# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2014 Decided November 14, 2014

No. 13-5368

P RIESTS F OR L IFE

, ET AL

., A PPELLANTS

v.

U NITED S TATES D EPARTMENT OF H EALTH AND H UMAN
S ERVICES

, ET AL

., A PPELLEES

Consolidated with 13-5371, 14-5021

Appeals from the United States District Court

for the District of Columbia (No. 1:13-cv-01261) (No. 1:13-cv-01441)

Robert J. Muise argued the cause for appellants/crossappellees Priests For Life, et al. Noel J. Francisco argued the cause for appellants/cross-appellees Roman Catholic Archbishop of Washington, et al. With them on the briefs

were Eric Dreiband and David Yerushalmi

.

Kimberlee Wood Colby was on the brief for amici curiae The Association of Gospel Rescue Missions, et al. in support of cross-appellants/cross-appellees.2

Mark B. Stern , Attorney, U.S. Department of Justice, argued the cause for appellees/c ross-appellants. With him on

the brief were Stuart F. Delery , Assistant Attorney General,

Ronald C. Machen Jr. , U.S. Attorney, Beth S. Brinkmann

, Deputy Assistant Attorney General, and Alisa B. Klein and

Adam C. Jed , Attorneys.

Martha Jane Perkins was on the brief for amici curiae National Health Law Program, et al. in support of appellees/cross-appellants.

Marcia D. Greenberger and Charles E. Davidow were on the brief for amici curiae The National Women’s Law Center, et al. in support of a ppellees/cross-appellants.

Ayesha N. Khan was on the brief for amici curiae Americans United for Separation of Church and State, et al. in support of appellees /cross-appellants.

Before: R OGERS , P ILLARD and W ILKINS

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge P ILLARD

.

P ILLARD

, Circuit Judge : These consolidated cases present the question whether a regulatory accommodation for religious nonprofit organizations that permits them to opt out of the contraceptive coverage requirement under the Patient

Protection and Affordable Ca re Act (“ACA”), 42 U.S.C. § 300gg-13(a)(4), itself imposes an unjustified substantial burden on Plaintiffs’ religious ex ercise in violation of the Religious Freedom Restorati on Act (“RFRA”), 42 U.S.C. § 2000bb et seq. Plaintiffs’ principal claim is that the accommodation does not go far enough. They believe that, even if they opted out, they would still play a role in3

facilitating contraceptive covera ge. They view the regulation as thereby substantially burdeni ng their religious exercise by involving them in what the Plai ntiffs and their faith call “scandal,” i.e., leading others to do evil. Plaintiffs claim that the government lacks a compelling interest in requiring them to use the specific accommodation the regulations authorize, making the burden unjustified a nd unlawful. They contend that RFRA gives them a right to exclude contraceptive coverage from their employees’ and students’ plans without notice, and requires that the government be enjoined from implementing the contraceptiv e coverage requirement.

* * *

As a consequence of a period of wage controls after World War II during which empl oyers created new fringe benefits, the majority of people in the United States with

health insurance receive it under plans their employers arrange through the private market. Congress chose in the ACA not to displace th at basic system. It sought instead to expand the number of American s insured and to improve and

subsidize health insurance cove rage, in part by building on the market-based system of employer-sponsored private health insurance already in place. The contraceptive coverage requirement and accommodation operate through that system.

The regulations implementi ng the ACA and its Women’s Health Amendment impose a range of standard requirements on group health plans, including th at they cover contraceptive services prescribed by a health care provider without imposing any cost sharing on th e patient. The contraceptive coverage requirement derives from the ACA’s prioritization of preventive care, and from C ongress’ recognition that such

care has often been modeled on men’s health needs and thus left women underinsured. As discussed below, Congress4

included the Women’s Health Amendment in the ACA to remedy the problem that wome n were paying significantly more out of pocket for preventive care and thus often failed to seek preventive services , including consultations, prescriptions, and procedures re lating to contraception. The medical evidence prompting the contraceptive coverage requirement showed that even minor obstacles to obtaining contraception led to more unpl anned and risky pregnancies,

with attendant adverse effects on women and their families.

Some employers, including th e Catholic nonprofits in this case, oppose contraception on religious grounds. The Catholic Church teaches that contraception violates God’s design because the natural and non -sinful purpose of sex is to conceive a child within a marriag e: Plaintiff Priests for Life, quoting the Papal Encyclical Humanae Vitae , declares that “‘any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means’—including contraception and sterilization—is a grave sin.” J.A. 49. In

the view of the Catholic Church expressed through Humanae

Vitae , contraception enables the separation of sex from reverence for the sexual partner, the understanding that sex makes children, and the imperative of deep commitment to marriage and family.

The Catholic Church itself is exempt from the contraceptive coverage require ment, but Catholic nonprofits have a long and broad history of service that goes far beyond worship or proselytizing. Na tionally, Catholic hospitals, clinics, universities, schools, and social services groups provide many services that ar e not inherently religious.

