of Social Security number requirement as the least restrictive means of 

accomplishing a compelling state interest. 

476 U.S. 693, 707 (1986). As we discuss at greater length below, the pre-Smith standards 

restored by RFRA permitted the Government to impose de minimis administrative 

burdens on religious actors without running afoul of religious liberty guarantees. 

3. Elements of RFRA Analysis 

RFRA analysis follows a burden-shifting framework. “[A] plaintiff establishes a 

prima facie claim under RFRA by proving the following three elements: (1) a substantial 

burden imposed by the federal government on a (2) sincere (3) exercise of religion.” 

Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001); see 42 U.S.C. § 2000bb-1(a).22 

The burden then shifts to the government to demonstrate its law or policy advances “a 

compelling interest implemented through the least restrictive means available.” Hobby 

Lobby, 723 F.3d at 1142-43. The government must show that the “compelling interest 

test is satisfied through application of the challenged law ‘to the person’—the particular 

 22 RFRA originally defined “exercise of religion” as “the exercise of religion 

under the First Amendment to the Constitution.” In 1999, the Religious Land Use and 

Institutionalized Persons Act (“RLUIPA”) amended RFRA, and redefined “exercise of 

religion” by reference to 42 U.S.C. § 2000cc-5(7)(A). 42 U.S.C. § 2000bb-2(4). Section 

2000cc-5(7)(A) expanded the phrase to include “any exercise of religion, whether or not 

compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); 

see Kikumura, 242 F.3d at 960.
- 36 - 

claimant whose sincere exercise of religion is being substantially burdened.” Id. at 1126 

(quotations and citation omitted). “This burden-shifting approach applies even at the 

preliminary injunction stage.” Id. 

We have previously stated “a government act imposes a ‘substantial burden’ on 

religious exercise if it: (1) requires participation in an activity prohibited by a sincerely 

held religious belief, (2) prevents participation in conduct motivated by a sincerely held 

religious belief, or (3) places substantial pressure on an adherent to engage in conduct 

contrary to a sincerely held religious belief.” Hobby Lobby, 723 F.3d at 1125-26 

(quotations and alterations omitted); see also Yellowbear, 741 F.3d at 55 (applying this 

framework to RLUIPA); Abdulhaseeb, 600 F.3d at 1315 (same). As we discuss in the 

next section, whether a law substantially burdens religious exercise in one or more of 

these ways is a matter for courts—not plaintiffs—to decide. 

4. Courts Determine Substantial Burden 

To determine whether plaintiffs have made a prima facie RFRA claim, courts do 

not question “whether the petitioner . . . correctly perceived the commands of [his or her] 

faith.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716 (1981); see

Hobby Lobby, 723 F.3d at 1138-40. But courts do determine whether a challenged law or 

policy substantially burdens plaintiffs’ religious exercise. RFRA’s statutory text and 

religious liberty case law demonstrate that courts—not plaintiffs—must determine if a 

law or policy substantially burdens religious exercise. 

RFRA states the federal government “shall not substantially burden a person’s 
- 37 - 

exercise of religion.” 42 U.S.C. § 2000bb-1(a). We must “give effect . . . to every clause 

and word” of a statute when possible. United States v. Menasche, 348 U.S. 528, 538-39 

(1955). Drafts of RFRA prohibited the government from placing a “burden” on religious 

exercise. Congress added the word “substantially” before passage to clarify that only 

some burdens would violate the act. 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) 

(statements of Sen. Kennedy and Sen. Hatch). 

We therefore consider not only whether a law or policy burdens religious exercise, 

but whether that burden is substantial. If plaintiffs could assert and establish that a 

burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” 

would become wholly devoid of independent meaning. See Menasche, 348 U.S. at 538-

39. Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would 

improperly conflate the determination that a religious belief is sincerely held with the 

determination that a law or policy substantially burdens religious exercise. 

Every circuit that has addressed a RFRA challenge to the accommodation scheme 

at issue here has concluded that whether the government has imposed a “substantial 

burden” is a legal determination. See E. Tex. Baptist Univ. v. Burwell, Nos. 14-20112, 

14-10241, 14-40212, 14-10661, 2015 WL 3852811, at *3-5 & n.33 (5th Cir. June 22, 

2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 612 (7th Cir. 2015); Geneva Coll. 

v. Sec’y of U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 436 (3d Cir. 2015); 

Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247-49 (D.C. Cir. 

2014); Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372, 385 (6th 
- 38 - 

Cir. 2014), vacated and remanded, 135 S. Ct. 1914 (2015). This is consistent with our 

determination that we review de novo “what constitutes [a] substantial burden . . . and the 

ultimate determination as to whether the RFRA has been violated.” United States v. 

Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996); see also Yellowbear, 741 F.3d at 56 

(determining “a reasonable finder of fact could conclude the prison has substantially 

burdened Mr. Yellowbear’s religious exercise”). Thus, we “accept[] as true the factual 

allegations that [Plaintiffs’] beliefs are sincere and of a religious nature—but not the legal 

conclusion, cast as a factual allegation, that [their] religious exercise is substantially 

burdened.” Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008); see Mahoney v. 

Doe, 642 F.3d at 1112, 1121 (D.C. Cir. 2011); Henderson v. Kennedy, 253 F.3d 12, 17 

(D.C. Cir. 2001).23 

We have cautioned that substantiality does not permit us to scrutinize the 

“theological merit” of a plaintiff’s religious beliefs—instead, we analyze “the intensity of 

 23 Plaintiffs cite Thomas to argue we must accept their belief that they cannot 

participate in the accommodation whether or not that belief is “acceptable, logical, 

consistent, or comprehensible.” LS Br. at 47; RS Br. at 39 (quoting Thomas, 450 U.S. at 

714). Thomas concerned the denial of unemployment benefits to a claimant who quit his 

job because his religious beliefs prohibited him from producing armaments to be used for 

war. Thomas prevents courts from scrutinizing the theological merit of a plaintiff’s 

sincere religious belief, but not from assessing whether a challenged law or policy 

amounts to a substantial burden on religious exercise. See Hernandez v. Comm’r, 490 

U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of 

particular beliefs or practices to a faith, or the validity of particular litigants’ 

interpretations of those creeds. We do, however, have doubts whether the alleged burden 

imposed by the deduction disallowance on the Scientologists’ practices is a substantial 

one.” (citing Thomas, 450 U.S. at 716)). 
- 39 - 

the coercion applied by the government to act contrary to those beliefs.” Hobby Lobby, 

723 F.3d at 1137 (emphasis omitted). “Our only task is to determine whether the 

claimant’s belief is sincere, and if so, whether the government has applied substantial 

pressure on the claimant to violate that belief.” Id.24 In determining whether a law or 

policy applies substantial pressure on a claimant to violate his or her beliefs, we consider 

how the law or policy being challenged actually operates and affects religious exercise. 

See Geneva Coll., 778 F.3d at 436 (“We may consider the nature of the action required of 

the appellees, the connection between that action and the appellees’ beliefs, and the 

extent to which that action interferes with or otherwise affects the appellees’ exercise of 

religion—all without delving into the appellees’ beliefs.”); see also 139 Cong. Rec. 

S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy) (observing that RFRA 

would not impose strict scrutiny for “governmental actions that have an incidental effect 

on religious institutions”). 

When evaluating RFRA claims, we have therefore recognized that not all burdens 

alleged by plaintiffs amount to substantial burdens. See Abdulhaseeb, 600 F.3d at 1321 

(“We are not willing to conclude, however, that every single presentation of a meal an 

inmate considers impermissible constitutes a substantial burden on an inmate’s religious 

exercise.”); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 654 

(10th Cir. 2006) (“[W]e are not persuaded by Grace United’s assertion that the Board’s 

 24 The Government does not dispute the sincerity of Plaintiffs’ religious beliefs. 

See Little Sisters, 6 F. Supp. 3d at 1237; Southern Nazarene, 2013 WL 6804265, at *5; 

Reaching Souls, 2013 WL 6804259, at *4. 
- 40 - 

denial of a zoning variance for its proposed daycare operation constitutes more than an 

incidental burden on religious conduct.”); Kikumura, 242 F.3d at 961 (requiring 

evidentiary proof from the plaintiff that an alleged burden was “substantial” and 

remanding to the district court). Furthermore, as we discuss in the following section, the 

existence of an accommodation may affect whether a law or policy burdens religious 

exercise and whether that burden is substantial. 

5. Accommodations Can Lessen or Eliminate Burden 

We finally note that accommodations function to lessen or eliminate the burden of 

a generally applicable law. In Hobby Lobby, this court said the stark choice between 

providing contraceptive coverage and paying steep fines constitutes a sufficiently 

substantial burden to warrant relief under RFRA. Hobby Lobby, 723 F.3d 1114. 

Religious objectors are not always put to such a stark choice. When, as here, plaintiffs 

are offered an accommodation to a law or policy that would otherwise constitute a 

substantial burden, we must analyze whether the accommodation renders the potential 

burden on religious exercise insubstantial or nonexistent such that the law or policy that 

includes the accommodation satisfies RFRA. 

Accommodations may eliminate burdens on religious exercise or reduce those 

burdens to de minimis acts of administrative compliance that are not substantial for 

RFRA purposes. The Supreme Court recognized this point in Hobby Lobby when it 

suggested an accommodation to exempt the plaintiff corporations from complying with 

the Mandate could satisfy RFRA concerns. Hobby Lobby, 134 S. Ct. at 2782 (“At a 
- 41 - 

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 id. at 2786-87 (Kennedy, J., 

concurring). The D.C. Circuit observed that “[a] burden does not rise to the level of 

being substantial when it places an inconsequential or de minimis burden on an 

adherent’s religious exercise.” Priests for Life, 772 F.3d at 246 (quotations, citations, and 

alterations omitted). Were it otherwise, our substantial burden inquiry would become a 

blunt tool incapable of recognizing the meaningful difference between forcing 

organizations to provide or pay for contraceptives and allowing them to opt out of that 

requirement. To determine whether the accommodation scheme in these cases renders 

the alleged burden on Plaintiffs’ religious exercise nonexistent or insubstantial, we turn to 

the merits of Plaintiffs’ RFRA arguments. 

B. Substantial Burden Analysis 

1. Plaintiffs’ RFRA Arguments 

The cases before us turn on whether complying with the accommodation 

constitutes a substantial burden. The Government does not dispute the sincerity of 

Plaintiffs’ religious belief that they may not provide, pay for, or facilitate contraceptive 

coverage. The parties dispute whether the accommodation scheme substantially burdens 

the Plaintiffs’ exercise of religion. 

Plaintiffs oppose completing the Form or notifying HHS because they believe they 

are being asked to play a causal role in the delivery of contraceptive coverage and would 
- 42 - 

be complicit or perceived to be complicit in the overall contraceptive delivery scheme by 

virtue of their opting out. They also allege their continuing involvement in the regulatory 

scheme is a substantial burden.25 

The Government responds that completing the Form or notification does not 

involve Plaintiffs in the delivery of contraceptive coverage. The accommodation relieves 

Plaintiffs of their obligations under the Mandate, and when that occurs, federal law 

authorizes and obligates a health insurance issuer or TPA to provide or arrange for the 

delivery of contraceptive coverage to plan participants and beneficiaries who are entitled 

to that coverage under the ACA. The Government therefore argues the accommodation 

 25 The Little Sisters and Reaching Souls plaintiffs clarify that they “have never 

objected to merely identifying themselves so that the government can leave them alone.” 

LS Supp. Br. II at 2 n.2; RS Supp. Br. II at 2 n.2. They have expressed satisfaction with 

the Supreme Court’s injunctions pending appeal in Little Sisters and Wheaton College. 

LS Supp. Br. II at 1-2; RS Supp. Br. II at 2, 12; Oral Arg. in LS at 12:10-12:40. They 

nevertheless object to the recent modified accommodation promulgated by the 

Departments—the opt out letter to HHS—both because the self-certification requires 

more information about their group health plan than the aforementioned notice the 

Supreme Court proposed, and because of the “collateral consequences” that follow after 

they opt out. Oral Arg. in LS at 12:10-13:53. 

The Little Sisters and Reaching Souls plaintiffs have not convincingly explained 

how the notice to HHS promulgated by the Departments would substantially burden their 

religious exercise but the notice crafted by the Supreme Court does not. In Wheaton 

College, the Supreme Court emphasized the plaintiffs had functionally notified the 

Departments they met the necessary requirements to obtain an accommodation, and said 

“[n]othing 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.” 134 S. Ct. at 2807; see also Zubik, 2015 WL 3947586. 

The Southern Nazarene plaintiffs object to affirmatively voicing a religious 

objection, including the type of notice described in Wheaton College. See Oral Arg. in 

SN at 24:30-25:20. They appear to believe that exemption from the Mandate—like the 

exemption for religious employers—is the only proper result under RFRA. 
- 43 - 

does not substantially burden Plaintiffs’ religious exercise as a matter of law. 

2. The Accommodation Scheme Eliminates Burdens on Religious Exercise 

Under the accommodation scheme, the act of opting out relieves objecting 

religious non-profit organizations from complying with the Mandate and excuses them 

from participating in the provision of contraceptive coverage. The Departments designed 

the accommodation so that, upon receipt of the Form or a notification from the 

government, health insurance issuers and TPAs—not the objecting religious non-profit 

organization—provide contraceptive coverage and ensure the organization will not be 

required to provide, pay for, or otherwise facilitate that coverage. See Mich. Catholic 

Conf., 755 F.3d at 391. We review this feature of the accommodation scheme to show 

how it eliminates burdens Plaintiffs otherwise would face, similar to the burdens the forprofit plaintiffs faced in Hobby Lobby. 

First, the regulations specify a health insurance issuer must handle contraceptive 

coverage separately from the insurance provided under the religious non-profit 

organization’s plan. 

A group health insurance issuer that receives a copy of the self-certification 

or notification . . . must (A) Expressly exclude contraceptive coverage from 

the group health insurance coverage provided in connection with the group 

health plan; and (B) Provide separate payments for any contraceptive 

services required to be covered under § 147.130(a)(1)(iv) for plan 

participants and beneficiaries for so long as they remain enrolled in the 

plan. 
- 44 - 

45 C.F.R. § 147.131(c)(2)(i).26 

Second, after a religious non-profit organization opts out, a health insurance issuer 

may not share the costs of providing contraception with the employer or employees. 

With respect to payments for contraceptive services, the [health insurance] 

issuer 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. The issuer must 

segregate premium revenue collected from the eligible organization from 

the monies used to provide payments for contraceptive services. 

 

45 C.F.R. § 147.131(c)(2)(ii); see also 26 C.F.R. § 54.9815-2713A(c)(2)(ii); 29 C.F.R. 

§ 2590.715-2713A(c)(2)(ii). TPAs are subject to similar requirements. See 26 C.F.R. 

§ 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). 

Finally, a health insurance issuer or TPA must, in communicating with plan 

participants or beneficiaries, send separate notice regarding contraceptive coverage from 

other plan notifications and make clear the employer neither administers nor funds 

contraceptive benefits. A health insurance issuer or TPA 

must provide to plan participants and beneficiaries written notice of the 

availability of separate payments for contraceptive services 

contemporaneous with (to the extent possible), but separate from, any 

application materials distributed in connection with enrollment (or reenrollment) in group health coverage that is effective beginning on the first 

day of each applicable plan year. The notice must specify that the eligible 

organization does not administer or fund contraceptive benefits, but that the 

third party administrator or issuer, as applicable, provides separate 

 26 TPAs are not subject to this provision. Instead, a TPA that receives the Form or 

a notification from the government must provide or arrange for contraceptive coverage 

for plan participants and beneficiaries if it wishes to remain the TPA for the group health 

plan. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
- 45 - 

payments for contraceptive services, and must provide contact information 

for questions and complaints. 

26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d); see also 45 C.F.R. 

§ 147.131(d). 

All of the foregoing remove the objecting religious non-profit organizations from 

providing contraceptive coverage, but Plaintiffs argue these protections of their religious 

liberty are insufficient because they still must deliver a Form or notify HHS to opt out of 

the Mandate. They contend this act substantially burdens their religious exercise because 

it “triggers” the provision of contraceptive coverage, makes them complicit in the larger 

delivery scheme, and demands their ongoing involvement. We disagree. The 

accommodation relieves Plaintiffs of their statutory obligation to provide contraceptive 

coverage to their plan participants and beneficiaries, and as we discuss below, taking 

advantage of that accommodation is not a substantial burden on religious exercise. 

3. The Accommodation Scheme Does Not Impose a Substantial Burden 

To explain why the accommodation scheme does not substantially burden 

Plaintiffs’ religious exercise, we look at the theories argued by the Plaintiffs and why 

they fail. 

a. Opting out does not cause contraceptive coverage. 

Although the accommodation scheme frees Plaintiffs from providing, paying for, 

or facilitating contraceptive coverage, they contend that, by delivering the Form or 

notifying HHS, they nevertheless “trigger” or cause contraceptive coverage. They do 

not. As we explain below, Plaintiffs’ causation argument misconstrues the statutory and 
- 46 - 

regulatory framework. Federal law, not the Form or notification to HHS, provides for 

contraceptive coverage without cost sharing to plan participants and beneficiaries. 