Catholic-identified nonprofits employ and enroll as students millions of adults, not all of whom are co-religionists or share the Catholic Church’s religious oppositi on to contraception.5

Faced with an employer-based health insurance system, forceful impetus to require coverage of contraceptive services, and religious opposit ion by some employers to contraception, the government sought to accommodate religious objections. As detailed below, the ACA’s implementing regulations allow religious nonprofits to opt out of including contraception in the coverage they arrange for their employees and students. The regulations assure, however, that the legally mandated coverage is in place to seamlessly provide contracep tive services to women who want them, for whom they ar e medically appropriate, and who personally have no objection to using them.

The regulatory opt out works simply: A religious organization that objects on re ligious grounds to including coverage for contraception in its health plan may so inform either the entity that issues or administers its group health plan or the Department of Health and Human Services. Delivery of the requisite notic e extinguishes the religious organization’s obligation to contra ct, arrange, pay, or refer for any coverage that includes c ontraception. Th e regulations then require group health plan in surers or administrators to offer separate coverage for cont raceptive services directly to insured women who want them, and to inform beneficiaries that the objecting employer has no role in facilitating that

coverage.

Plaintiffs, the Roman Catholic Archbishop of Washington and nonprofits affiliated with the Catholic Church, arrange for group he alth coverage for their employees and students. Plaintiffs oppose the ACA’s contraceptive coverage require ment on religious grounds and do not want to provide the requ isite contraceptive coverage.6

Instead of taking advantage of the accommodation, Plaintiffs filed suit to challenge it as a violation of th eir religious rights.

Plaintiffs’ principal claim ar ises under RFRA. Congress enacted RFRA in response to the Supreme Court’s decision in Employment Division v. Smith , 494 U.S. 872 (1990), that the

Free Exercise Clause of th e First Amendment “does not relieve an individual of the oblig ation to comply with a valid and neutral law of general applicability.” Id. at 879 (internal quotation marks omitted). Congres s sought to reinstate as a statutory matter the pre- Smith free exercise standard. Under RFRA, the federal governme nt may not “substantially burden” a person’s religious exercise—even where the burden results from a religiously neut ral, generally applicable law that is constitutionally valid under Smith —unless the imposition of such a burden is the least restrictive means to serve a compelling governmental interest.

The contraceptive coverage opt-out mechanism substantially burdens Plaintiffs’ religious exercise, Plaintiffs contend, by failing to extricat e them from providing, paying for, or facilitating access to contraception. In particular, they

assert that the notice th ey submit in requesting accommodation is a “trigger” that activates substitute coverage, and that the governme nt will “hijack” their health plans and use them as “conduits” for providing contraceptive coverage to their employees and students. Plaintiffs dispute that the government has any compelling interest in obliging them to give notice of their wish to take advantage of the accommodation. And they argue that the government has failed to show that the notice requirement is the least

restrictive means of servi ng any such interest.

We conclude that the cha llenged regulations do not impose a substantial burden on Pl aintiffs’ religious exercise7

under RFRA. All Plaintiffs mu st do to opt out is expresswhat they believe and seek what they want via a letter or twopage form. That bit of paperw ork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any ro le in the provision of contraceptive services, and th ey remain free to condemn contraception in the clearest terms. The ACA shifts to health

insurers and administrators the obligation to pay for and provide contraceptive covera ge for insured persons who would otherwise lose it as a result of the religious

accommodation.

Even if, as Plaintiffs aver, we must take as dispositive

their conviction that the acco mmodation involves them in providing contraception in a manner that substantially burdens their religious exer cise, we would sustain the challenged regulations. A conf luence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it. That coverage offers adults and children the benefits of planning for healthy births and avoiding unwanted pregnancy, and it promot es preventive care that is as responsive to women’s health needs as it is to men’s. The accommodation requires as little as it can from the objectors while still serving the governme nt’s compelling interests. Because the regulatory opt-o ut mechanism is the least restrictive means to serve comp elling governmental interests, it is fully consistent with Pl aintiffs’ rights under RFRA. We

also find no merit in Plaintiffs’ additional claims under the

Constitution and the Administrative Procedure Act.8

I. Background

A. The ACA & Accommodation

The ACA requires group health plans, including both insured and self-insured employer-based plans, to include minimum coverage for a variety of preventive health services without imposing cost -sharing requirements on the covered beneficiary. 1 42 U.S.C. § 300gg-13(a); see also id. § 300gg91(a) (defining “gro up health plan”); 45 C.F.R. § 147.131(c)(2)(ii) (cost-sharing includes copayments, coinsurance, and de ductibles). In view of the greater preventive health care cost s borne by women, the Women’s Health Amendment in the ACA sp ecifically requires coverage for women of “such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Re sources and Services Administration.” 42 U.S.C. § 300gg-13(a)(4).

To determine which preventive services should be required, the Health Resources and Services Administration (“HRSA”), a component of HHS , commissioned a study from the independent Institute of Medi cine (“IOM” or “Institute”). The Institute is an arm of the National Academy of Sciences

established in 1970 to inform health policy with available

scientific information. In reliance on the work of the Institute, HRSA establis hed guidelines for women’s

1 An employer “self-insures” if it bears the financial risk of paying its employees’ health insurance claims (as opposed to contracting with an insurance company to provide coverage and bear the associated financial risk). Many “self-insured” employers hire third-party administrators (“TPAs”) to perform administrative functions, such as developing prov ider networks and processing

claims. See generally Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals 6 (2008).9

preventive services that include any “[FDA] approved contraceptive methods, sterili zation procedures, and patient education and counseling.” Health Resources & Servs. Admin., Women’s Preventive Services Guidelines

, http://www.hrsa.gov/womensguidelines/, quoted in 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012).

The three agencies responsible for the ACA’s implementation—the Department of Health and Human Services, the Department of La bor, and the Department of the Treasury (collectively, the “Departments”)—issued regulations requiring coverage of all preventive services contained in the HRSA guidelines, including contraceptive

services. See 45 C.F.R. § 147.130(a)(1)(iv) (HHS); 29 C.F.R. § 2590.715-2713(a)(1)(iv) (Labor); 26 C.F.R. § 54.9815- 2713(a)(1)(iv) (Treasury). The Departments determined that contraceptives prevent unint ended pregnancies and the negative health risks associated with such pregnancies; they

“have medical benefits for wo men who are contraindicated for pregnancy,” and they offer “demonstrated preventive health benefits . . . relating to conditions other than pregnancy . . . .” 77 Fed. Reg. at 8,727. Inadequate coverage for women not only fails to protect women’s health, but “places womenin the workforce at a disadvantage compared to their male coworkers.” Id . at 8,728. Providing contraceptive coverage within the preventive-care package, the Departments observed, supports the equal abil ity of women to be “healthy and productive members of the job force.” Id . Because of the importance of such coverage, and because “[r]esearch . . . shows that cost sharing can be a significant barrier to effective contraception,” the Departments included contraceptive coverage among th e services to be provided without cost sharing. Id.10

Objections by religious nonprofits to the use of contraception, and to arranging health insurance for their employees that covers contraceptive services, prompted the Departments to create two ave nues for religious organizations

to exclude themselves from a ny obligation to provide such coverage. Those avenues track a longstanding and familiar

distinction between houses of worship (e.g., temples, mosques, or churches) and re ligious nonprofits (e.g., schools, hospitals, or social service agen cies with a religious mission or affiliation). First, in order to “respect[] the unique relationship between a house of worship and its employees in ministerial positions,” the Departments categorically exempted “religious employers,” defined as churches or the exclusively religious activities of any religious order, from the contraceptive coverage requirement. 2 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011); see 45 C.F.R. § 147.131(a). Second, the Departments created a mechanism for nonprofit “eligible organizations,” i.e., groups that are not houses of worship but nonetheless presen t themselves as having a religious character, to opt out of having to “contract, arrange, pay, or refer for [contraceptive ] coverage.” 78 Fed. Reg. 39,870, 39,871 (July 2, 2013). This opt-out mechanism was designed to dissociate the obj ecting organizations from contraceptive coverage while ensuring that the individuals covered under those organizati ons’ health plans—people not fairly presumed to share the organizations’ opposition to

2 An organization qualifies as a “religious employer” under the regulations if it is “organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. ” 45 C.F.R. § 147.131(a). Those provisions, in turn, refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3)(A)(i), (iii).11

contraception or to be co-reli gionists—could obtain coverage for contraceptive services directly through separate plans from the same plan providers. See id. at 39,874. Plaintiffs challenge this second mechanism, which the regulations refer

to as the “accommodation.”

The government designed the accommodation to avoid encumbering Plaintiffs’ sinc ere religious belief that providing, paying for, or facilitating insurance coverage for contraceptives violates thei r religion, but the government sought at the same time to preserve unhindered access to contraceptives for insured indi viduals who use them. Many religiously affiliated educational institutions, hospitals, and social-service organizations have taken advantage of the accommodation, and courts of appeals have uniformly sustained it against chal lenges under RFRA and the

Constitution. See Mich. Catholic Conf. & Catholic Family

Servs. v. Burwell , 755 F.3d 372 (6th Cir. 2014); Univ. of

Notre Dame v. Sebelius , 743 F.3d 547 (7th Cir. 2014) petition for cert. filed (Oct. 3, 2014) (No. 13-3853).

B. The Plaintiff Nonprofits Offer Health Insurance in Various Ways

Plaintiffs are eleven Catholic organizations that employ

both Catholics and non-Cathol ics and provide a range of spiritual and charitable serv ices in the Washington, D.C.

area. 3 They fall into four categories that differ in ways that affect how the accommodation appl ies to them, and that are thus relevant to some aspects of our analysis.