Because the mechanics of the accommodation scheme differ slightly for different types of 

plans, we examine how the regulations work for insured plans, self-insured plans, and 

self-insured church plans. But in each circumstance, Plaintiffs’ causation argument fails 

to establish any burden on Plaintiffs’ religious exercise. 

i. Insured Plans 

The plaintiffs with insured plans deal directly with a health insurance issuer and 

do not use a TPA.27 They argue the accommodation scheme levies a substantial burden 

on their religious exercise because “insurance issuers will sell [them] plans that either (a) 

expressly include abortifacients; or (b) functionally include abortifacients by guaranteeing 

separate payments for them upon [their] execution and conveyance of the selfcertification to the issuer.” SN Br. at 18. We disagree. 

The regulations do not burden the religious exercise of employers using insured 

plans. The ACA obligates both group health plans and health insurance issuers to 

provide contraceptive coverage. A religious non-profit organization may comply with 

the Mandate and provide coverage to its employees, opt out using the accommodation, or 

not comply with the law and pay fines. But in each instance, the health insurance issuer 

 27 The plaintiffs with insured plans are Oklahoma Wesleyan University and 

Oklahoma Baptist University. Southern Nazarene also has an insured plan for students 

and claims above $100,000. 
- 47 - 

must ensure the organization’s employees receive contraceptive coverage. 

By delivering the Form or notifying HHS, an organization with an insured plan 

does not enable coverage—to the contrary, it simply notifies its health insurance issuer 

the organization will not be providing coverage. The health insurance issuer then has an 

independent and exclusive obligation to provide that coverage without cost sharing. The 

relevant regulation states: “When a self-certification is provided directly to an issuer, the 

issuer has sole responsibility for providing such coverage in accordance with § 147.130.” 

45 C.F.R. § 147.131(c)(1)(i). Because the ACA obligates health insurance issuers to 

provide contraceptive coverage, they must meet this obligation independently and 

irrespective of the notification. The self-certification does not impose any responsibility; 

it merely makes it the issuer’s sole responsibility rather than one shared with the group 

health plan itself. 

Because federal law requires the health insurance issuer to provide coverage and 

the accommodation process removes an objecting organization from participating, 

plaintiffs with insured plans fail to show the accommodation burdens their religious 

exercise. The insured plaintiffs are not burdened when they are relieved of their 

responsibility and their insurers provide coverage as required by independent obligations 

set out in the ACA.

ii. Self-Insured Plans 

The accommodation scheme permits religious non-profit organizations with selfinsured plans to opt out by delivering the Form to their TPA or notifying HHS that they 
- 48 - 

have a religious objection and will not comply with the Mandate. When the objecting 

organization opts out, the TPA that administers its group health plan is responsible for 

providing contraceptive coverage if it wishes to remain a TPA for the plan. In this 

section, we address this self-insured arrangement. In the next section, we consider the 

subset of self-insured plaintiffs having church plans over which the government lacks 

enforcement authority under ERISA to compel the TPA to comply with its legal 

obligations. 

1) Plaintiffs’ argument 

The only plaintiff with a self-insured plan subject to ERISA is Southern Nazarene. 

Southern Nazarene argues the accommodation scheme substantially burdens its religious 

exercise because the scheme requires it to “comply with the Mandate by either (a) setting 

up a self-insured plan that includes abortifacients; or (b) setting up a self-insured plan that 

functionally includes abortifacients by guaranteeing separate payments for them by the 

TPA upon the entity’s execution of the self-certification.” SN Br. at 18. Self-insured 

plaintiffs with ERISA-exempt church plans make similar claims. 

Plaintiffs and the dissent emphasize that the TPA may arrange or provide coverage 

only after a religious non-profit organization opts out.28 We consider this to be an 

 28 In University of Notre Dame, Judge Posner said: “By refusing to fill out the 

form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be 

required to provide the services to the university’s students and employees.” Univ. of 

Notre Dame, 786 F.3d at 614. 

We understand the mechanics of the accommodation to work differently. Aetna, 

as a health insurance issuer for Notre Dame’s students, would be obligated to provide 

Continued . . . 
- 49 - 

uncontested and unremarkable feature of the accommodation scheme.29 The regulations 

state that when a religious non-profit organization opts out of providing contraceptive 

coverage, the TPA is notified that the organization will not administer or pay for 

contraceptive coverage, and that it must provide or arrange for contraceptive coverage 

without cost sharing if it wishes to continue administering the plan. 26 C.F.R. § 54.9815-

2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The TPA is authorized and obligated 

to provide the coverage guaranteed by the ACA only if the religious non-profit 

organization that has primary responsibility for contraceptive coverage opts out of 

providing it. 

Plaintiffs suggest this shift in legal responsibility for contraceptive coverage 

substantially burdens their religious exercise under RFRA. They argue their opting out 

would trigger, cause, or offer a “permission slip” for the delivery of contraception by 

allowing their TPA to provide the coverage. Southern Nazarene, 2013 WL 6804265, at 

______________________________________ 

Cont. 

contraceptive coverage under the ACA whether or not Notre Dame delivered the Form or 

notification to HHS. See 42 U.S.C. § 300gg-13. Meritain, a TPA, would be obligated to 

provide contraceptive coverage only after Notre Dame delivered the Form or notification 

to HHS and opted out of the Mandate. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. 

§ 2590.715-2713A(b)(2). 

29 Even the dissent in Wheaton College recognized that a TPA need only provide 

the legally required contraceptive coverage when a religious non-profit organization takes 

advantage of the accommodation scheme. As Justice Sotomayor observed, “a third-party 

administrator bears the legal obligation to provide contraceptive coverage only upon 

receipt of a valid self-certification.” Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, 

J., dissenting from grant of injunction pending appeal). 
- 50 - 

*8. We disagree. 

2) Opting out does not cause coverage 

The ACA requires all group health plans to cover preventive services, including 

contraception, without cost sharing. Because a group health plan must include 

contraceptive coverage under the ACA, the accommodation scheme requires a TPA that 

administers a self-insured religious non-profit organization’s group health plan to provide 

coverage if the organization opts out. The TPA must then arrange coverage for plan 

participants and beneficiaries if it wishes to continue functioning as the TPA for the 

objecting organization. This arrangement allows religious non-profit organizations to opt 

out and ensures plan participants and beneficiaries will receive the contraceptive 

coverage to which they are entitled by law. 

Under this framework, the plaintiffs’ argument does not identify a substantial 

burden on religious exercise. The opt out does not “cause” contraceptive coverage; it 

relieves objectors of their coverage responsibility, at which point federal law shifts that 

responsibility to a different actor. The ACA and its implementing regulations have 

already required that group health plans will include contraceptive coverage and have 

assigned legal responsibilities to ensure such coverage will be provided when the 

religious non-profit organization opts out. See Wheaton College v. Burwell, No. 14-2396, 

2015 WL 3988356, at *4 (7th Cir. July 1, 2015); E. Tex. Baptist Univ., 2015 WL 

3852811, at *5-6; Univ. of Notre Dame, 786 F.3d at 613-14; Geneva Coll., 778 F.3d at 
- 51 - 

437-38; Priests for Life, 772 F.3d at 254-55.30 This arrangement 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.31 Although a religious nonprofit organization may opt out from providing contraceptive coverage, it cannot preclude 

 30 To the extent Plaintiffs are specifically concerned about the language on the 

Form, that concern can be alleviated by taking advantage of the expanded 

accommodation and notifying HHS in writing. Plaintiffs need not use any terms they 

consider morally charged, like “certify,” in their letter or email to HHS. 

We further note the notification to HHS requires self-insured plaintiffs only to 

register their objection and identify their TPA—it does not require them to inform their 

TPA of any legal responsibilities to provide contraceptive coverage. When the opt out is 

submitted to HHS, the plaintiffs are relieved of their responsibilities. The government 

then takes steps to ensure that coverage is provided—HHS notifies the Department of 

Labor of the objection, and the Department of Labor then contacts the TPA to inform it 

of its duties under the ACA. 

31 Analogizing the opt out to conscientious objections to war, see, e.g., Priests for 

Life, 772 F.3d at 245-46; Univ. of Notre Dame, 786 F.3d at 623-24 (Hamilton, J., 

concurring), should not overshadow the diverse array of mechanisms that federal, state, 

and local governments have used to accommodate objectors. Many religious objection 

schemes require an affirmative opt out before another person is required to step in and 

assume responsibility, and may require the objector to identify a replacement in the 

process. See, e.g., 2015 Utah Laws Ch. 46 (accommodating religious objections to samesex marriage of those working in county clerks’ offices by requiring that “[a] county 

clerk shall . . . establish policies to ensure that the county clerk, or a designee of the 

county clerk who is willing, is available during business hours to solemnize a legal 

marriage for which a marriage license has been issued”); Stormans Inc. v. Selecky, 844 F. 

Supp. 2d 1172 (W.D. Wash. Feb. 22, 2012) (reinstating a “refuse and refer” approach 

where pharmacies need not provide contraception so long as they refer patients to 

alternative providers); Conn. Agencies Regs. § 19a-580d-9 (requiring health care 

providers who object to implementing a do-not-resuscitate order to “turn over care of the 

patient without delay to another provider who will implement the DNR order”); Internal 

Revenue Service, Tax Guide for Churches & Religious Organizations 18 (2013), 

www.irs.gov/pub/irs-pdf/p1828.pdf (explaining that a church may opt out of paying 

Social Security and Medicare taxes for religious reasons, shifting that responsibility to 

their employees to pay those taxes as though they were self-employed). 
- 52 - 

the government from requiring others to provide the legally required coverage in its 

stead.32 In short, the framework established by federal law, not the actions of the 

religious objector, ensures that plan participants and beneficiaries will receive 

contraceptive coverage.33 

 32 Plaintiffs argue that, under the accommodation scheme, organizations with selfinsured plans participate in the delivery of contraceptive coverage because their TPAs 

cannot arrange for that coverage unless and until plaintiffs deliver the Form or 

notification to HHS. We discuss above why this characterization of the accommodation 

scheme is incorrect, but we note here that this concern is specific to self-insured plans 

subject to ERISA. Plaintiffs could avoid the situation they deem objectionable by 

employing an insured plan, employing a self-insured church plan where the Departments 

lack authority to enforce the Mandate against their TPA, or administering the self-insured 

plan on their own in-house without using a TPA. Although the dissent notes that inhouse administration is complex, Dissent at 22-23, Plaintiffs have not demonstrated it 

would be a substantial burden under RFRA. The fact that this alternative may be more 

expensive or difficult for plaintiffs does not necessarily make it a substantial burden. See 

Braunfeld, 366 U.S. at 605-06. 

33 In this regard, the accommodation scheme here is comparable to a conscientious 

objector accommodation scheme, which provides for someone to replace the objector 

when he opts out of military service. See Priests for Life, 772 F.3d at 245-46; see also 

Univ. of Notre Dame, 786 F.3d at 623-24 (Hamilton, J., concurring). Indeed, the 

conscientious objector scheme is administratively more burdensome than filing the Form 

or notifying HHS to opt out of the Mandate. A conscientious objector must register in 

the Selective Service System before being able to apply for an exemption, must complete 

an application and appear for an in-person interview, and, if the exemption is granted, 

must perform two years of service for the government in lieu of military service. See 50 

U.S.C. § 456j. 

The dissent points to differences between the religious accommodation here and 

the conscientious objector scheme. But the comparison is apt. Courts have recognized 

that, to opt out of military service for religious reasons, a conscientious objector must 

notify the government of his objection knowing that someone else will take his place. 

See Trans World Airlines v. Hardison, 432 U.S. 63, 96 n.13 (1977) (Marshall, J., 

dissenting) (recognizing that “the effect of excusing conscientious objectors from military 

conscription is to require a nonobjector to serve instead, yet we have repeatedly upheld 

this exemption”); Sheridan v. United States, 483 F.2d 169, 174 (8th Cir. 1973) 

Continued . . . 
- 53 - 

3) Response to dissent 

The dissent argues that our reasoning fails to appreciate the difference between 

insured and self-insured plans. With insured plans, the health insurance issuer bears legal 

responsibility to provide contraceptive coverage whether or not the religious non-profit 

has opted out. With self-insured plans, the TPA shoulders legal responsibility for 

coverage only after the religious non-profit has opted out. 

______________________________________ 

Cont. 

(acknowledging that when the plaintiff evaded induction, “another person had to be 

called in his place”); McKenzie v. Schuppener, 415 F.2d 1056, 1058 (5th Cir. 1969) 

(characterizing a conscientious objection application as “the situation where appellant 

must go to Vietnam or someone else go in his place”). Similarly, to opt out of the 

Mandate, the self-insured religious objector must notify the government knowing that a 

TPA will take its place. 

And historically, it is not unprecedented to require an objector to identify a 

substitute for military service. To the contrary, the first federal draft statute permitted a 

draftee to avoid service only by either providing a substitute or paying $300. See Act of 

March 3, 1863, ch. 75, § 13, 12 Stat. 731, 733 (1863). As the dissent observes, the Civil 

War Enrollment Act sparked riots, Dissent at 14-15 n.7, but these were triggered by 

opposition to the draft itself, the inability of working class people to pay the $300 

exemption, and anxiety about freed slaves entering the labor market after the war—not 

the fact that the draft law allowed draftees to name a substitute in their place. See Leslie 

M. Harris, In the Shadow of Slavery: African Americans in New York City, 1626-1863, 

at 279-88 (2003). Although Congress later eliminated the $300 commutation fee (except 

for conscientious objectors), it retained the provision allowing enrollees to supply a 

substitute. See Act of July 4, 1864, ch. 237, §§ 2, 10, 11, 13 Stat. 379, 379-80 (1864). 

To the extent the dissent suggests Chief Justice Taney’s thoughts on the topic are 

relevant, Dissent at 14-15 n.7, we note that he considered conscription itself 

unconstitutional, not the substitution provision. See Leon Friedman, Conscription and 

the Constitution: The Original Understanding, 67 Mich. L. Rev. 1493, 1546-48 (1969). 

In fact, Chief Justice Taney paid $100 to excuse his “body servant” from the draft. See 

Bernard C. Steiner, Life of Roger Brooke Taney: Chief Justice of the United States 

Supreme Court 511-12 (1922). 
- 54 - 

We agree this is a distinction between these types of plans, but the dissent 

overplays its importance. See Dissent at 5 (deeming the difference between insured and 

self-insured plans “the critical distinction”).34 In both contexts, the ACA requires that 

group health plans cover contraceptive services, and a plaintiff knows coverage will be 

provided when it opts out. Plaintiffs do not dispute plan participants and beneficiaries’ 

right to contraceptive coverage, nor do they contest the government’s ability to require 

TPAs and health insurance issuers to arrange for such coverage when a religious nonprofit organization opts out. The only question before us is whether the plaintiffs are 

substantially burdened when they notify the government of their objection with the 

knowledge that another party will be required to provide coverage in their stead. The 

answer is no. 

A religious accommodation tries to reconcile religious liberty with the rule of law. 

When faced with an unavoidable conflict between following the law or religious belief, 

RFRA provides a religious objector a means to challenge a generally applicable law and 

seek an exception to avoid following that law without having to break it. A statutory 

accommodation, as we have here, serves the same purpose. As noted above, this case is 

 34 Although the Mandate in the insured plan context assigns responsibility to 

provide contraceptive coverage to both the religious non-profit organization and its health 

insurance issuer, we do not believe this is the only permissible arrangement to permit 

religious accommodation. Requiring all accommodations to follow this model would be 

duplicative, costly, and impractical, and would foreclose a wide range of pragmatic 

arrangements that bring in substitutes when and only when a religious objector opts out 

of performing a task. See, e.g., supra note 31. 
- 55 - 

unusual because the Plaintiffs do not seek an accommodation where none exists, but 

instead challenge a statutory accommodation and argue that the process for seeking 

refuge in it substantially burdens their religious exercise. As to the self-insured plaintiffs, 

the dissent contends that if they opt out and transfer their duty to provide contraceptive 

coverage to the TPA, they necessarily cause such coverage. We disagree. 

By opting out, the self-insured plaintiffs shift their duty to provide coverage to a 

TPA, but they do not change their plan participants and beneficiaries’ entitlement to 

contraceptive coverage under federal law.35 The dissent suggests, however, that because 

the plaintiffs can stymie coverage to their employees by breaking the law and incurring 

fines, and because opting out ultimately results in the TPAs’ providing coverage, the 

plaintiffs’ opting out therefore would cause contraceptive coverage. But this 

misconstrues the purpose of religious accommodation: to permit the religious objector 

both to avoid a religious burden and to comply with the law. If the plaintiffs wish to 

avail themselves of a legal means—an accommodation—to be excused from compliance 

 35 The dissent attempts to distinguish between health plan beneficiaries’ 

entitlement to coverage and their actual receipt of coverage. This distinction breaks 

down under inspection. If a religious non-profit complies with the law by providing 

coverage, the beneficiaries are entitled to and receive coverage. If the non-profit opts out 

as the law allows, the beneficiaries likewise are entitled to and receive coverage, they just 

do not receive it from the non-profit. Only if the non-profit disobeys the law and refuses 

either to provide coverage or opt out would the beneficiaries not receive coverage 

(though they would still be entitled to it). If the opt out were not part of the law, the 

plaintiffs would be in the same position as the for-profits in Hobby Lobby—without a 

legal option to avoid providing coverage. But the accommodation scheme gives the 

plaintiffs a legal avenue to avoid providing coverage as opposed to non-compliance with 

the law with the attendant financial penalties. 
- 56 - 

with a law, they cannot rely on the possibility of their violating that very same law to 

challenge the accommodation. 