3 Father Frank Pavone, Alveda Ki ng, and Janet Morana, employees of Plaintiff Priests for Life, are also individually Plaintiffs in this action. We refer to them, along with the organization, collectively

as “Priests for Life” or the “ Priests for Life Plaintiffs.”12

First, the Roman Catholic Archbishop of Washington (the “Archdiocese”), a corporation sole, is part of the Catholic Church. It provides pastoral care and spiritu al guidance to nearly 600,000 Catholics. It is undisputed that the

Archdiocese itself is a reli gious employer and thus is categorically exempt from the requirement to include coverage for contraceptive serv ices for its employees in itsself-insured health plan. The Archdiocese operates a selfinsured health plan that is considered a “church plan.” Church plans are exempt from the Employee Retirement Income Security Act of 1974 (“ERISA”), which regulates private, employer-sponsored be nefit plans, including health insurance plans. See 29 U.S.C. § 1002(33) (defining “church plan”); id. at § 1003(b)(2) (exempti ng church plans from ERISA); see generally id. § 1001 et seq. (governing employee benefit plans). The ACA am ended ERISA by establishing new requirements for large group health plans and insurers, but the church’s provision of benefits to its employees via its church plan is exempt from ER ISA, which distinguishes the

Archdiocese’s claims here from those of the other Plaintiffs. The Archdiocese need not submit any written notice in order to be exempt, and the employees of the Archdiocese are not entitled to contraceptive coverage under the ACA. The Archdiocese nonetheless participates as a Plaintiff in this case in its role as the sponsor of th e church plan that some of the other Plaintiffs also use to provide insurance to their employees—a role that the Archdiocese contends makes it complicit in providing them w ith contraceptive coverage.

The remaining Plaintiffs are a ll religious nonprofits. It is undisputed that, under the govern ment’s regulations, each is eligible for the accommodation, but not the exemption extended to houses of worship.13

Comprising the second of the four categories are the socalled “church-plan Plaintiffs,” nonprofits affiliated with the Archdiocese that provide educ ational, housing, and social services to the community and arrange for health insurancecoverage for their employees through the Archdiocese’s selfinsured plan. 4

Plaintiff Thomas Aquinas College falls under a third category. It also self-insures. It offers its employees health insurance coverage through an organization called the RETA trust, which oversees an ERISA-covered plan set up by the Catholic bishops of California and run by a third-party administrator (“TPA”). The pa rties agree that the College’s plan is not exempt from ERISA as a church plan.

In the fourth category are t hose Plaintiffs that provide insurance coverage through group health insurance plans they negotiate with private insurance companies. Catholic University of America offers its students and employees health insurance through two separate group insurance plans offered by AETNA and United Healthcare. Priests for Life, a religious nonprofit that encour ages clergy to emphasize the value and inviolability of hu man life, also provides its employees with health insura nce through a group insurance plan offered by United Healthcare.

It is undisputed that Plainti ffs all sincerely believe that life begins at conception and that contraception is contrary to

4 The church-plan Plaintiffs are the Consortium of Catholic Academies of the Archdiocese of Washington, Archbishop Carroll High School, Inc., Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc., Mary of Nazareth Roman Catholic Elementary School, Inc., Catholic Charities of the Archdiocese of Washington, Inc., Victory Housing, Inc., and the Catholic Information Center, Inc.14

Catholic tenets. 5 Priests for Life, for example, was founded to spread the Gospel of Life, which “affirms and promotes the culture of life and actively oppos es and rejects the culture of

death.” Pls.’ Br. 11. Ca tholic doctrine prohibits “impermissible cooperation with evil,” and thus opposes providing access to “contrace ptives, sterilization, and abortion-inducing products,” which the Church views as “immoral regardless of their cost.” Id. at 12. The specific acts to which Plaintiffs object ar e “provid[ing], pay[ing] for, and/or facilitat[ing] access to contraception,” any of which they believe would violate the Catholic Church’s teachings.

Id. at 15.

In the past, in accordance with their religious beliefs, Plaintiffs have offered health care coverage to their employees 6 that excluded coverage for “abortion-inducingproducts, contraception [except when used for noncontraceptive purposes], sterilizat ion, or related counseling.”

Id . at 16. They structured the c overage in a variety of ways, including through self-insured health plans and group health plans, which they directed to exclude all contraceptive services. Plaintiffs object to the contraceptive coverage requirement and the accommodation’s opt-out mechanism because, they assert, the accommodation fails adequately to dissociate them from the provision of contraceptive coverage and, by making them complicit with evil, substantially burdens their religious exercise in violation of RFRA. In

5 For ease of reference, we refer to contraception, sterilization, and related counseling services as “contraception” or “contraceptive

services.”

6 Throughout this opi nion we discuss Plaintiffs’ “employees.” We use this term to refer to all individuals covered by Plaintiffs’ insurance plans, including employees, students, and other beneficiaries, such as covered dependents.15

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

C. Procedural History

Plaintiffs brought two separate suits that proceeded on parallel tracks in district court. The Priests for Life Plaintiffs filed their complaint in Augus t 2013 and promptly moved for a preliminary injunction. They challenged the contraceptive coverage requirement and the accommodation as an unjustified substantial burden on their religious exercise in

violation of RFRA and raised a variety of constitutional challenges under the Speech and Religion Clauses of the First Amendment and the Equal Protection Clause of the Fifth

Amendment.