In making this argument, the dissent focuses almost exclusively on whether the 

plaintiffs’ opt out is a but-for cause of the TPAs’ authority to provide contraceptive 

coverage.36 It does, but this approach misses the mark. Although opting out is 

necessarily a but-for cause of someone else—the TPA—providing contraceptive 

coverage, that is the point of an accommodation—shifting a responsibility from an 

objector to a non-objector. That is how a legislative policy choice—here, to afford 

women contraceptive coverage—can be reconciled with religious objections to that 

policy. We do not “den[y] the existence of any causation.” Dissent at 10. We instead 

correctly identify the effect of opting out. The effect is to shift legal responsibility from 

the self-insured plaintiff to its TPA and relieve the plaintiff of the duty it considers 

objectionable. The effect is not the provision of contraceptive coverage, which would be 

afforded under the law whether or not the plaintiff opts out. 

 36 Plaintiffs and the dissent characterize the self-certification as giving the TPA 

“permission” to provide contraceptive coverage. Dissent at 9. This characterization 

ignores that the self-certification specifically registers an objection to providing coverage, 

relieves the plaintiffs of their obligation to provide it, and affirmatively distances the 

plaintiffs in numerous ways from providing coverage to plan participants and 

beneficiaries. See supra Section V.B.2. Equating the opt out to a permission slip is akin 

to “disregard[ing] the difference between a ‘No Trespassing’ sign and a welcome mat.” 

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 245 (1995) (Stevens, J., dissenting). 

The government is not compelling the plaintiffs to endorse or license something they 

consider objectionable; instead, the government is allowing them to decline a legal 

responsibility while requiring another party to perform it in their stead. 
- 57 - 

The ACA requires that either the religious non-profit organization or the TPA 

must provide contraceptive coverage for a self-insured group health plan, and the 

accommodation must be evaluated with that provision in mind. The scheme allows the 

religious non-profit organization to opt out of the responsibility of providing coverage 

and assigns that duty to the TPA administering the group health plan. Crucially, it does 

not change or expand contraceptive coverage beyond what federal law has already 

guaranteed. As the Supreme Court said in Hobby Lobby, the effect of the 

accommodation on employees “would be precisely zero. Under that accommodation, 

these women would still be entitled to all FDA-approved contraceptives without cost 

sharing.” 134 S. Ct. at 2760. 

The government has designed the accommodation so plaintiffs that opt out are 

freed from providing, paying for, or facilitating contraception, and the TPA’s 

responsibility to provide coverage in their stead stems from federal law. Because this 

arrangement does not substantially burden the plaintiffs when they comply with the law, 

it does not matter whether the plaintiffs could prevent plan participants and beneficiaries 

from receiving coverage by violating the law. The dissent seems to suggest the ACA and 

its implementing regulations give self-insured plaintiffs discretion to decide whether their 

employees receive contraceptive coverage. The ACA and its implementing regulations 

do not, and the plaintiffs do not contend that they do. To the contrary, federal law 

generally requires that all people must have health insurance and that all health insurance 

must include preventive services, including contraceptive coverage. See 42 U.S.C. 
- 58 - 

§ 300gg-13.37 And “although [the ACA] does not specifically mention third-party 

administrators, they administer ‘group health plans,’ which must include coverage. 

Nothing suggests the insurers’ or third-party administrators’ obligations would be waived 

if the plaintiffs refused to apply for the accommodation.” E. Tex. Baptist Univ., 2015 WL 

3852811, at *5 (alterations omitted). The accommodation scheme does not give plaintiffs 

discretion to thwart their employees’ right to contraceptive coverage by refusing to 

provide coverage and also refusing to register their objection so the government can 

make alternative arrangements to free them from providing coverage.38 Because 

Congress has created a federal entitlement to contraceptive coverage and formulated a 

framework to guarantee that coverage will be provided even if plaintiffs decline to 

provide it, self-insured plaintiffs do not “cause” contraceptive coverage by exercising 

their ability to opt out. 

4) No cause of substantial burden 

In sum, the self-insured plaintiffs’ causal analysis falters regarding the effect of 

opting out, which is to shift legal responsibility to provide contraceptive coverage from 

 37 The dissent asks, “if the self-insured plaintiffs do not opt out, who will provide 

the coverage for their plan participants and beneficiaries?” Dissent at 8. The answer is 

the self-insured plaintiffs, if they comply with the law. But this is the reason for the opt 

out: to allow the plaintiffs a legal means to avoid providing coverage. 

38 In the absence of any such discretionary power or responsibility, plaintiffs are 

not faced with the Hobson’s choice the dissent describes. Dissent at 7-8, 12, 23. To the 

contrary, the accommodation eliminates any Hobson’s choice by allowing plaintiffs to 

opt out of providing coverage. 
- 59 - 

plaintiffs to their TPAs. When the government establishes a scheme that anticipates 

religious concerns by allowing objectors to opt out but ensuring that others will take up 

their responsibilities, plaintiffs are not substantially burdened merely because their 

decision to opt out cannot prevent the responsibility from being met. 

To establish a claim under RFRA, about which the dissent says little, a plaintiff 

must show the government substantially burdens its sincere religious exercise. The ACA 

states group health plans must cover contraception, and the regulations state that if a 

religious non-profit organization opts out, that coverage will be provided by a TPA. 

Opting out does not cause the coverage itself; federal law does, by establishing a scheme 

that permits plaintiffs to opt out of their legal responsibility while simultaneously 

ensuring that plan participants and beneficiaries receive the coverage to which they are 

legally entitled. Allowing plaintiffs to opt out is not a substantial burden under RFRA.39

 39 The dissent’s theory of causation is not viable for the reasons discussed above. 

We also fail to see how it comports with the Supreme Court’s orders in Wheaton College, 

134 S. Ct. 2806, and Zubik, 2015 WL 3947586. In Part II.B.1, the dissent objects that “a 

third party’s legal authority (i.e. permission) to provide the coverage is wholly dependent 

upon (i.e. caused by) the self-insured non-profit opting out.” Dissent at 9. But that 

would be equally true of the arrangement proposed in the Supreme Court’s orders in 

Zubik, which enjoined the Mandate only “[i]f the applicants ensure that the Secretary of 

Health and Human Services is in possession of all information necessary to verify 

applicants’ eligibility under 26 CFR §54.9815-2713A(a) or 29 CFR §2590.715-2713A(a) 

or 45 CFR §147.131(b) (as applicable),” 2015 WL 3947586, at *1, and Wheaton College, 

which enjoined the Mandate only “[i]f 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,” 

134 S. Ct. at 2807. (The plaintiffs in Zubik are self-insured and use TPAs. See Geneva 

College, 778 F.3d at 433. Wheaton College employs various insurance arrangements, but 

uses a TPA to deliver a portion of its coverage—specifically, its prescription drug 

Continued . . . 
- 60 - 

iii. Self-Insured Church Plans 

The foregoing analysis of self-insured plans applies to the subset of self-insured 

church plans. We address additional reasons here to reject the church plan plaintiffs’ 

RFRA claims. 

The plaintiffs with self-insured church plans are in a unique position.40 A TPA 

cannot be compelled to provide or arrange for contraceptive coverage if it administers a 

church plan under 26 U.S.C. § 414(e) that has not elected to comply with provisions of 

ERISA under 26 U.S.C. § 410(d)—which describes the self-insured church plans in the 

cases before us. The Departments concede they lack authority under ERISA to force 

these church plan TPAs to perform their regulatory responsibility. See 29 U.S.C. 

§ 1003(b)(2). As a result, the Government can require the plaintiffs with self-insured 

church plans to use the Form or notify HHS to register their objection and opt out, but it 

has no enforcement authority to compel or penalize those plaintiffs’ TPAs if they decline 

______________________________________ 

Cont. 

coverage. See Wheaton College v. Burwell, 50 F. Supp. 3d. 939, 944 (N.D. Ill. 2014).) 

Wheaton College had already submitted a notice of its objection to the government, but 

the Supreme Court did not limit the injunction to that factual scenario. As Justice 

Sotomayor observed, “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.” Wheaton College, 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting). 

40 The plaintiffs with self-insured church plans include the Little Sisters, Reaching 

Souls, Truett-McConnell, and Mid-America Christian. The analysis in this section also 

applies to the plaintiffs that operate or administer self-insured church plans, which 

include the Christian Brothers Employee Benefit Trust, Christian Brothers Services, and 

GuideStone Financial Resources. 
- 61 - 

to provide or arrange for contraceptive coverage.41

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. Nonetheless, plaintiffs with church plans offer the following 

arguments as to why the accommodation scheme might still burden their religious 

exercise. First, the Departments could decide to alter the regulations and assert authority 

over church plans under ERISA. Second, the mere act of signing the Form or delivering 

the notification may involve them in the provision of contraception, either by cooperating 

with the Departments or by providing authorization to a TPA, which then decides it 

wants to provide contraceptive coverage after all. Third, their opting out incentivizes 

TPAs to provide coverage even if they are exempt from ERISA. Fourth, the Government 

has not demonstrated why the plaintiffs must complete the self-certification if their TPAs 

can decline to provide contraceptive coverage. In addition to the reasons self-insured 

plans in general are not substantially burdened by the accommodation scheme, we 

 41 If TPAs for self-insured church plans decide not to provide contraceptive 

coverage, plan participants and beneficiaries would not get the coverage to which they 

are otherwise entitled under the ACA. The dissent suggests it is paradoxical to maintain 

the ACA ensures plan participants and beneficiaries will receive contraceptive coverage 

and also acknowledge TPAs for self-insured church plans may in fact decline to provide 

that coverage. Dissent at 11 n.4. The positions are consistent. The ACA requires all 

group health plans to provide contraceptive coverage, but because it can only enforce that 

requirement through ERISA, church plans that are exempt from ERISA do not face any 

consequences if they fail to meet it. Put differently, the ACA creates a legal duty for all

group health plans, but the Government cannot enforce that duty against a narrow subset 

of self-insured church plans. The inability to enforce that duty does not mean the duty 

does not exist. 
- 62 - 

conclude the plaintiffs with self-insured church plans have failed to identify a substantial 

burden on religious exercise. 

1) Hypothetical regulation 

The plaintiffs argue the Departments could assert authority over church plans 

under ERISA at some point in the future. We assess the regulations as they currently 

exist, not amendments to ERISA’s implementing regulations the Department of Labor 

may hypothetically promulgate. An “[i]njunction issues to prevent existing or presently 

threatened injuries. One will not be granted against something merely feared as liable to 

occur at some indefinite time in the future.” Connecticut v. Massachusetts, 282 U.S. 660, 

674 (1931). Should the Departments assert ERISA authority over church plans at some 

later date, plaintiffs may then seek a preliminary injunction to prevent the Departments 

from enforcing the Mandate. Unless and until the Departments change their position, 

however, plaintiffs’ speculative argument does not warrant a preliminary injunction. See 

Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10th Cir. 2011). 

2) No causation from church plan TPA notification 

 The plaintiffs contend completing the self-certification would be a substantial 

burden because it would allow TPAs to provide coverage to their group health plan 

participants and beneficiaries, even if the Departments cannot compel the TPA to do so 

under ERISA. But plaintiffs with self-insured church plans are not substantially 

burdened by the requirement that they complete the Form or notification to HHS. As we 

explained in the previous section on self-insured plans, when a religious non-profit 
- 63 - 

organization opts out of the Mandate, the requirement that the group health plan include 

contraceptive coverage is a product of federal law, not the product of the organization’s 

opting out. Opting out frees plaintiffs from their obligation to provide contraceptive 

coverage under the ACA. The lack of substantial burden is especially evident when the 

group health plan is administered by a TPA that has made clear it will not provide 

contraceptive coverage on religious grounds. The Little Sisters’ TPA, for example, is 

Christian Brothers, their co-plaintiff in this case. It is clear Christian Brothers need not, 

and will not, provide contraceptive coverage if the Little Sisters opt out of the Mandate.42 

3) No incentive from church plan TPA notification 

Even when TPAs for self-insured church plans indicate they may comply with the 

Mandate, the TPAs make that decision, and the objecting religious non-profit 

organization is not substantially burdened. The plaintiffs in Reaching Souls argue one of 

their TPAs, Highmark, has indicated it will provide contraceptive coverage if they opt out 

of the Mandate. The Reaching Souls plaintiffs argue their act of opting out would not 

only provide Highmark with permission to provide contraceptive coverage, but would 

incentivize it to do so because Highmark could then seek reimbursement from the 

government. 

Plaintiffs fail to demonstrate the reimbursement provision actually gives TPAs an 

incentive to provide coverage. They claim a TPA that receives the Form or a letter from 

 42 Plaintiff TPAs that administer church plans are not substantially burdened for 

similar reasons. In the absence of any enforcement power, the Government cannot levy 

fines against them for declining to provide contraceptive coverage. 
- 64 - 

the government “becomes eligible for government payments that will both cover the 

TPA’s costs and include an additional payment (equal to at least 10% of costs) for the 

TPA’s margin and overhead.” LS Br. at 16. At a hearing in Reaching Souls, counsel for 

the Government seemed to accept this characterization. But the regulations themselves 

expressly contradict this reading. They state the payment for margin and overhead goes 

to health insurance issuers who act as intermediaries for the reimbursement, and need not 

go to TPAs.43 See 45 C.F.R. § 156.50(d)(5) (specifying health insurance issuers must 

reimburse TPAs for “the portion of the adjustment attributable to the total dollar amount 

of the payments for contraceptive services submitted by the third party administrator” but 

that “[n]o such payment is required with respect to the allowance for administrative costs 

and margin”). 

Moreover, even if TPAs were to receive a payment for margin and overhead—set 

at 15% of costs for 2014—plaintiffs do not demonstrate this allowance actually functions 

as an incentive to provide contraceptive coverage rather than repayment for the 

administrative costs TPAs incur by stepping in to arrange for or provide coverage. 

Plaintiffs have not demonstrated the allowance for administrative overhead actually 

 43 The Departments credit the health insurance issuer for (1) the total dollar 

amount of the TPA’s payments for contraceptive coverage, and (2) an allowance of at 

least 10% for administrative costs and margin. See 45 C.F.R. § 156.50(d)(3). The health 

insurance issuer then pays the TPA for the total dollar amount of the TPA’s payments for 

contraceptive coverage, but is not required to pay the TPA the allowance for 

administrative costs and margin. See 45 C.F.R. § 156.50(d)(5). As a result, the 

regulations require only that a TPA receive repayment for what it has actually spent 

providing contraceptive coverage. A reimbursement solely for costs incurred would not 

generate a profit or offer any incentive to provide contraceptive coverage. 
- 65 - 

generates a profit for TPAs, nor have they demonstrated that the allowance would 

incentivize TPAs to provide coverage where they otherwise would not. 

4) The Government may require affirmative objection 

Plaintiffs finally argue that if the Departments lack ERISA enforcement authority 

against TPAs of self-insured church plans, the Government has no reason to require 

religious non-profit organizations to comply with the accommodation scheme and deliver 

the Form or notify HHS. It is the plaintiffs’ burden, however, to state a prima facie case 

under RFRA. Because they cannot establish that signing the Form or notifying HHS 

constitutes a substantial burden on their religious exercise, we do not question the 

Departments’ interest in requiring them to opt out of the Mandate to avoid penalties for 

failure to provide contraceptive coverage.44 

* * * * 

We conclude the Plaintiffs’ causation arguments do not establish a burden on their 

religious exercise, much less a substantial burden, because opting out would not trigger, 

 44 The Departments have a sound reason to require an affirmative opt out—not all 

religious organizations share the beliefs of the Little Sisters, Reaching Souls, TruettMcConnell, and Mid-America Christian. The parties agree that the Departments can 

require non-objecting employers to provide contraceptive coverage under their group 

health plans. To enforce that general requirement, the Departments may require 

objecting employers to affirmatively voice their objection instead of assuming all 

religious non-profit organizations share the plaintiffs’ beliefs. 
- 66 - 

incentivize, or otherwise cause the provision of contraceptive coverage.45 We therefore 

turn to Plaintiffs’ argument that the act of opting out and the administrative requirements 

associated with the accommodation make them feel or appear complicit in the overall 

contraceptive coverage scheme. 

e. No substantial burden from complicity 

The accommodation relieves Plaintiffs from providing, paying for, or facilitating 

contraceptive coverage, and federal law requires health insurance issuers and TPAs to 

provide contraceptive coverage when religious non-profit organizations take advantage of 

the accommodation. Plaintiffs argue the act of opting out would nevertheless 

substantially burden their religious exercise because they believe delivering the Form or 

notification to HHS would make them complicit in the overall scheme to deliver 

contraceptive coverage. They wish to play no part in it. We find this argument 

unconvincing for a number of reasons. 

First, the purpose and design of the accommodation scheme is to ensure that 

Plaintiffs are not complicit—that they do not have to provide, pay for, or facilitate 

contraception. Plaintiffs’ concern that others may believe they condone the Mandate is 

unfounded. Opting out sends the unambiguous message that they oppose contraceptive 

coverage and refuse to provide it, and does not foreclose them from objecting both to 

 45 Under these circumstances, as the Third Circuit observed, “the burden is not 

merely attenuated at the outset but totally disconnected from the appellees.” Geneva 

Coll., 778 F.3d at 442. 
- 67 - 

contraception and the Mandate in the strongest possible terms. 

Second, to the extent Plaintiffs assert that completing the Form or notification 

violates their religious beliefs, they state a necessary but not a sufficient predicate for a 

RFRA claim. Under RFRA, they must establish that completing the Form or notification 

substantially burdens their religious exercise; otherwise, this argument could be used to 

avoid almost any legal obligation that involves a form. Plaintiffs do not object to signing 

forms and paperwork generally—they object to the Form or notification to HHS, and they 

do so because they believe it involves them in directly or indirectly providing, paying for, 

or facilitating contraceptive coverage, which they oppose as a matter of religious 

conviction. As we have explained, the Plaintiffs misstate their role in the accommodation 

scheme. RFRA does not require us to defer to their erroneous view about the operation 

of the ACA and its implementing regulations.46

 46 Plaintiffs cite Thomas for the proposition that we cannot question the 

theological merit of their religious beliefs. See Thomas, 450 U.S. at 715 (“We see, 

therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an 

unreasonable one.”). We agree with that proposition, but we may—indeed, we must—

determine whether the accommodation scheme substantially burdens their religious 

exercise. 

In Thomas, Mr. Thomas believed he could not participate in the production of war 

materials. Id. at 709. The government argued Mr. Thomas’s beliefs did not warrant 

protection by suggesting those beliefs were inconsistent and not shared by his coreligionists. Id. at 714-15. The Supreme Court specifically rejected these attempts to 

impeach Mr. Thomas’s religious beliefs, id. at 715-16, but the Court was not confronted 

with the question of whether those beliefs were substantially burdened. Both the 

Supreme Court and the Tenth Circuit have indicated that accepting a plaintiff’s religious 

belief does not foreclose an inquiry into whether religious exercise has been substantially 

burdened. See, e.g., Hernandez, 490 U.S. at 699; Kikumura, 242 F.3d at 961. 

Continued . . . 
- 68 - 

Third, because the accommodation does not involve them in providing, paying for, 

facilitating, or causing contraceptive coverage, Plaintiffs’ only involvement in the scheme 

is the act of opting out. Plaintiffs are not substantially burdened solely by the de minimis

administrative tasks this involves. All opt-out schemes require some affirmative act to 

free objectors from the obligations they would otherwise face. The Plaintiffs’ logic 

would undermine conscientious objection schemes that require the objection to be made, 

relieve objectors of their obligations, but assign those obligations to other, non-objecting 

actors in their stead. See, e.g., Gillette v. United States, 401 U.S. 437 (1971) 

(acknowledging a petitioner must complete an exemption application to obtain 

______________________________________ 

Cont. 

The Government does not question Plaintiffs’ religious beliefs that contraception 

is sinful and they cannot be involved in providing, paying for, or facilitating 

contraceptive coverage. But Plaintiffs go beyond Thomas when they insist that we 

cannot question whether opting out makes them complicit in providing contraceptive 

coverage. We may properly consider that opting out excuses them from providing 

coverage, does not cause that coverage to be extended to plan participants and 

beneficiaries, and involves only routine administrative tasks that are not substantial 

burdens under RFRA. See Little Sisters, 6 F. Supp. 3d at 1239 (“Thus, Plaintiff’s 

contention that the Court cannot look behind their statements about what offends their 

religious beliefs is well-supported. However, the Court is under no such restriction with 

regard to Plaintiffs’ construction of how the Final Rules operate, including the 

administrative burdens imposed on the parties by these regulations.”). 

For these reasons, Thomas is inapposite when the inquiry focuses on whether a 

burden is substantial. It does not preclude courts from examining the relationship 

between a sincerely held religious belief and the alleged burden imposed by the 

Government. This important distinction prevents the Government from having to survive 

strict scrutiny whenever a plaintiff misunderstands the burden being placed upon them—

for example, if Mr. Thomas had been required to produce equipment for farming and 

sincerely, but incorrectly, believed that equipment was being produced for war. See, e.g., 

Priests for Life, 772 F.3d at 249 n.14. 
- 69 - 

conscientious objector status in wartime); Welsh v. United States, 398 U.S. 333 (1970) 

(same).47 Having to file paperwork or otherwise register a religious objection, even if one 

disagrees with the ultimate aim of the law at issue, does not alone substantially burden 

religious exercise. 

The Government may therefore require religious objectors to complete de minimis 

administrative tasks to opt out. Filing the Form or notifying HHS easily fits within this 

category. The Departments have made opting out of the Mandate at least as easy as 

obtaining a parade permit, filing a simple tax form, or registering to vote—in other 

words, a routine, brief administrative task. The purpose of the Form or notification to 

HHS is to extricate Plaintiffs from their legal obligation to provide contraceptive 

coverage. Opting out ensures they will play no part in the provision of contraceptive 

coverage, prohibits TPAs and health insurance issuers from sharing the costs of providing 

coverage with them, and requires notice to employees that they do not administer or fund 

contraceptive services. 

 47 As other courts have observed, invalidating the accommodation scheme would 

run contrary to many other laws allowing objectors to opt out of government programs 

and requirements. See Priests for Life, 772 F.3d at 245 (deeming Plaintiffs’ argument 

against the accommodation scheme “extraordinary and potentially far reaching”); Univ. 

of Notre Dame v. Sebelius, 743 F.3d 547, 557 (7th Cir. 2014), vacated and remanded sub 

nom., Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015) (“The novelty of Notre 

Dame’s claim—not for the exemption, which it has, but for the right to have it without 

having to ask for it—deserves emphasis. . . . What makes this case and others like it 

involving the contraception exemption paradoxical and virtually unprecedented is that the 

beneficiaries of the religious exemption are claiming that the exemption process itself 

imposes a substantial burden on their religious faiths.”). 
- 70 - 

The notification to HHS is especially minimal, as it requires Plaintiffs only to 

register their objection with HHS and does not require any contact with their health 

insurance issuers or TPAs. Although Plaintiffs must tell HHS which health insurance 

issuer or TPA they use to opt out of the Mandate, this is not a substantial burden on 

religious exercise.48 It is the kind of administrative task the Departments can require of 

religious believers in the administration of governmental programs. See Priests for Life, 

772 F.3d at 246; Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 305-06 

(1985); see also Jimmy Swaggart Ministries v. Bd. of Equaliz. of Cal., 493 U.S. 378, 395 

(1990); Hernandez, 490 U.S. at 696-97. When understood in light of the ACA’s 

requirement that group health plans and health insurance issuers provide contraceptive 

coverage and the manner in which the accommodation relieves Plaintiffs of providing 

 48 Plaintiffs using the Form need only enter the name of the objecting organization, 

name and title of the individual authorized to make the certification on behalf of the 

organization, and the mailing address, email address, and phone number of that 

individual. That person signs, dates, and sends the form to their TPA or health insurance 

issuer. Employers are required to keep the Form on file for six years. The Plaintiffs have 

leeway in drafting a notification to HHS, which need only include 

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

an accommodation; its objection based on sincerely held religious beliefs to 

providing coverage of some or all contraceptive services (including an 

identification of the subset of contraceptive services to which coverage the 

eligible organization objects, if applicable); the plan name and type (i.e., 

whether it is a student health insurance plan within the meaning of 45 CFR 

147.145(a) or a church plan within the meaning of ERISA section 3(33)); 

and the name and contact information for any of the plan’s third party 

administrators and health insurance issuers. 

79 Fed. Reg. at 51,094-95. 
- 71 - 

that coverage, identifying one’s TPA in a letter to HHS is at most a minimal burden and 

certainly not a substantial one. 

Finally, Plaintiffs are not substantially burdened when, after they opt out and are 

relieved of their obligations under the Mandate, health insurance issuers or TPAs must 

provide contraception to plan participants and beneficiaries. Plaintiffs sincerely oppose 

contraception, but their religious objection cannot hamstring government efforts to ensure 

that plan participants and beneficiaries receive the coverage to which they are entitled 

under the ACA. “Religious objectors do not suffer substantial burdens under RFRA 

where the only harm to them is that they sincerely feel aggrieved by their inability to 

prevent what other people would do to fulfill regulatory objectives after they opt out.” 

Priests for Life, 772 F.3d at 246. Pre-Smith case law and RFRA’s legislative history 

underscore that religious exercise is not substantially burdened merely because the 

Government spends its money or arranges its own affairs in ways that plaintiffs find 

objectionable. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450-54 

(1988); Bowen, 476 U.S. at 699-700; Tony & Susan Alamo Found., 471 U.S. at 303; S. 

Rep. No. 103-111, at 9 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898 (“[P]re-Smith

case law makes it clear that strict scrutiny does not apply to government actions involving 

only management of internal Government affairs or the use of the Government’s own 

property or resources.”). RFRA does not prevent the Government from reassigning 

obligations after an objector opts out simply because the objector strongly opposes the 

ultimate goal of the generally applicable law. 
- 72 - 

Plaintiffs’ complicity argument therefore fails. Opting out would eliminate their 

complicity with the Mandate and require only routine and minimal administrative 

paperwork, and they are not substantially burdened by the Government’s subsequent 

efforts to deliver contraceptive coverage in their stead. 

f. No burden from ongoing requirements 

As a final argument, Plaintiffs deny the act of opting out would free them from 

further involvement in the provision of contraceptive coverage. They argue the 

accommodation scheme would require their ongoing participation, and give two 

examples to support this claim. 

First, Plaintiffs argue they would remain involved because the Departments are 

commandeering their group health plans to provide contraceptive coverage to their 

employees. They note their TPA or health insurance issuer can provide coverage only as 

long as plan participants and beneficiaries remain employed with the religious non-profit 

organization. 

Plaintiffs have not shown, assuming they opt out, how the provision of coverage to 

plan participants and beneficiaries through the health insurance issuer or TPA would 

substantially burden their religious exercise. Plaintiffs’ plan participants and 

beneficiaries are not guaranteed contraceptive coverage without cost sharing because they 

work for the Plaintiffs; they are guaranteed contraceptive coverage under the ACA. The 

ACA mandates health insurance that includes contraceptive coverage. See 42 U.S.C. 

§ 300gg-13(a)(4). Plaintiffs’ theory would not only relieve them of complying with the 
- 73 - 

Mandate, it would prevent health insurance issuers and TPAs from stepping in under the 

ACA to provide plan participants and beneficiaries with the coverage they are entitled to 

receive under federal law. 

Second, Plaintiffs object that they must (a) notify their TPA or health insurance 

issuer when employees join or leave their broader health insurance scheme, and (b) 

complete the self-certification or notification to HHS when they create or terminate a 

relationship with a TPA or health insurance issuer. As to the first requirement, employers 

already must notify their TPA or health insurance issuer when they hire or fire 

employees. The communication with the TPA or health insurance issuer regarding 

general health insurance coverage for entering or exiting plan participants and 

beneficiaries would occur regardless of any legal obligation under the accommodation 

scheme. The latter requirement, however, is an obligation specific to the accommodation 

scheme. An insured or self-insured employer using the Form must send it to “each” TPA 

or health insurance issuer as the employer forms contractual relationships with them. 26 

C.F.R. § 54.9815-2713AT(b)(1)(ii); 29 C.F.R. § 2590.715-2713A(b)(1)(ii). If the 

employer instead uses the notification process, the regulations state: “If there is a change 

in any of the information required to be included in the notice, the organization must 

provide updated information to the Secretary of Health and Human Services.” 26 C.F.R. 

§ 54.9815-2713AT(b)(1)(ii)(B); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B). 

Once again, this does not constitute a substantial burden. The only new 

requirement is that employers must complete the Form or notify HHS of their objection 
- 74 - 

when they contract with a new health insurance issuer or TPA. Plaintiffs do not argue the 

time, cost, or energy required to comply with this requirement constitutes a substantial 

burden; they argue it is the moral significance of their involvement which burdens their 

religious exercise.49 If the first self-certification is not a substantial burden, a second or 

third self-certification would not be substantially burdensome given the extremely 

minimal administrative requirements of the Form or notification. As we have discussed 

above, de minimis administrative requirements do not themselves amount to substantial 

burdens on religious liberty. See Tony & Susan Alamo Found., 471 U.S. at 305-06; see 

also Jimmy Swaggart Ministries, 493 U.S. at 394-95; Hernandez, 490 U.S. at 696-97. If 

the actual delivery of the Form or notification is not a substantial burden, a contingent 

administrative requirement to update the Form or notification is not either. 

The regulations require the Plaintiffs to complete the Form or deliver the 

notification if they wish to opt out. But this ministerial act to opt out is not a substantial 

burden on religious exercise, nor are the collateral requirements of the scheme. The 

Departments have allowed Plaintiffs to opt out of a neutral and generally applicable 

requirement imposed by federal law, and have done so in a manner that affirmatively 

distances those organizations from the provision of contraceptive coverage that other 

employers must provide. It is not a substantial burden to require organizations to provide 

 49 The interim final rules estimate “the total annual burden for preparing and 

providing the information in the self-certification or notice to HHS will require 

approximately 50 minutes for each eligible organization with an equivalent cost burden 

of approximately $53.” 79 Fed. Reg. at 51,097. 
- 75 - 

minimal information for administrative purposes to take advantage of that 

accommodation. 

C. Strict Scrutiny 

Because we determine Plaintiffs have failed to demonstrate a substantial burden 

on their religious exercise, we need not address whether the Departments have shown a 

compelling state interest and adopted the least restrictive means of advancing that 

interest.50 

D. Conclusion 

In the absence of a substantial burden, Plaintiffs have not demonstrated a strong 

likelihood of success on the merits of their RFRA claim, nor have they demonstrated they 

will suffer irreparable injury if an injunction is denied. Accordingly, a preliminary 

injunction on RFRA grounds is inappropriate. 

VI. FIRST AMENDMENT 

Although the district courts focused almost exclusively on RFRA, Plaintiffs also 

 50 We recognize third-party rights and interests are at stake in this litigation—

namely, that plan participants and beneficiaries are entitled by law to contraceptive 

coverage without cost sharing. When evaluating RFRA and Free Exercise claims, courts 

properly consider the impact of religious liberty claims on pre-existing rights holders. 

Hobby Lobby, 134 S. Ct. at 2760 (emphasizing “[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”); see Cutter v. Wilkinson, 544 U.S. 709, 

720 (2005); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709-10 (1985); Yoder, 406 

U.S. at 230; Sherbert, 374 U.S. at 409; Braunfeld, 366 U.S. at 604-05. Because we 

determine Plaintiffs have not demonstrated a substantial burden on their religious 

exercise, we do not reach the strict scrutiny analysis where the rights and interests of third 

parties are properly weighed. 
- 76 - 

raised constitutional claims. They argue the accommodation scheme violates the Free 

Exercise and Establishment Clauses of the First Amendment by exempting religious 

employers from the Mandate but requiring religious non-profit organizations to seek an 

accommodation.51 Plaintiffs also argue the accommodation scheme simultaneously 

 51 In this discussion of First Amendment claims, “Plaintiffs” refers only to the 

plaintiffs in Little Sisters and Reaching Souls, and not Southern Nazarene. All of the 

plaintiffs raised First Amendment claims in their complaints, but only the Little Sisters

and Reaching Souls plaintiffs preserved these claims in their subsequent motions for a 

preliminary injunction and briefs on appeal. App. in LS at 57a-66a, 136a-38a; App. in 

RS at A65-74, A145-49. 

The district courts in Little Sisters and Reaching Souls did not reach the First 

Amendment claims. In Little Sisters, the court found the plaintiffs’ assertion of 

irreparable harm—which they were required to show to obtain a preliminary injunction, 

see Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th 

Cir. 2009)—was based only on RFRA. See Little Sisters, 6 F. Supp. 3d at 1245. In 

Reaching Souls, the court determined it did not need to reach First Amendment claims 

because it granted a preliminary injunction on RFRA grounds. See Reaching Souls, 2013 

WL 6804259, at *8 n.9. 

On appeal, we consider the First Amendment claims in both cases. First, the Little 

Sisters plaintiffs made a sufficient argument before the district court. They expressly 

sought a preliminary injunction on First Amendment as well as RFRA grounds. App. in 

LS at 136a-138a. They did not elaborate on their First Amendment claims in the 

irreparable harm analysis, but “[w]hen an alleged constitutional right is involved, most 

courts hold that no further showing of irreparable injury is necessary.” Kikumura, 242 

F.3d at 963 (quotations omitted). Second, although we reverse the district court’s grant 

of a preliminary injunction on RFRA grounds in Reaching Souls, plaintiffs there raised 

the question whether that preliminary injunction is appropriate on First Amendment 

grounds. “If the district court fails to analyze the factors necessary to justify a 

preliminary injunction, this court may do so if the record is sufficiently developed.” 

Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009); see also Hobby 

Lobby, 723 F.3d at1145 (“The record we have is the record the parties chose to create 

below—it is the record they deemed sufficient for the district court to decide the 

preliminary injunction question. For each element, we believe this record suffices for us 

to resolve each of the remaining preliminary injunction factors.”). Because the First 

Amendment claims in both Little Sisters and Reaching Souls are legal questions that have 

Continued . . . 
- 77 - 

compels and silences their speech in violation of the Free Speech Clause of the First 

Amendment. We disagree and conclude the accommodation scheme comports with the 

First Amendment. We note that the same standard of review we identified for the RFRA 

claim applies to the First Amendment claims. 