The district court considered Plaintiffs’ request for a preliminary injunction together with the merits, granted the government’s motion to dismiss the complaint for failure to state a claim, and denied as m oot the parties’ cross-motions for summary judgment. Reasoning that “[t]he accommodation specifically ensures that provision of contraceptive services is enti rely the activity of a third party—namely the issuer—and Prie sts for Life plays no role in that activity,” the court held that the Priests for Life

Plaintiffs failed to show a subs tantial burden on their religious

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

Servs. , 7 F. Supp. 3d 88, 102 (D.D.C. 2013). The court also rejected each of Priests for Life’s constitutional claims. Id. at
104-111.

The remaining Plaintiffs—the Archdiocese, Thomas Aquinas College, Catholic University of America, and the church-plan Plaintiffs (referred to collectively as the “ RCAW16

Plaintiffs”)—filed their complaint and moved for a preliminary injunction in Se ptember 2013, ch allenging the

accommodation under RFRA and the First Amendment. The

RCAW Plaintiffs further claimed that the government’s implementation of the regulations violates the APA, including by adopting an erroneous interp retation of th e “religiousemployer” categorical exemption that precludes the churchplan Plaintiffs from qualifying fo r it. They also claimed in supplemental briefing that the in terim final rule was invalidly promulgated without notice and comment. 7 The RCAW case was assigned to a different district judge who also consolidated proceedings on th e preliminary injunction and the merits, but who granted in part and denied in part the parties’ cross-motions for summary judgment.

The court rejected Catholic University’s RFRA claim and granted that of Thomas Aquinas College. Roman Catholic Archbishop of Wash. v. Sebelius ( RCAW ), No. 13- 1441, 2013 WL 6729515, at *15-24 (D.D.C. Dec. 20, 2013). The court held that the accommodation did not impose a

substantial burden on Catholic Un iversity’s religious exercise because “the accommodation effectively severs an organization that offers its em ployees or students an insured group health plan from particip ation in the pr ovision of the contraceptive coverage.” Id. at *15. The court determined that Thomas Aquinas College was entitled to summary judgment on its RFRA claim, however, because, as the court understood the regulations, “a series of duties and obligations” constituting a subs tantial burden could fall on the self-insured College if, after the College opted out, its current TPA were to decline to serve as the plan administrator for

7 The RCAW Plaintiffs abandoned on appeal their other APA

claims.17

purposes of the contraceptive coverage requirement. 8 Id. at *24. The court granted the government’s cross-motion for summary judgment on the othe r constitutional and APA

claims. 9

All Plaintiffs appealed a nd sought injunctions pending appeal, while the government cr oss-appealed the rulings in

favor of the RCAW Plaintiffs. We consolidated the appeals and granted an injunc tion pending appeal.

II. Standard of Review

Whether claims are decided on a motion to dismiss or for summary judgment, we revi ew the district courts’

determinations de novo

. Rudder v. Williams , 666 F.3d 790, 794 (D.C. Cir. 2012); Potter v. District of Columbia , 558 F.3d 542, 547 (D.C. Cir. 2009). A motion to dismiss for failure to state a claim should be granted if the complaint does not

8 The court also granted summary judgment to both Thomas Aquinas College and the church-plan Plaintiffs on their challenge

to the so-called “non-interference” regulation, which prevented a self-insured organization from seeking to “influence” a TPA. The court concluded that the regul ation imposed an unconstitutional content-based limitation that “directly burdens, chills, and inhibits” Plaintiffs’ free speech. RCAW , 2013 WL 6729515, at *37-38. That regulation has since been rescinded, 79 Fed. Reg. 51,092, 51,095 (Aug. 27, 2014), rendering that claim moot.

9 The district court believed that, because the Archdiocese is exempt from the contraceptive coverage requirement, it was “not joined in” the RFRA claim, RCAW , 2013 WL 6729515, at *8, and that the church-plan Plaintiffs lacked standing to bring such a claim, id. at *24-27. The court also concluded that some Plaintiffs lacked standing to raise some of the other claims alleged in the complaint. See, e.g.

, id. at *43-44, 47. To the extent necessary to establish this Court’s subject ma tter jurisdiction, we address standing below.18

contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)).

Summary judgment is appropr iate only if “there is no genuine dispute as to any mate rial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986); Celotex Corp. v. Catrett , 477 U.S. 317, 322- 23 (1986).

III. Standing

The RCAW district court conclude d that the church-plan Plaintiffs lack standing to challenge the accommodation. 2013 WL 6729515, at *26. The government does not press that issue on appeal, but we ha ve an independent obligation to confirm our jurisdiction. See Ams. for Safe Access v. DEA

, 706 F.3d 438, 442 (D.C. Cir. 20 13). “[I]n determining whether plaintiffs have standi ng, we must assume that on the merits they would be succe ssful in their claims.” Muir v. Navy Fed. Credit Union , 529 F.3d 1100, 1106 (D.C. Cir. 2008) (internal alterations and quotation marks omitted).