A. Free Exercise Clause 

Plaintiffs contend the ACA and its implementing regulations violate the Free 

Exercise Clause by exempting some religious objectors—churches and their “integrated 

auxiliaries”—from the Mandate, while requiring others—specifically, religious nonprofit organizations—to comply with the Mandate, seek an accommodation, or pay 

substantial fines. They have not explained how their Free Exercise claim differs from 

their Establishment Clause claim, nor do they explain how they could prevail under the 

standard in Smith if they are unlikely to succeed under RFRA. Because we conclude the 

______________________________________ 

Cont. 

been fully briefed on appeal, we resolve those questions in this opinion rather than 

remanding them to the district courts and prolonging this litigation. 

By contrast, the Southern Nazarene plaintiffs included First Amendment claims in 

their complaint, but did not assert them in their motion for a preliminary injunction or 

accompanying memorandum of law. As a result, the district court did not reach any First 

Amendment claims in its decision. See Southern Nazarene, 2013 WL 6804265. 

Moreover, the Southern Nazarene plaintiffs do not make First Amendment claims in their 

opening brief on appeal. 

Although we believe our First Amendment analysis applies to all group health 

plans and does not depend on whether they are insured, self-insured, or self-insured 

church plans, we note Little Sisters and Reaching Souls involve only self-insured church 

plans that are not subject to ERISA, and the insured and self-insured plans discussed in 

Southern Nazarene are not before us. 
- 78 - 

Mandate and accommodation scheme are neutral and generally applicable laws, they are 

subject only to rational basis review, which they survive. 

1. Legal Background 

The First Amendment’s religion clauses state: “Congress shall make no law 

respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. 

Const. amend. 1. To resolve challenges under the Free Exercise Clause, we use a wellestablished framework. If a law is neutral and generally applicable, it does not violate the 

Free Exercise Clause “even if the law has the incidental effect of burdening a particular 

religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 

520, 531 (1993); see Smith, 494 U.S. at 878-80. “A law is neutral so long as its object is 

something other than the infringement or restriction of religious practices.” Grace 

United, 451 F.3d at 649-50. A law that is facially neutral may nevertheless fail the 

neutrality test if it covertly targets religious conduct for adverse treatment. Lukumi 

Babalu, 508 U.S. at 534. 

To determine whether a law is generally applicable, we ask if the “legislature 

decide[d] that the governmental interests it seeks to advance are worthy of being pursued 

only against conduct with a religious motivation.” Id. at 542-43. “[A] law that is both 

neutral and generally applicable need only be rationally related to a legitimate 

governmental interest to survive a constitutional challenge.” Grace United, 451 F.3d at 

649. 
- 79 - 

2. The Mandate and Accommodation Scheme are Neutral 

The Mandate and the accommodation scheme are neutral laws. See Priests for 

Life, 772 F.3d at 267-69; Mich. Catholic Conf., 755 F.3d at 393-94. The Mandate is 

facially neutral with regard to employers, and neither the history nor the text of the ACA 

and its implementing regulations suggest the Mandate was targeted at a particular religion 

or religious practice. Plaintiffs cannot show Congress or HHS “had as their object the 

suppression of religion.” Lukumi Babalu, 508 U.S. at 542. To the contrary, the Mandate 

arose from concerns about the personal and social costs of barriers preventing women 

from receiving preventive care, including reproductive health care. See IOM, Clinical 

Preventive Services for Women: Closing the Gaps 102-03 (2011), available at 

www.nap.edu/catalog.php?record_id=13181. The accommodation scheme was 

developed to facilitate the free exercise of religion, not to target religious groups or 

burden religious practice. To that end, the Departments expanded the religious employer 

exemption and religious non-profit organization accommodation to respond to the 

concerns of religious groups. The Plaintiffs’ apparent dissatisfaction with the 

accommodation offered to them does not mean the Mandate or the accommodation 

scheme is non-neutral. 

3. The Mandate and Accommodation Scheme are Generally Applicable 

The Mandate and the accommodation scheme are also generally applicable. See 

Priests for Life, 772 F.3d at 267-69; Mich. Catholic Conf., 755 F.3d at 393-94. Plaintiffs 

cannot show Congress or the Departments sought to impose the Mandate only against 
- 80 - 

religious groups; to the contrary, the Mandate applies to all employers with more than 

fifty employees using non-grandfathered health plans.52 “The exemptions do not render 

the law so under-inclusive as to belie the government’s interest in protecting public 

health and promoting women’s well-being or to suggest that disfavoring Catholic or other 

pro-life employers was its objective.” Priests for Life, 772 F.3d at 268. Plaintiffs fail to 

demonstrate the accommodation scheme targets religious conduct or was created with the 

objective of disfavoring particular faiths. Lukumi Babalu, 508 U.S. at 542-43. To the 

contrary, the Mandate was enacted as part of a larger program of health care reform, and 

both the exemption for religious employers and the accommodation for religious nonprofit organizations demonstrate federal deference to religious liberty concerns and were 

promulgated to facilitate rather than inhibit the free exercise of religion. 

 52 Smith stated that “where the State has in place a system of individual 

exemptions, it may not refuse to extend that system to cases of religious hardship without 

compelling reason.” Smith, 494 U.S. at 884 (quotations and citation omitted). But as we 

noted in Grace United, “we have already refused to interpret Smith as standing for the 

proposition that a secular exemption automatically creates a claim for a religious 

exemption.” Grace United, 451 F.3d at 651. We have instead held: 

a system of individualized exemptions is one that gives rise to the 

application of a subjective test. Such a system is one in which case-by-case 

inquiries are routinely made, such that there is an individualized 

governmental assessment of the reasons for the relevant conduct that invites 

considerations of the particular circumstances involved in the particular 

case. 

Axson-Flynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir. 2004) (quotations and citations 

omitted). None of the categorical exemptions enacted by the ACA and its implementing 

regulations establish a system of individualized objections. And for the reasons detailed 

above, we believe the accommodation scheme effectively relieves objecting religious 

non-profit organizations of their obligations. 
- 81 - 

4. The Mandate and Accommodation Scheme Have a Rational Basis 

Rather than make an argument based on the rational relationship standard, 

Plaintiffs instead contend our decision in Hobby Lobby precludes us from finding that 

public health and gender equality, without greater specificity, constitute compelling 

governmental interests. But, as we have explained, the compelling interest test does not 

apply; the rational basis test does. Grace United, 451 F.3d at 649. The Government 

observes that in the cases before us, the accommodation scheme rationally serves the twin 

interests of facilitating religious exercise and filling coverage gaps resulting from 

accommodating that religious exercise. 

On rational basis review, these interests are sufficient. Alleviating governmental 

interference with religious exercise, which the accommodation scheme does, is a 

permissible legislative purpose. Corp. of the Presiding Bishop of the Church of Jesus 

Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987). And we need not 

scrutinize whether the Government’s interest in public health and gender equality is more 

compelling in this case than in Hobby Lobby. We need only determine that public health 

and gender equality are legitimate state interests. We believe they meet this more 

permissive standard, which is not foreclosed by our compelling interest analysis in Hobby 

Lobby. See, e.g., Hobby Lobby, 723 F.3d at 1143 (determining public health and gender 

equality are too broad to satisfy the compelling interest test but noting “[w]e recognize 
- 82 - 

the importance of these interests”).53 The accommodation scheme advances both the free 

exercise of religion and the Government’s legitimate interests in public health and gender 

equality. See Hobby Lobby, 134 S. Ct. at 2759 (“We therefore conclude that [the 

accommodation] system constitutes an alternative that achieves all of the Government’s 

aims while providing greater respect for religious liberty.”). 

Furthermore, when applying the rational basis test, we are not limited to interests 

specifically articulated by the Departments. We may look to any conceivable legitimate 

governmental interest, and “the burden is upon the challenging party to negative any 

reasonably conceivable state of facts that could provide a rational basis.” Bd. of Trs. of 

Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (citations and internal quotations 

omitted). The more specific governmental interest in health by ensuring access to 

contraception without cost sharing, which we did not specifically address in Hobby 

Lobby, would constitute a legitimate interest conceivably advanced by the 

accommodation scheme. See Hobby Lobby, 723 F.3d at 1160 (Bacharach, J., concurring) 

(“[T]he plurality does not mention the public interest that the government had relied on at 

 53 See also Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 

(1987) (identifying “a compelling interest in eliminating discrimination against women”); 

Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984) (“Assuring women equal access to 

such goods, privileges, and advantages clearly furthers compelling state interests.”);

Prince v. Massachusetts, 321 U.S. 158, 165-67 (1944) (upholding child labor laws 

against a free exercise challenge on health and welfare grounds); Jacobson v. 

Massachusetts, 197 U.S. 11, 25 (1905) (upholding a mass vaccination program against a 

liberty challenge on health and welfare grounds); see also Bob Jones Univ. v. United 

States, 461 U.S. 574, 604 (1983) (determining a compelling interest in eradicating racial 

discrimination “substantially outweighs whatever burden denial of tax benefits places on 

petitioners’ exercise of their religious beliefs”). 
- 83 - 

the preliminary-injunction hearing: the health reasons for promoting employee access to 

emergency contraceptives.”). The Departments’ recognized interest in the uniformity and 

ease of administration of its programs would also meet this standard. See, e.g., Bowen, 

476 U.S. at 707; Hernandez, 490 U.S. at 682; United States v. Lee, 455 U.S. 252, 258-59 

(1982). 

The Mandate and accommodation scheme easily pass the rational basis test. 

Because the Mandate is both neutral and generally applicable and supported by a rational 

basis, Plaintiffs fail to make out a plausible claim under the Free Exercise Clause. 

B. Establishment Clause 

Plaintiffs contend that exempting churches and integrated auxiliaries from the 

Mandate but requiring religious non-profit organizations to seek an accommodation 

violates the Establishment Clause. We disagree. Because the Departments have chosen 

to distinguish between entities based on neutral, objective organizational criteria and not 

by denominational preference or religiosity, the distinction does not run afoul of the 

Establishment Clause. 

1. Organizational Distinctions Well-Established in Federal Law 

Federal law distinguishes between different types of religious organizations, and 

as we discuss below, this differentiation is constitutionally permissible. Under the ACA 

and its implementing regulations, a religious employer “is organized and operates as a 

nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the 

Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). The regulations 
- 84 - 

at issue in this case draw on the tax code’s distinction between houses of worship and 

religious non-profits, a “longstanding and familiar” distinction in federal law. Priests for 

Life, 772 F.3d at 238; see also Geneva Coll., 778 F.3d at 443 (determining it was 

permissible for the Departments to base the exemption on the IRC’s provision “because 

that provision was a bright line that was already statutorily codified and frequently 

applied”). 

Exempting churches while requiring other religious objectors to seek an 

accommodation is standard practice under the tax code. The IRC and other regulations 

award benefits to some religious organizations—typically, houses of worship—based on 

articulable criteria that other religious organizations do not meet. See 26 U.S.C. 

§ 6033(a)(3)(A)(i), (iii). Churches, their integrated auxiliaries, and conventions or 

associations of churches are automatically considered tax exempt and need not notify the 

government they are applying for recognition, but other religious non-profit organizations 

must apply for tax-exempt status if their annual gross receipts are more than $5,000. See 

id. § 508(a), (c)(1)(A). Similarly, churches, their integrated auxiliaries, conventions or 

associations of churches, and the exclusively religious activities of any religious order 

need not file tax returns, but religious non-profit organizations with gross receipts above 

$5,000—even if they are tax-exempt—must file annually. Id. § 6033(a). Congress has 

placed special limitations on tax inquiries and examinations of churches, but not 

integrated auxiliaries, church-operated schools, or religious non-profit organizations. See 

id. § 7611. 
- 85 - 

Congress has used similar organizational distinctions in the realm of religious 

accommodations. Churches and qualified church-controlled organizations that object to 

paying Social Security and Medicare taxes for religious reasons may opt out of paying 

them by filing a form with the IRS, but other religious non-profit organizations may not. 

See id. § 3121(w). 

2. Organizational Distinctions and Respecting the Religion Clauses 

Distinctions based on organizational form enable the government to 

simultaneously respect both the Free Exercise Clause and Establishment Clause and 

permit the construction of accommodation schemes that pass constitutional muster. The 

Supreme Court has concluded 

[t]he general principle deducible from the First Amendment and all that has 

been said by the Court is this: that we will not tolerate either 

governmentally established religion or governmental interference with 

religion. Short of those expressly proscribed governmental acts there is 

room for play in the joints productive of a benevolent neutrality which will 

permit religious exercise to exist without sponsorship and without 

interference. 

Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 669 (1970); see also Catholic 

Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 469 (N.Y. 2006) (observing the 

Plaintiffs’ argument here “would call into question any limitations placed by the 

Legislature on the scope of any religious exemption—and thus would discourage the 

Legislature from creating any such exemptions at all,” and thus concluding “[a] 

legislative decision not to extend an accommodation to all kinds of religious 

organizations does not violate the Establishment Clause”). We recognize the 
- 86 - 

Government enjoys some discretion in fashioning religious accommodations, and believe 

doing so on the basis of organizational form comports with the Establishment Clause. 

3. Organizational Distinctions Compatible with Larson and Colorado Christian

The Departments have offered the accommodation to Plaintiffs based on their 

organizational form. Plaintiffs rely on the decisions in Larson v. Valente, 456 U.S. 228 

(1982), and Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), to 

support their Establishment Clause claim. But those cases do not hold that distinctions 

based on organizational type are impermissible. 

Larson involved an Establishment Clause challenge to a Minnesota law that 

imposed registration and reporting requirements on religious organizations that received 

less than half of their contributions from members or affiliated organizations. Larson, 

456 U.S. at 231. The legislature drew this distinction to discriminate against particular 

religions, which was evident in the legislative history. Id. at 253-54 (“[T]he history of 

[the challenged law] demonstrates that the provision was drafted with the explicit 

intention of including particular religious denominations and excluding others.”). 

Colorado Christian differentiated institutions based on intrusive inquiries into their 

degree of religiosity. 534 F.3d 1259. In Colorado Christian, we concluded Colorado’s 

exclusion of “pervasively sectarian” institutions from state scholarship programs violated 

the First Amendment “for two reasons: the program expressly discriminates among 

religions without constitutional justification, and its criteria for doing so involve 

unconstitutionally intrusive scrutiny of religious belief and practice.” Id. at 1250. 
- 87 - 

Neither of these two concerns in Colorado Christian is applicable here. 

Larson and Colorado Christian prohibit preferences based on denomination (e.g., 

Catholic, Jewish, Islamic, etc.) and religiosity (e.g., pervasively sectarian, moderately 

sectarian, non-sectarian, etc.), but do not prohibit distinctions based on organizational 

type (e.g., church, non-profit, university, etc.). As Larson noted: “The clearest command 

of the Establishment Clause is that one religious denomination cannot be officially 

preferred over another.” 456 U.S. at 244. In Colorado Christian, we determined that 

“defendants supply no reason to think that the government may discriminate between 

‘types of institution’ on the basis of the nature of the religious practice these institutions 

are moved to engage in.” 534 F.3d at 1259. As a result, Establishment Clause 

jurisprudence clearly indicates denominational preferences expressed by the government 

are subject to strict scrutiny. See id. Religiosity distinctions are subject to strict scrutiny 

as well because they involve the government in scrutinizing and making decisions based 

on particular expressions of religious belief. See id. at 1256 (invalidating Colorado law 

because it “expressly discriminates among religions, allowing aid to ‘sectarian’ but not 

‘pervasively sectarian’ institutions, and it does so on the basis of criteria that entail 

intrusive governmental judgments regarding matters of religious belief and practice”). 

Plaintiffs cite no case holding that organizational distinctions, as opposed to those 

based on denomination or religiosity, run afoul of the Establishment Clause. Unlike 

Awad v. Ziriax, 670 F.3d 1111, 1128-29 (10th Cir. 2012), which concerned a state 

constitutional amendment forbidding courts from considering or using Sharia law, 
- 88 - 

evidence of animus or favoritism aimed at a denomination or degree of religiosity is 

absent here. “Because the law’s distinction does not favor a certain denomination and 

does not cause excessive entanglement between government and religion, the framework 

does not violate the Establishment Clause.” Mich. Catholic Conf., 755 F.3d at 395; see 

also Priests for Life, 772 F.3d at 272-74. 

Neither Larson nor Colorado Christian supports Plaintiffs’ claim that distinctions 

between churches and other religious entities is impermissible. As we concluded in 

Colorado Christian, “if the State wishes to choose among otherwise eligible institutions, 

it must employ neutral, objective criteria rather than criteria that involve the evaluation of 

contested religious questions and practices.” 534 F.3d at 1266. This is what the 

Departments have done with the accommodation scheme in compliance with the First 

Amendment’s Establishment Clause. 

4. Plaintiffs’ Argument Based on the Departments’ Rationale 

Plaintiffs seize on the Departments’ rationale for the distinction that religious nonprofit organizations are more likely than churches to employ individuals who do not 

share their employers’ beliefs but are nevertheless entitled to contraceptive coverage 

under the ACA. See 78 Fed. Reg. at 39,874 (“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.”). Plaintiffs argue some denominations are 
- 89 - 

less likely to carry out ministry functions through a church or integrated auxiliary than 

others, and that the workforces of some non-profit institutions may be more religiously 

homogenous than the workforces of some established churches. 