Plaintiffs contend that they are injured by the challenged regulations because they are forced to choose among options, each of which, they argue, would require them to violate their sincerely held religious beliefs: They may either directly provide contraceptive coverage to their employees, or pay onerous penalties for failing to include contraceptive coverage in their plans. Th e government has offered them a third option in the form of the accommodation: exclude contraceptive coverage from thei r plans. They object to that, too, however, because if they exclude contraceptive coverage19

from their plans, the regulati ons require someone else to provide it in a way that they contend amounts to their facilitation of the objected-to coverage. Plaintiffs further claim that they are faced with those impossible choices as a result of the ACA regulations, and that a ruling from this Court invalidating those regulations would redress their injury. As a general matter, the government does not contest that Plaintiffs’ claimed injury is legally cognizable and

concrete.

In successfully challenging the church-plan Plaintiffs’ standing in district court, th e government argued that it lacks authority to impose on those partic ular Plaintiffs the harm of which they complain and that they thus cannot allege sufficient injury to support standing. Specifically, the government contended that it could not require a TPA—the firm the Archdiocese hired to administer its plan and process its claims—to provide contracep tive coverage to the churchplan Plaintiffs’ employees. 10 In those circumstances, the government contended, a legal victory in this case would change nothing.

10 That is because church plan s (such as the Archdiocese’s) are exempt from ERISA, 29 U.S.C. § 1003(b)(2), and ERISA is the only vehicle through which the government may enforce a TPA’s obligation to provide cont raception coverage under the

accommodation. See 29 C.F.R. § 2510.3-16(b). The government claimed that, in light of its lack of a governmental enforcement mechanism, the Archdiocese’s TPA could not be expected to provide the requisite coverage to the church-plan Plaintiffs’ employees. As a result of that regulatory loophole, the district court held that the church-plan Plaintiffs are not injured by either the contraceptive coverage requirement or the requirement that they complete the self-certification as a condition of opting out.20

Whether or not the obligation is enforceable, however, it is undisputed that, if the church-plan Plaintiffs want a religious accommodation, they are legally required to request it through the opt-out process. Like all the other Plaintiffs, the church-plan Plaintiffs allege that their religious beliefs forbid them from availing th emselves of the accommodation because doing so would render them complicit in a scheme aimed at providing contracep tive coverage. They thus

contend that the burden on their re ligious exercise is the same as the burden on any Plaintiff whose TPA or insurer provides coverage according to the re gulations. Their burdens are equally concrete, even though the asserted burden on the other Plaintiffs is backed by a threat of enforcement against a potentially recalcitrant TPA, whereas the church-plan Plaintiffs’ asserted burden is not. Because the regulations require the church-plan Plaintiffs to take an action that they contend substantially burdens th eir religious exercise, they, like the other Plaintiffs, have alleged a sufficiently concrete injury. 11 See In re Navy Chaplaincy , 697 F.3d 1171, 1176-77 (D.C. Cir. 2012) (holding that “policies and procedures” that plaintiff claimed produced futu re injury on the basis of religious belief were suffic ient to confer standing).

The Archdiocese presents a distinct standing question because it is completely exempt from the challenged

11 Two of the church-plan Plaintiffs, Catholic Information Center and Don Bosco, have fewer than 50 employees and therefore are not subject to the ACA’s requirement that employers provide their employees with health insurance. See 26 U.S.C. § 4980H(a), (c)(2). We need not address whet her that affects their standing, however, because the presence of ot her Plaintiffs with standing is sufficient to satisfy Article III. See, e.g.

, Rumsfeld v. Forum for Academic & Institutional Rights, Inc. , 547 U.S. 47, 52 n.2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”).21

regulation. It contends that it has a RFRA claim because it sponsors the self-insured plan in which th e church-plan Plaintiffs participate. It argues that, despite its own exemption, it faces an impossibl e choice of either sponsoring a plan that will provide the employees of the church-plan Plaintiffs with access to contraceptive services, or no longer extending its plan to those enti ties, leaving them exposed to penalties if they do not contra ct with another provider that will provide the coverage. The first option, in its view, substantially burdens its sincer ely held religious beliefs in violation of RFRA, and the second option allows the government to interfere with wh at it casts as its internal operations, in violation of the Religion Clauses of the First Amendment. Our holding that th e church-plan Plaintiffs have standing also supports the Archdi ocese’s claim of redressable injury adequate to support its standing to sue. 12

IV. RFRA Claim

The claim that lies at the hear t of this case is Plaintiffs’ RFRA challenge to the accomm odation. RFRA provides that the federal government may not “substantially burden” a person’s religious exercise, even if the burden results from a rule that applies generally to religious and non-religious persons alike, unless the burden “(1) is in furtherance of a compelling governmental intere st; and (2) is the least

restrictive means of furtheri ng that compelling governmental interest.” 42 U.S.C. § 2000bb-1. In other words, if the law’s requirements do not amount to a substantial burden under RFRA, that is the end of the matter. Where a law does

12 Because the Archdiocese’s RFRA claim derives from itssponsorship of a plan that also insures employees of the churchplan Plaintiffs, the Archdiocese’s claim rises and falls with that of the church-plan Plaintiffs and so is not separately analyzed below.22

impose a substantial burden, Congr ess has instructed that “we must return to ‘the compelling interest test as set forth in

Sherbert v. Verner , 374 U.S. 398 (1963), and Wisconsin v.