The Departments’ rationale may not be perfectly accurate, but it does not make the 

accommodation scheme unconstitutional. The class of religious non-profit organizations 

encompasses a vast array of religiously affiliated universities, hospitals, service 

providers, and charities, some of them employing thousands of people. Of course, some 

religious non-profit organizations may be more likely than some churches to employ coreligionists, but the Departments may reasonably recognize that, on the whole, churches 

are more likely to employ those who share their beliefs. Priests for Life, 772 F.3d at 272. 

The Departments originally exempted religious employers to “respect[] the unique 

relationship between a house of worship and its employees in ministerial positions.” 76 

Fed. Reg. at 46,623. We recognize that relationship between houses of worship and 

ministerial employees has been given special solicitude under the First Amendment. See 

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 712-13 

(2012). The Departments must avoid inquiries that involve them in “excessive 

entanglement” between religion and government, see Colorado Christian, 534 F.3d at 

1261-62, and the general notion that houses of worship are more likely than religious 

non-profit organizations to employ people of the same faith avoids impermissible 
- 90 - 

scrutiny into the beliefs of religious entities and their employees.54 

* * * * 

Drawing a distinction between religious employers and religious non-profit 

organizations is a neutral and reasonable way for the Departments to pursue their 

legitimate goals in a constitutional manner. It gives special solicitude to churches to 

facilitate the liberties guaranteed by the Free Exercise Clause, and offers the 

accommodation scheme to relieve religious non-profit organizations of their obligation to 

provide contraceptive coverage under the Mandate without imposing a substantial burden 

on their religious exercise. The accommodation scheme does not violate the 

Establishment Clause. 

C. Free Speech Clause 

Plaintiffs finally contend the accommodation scheme violates the Free Speech 

Clause of the First Amendment, which states that “Congress shall make no law . . . 

abridging the freedom of speech,” U.S. Const. amend. 1, by compelling them both to 

speak and remain silent, see Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 

796-97 (1988). First, they argue that requiring them to sign and deliver the Form or the 

notification to HHS constitutes compelled speech. Second, they argue that prohibiting 

 54 The original definition of “religious employer” required that the employer 

“primarily employs persons who share its religious tenets [and] primarily serves persons 

who share its religious tenets.” 76 Fed. Reg. at 46,623. In response to religious entities 

that argued these requirements might involve excessive entanglement with religion, the 

Departments eliminated three of the four criteria and based the definition solely on 

organizational form. 78 Fed. Reg. at 8459. Plaintiffs now contend that simplified 

definition makes unfounded assumptions about who religious employers employ. 
- 91 - 

them from influencing their TPAs’ provision of contraceptive coverage compels them to 

be silent. Both arguments fail. 

1. Compelled Speech 

The compelled speech claim fails. To the extent such a claim requires government 

interference with the plaintiff’s own message, see Johanns v. Livestock Mktg. Ass’n, 544 

U.S. 550, 557 (2005) (stating a compelled speech claim arises when “an individual is 

obliged personally to express a message he disagrees with, imposed by the government”), 

the regulations do not require an organization seeking an accommodation to engage in 

speech it finds objectionable or would not otherwise express. The only act the 

accommodation scheme requires is for religious non-profit organizations with group 

health plans to sign and deliver the Form or notification expressing their religious 

objection to providing contraceptive coverage. The Sixth Circuit reasoned: “Even 

assuming the government is compelling this speech, it is not speech that the appellants 

disagree with and so cannot be the basis of a First Amendment claim.” Mich. Catholic 

Conf., 755 F.3d at 392; see also Geneva Coll., 778 F.3d at 438-39 (“If anything, because 

the appellees specifically state on the self-certification form that they object on religious 

grounds to providing such coverage, it is a declaration that they will not be complicit in 

providing coverage.”). Plaintiffs cannot point to speech they are required to express and 

find objectionable.55 

 55 In Axson-Flynn, we recognized that a compelled speech claim may apply to 

non-ideological speech. We held a University of Utah theater student had alleged a 

Continued . . . 
- 92 - 

Indeed, Plaintiffs have not shown any likelihood that their sending in the Form or 

the notification would convey a message of support for contraception. Plaintiffs do not 

demonstrate their TPA, their health insurance issuer, or HHS—any one of which would 

be the sole recipient of the Form or notification—would view it as anything other than an 

objection to providing contraception. Rumsfeld v. Forum for Academic & Inst. Rights, 

Inc. (“FAIR”), 547 U.S. 47 (2006), is instructive. In FAIR, a group of law schools 

challenged the Solomon Amendment, a federal statute that denied federal funding to 

universities that barred military recruiters from their campuses. At that time, the military 

did not permit gay, lesbian, and bisexual individuals to serve. The schools claimed a 

First Amendment compelled speech violation, arguing their compliance with the 

Solomon Amendment would signal their agreement with this policy. The Supreme Court 

rejected the argument, noting compliance did not signal agreement with the military’s 

positions, and the Solomon Amendment did not prevent the schools from making their 

own position clear. FAIR, 547 U.S. at 65. 

This point is even stronger in the instant case, where Plaintiffs would send the 

Form or notification to convey their opposition to providing contraception, and the ACA 

and implementing regulations do not prevent them from expressing that opposition 

widely. Plaintiffs remain free to express opposition to contraception; “[n]othing in the[] 

______________________________________ 

Cont. 

compelled speech violation because she was required to utter certain swear words as part 

of a script and objected to doing so on religious grounds. 356 F.3d at 1284 n.4. 
- 93 - 

final regulations prohibits an eligible organization from expressing its opposition to the 

use of contraceptives.” 78 Fed. Reg. at 39,880 n.41. With the passage of the interim 

final rule, Plaintiffs also have the option to send a letter or email to HHS expressly 

objecting to any provision of contraception. They can fully explain their position in that 

notification. We are especially unconvinced that this option, freed from the text of the 

Form and permitting greater self-expression, forces Plaintiffs to engage in unwanted 

speech. Plaintiffs have not suggested the notification must be conveyed or 

communicated to any third parties or wider audience aside from the Departments 

themselves. 

Even if Plaintiffs could identify speech they disagreed with—for example, 

identifying the name of their TPA or health insurance issuer—the argument that they are 

forced to send a message they do not wish to send is unavailing. The First Amendment 

does not—and cannot—protect organizations from having to make any and all statements 

“they wish to avoid.” The cases cited by Plaintiffs are not about routine administrative 

burdens akin to complying with the accommodation scheme. These cases instead 

concern compelled ideological expression such as salutes to the flag, W. Va. State Bd. of 

Educ. v. Barnette, 319 U.S. 624, 634 (1943); messages on license plates, Wooley v. 

Maynard, 430 U.S. 705, 715 (1977), Cressman v. Thompson, 719 F.3d 1139, 1152 (10th 

Cir. 2013); wearing school slogans, Frudden v. Pilling, 742 F.3d 1199, 1203-04 (9th Cir. 

2014); and taking a political stance on commercial sex, Agency for Int’l Dev. v. Alliance 

for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331 (2013). 
- 94 - 

“Compelling an organization to send a form to a third party to claim eligibility for 

an exemption ‘is simply not the same as forcing a student to pledge allegiance, or forcing 

a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the 

freedom protected in Barnette and Wooley to suggest that it is.’” Priests for Life, 772 

F.3d at 271 (quoting FAIR, 547 U.S. at 62). “That would be the equivalent of entitling a 

tax protester to refuse on First Amendment grounds to fill out a 1099 form and mail it to 

the Internal Revenue Service.” Wheaton College, 2015 WL 3988356, at *8. None of the 

cases cited by Plaintiffs involve compliance with the administrative requirements of a 

government program, and especially not a government program designed to exempt and 

distance an organization from activity it finds objectionable. 

We finally note that Plaintiffs’ signature and delivery of the Form or notification 

to HHS is “plainly incidental to the . . . regulation of conduct” and thus is not protected 

speech. FAIR, 547 U.S. at 62. The act of signing and delivering the Form or notification 

to HHS is required to opt out of the Mandate. The Supreme Court has “rejected the view 

that ‘conduct can be labeled “speech” whenever the person engaging in the conduct 

intends thereby to express an idea.’ Instead, we have extended First Amendment 

protection only to conduct that is inherently expressive.” Id. at 65-66 (quoting United 

States v. O’Brien, 391 U.S. 367, 376 (1968)). The fact that Plaintiffs must complete the 

Form or notification to HHS to opt out of coverage does not render the act inherently 

expressive. See id. at 62. 

For the foregoing reasons, we reject Plaintiffs’ compelled speech claim. 
- 95 - 

2. Compelled Silence 

We further reject the claim that the accommodation scheme compels Plaintiffs’ 

silence. Like the Sixth and Seventh Circuits, we note Plaintiffs have made only general 

claims objecting to the non-interference regulation and have failed to indicate how it 

precludes speech in which they wish to engage. Mich. Catholic Conf., 755 F.3d at 392-

93; Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 561 (7th Cir. 2014), vacated and 

remanded sub nom., Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015). After the 

issuance of the interim final rule repealing the non-interference regulation, we do not 

believe this question is before us. We agree with the Government and the D.C. Circuit 

that the repeal of the non-interference rule renders Plaintiffs’ claims regarding compelled 

silence moot. See Priests for Life, 772 F.3d at 242 n.8.

VII. CONCLUSION 

We have reviewed the district courts’ decisions to grant or deny a preliminary 

injunction to Plaintiffs in the three cases before us. Because we determine the ACA and 

its implementing regulations do not substantially burden Plaintiffs’ religious exercise or 

violate the Plaintiffs’ First Amendment rights, Plaintiffs have not established a likelihood 

of success on the merits or a likely threat of irreparable harm as required for a 

preliminary injunction. See Hobby Lobby, 723 F.3d at 1128. 

We therefore affirm the district court’s denial of a preliminary injunction in Little 

Sisters, 6 F. Supp. 3d 1225, and reverse the district courts’ grant of a preliminary 
- 96 - 

injunction in Southern Nazarene, 2013 WL 6804265, and Reaching Souls, 2013 WL 

6804259. 

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 54.9815-2713A, 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, 

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 2590.715-2713A(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 54.9815-2713A(a)(3), 29 CFR 2590.715-2713A(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 
- 97 - 

______________________________________ 

Date 

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)(1)(iv) or 29 CFR 2590.715-

2713(a)(1)(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 54.9815-2713A, 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)(1)(ii)(B) and (c)(1)(ii), 29 CFR 2590.715-2713A(b)(1)(ii)(B) and (c)(1)(ii), and 45 CFR 

147.131(c)(1)(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 self-certification 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 
- 98 - 

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. 
Little Sisters et al. v. Burwell, Nos. 13-1540, 14-6026, 14-6028 

BALDOCK, Circuit Judge, dissenting in part. 

Today the Court holds, among other things, that the ACA contraceptive Mandate’s 

accommodation scheme does not substantially burden religious non-profits that object to 

facilitating contraceptive or abortifacient coverage because opting out does not cause, 

authorize, or otherwise facilitate such coverage.1

 The Court’s opinion provides perhaps 

the most thorough explanation of the accommodation scheme’s nuanced mechanics that I 

have yet read. And for argument’s sake, I follow its holding as to the insured plaintiffs’ 

and Little Sisters plaintiffs’ RFRA claims.2

 But I cannot join the Court’s holding as to 

the other self-insured plaintiffs’ RFRA claims, as that holding contradicts the Court’s 

own reasoning and thorough explanation of the accommodation scheme. 

In reality, the accommodation scheme forces the self-insured plaintiffs to perform 

an act that causes their beneficiaries to receive religiously objected-to coverage. The 

fines the government uses to compel this act thus impose a substantial burden on the selfinsured plaintiffs’ religious exercise. Moreover, less restrictive means exist to achieve 

the government’s contraceptive coverage goals here. I must therefore dissent in part. 

 

1

 For consistency, I adopt the Court’s glossary. 

2

 As I explain below, the Little Sisters plaintiffs, though self-insured, have not shown 

that their opting out will necessarily cause their plan participants and beneficiaries to 

receive contraceptive coverage. Accordingly, my use of the term “self-insured plaintiffs” 

does not refer to the Little Sisters unless otherwise stated. 
2 

I. WHEN IS A BURDEN ON RELIGIOUS EXERCISE “SUBSTANTIAL?” 

The first step of a RFRA claim requires plaintiffs to show (1) that the federal 

government has imposed a substantial burden on a (2) sincere (3) exercise of religion. 

See 42 U.S.C. § 2000bb-1(a). The unique threshold question we and so many other 

courts are currently grappling with, however, is how to determine whether a substantial 

burden exists where a law compels religious adherents to perform an act they sincerely 

oppose when this opposition might be based on a faulty understanding of the law. See, 

e.g., E. Tex. Baptist Univ. v. Burwell, 2015 WL 3852811, at *3 (5th Cir. June 22, 2015). 

Several learned judges have argued compellingly that, under Burwell v. Hobby 

Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the amount of coercion the government uses 

to force a religious adherent to perform an act she sincerely believes is inconsistent with 

her understanding of her religion’s requirements is the only consideration relevant to 

whether a burden is “substantial” under RFRA. See, e.g., Priests For Life v. U.S. Dep’t 

of Health & Human Servs., No. 13-5368, slip op. at 17–22 (D.C. Cir. May 20, 2015) 

(Brown, J., dissenting from the denial of rehearing en banc); id. at 35 (Kavanaugh, J., 

dissenting from the denial of rehearing en banc); Univ. of Notre Dame v. Burwell, 786 

F.3d 606, 628 (7th Cir. 2015) (Flaum, J., dissenting); Eternal Word Television Network, 

Inc. v. Sec’y, Dep’t of Health & Human Servs., 756 F.3d 1339, 1340 (11th Cir. 2014) 

(Pryor, J. specially concurring); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 

1114, 1137 (10th Cir. 2013) (“Our only task is to determine whether the claimant’s belief 

is sincere, and if so, whether the government has applied substantial pressure on the 

claimant to violate that belief.”); cf. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. 
3 

Ct. 2028, 2031–33 (2015) (analyzing a plaintiff’s exercise as a “religious practice” under 

Title VII where the act was motivated by “her understanding of her religion’s 

requirements”). 

These judges assert that whether religious objectors properly understand the legal 

significance of the compelled act has no bearing on the substantial burden analysis. E.g.

Priests For Life., No. 13-5368, slip op. at 35 (Kavanaugh, J., dissenting) (“But what if the 

religious organizations are misguided in thinking that this scheme . . . makes them 

complicit in facilitating contraception or abortion? That is not our call to make under the 

first prong of RFRA.”). And Hobby Lobby supports this position well, as questioning a 

religious adherent’s understanding of the significance of a compelled action comes 

dangerously close to questioning “whether the religious belief asserted in a RFRA case is 

reasonable”—a “question that the federal courts have no business addressing.” Hobby 

Lobby, 134 S. Ct. at 2778. 

Under this understanding of RFRA, the accommodation scheme substantially 

burdens any religious non-profit that objects to performing an act that would cause or 

otherwise make it complicit in providing contraceptive coverage simply because the 

scheme uses substantial fines to compel an act that the non-profit sincerely believes 

would have that effect. The actual legal significance of the compelled act is irrelevant to 

the substantial burden analysis. And because the government has conceded (2) the 

sincerity of (3) the religious exercise at issue, the only issue left to address is whether the 

government has shown that the accommodation scheme survives strict scrutiny. The 

judges who take this position, so far, all agree that the government has not made this 
4 

showing. Priests For Life., No. 13-5368, slip op. at 22–25 (Brown, J., dissenting); id. at 

46–51 (Kavanaugh, J., dissenting); Notre Dame, 786 F.3d at 629–30 (Flaum, J., 

dissenting); Eternal Word Television Network, 756 F.3d at 1348–49 (Pryor, J. specially 

concurring). 

Notwithstanding the strength of those positions, I will proceed under the following 

assumptions to highlight an even deeper problem lurking within the self-insured 

accommodation scheme: First, I will assume that whether a burden on religious exercise 

is “substantial” turns not only on the amount of coercion the government uses to compel 

an act (no one disputes the substantiality of the fines at issue here), but also on “how the 

law or policy being challenged actually operates and affects religious exercise.” Slip Op. 

at 39. Second, I will assume this Court may tell a religious adherent she does not face a 

substantial burden on her religious exercise if her understanding of the law is flawed. 

Third, I will assume that any burden the accommodation scheme imposes on Plaintiffs—

who object to performing any act that would cause or otherwise make them complicit in 

providing various forms of contraceptive coverage—cannot be substantial unless they 

show, for example, how their compelled act causes that coverage. See Slip Op. at 45–66. 

The Court tells Plaintiffs they cannot make this showing “because opting out 

would not trigger, incentivize, or otherwise cause the provision of contraceptive 

coverage.” Slip Op. at 65. If showing this causation is a prerequisite to establishing a 

substantial burden, the Court properly rejects the insured plaintiffs’ RFRA claim, as their 

action or inaction will not affect whether their plan beneficiaries receive objected-to 

coverage. But the self-insured plaintiffs’ inaction will prevent their plan beneficiaries 
5 

from receiving the coverage. If their beneficiaries receive this coverage, it is only 

because the self-insured plaintiffs, by opting out, caused that effect. Thus, the selfinsured plaintiffs have shown how their opting out would cause the provision and receipt 

of objected-to coverage and established a substantial burden on their religious exercise. 

II. THE CRITICAL DISTINCTION IN THIS CASE

I have nothing to add to the Court’s summary of the background in these cases, 

and very little to add to its explanation of the detailed mechanics of the ACA 

accommodation scheme. But a critical distinction within scheme bears repeating. Under 

the ACA accommodation scheme, in the insured health plan context, “a health insurance 

issuer . . . would be obligated to provide contraceptive coverage under the ACA whether 

or not [the insured non-profit] delivered the Form or notification to HHS.” Slip Op. at 48 

n.28 (citing 42 U.S.C. § 300gg-13). But in the self-insured context, a TPA would be 

“authorized and obligated to provide the coverage . . . only if the religious non-profit . . . 

opts out.” Slip Op at 49 (emphases added); see also 26 C.F.R. § 54.9815-2713AT(b)(2); 

29 C.F.R. § 2590.715-2713A(b)(2). 

 The Fifth, Sixth, and Seventh Circuits failed to recognize this distinction. See E. 

Tex. Baptist, 2015 WL 3852811, at *5; Notre Dame, 789 F.3d at 614; Mich. Catholic 

Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 387 (6th Cir. 2014) cert. 

granted, judgment vacated 135 S. Ct. 1914 (2015). The Third and D.C. Circuits failed to 

appreciate its significance. See Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human 

Servs., 778 F.3d 422, 438 (3d Cir. 2015); Priests For Life v. U.S. Dep’t of Health & 

Human Servs., 772 F.3d 229, 254–56 (D.C. Cir. 2014). This Court considers the 
6 

distinction “unremarkable.” Slip Op. at 49. I disagree. The distinction makes a 

difference, and juxtaposing the insured plaintiffs and self-insured plaintiffs forces that 

difference into bold relief. 

A. The Insured Plaintiffs 

Assuming causation is key, I agree the accommodation scheme does not 

substantially burden the insured plaintiffs’ religious exercise. As the Court explains, 

even total inaction on the part of an insured non-profit still results in its plan participants 

and beneficiaries receiving the coverage to which they are entitled under the ACA 

because the government has independently obligated a third party (insurance issuers) to 

provide it.3

 See Slip Op. at 46–47. Opting out in the insured context does not cause the 

receipt of contraceptive coverage; rather, it merely absolves the eligible insured nonprofit of any responsibility for the contraceptive coverage its plan participants and 

beneficiaries will receive whether it opts out or not. Thus, assuming Plaintiffs must show 

how opting out causes coverage, the accommodation scheme does not substantially 

burden the insured plaintiffs’ exercise of religion. The insured accommodation is more 

akin to traditional conscientious objector schemes: the government can and will conscript 

the actors it needs to achieve its goals whether objectors opt out or not. 

The same cannot be said of the self-insured plaintiffs, however. 

 

3

 Even the government’s proffered fourth option—declining to sponsor a group health 

plan—would not interfere with contraceptive coverage for the insured plaintiffs’ plan 

beneficiaries. Without an employer-sponsored plan, these beneficiaries would have to 

find other health insurance. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 

2664 (2012) (Scalia, J., dissenting). And that insurance would likely cover 

contraceptives. See 42 U.S.C. § 300gg-13. 
7 

B. The Self-Insured Plaintiffs 

Unlike the insured plaintiffs, the ACA leaves the self-insured plaintiffs in a 

position where, by refusing to opt out, they can prevent their plan beneficiaries from 

receiving the objected-to coverage the beneficiaries are entitled to and would otherwise 

receive under the ACA. In other words, their plan participants and beneficiaries will 

receive the coverage only if they opt out as the government commands. This makes their 

opting out a but-for cause of the receipt of the coverage. 

The Court views this ability to prevent contraceptive coverage by inaction as 

nothing more than the ability to disobey the law. See Slip Op. at 54–55 & n.35. But that 

is the same limited ability the plaintiffs in Hobby Lobby possessed, and it goes to the 

heart of the substantial burden the self-insured plaintiffs face here. “In Hobby Lobby, the 

plaintiff[s] . . . could choose only between (1) complying with the ACA by providing the 

coverage or (2) not complying and paying significant penalties.” Slip Op. at 3 (citing 

Hobby Lobby, 134 S. Ct. at 2759–60). Similarly, these self-insured plaintiffs must 

choose between (1) complying with the ACA by taking an action that ultimately causes 

their beneficiaries to receive this coverage or (2) not complying and paying significant 

penalties. This is a Hobson’s choice, which we have long held imposes a substantial 

burden under RFRA. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010) 

(“We conclude that a religious exercise is substantially burdened under [RFRA] 42 

U.S.C. § 2000cc–1(a) when a government . . . presents the plaintiff with a Hobson’s 

choice—an illusory choice where the only realistically possible course of action trenches 

on an adherent’s sincerely held religious belief.”); Hobby Lobby, 723 F.3d at 1141 (10th 
8 

Cir. 2013) (explaining that the choice between compromising religious beliefs and paying 

fines under the ACA “is precisely the sort of Hobson’s choice described in 

Abdulhaseeb”). 

1. The Obvious Causal Connection 

If causation is key to showing a substantial burden, see Slip Op. at 32–33, 45–66, 

the self-insured plaintiffs have surely shown that burden. Certainly, a shifting legal 

responsibility alone may not necessarily create a causal relationship. But here, the selfinsured plaintiffs’ opt out causes the coverage because (1) the government cannot force 

plaintiffs themselves to provide the coverage, Hobby Lobby, 134 S. Ct. at 2785, and (2) 

the government cannot shift the ability (let alone the responsibility) to provide the 

coverage to non-objectors unless the self-insured plaintiffs opt out. See 29 C.F.R. 

§ 2590.715-2713A(b)(2); Slip Op. at 48–49. Opting out is thus the only way their plan 

participants and beneficiaries may receive the coverage. 

Put another way, if the self-insured plaintiffs do not opt out, who will provide the 

coverage for their plan participants and beneficiaries? The answer: no one. The selfinsured plaintiffs cannot do so per their faith; the TPAs cannot do so per the law. Thus, 

the self-insured accommodation renders any duty to provide, and any entitlement to 

receive, contraceptive coverage wholly unenforceable and thus illusory—unless and until 

the self-insured plaintiffs opt out. Cf. Pennington v. Northrop Grumman Space & 

Mission Sys. Corp., 269 F. App’x 812, 819 (10th Cir. 2008) (unpublished) (“[W]hen a 

promise, in reality, promises nothing—it is illusory.” (Internal marks and citation 

omitted)). 
9 

To fully understand why no one can or will provide this objected-to coverage 

unless the self-insured plaintiffs perform a compelled act, one must view the ACA 

Mandate and accommodation scheme in light of Hobby Lobby. Hobby Lobby clearly 

holds forcing religious employers to provide objected-to contraceptive coverage violates 

RFRA. 134 S. Ct. at 2785. So, if any entity is to provide the coverage, it must be a third 

party. The insured accommodation independently conscripts third parties to provide the 

coverage. But as this Court points out, the self-insured accommodation was drafted such 

that no third party can provide the coverage in the self-insured context unless and until 

the objecting religious employer opts out. Slip Op. at 48–49; see also Eternal Word 

Television Network, 756 F.3d at 1347 (Pryor, J., specially concurring) (explaining that, 

without the Form or letter, a TPA “has no legal authority to step into the shoes of the 

[non-profit] and provide contraceptive coverage to the employees and beneficiaries of the 

[non-profit]”). As such, a third party’s legal authority (i.e. permission) to provide the 

coverage is wholly dependent upon (i.e. caused by) the self-insured non-profit opting out. 

The Court believes we should focus on the fact that the ACA “entitle[s] plan 

participants and beneficiaries to coverage whether or not the plaintiffs opt out” and 

imposes a duty on “either the religious non-profit organization or the TPA” to provide 

that coverage. Slip Op. at 33, 57. But this reasoning (1) fails to consider the ACA 

Mandate in light of the limitations Hobby Lobby already imposed, and (2) confuses legal 

concepts (duty and entitlement) with real-world effects (provision and receipt). 

First, the Court’s focus on the ACA’s requirement that “either the religious nonprofit organization or the TPA” provide the coverage, Slip Op. at 57, ignores the fact that 
10 

the government cannot require the religious non-profit to provide the coverage under 

Hobby Lobby. By ignoring the limitation Hobby Lobby imposes on the government, the 

Court simultaneously acknowledges that “opting out is necessarily a but-for cause of 

someone else—the TPA—providing contraceptive coverage,” Slip Op. at 56, and 

nevertheless rejects the self-insured plaintiffs’ RFRA claims for lack of causation. Slip 

Op. at 64–65. But again, Hobby Lobby forbids the government from placing this 

requirement on the non-profits themselves. So if opting out is necessarily a but-for cause 

of someone else providing the coverage, it is necessarily a but-for cause of anyone 

providing the coverage at all. Essentially, the Court concedes but-for cause and then 

turns around and denies the existence of any causation. What? 

Second, the Court asserts that the self-insured plaintiffs’ opt out will not cause the 

actual provision and receipt of objected-to coverage because the ACA creates an 

independent, albeit illusory, duty and entitlement related to that coverage. True, opting 

out does not cause entitlement to contraceptive coverage—the ACA entitles all health 

plan beneficiaries to contraceptive coverage. But these beneficiaries will not receive that 

coverage unless the self-insured plaintiffs do something to cause its provision from a 

third party. In other words, the ACA may independently say “someone” has a duty to 

provide contraceptive coverage, see 29 C.F.R. § 2590.715–2713, but no one can or will 

honor that duty and provide the coverage unless the self-insured plaintiffs opt out. No 

self-insured plaintiff will honor it because the government cannot force them to under 

Hobby Lobby, and no third party can honor it because no third party has authority to do 

so without an opt out. Based on this error, the Court concludes that “federal law, not the 
11 

actions of the religious objector, ensures that plan participants and beneficiaries will 

receive contraceptive coverage.” Slip Op. at 52 (emphasis added). But that is simply 

wrong. As explained above, federal law alone does not ensure receipt of the coverage 

from the self-insured plaintiffs; and it does not even allow, let alone ensure, receipt of 

that coverage from a third party unless the self-insured plaintiffs opt out. Rather, federal 

law, only in conjunction with the self-insured plaintiffs’ opt out, allows plan participants 

and beneficiaries to receive contraceptive coverage.4

 

These errors, taken together, cause the Court to reject a straw man rather than the 

self-insured plaintiffs’ RFRA claims. The self-insured plaintiffs do not claim a RFRA 

violation based on the fact that the ACA created an entitlement to contraceptive 

coverage; they object to the causal role they must play in providing that coverage. 5 

 

4

 Even with the opt-out, federal law does not always ensure receipt of the coverage. For 

example, the Court asserts “the ACA ensures plan participants and beneficiaries will 

receive contraceptive coverage” but simultaneously contradicts itself by acknowledging 

that TPAs for self-insured church plans may in fact decline to provide that coverage, in 

which case “plan participants and beneficiaries would not get the coverage to which they 

are otherwise entitled.” Slip Op. at 61 & n.41 (emphases added). 

The Court’s attempt to paint these contradictory positions as consistent suffers 

from the same logical flaw highlighted above; that is, it confuses the actual provision and 

receipt of coverage with a concededly unenforceable entitlement and duty to provide it. 

If the law cannot force an unwilling TPA to provide contraceptive coverage, the TPA will 

not provide it, and the plan beneficiaries will not receive it. Cf. Mach Mining, LLC v. 

E.E.O.C., 135 S. Ct. 1645, 1652–53 (2015) (acknowledging that even the government 

may violate the law, “especially so when [it faces] no consequence”). Thus, the existence 

of an unenforceable duty to provide contraceptive coverage does not ensure receipt, as 

this Court seems to believe. 

5

 The Court also asserts that religious non-profits “cannot preclude the government from 

requiring others to provide the legally required coverage in its stead,” Slip Op. at 51–52, 

and “cannot hamstring government efforts to ensure that plan participants and 

beneficiaries receive the coverage to which they are entitled under the ACA,” Slip Op. at 
12 

A proper accommodation may relieve otherwise substantial burdens on religious 

exercise, but this accommodation fails to do so, at least in the self-insured context. And 

to be sure, “[a] burden does not rise to the level of being substantial when it places an 

inconsequential or de minimis burden on an adherent’s religious exercise.” Slip Op. at 41 

(quoting Priests for Life, 772 F.3d at 246). But here, the accommodation scheme foists 

upon the self-insured plaintiffs a choice with dire consequences. Either (1) they refuse to 

act, which would avoid causing their plan beneficiaries to receive objected-to coverage 

but trigger crippling fines for violating the law or (2) they act, which would cause the 

receipt of this coverage and violate their faith. If “the purpose of religious 

accommodation” was to permit religious objectors “to avoid a religious burden and to 

comply with the law,” see Slip Op. at 55, it fails to achieve that purpose. Rather, the 

accommodation foists upon the self-insured plaintiffs a Hobson’s choice and thus a 

substantial burden on their exercise of religion. Abdulhaseeb, 600 F.3d at 1315. 

2. This is Not a Conscientious Objector Accommodation Scheme 

The Court believes this accommodation scheme akin to the conscientious objector 

schemes used for military conscription. See Slip Op. at 52 n.33. Not so. The 

 

71. I agree that this should not be the case but, unfortunately, the government drafted the 

self-insured accommodation such that the self-insured plaintiffs can, by inaction, do 

exactly that. As explained above, that is precisely why their opting out causes the receipt 

of objected-to coverage. 

Moreover, to the extent this language connotes dissatisfaction with the problems 

created by the self-insured accommodation, such dissatisfaction is irrelevant to whether 

the law imposes a substantial burden under RFRA. Our job is not to “add words to the 

law to produce what is thought to be a desirable result.” Abercrombie & Fitch, 135 S. Ct. 

at 2033. 
13 

accommodation scheme may function like a conscientious objector scheme in some 

regards, but it ultimately forces objectors to play a very different and causal role. 

Military conscription law generally requires male citizens to register for the draft 

and allows the President to draft a certain number of men from that pool of candidates 

into active duty in the Armed Forces.6

 See, e.g., Arver v. United States, 245 U.S. 366, 

375–76 (1918) (allowing the President to draft up to two groups of 500,000 men). After 

registering, conscientious objectors can opt out of serving in combat. 50 App. U.S.C. 

§ 456(j). But they cannot reduce the number of men the President ultimately drafts. 

Whether objectors lawfully register and opt out, or register and then choose unlawfully to 

avoid induction, or even choose unlawfully not to register at all, the President can and 

will draft the same number of men needed for war. See LAWRENCE M. BASKIR &

WILLIAM A. STRAUSS, CHANCE AND CIRCUMSTANCE: THE DRAFT, THE WAR, AND THE 

VIETNAM GENERATION 14–28 (1978) (explaining that the government’s Vietnam draft 

policies “did not care who was drafted as long as enough people were drafted”). 

Indeed, the Court’s reliance on Sheridan v. United States, 483 F.2d 169 (8th Cir. 

1973), highlights this difference. In Sheridan, the defendant registered for the draft but 

did not lawfully opt out. Instead, he simply refused to be inducted. Id. at 170. But the 

result under conscription law was the same: “another person [was] called in his place.” 

Id. at 174. In other words, like the insured plaintiffs, no matter what conscientious 

objectors do or refuse to do, the government can and will achieve its military draft goals. 

 

6

 Currently, “every male citizen of the United States . . . between the ages of eighteen 

and twenty-six” must register in order to facilitate any eventual conscription into the 

Armed Forces. 50 App. U.S.C. § 453(a). 
14 

The opposite result occurs under the self-insured accommodation scheme. If a 

self-insured plaintiff simply refuses to provide coverage and does not opt out, the 

government cannot call a third party in its place. The accommodation scheme thus places 

the self-insured plaintiffs in a very different position vis-à-vis helping the government 

achieve its religiously objectionable goals. Conscientious objectors cannot prevent the 

government from conscripting their replacements; but the self-insured plaintiffs can 

completely prevent the government from even authorizing their TPAs to provide 

objected-to coverage. Conscientious objectors also need not identify a related third party 

to serve in their stead; but the self-insured plaintiffs must identify a related third party 

through a form or letter. And this form or letter is the only means by which the 

government can authorize that third party to serve in their stead. Under conscientious 

objector schemes, the government may independently draft non-objecting Americans into 

combat to further its war efforts; conscientious objectors have no power to stop it. But 

under the self-insured accommodation scheme the government needs the self-insured 

plaintiffs to commit an act to further its contraceptive coverage efforts; their beneficiaries 

will not receive this coverage unless they commit that act and cause that result. Such a 

conscientious objector scheme—where the government could draft a replacement soldier 

only if the initial conscientious objector opted out and identified a previously ineligible 

relative to serve in his stead—would be immensely problematic, to say the least.7

 

7

 The Court attempts to counter this point by referencing the Enrollment Act of 1863, 

which “permitted a draftee to avoid service only by either providing a substitute or 

paying $300.” Slip Op. at 52 n.33 (quoting Act of March 3, 1863, ch. 75, § 13, 12 Stat. 

731, 733 (1863)). But this act was a short-lived experiment that did not even survive to 
15 

In relying on conscientious objector schemes the Court commits the same error it 

levies against this dissent: it fails to appreciate the broader structures of both the 

accommodation and conscientious objector schemes. In comparing the two schemes, the 

Court focuses only on the acts the objector must perform to opt out, and what happens if 

the objector performs those acts. The comparison totally ignores the broader and more 

critical difference between the two schemes: what happens if the objector refuses to 

perform those acts? Conscription law requires that “someone” go to war, and in the end 

“someone” will go to war. The law is such that the government can and will shift this 

legal duty to a non-objector regardless of the objector’s action or inaction. Conversely, 

the ACA says “someone” must provide contraceptive coverage, but the self-insured 

accommodation was drafted such that if the self-insured plaintiffs choose to do nothing 

rather than opt out, no one will actually provide that coverage. Again, the government 

cannot force the plaintiffs to provide the coverage, and it cannot shift the duty to provide 

the coverage unless the self-insured plaintiffs choose to opt out. If the government could 

independently shift this duty (as conscription law allows) or eliminate the need to shift 

the duty at all (as the insured accommodation does) that might eliminate the causal role 

 

the end of that war. Moreover, resentment over the Enrollment Act and its opt-out 

provision triggered the “New York City draft riot, the largest [and deadliest] civil 

insurrection in American history apart from the South’s rebellion itself.” ERIC FONER,

RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863–1877 at 32 (1988). “No 

case questioning the Civil War draft was heard by the Supreme Court, but it is known 

that Chief Justice Roger Taney prepared a rough outline of an opinion declaring the act 

unconstitutional.” Leon Friedman, Conscription and the Constitution, 67 MICH. L. REV. 

1493, 1546 (1969). Indeed, one eminent historian called the substitution provision a 

“grotesque monstrosit[y]” and stated “[t]he government could hardly have devised a 

worse law.” BRUCE CATTON, THE CIVIL WAR 208 (1987). I would call that problematic. 
16 

the self-insured plaintiffs currently face. But presently, the law forces the self-insured 

plaintiffs into gatekeeping positions and then uses fines to force them to open the gates. 

3. The Supreme Court’s Little Sisters and Wheaton College Orders 

The Court also believes the accommodation scheme does not impose a substantial 

burden on self-insured non-profits because the government’s new alternative notice 

accommodation—which forces an objecting non-profit to write a letter to HHS opting out 

and identifying its TPAs and/or health insurance issuers—is essentially akin to the 

Supreme Court’s injunctions pending appeal in Little Sisters of the Poor Home for the 

Aged, Denver, Colorado v. Sebelius, 134 S. Ct. 1022 (2014), Wheaton College v. 

Burwell, 134 S. Ct. 2806 (2014), and most recently Zubik v. Burwell, Nos. 14A1065, 14-

1418, 2015 WL 3947586, at *1 (U.S. June 29, 2015). See Slip Op. at 42 n.25, 59 n.39. 

But the Court’s reliance on these interim orders appears to be based on two flawed 

assumptions: (1) that the notices required by these orders were sufficient to authorize a 

TPA to provide coverage it could not provide before, and (2) even assuming this dubious 

interpretation of the orders, that they approved of compelling religious non-profits to play 

this causal role under RFRA’s first step (no substantial burden) as opposed to approving 

of such compulsion only where it satisfies RFRA’s second step (strict scrutiny). 

As to the first assumption, the Little Sisters order nowhere contemplates allowing 

the government to use the Little Sisters’ interim written notice to facilitate coverage by 

alternative means. And the Wheaton College order did not allow the government to rely 

on Wheaton’s interim written notice, either. Rather, it allowed the government to rely on 

preexisting knowledge that Wheaton qualified for exemption and would not provide 
17 

certain contraceptive coverage. See Wheaton Coll., 134 S. Ct. at 2807 (“But [Wheaton] 

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.” (emphases added)). Moreover, as Justice Sotomayor’s dissent 

in Wheaton College shows, the written notices required in Wheaton College, Little 

Sisters, and Zubik were insufficient to authorize TPA coverage under the then-effective 

accommodation, and may remain insufficient even under the new alternative 

accommodation. See Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).8

 

To the extent Wheaton College allows the government to rely on its knowledge of 

Wheaton’s objection, this merely tracks the Supreme Court’s decision in Bowen v. Roy, 

where the Court rejected a Free Exercise challenge to the government’s use of a social 

security number it already possessed and concluded that the First Amendment does not 

“require the government to conduct its own internal affairs in ways that comport with the 

religious beliefs of particular citizens.” 476 U.S. at 693, 699 (1986). But importantly: 

 

8 That is, even under the new alternative notice scheme, the “information necessary to 

verify applicants’ eligibility under 26 CFR §54.9815-2713A(a),” see Zubik, 2015 WL 

3947586, at *1, does not contain all the information required by the regulations and thus 

might not qualify as a valid opt out sufficient to trigger TPA coverage, see 29 C.F.R. § 

2590.715-2713A(b)(1)(ii)(B) (requiring the self-insured organization to provide, among 

other things “the plan name and type . . . and the name and contact information for any of 

the plan’s third party administrators”); Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, 

J., dissenting). 
18 

a majority of justices [in Roy] indicated that the requirement that applicants 

furnish a social security number was a different matter. Five justices either 

concluded or strongly suggested that the government could not require an 

applicant to provide the number on a benefits application if the applicant 

had a sincere religious objection to doing so. 

Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 567 (7th Cir. 2014) (Flaum, J., 

dissenting) (emphasis in original), cert. granted, judgment vacated sub nom. Univ. of 

Notre Dame v. Burwell, 135 S. Ct. 1528 (2015); see Roy, 476 U.S. at 714–16 (Blackmun, 

J., concurring in part), 732 (O’Connor, J., concurring in part and dissenting in part) (“The 

rise of the welfare state was not the fall of the Free Exercise Clause.”), 733 (White, J., 

dissenting). 

Moreover, the Court may well have expressly allowed for this reliance in Wheaton 

College because, unlike the Little Sisters, Wheaton provides insurance through both selfinsured plans and insured plans subject to the Mandate. See Wheaton Coll. v. Burwell, 50 

F. Supp. 3d 939, 944 (N.D. Ill. 2014) (Wheaton “offers its health insurance pursuant to 

six plans: two insured HMO plans, a [grandfathered] PPO plan, two self-funded 

prescription drug plans, and an insured student health plan.” (footnote omitted)). Thus, 

unlike the wholly self-insured Little Sisters, the government might independently ensure 

that an issuer from at least one of these insured health plans provides full contraceptive 

coverage to at least some of Wheaton’s various plan beneficiaries under the current ACA 

regime without forcing Wheaton to play a causal role in the receipt of that coverage. 

 Thus, the Little Sisters, Wheaton College, and Zubik orders allow religious nonprofits to simply notify the government that they qualify for exemption and will not 

provide contraceptive coverage. The government may use its knowledge of these 
19 

objections when choosing between independently available alternative means to ensure 

coverage is provided (as the conscientious objector and insured schemes do). But these 

orders do not allow the government to compel religious non-profits to furnish the 

document that is essential to cause their plan beneficiaries to receive objected-to 

coverage. 

And yet, suppose these orders could be read to say that the written notices they 

required were legally sufficient to authorize a previously ineligible TPA to provide 

objected-to coverage. Under that dubious interpretation, the orders would indeed force 

self-insured religious objectors to perform an act that causes the ultimate provision of the 

coverage, as they would make the provision of the coverage wholly contingent upon the 

religious objectors’ acts of providing HHS with that notice. For all the reasons discussed 

above, that interpretation of the orders would impose a substantial burden on the selfinsured plaintiffs’ exercise of religion. 

So, turning to the Court’s second assumption, even under its dubious interpretation 

of the orders, the orders nowhere say that forcing religious non-profits to play this sort of 

causal role avoids imposing a substantial burden on their religious exercise. Instead, 

assuming the Court’s interpretation of these orders is correct, these orders would impose 

a substantial burden under RFRA’s first step and therefore must comply with RFRA’s 

second step (strict scrutiny). Indeed, Judge Kavanaugh has compellingly argued that 

these orders simply set forth a less restrictive means of achieving the government’s 

compelling interest in facilitating access to contraceptive coverage. See Priests For Life, 

No. 13-5368, slip op. at 46–51 (Kavanaugh, J., dissenting). These orders do not require 
20 

religious non-profits to identify related third parties for the government to authorize and 

possibly conscript in their stead. Rather, they only require the non-profits to inform HHS 

that they qualify for exemption and will not provide objected-to coverage. As discussed 

above regarding conscientious objector schemes, a significant difference exists between 

asking a religious objector to say simply “no” and compelling that objector to identify a 

related entity to serve as a scapegoat where no one else can.9

4. ERISA-Bound Plans v. ERISA-Exempt Church Plans 

The burden the self-insured plaintiffs face is most salient with regards to Southern 

Nazarene, whose TPA is subject to ERISA enforcement and therefore will be not only 

authorized but also required to provide contraceptives to the participants and 

beneficiaries of Southern Nazarene’s self-insured plan only if Southern Nazarene opts 

out. See 29 C.F.R. § 2590.715-2713A(b)(2). Southern Nazarene’s opt out will thus 

clearly cause someone to provide contraceptive coverage where no one would or could 

before. 

But the lack of an enforcement mechanism as to ERISA-exempt church plans does 

not itself remove the causal role and substantial burden that the accommodation scheme 

foists upon the church-plan plaintiffs. For example, the Guidestone Plan is an ERISAexempt church plan, but at least one of its TPAs, Highmark, has indicated it will provide 

full contraceptive coverage for those self-insured organizations that use the Guidestone 

Plan and validly opt out. And plaintiffs Reaching Souls, Truett-McConnell College, and 

 

9

 Moreover, this less restrictive means of achieving the same goal necessarily dooms the 

current self-insured accommodation scheme under strict scrutiny. See infra Part III. 
21 

Mid-America Christian University are all self-insured plaintiffs that use the Guidestone 

Plan. Slip Op. at 21; SN Supp. Br. II at 9 n.2. So even though their opting out might not 

trigger an enforceable duty to provide objected-to coverage, these church plan plaintiffs 

have established that their opting out will actually cause Highmark to provide the 

coverage—coverage it cannot provide unless they opt out. 

True, given the repeal of the accommodation scheme’s non-interference provision, 

church plans like the Guidestone Plan might try to fire TPAs like Highmark and replace 

them with TPAs that promise not to provide coverage for objected-to contraceptives, and 

those plaintiffs that use the Guidestone Plan might be able to fire Guidestone if it refuses 

to do so. See RS Oral at 12:57–13:10. Thus, by economic coercion, these plaintiffs 

might be able to ultimately stop the provision of the coverage they were initially forced to 

cause. But, the government maintains that “such conduct is generally unlawful and is 

prohibited under . . . state and federal laws.” See 79 Fed. Reg. at 51,095. And none of 

this changes the present fact that if plaintiffs who use the Guidestone Plan opt out, they 

will cause Highmark to perform a religiously objected-to act on their behalf where 

Highmark previously could not do so. Thus, those self-insured plaintiffs that use the 

Guidestone Plan have shown “presently threatened injuries” warranting injunctive relief. 

Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931). 

The Little Sisters plaintiffs, on the other hand, have not established this causal 

connection. The Little Sisters’ primary TPA, Brothers Services, is not bound by ERISA 

and has promised not to provide contraceptive coverage even if Little Sisters opts out. 

Little Sisters asserts that Brothers Trust also uses other TPAs who might choose to 
22 

provide contraceptive coverage if they opt out, but they have not sufficiently developed 

this theory to bear the burden of establishing that their opting out will presently cause 

someone to provide contraceptive coverage to their plan beneficiaries. 

The Court also suggests self-insured non-profits “could relieve themselves of any 

lingering doubts they may have about causation by [1] employing an insured plan, [2] 

employing a self-insured church plan where the Departments lack authority to enforce the 

Mandate against their TPA, or [3] administering the self-insured plan on their own inhouse without using a TPA.” Slip Op. at 52 n.32. But none of these options alleviate the 

substantial burden the accommodation scheme imposes. First, choosing to switch from a 

self-insured plan, where no coverage can be provided without an opt out, to an insured 

plan, where coverage will be provided by a third party, would simply mean choosing to 

cause that coverage by switching plans rather than opting out. Second, as discussed 

above, even in the church plan context, opting out may still cause a TPA to provide the 

coverage. Third, no plaintiff in this case administers its plan in-house. So to the extent 

the Court opines on the legal effect the ACA Mandate might have on a plan not at issue 

in this case, the Court impermissibly exceeds its jurisdiction by “advising what the law 

would be upon a hypothetical state of facts.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 

477 (1990) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). 

Given that we do not have jurisdiction to pass on this hypothetical, the self-insured 

plaintiffs should not have to rebut it to prove a present substantial burden under RFRA. 

But, because the Court goes there, administering a self-insured plan in-house without a 

TPA can be prohibitively complex, limit options for managing care, and create legal 
23 

pitfalls that many non-profits simply cannot afford to handle. See Thomas R. McLean & 

Edward P. Richards, Health Care’s “Thirty Years War”: The Origins and Dissolution of 

Managed Care, 60 N.Y.U. ANN. SURV. AM. L. 283, 313 (2004); see generally Rhonda D. 

Orin and Daniel J. Healy, Self-Administering, Insuring and Funding Benefit Plans, 197–

213 in HUMAN RESOURCES (Thompson 2007 Summer Edition). 

C. Summing Up the Substantial Burden On the Self-Insured Plaintiffs 

The Court concludes that the Plaintiffs’ causation arguments fail because “opting 

out would not trigger, incentivize, or otherwise cause the provision of contraceptive 

coverage.” Slip Op. at 65–66. This conclusion is correct in the insured context. But the 

self-insured plaintiffs, with the exception of Little Sisters, have shown exactly how their 

act of opting out will cause someone to provide contraceptive coverage where their 

refusal to act would prevent that result. Unfortunately, the Court fails to see this obvious 

causal relationship because it ignores the clear holding of Hobby Lobby and fails to 

comprehend the difference between unenforceable entitlement and actual receipt. The 

government has left self-insured plaintiffs in a position where they must decide whether 

their beneficiaries will actually receive objected-to contraceptive coverage. The 

accommodation does not absolve these plaintiffs of this responsibility. Instead, it forces 

them to either (1) violate their sincere religious beliefs by performing an action that will 

cause their beneficiaries to receive objected-to coverage, or (2) violate the law and incur 

steep fines to obey those religious beliefs. Again, this is a Hobson’s choice and thus a 

substantial burden on their religious exercise under RFRA. Abdulhaseeb, 600 F.3d at 

1317; Hobby Lobby, 723 F.3d at 1141. 
24 

III. STRICT SCRUTINY

 Because the government has imposed a substantial burden on at least the selfinsured plaintiffs’ religious exercise, under RFRA it must demonstrate that this burden is 

“(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive 

means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. Our 

precedent currently holds the government has no compelling interest in contraceptive 

coverage. See Hobby Lobby, 723 F.3d at 1143. But even assuming such a compelling 

interest, see Hobby Lobby, 134 S. Ct. at 2780 (assuming the same), 2785–86 (Kennedy, 

J., concurring), 2799 (Ginsburg, J., dissenting), the government cannot show this scheme 

is the least restrictive means of furthering that interest. As discussed above, the Supreme 

Court’s interim orders in Little Sisters, Wheaton College, and Zubik, even when 

interpreted so as to force self-insured non-profits to play a necessary causal role in 

contraceptive coverage, provide a less restrictive means of achieving the same goal. See

Priests For Life, No. 13-5368, slip op. at 46–51 (Kavanaugh, J., dissenting). The 

existence of this less restrictive means dooms the current accommodation scheme under 

strict scrutiny. Hobby Lobby, 134 S. Ct. at 2781–82. 

IV. CONCLUSION

“Congress enacted RFRA in 1993 in order to provide very broad protection for 

religious liberty,” Hobby Lobby, 134 S. Ct. at 2760, a liberty essential to our country’s 

constitutional tradition, albeit with boundaries difficult to define, see id. at 2785 

(Kennedy, J., concurring). The Court today makes causation one of those boundaries. 

Even assuming this boundary, however, the self-insured plaintiffs in this case, with the 
25 

exception of the Little Sisters plaintiffs, have clearly shown how their compelled act will 

cause their plan beneficiaries to receive objected-to coverage that they could not 

otherwise receive. Therefore, I dissent from the Court’s holding regarding these selfinsured plaintiffs. Even assuming a causation requirement, I would still hold these selfinsured plaintiffs have shown a substantial likelihood of success on the merits of their 

RFRA claim and that the other requirements for a preliminary injunction are met. I 

would therefore affirm the district court’s denial of a preliminary injunction in Little 

Sisters, 6 F. Supp. 3d 1225, affirm the district court’s grant of a preliminary injunction in 

Reaching Souls, 2013 WL 6804259, and affirm in part (as to the self-insured plaintiffs: 

Southern Nazarene University and Mid-America University) and reverse in part (as to the 

insured plaintiffs: Oklahoma Baptist University and Oklahoma Wesleyan University) the 

district court’s grant of a preliminary injunction in Southern Nazarene, 2013 WL 

6804265.