Yoder , 406 U.S. 205 (1972).’” Kaemmerling v. Lappin , 553 F.3d 669, 677 (D.C. Cir. 2 008) (quoting 42 U.S.C. § 2000bb(b)(1)). Congress di rectly referenced and incorporated the legal standards the Supreme Court used in its

pre- Smith line of cases in RFRA. Constitutional free exercise cases that predate Smith accordingly remain instructive when determining RFRA’s requirements. See id. at 678-80.

We pause at the outset to make some general

observations about the contours of Plaintiffs’ claims. First, Plaintiffs’ case is significantly different from the recent, successful Supreme Court chal lenge brought by for-profit, closely-held corporations in Burwell v. Hobby Lobby Stores,

Inc. , 134 S. Ct. 2751 (2014). There, the Court concluded that, in the absence of any accommodation , the contraceptive coverage requirement imposed a substantial burden on the religious exercise of for-profi t corporations because those plaintiffs were required either to provide health insurance coverage that included contracepti ve benefits in violation of their religious beliefs, or to pay substantial fines. Id. at 2775-

76. A critical difference here is that the regulations already give Plaintiffs the third choice that the for-profit corporate plaintiffs in Hobby Lobby sought: They can avoid both providing the contraceptive coverage and the penalties associated with non-complia nce by opting out of the contraceptive coverage re quirement altogether.

Plaintiffs contend that, even with the choice to opt out, the regulations leave them with the same “Hobson’s choice” as the for-profit corporations in Hobby Lobby . In their view, availing themselves of the accommodation requires them to violate their sincerely held religious beliefs just as surely as23

would providing contraceptive cove rage to their employees. But the opt out already available to Plaintiffs is precisely the alternative the Supreme Court considered in Hobby Lobby and assumed would not impinge on the for-profit corporations’ religious beliefs even as it fully served the government’s interest. 13 Id. at 2782.

This case also differs from Hobby Lobby in another crucial respect: In holdi ng that Hobby Lobby must be accommodated, the Supreme Court repeatedly underscored

that the effect on women’s contraceptive coverage of extending the accommodation to the complaining businesses “would be precisely zero.” Id . at 2760; see also id . at 2781 n.37 (“Our decision in these ca ses need not result in any detrimental effect on any third party.”); id. at 2782 (extending accommodation to Hobby Lobby would “protect the asserted needs of women as effectively” as not doing so). Justice Kennedy in his concurrence empha sized the same point, that extending the accommodation to for-profit corporations “equally furthers the Governme nt’s interest but does not

13 Plaintiffs also have a fourth option under the ACA: ceasing to

offer health insurance as an employment benefit, and instead paying the shared responsibility assessment and leaving the employees to obtain subsidized health care coverage on a health insurance exchange. See 26 U.S.C. § 4980H. That is permitted by the Act and regulations and might well be less expensive to employers than contributing to employee health benefits. Plaintiffs, however, contend that declining to arrange health insurance benefits for their employees also would injure them because it

would be inconsistent with thei r religious mission and would deny

them the recruitment and reten tion benefits of providing taxadvantaged health care coverage to their employees. See Oral Arg. Tr. at 19:5-15; see also Pls.’ R. Br. 21 n.9; see generally Hobby Lobby , 134 S. Ct. at 2776-77 & n. 32. The government has not pressed the point here.24

impinge on the plaintiffs’ religious beliefs.” Id . at 2786. The relief Plaintiffs seek here, in contrast, would hinder women’s access to contraception. It would either deny the contraceptive coverage altogether or, at a minimum, make the coverage no longer seamless from the beneficiaries’ perspective, instead requiring th em to take additional steps to obtain contraceptive coverage elsewhere.

Second, Plaintiffs’ claim is extraordinary and potentially far reaching: Plaintiffs argue that a religious accommodation, designed to permit them to free themselves entirely from the contraceptive coverage requirement, itself imposes a substantial burden. As the Seventh Circuit put the point, “[w]hat makes this case a nd others like it involving the contraception exemption pa radoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that th e exemption process itself imposes a substantial burden on their religious faiths.” Notre

Dame , 743 F.3d at 557. As the Notre Dame court noted, it is analogous to a religious consci entious objector to a military draft claiming that the act of identifying himself as such on

his Selective Service card c onstitutes a substantial burden

because that identification would then “trigger” the draft of a fellow selective service registrant in his place and thereby implicate the objector in facilitating war. Id. at 556.

Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out. Cf. id. at 556. They have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors. See generally Lyng v. Nw. Indian Cemetery

Protective Ass’n , 485 U.S. 439, 449 (1988) (distinguishing25

between right to avoid being “coerced . . . into violating their religious beliefs” and the lack of right to pursue “spiritual fulfillment according to their own religious beliefs”). “Government simply could not op erate if it were required to satisfy every citizen’s religious needs and desires.” Id. at
453.

We now turn to the substa nce of Plaintiffs’ RFRA

claims. We first consider their contention that the accommodation imposes a substantial burden on their religious exercise that is c ognizable under RFRA. We then analyze the government’s clai m that any such burden is justified under RFRA because it could not be made any lighter and still serve the govern ment’s compelling interests.

A. The Accommodation Does Not Substantially Burden Plaint iffs’ Religious Exercise

In our cosmopolitan nation with its people of diverse convictions, freedom of religious exercise is protected yet not

absolute. That is true under the heightened st andard Congress enacted in RFRA as well as the constitutional baseline set by the Free Exercise Clause. The limitations that prove

determinative here are that on ly “substantial” burdens on religious exercise require accommodation, and that an adherent may not use a religio us objection to dictate the conduct of the government or of third parties. This Court explained in Kaemmerling that “[a] substant ial burden exists when government action puts ‘s ubstantial pressure on an adherent to modify his behavior and to violate his beliefs.’” 553 F.3d at 678 (quoting Thomas v. Review Bd. , 450 U.S. 707, 718 (1981)). A burden does not rise to the level of being substantial when it places “[a]n inconsequential or de minimis

burden” on an adherent ’s religious exercise. Id. (citing Levitan v. Ashcroft , 281 F.3d 1313, 1320-21 (D.C. Cir.26

2002)). An asserted burden is also not an actionable substantial burden when it falls on a third party, not the religious adherent. See, e.g.

, Bowen v. Roy , 476 U.S. 693, 699 (1986).

Plaintiffs’ objection rests on their religious belief that “they may not provide, pay for, and/or facilitate access to contraception, sterilization, abor tion, or related counseling in

a manner that violates the teachi ngs of the Catholic Church.” Pls.’ Br. 15. But the regulations do not compel them to do any of those things. Instead, the accommodation provides Plaintiffs a simple, one-step fo rm for opting out and washing their hands of any involveme nt in providing insurance coverage for contraceptive services.

1. The Court Must Evaluate Assertions of Substantial

Burden

The sincerity of Plaintiffs’ religious commitment is not at

issue in this lit igation. Plaintiffs are correct that they—and

not this Court—determine what religious observance their

faith commands. There is no di spute about the sincerity of Plaintiffs’ belief that providi ng, paying for, or facilitating access to contraceptive services would be contrary to their

faith.

Accepting the sincerity of Plaintiffs’ beliefs, however,

does not relieve this Court of its responsibility to evaluate the substantiality of any burden on Pl aintiffs’ religious exercise, and to distinguish Plaintiffs’ duties from obligations imposed, not on them, but on insurers and TPAs. Whether a law substantially burdens religious exercise under RFRA is a question of law for courts to decide, not a question of fact. See Mahoney v. Doe , 642 F.3d 1112, 1121 (D.C. Cir. 2011) (stating that judicial inquiry into the substantiality of the27

burden “prevent[s] RFRA claims from being reduced into questions of fact, proven by the credibility of the claimant”); Kaemmerling , 553 F.3d at 679 (“[a]ccepting as true the factual allegations that Kaemme rling’s beliefs are sincere and of a religious nature—but not the legal conclu sion, cast as a factual allegation, that his religi ous exercise is substantially burdened”). “[A]lthough we ackno wledge that the [plaintiffs] believe that the regulatory framework makes them complicit in the provision of contraception, we will independently determine what the regulatory provisions require and whether they impose a substantial burden on [plaintiffs’] exercise of religion.” Mich. Catholic Conf. , 755 F.3d at 385; see also

Notre Dame , 743 F.3d at 558 (“Notre Dame may consider the [self-certification] proce ss a substantial burden, but substantiality—like compelling governmental interest—is for the court to decide.”).

Our own decision in Kaemmerling requires that we

determine whether a burden assert ed by Plaintiffs qualifies as

“substantial” under RFRA. In Kaemmerling , a federal prisoner sought to enjoin the Bureau of Prisons under RFRA from collecting a sample of his blood, claiming a religious objection to “DNA sampling, collection and storage with no

clear limitations of use.” 553 F.3d at 678. We observed that “Kaemmerling’s objection to ‘DNA sampling and collection’” was not “an objecti on to the [Bureau] collecting any bodily specimen that contains DNA material . . . , but rather an objection to the government extracting DNA information from the specimen.” Id. at 679. We did not simply accept Kaemmerling’s characterization of his burden as “substantial,” but instead independently evaluated the nature of the claimed burden on his religious beliefs. See id. at 678-79. The plaintiff failed to “allege facts sufficient to state a substantial burden on his religious exercise because he [could not] identify any ‘exercise’ which is the subject of the28

burden to which he objects.” Id. at 679. The court acknowledged that “the government ’s activities w ith his fluid or tissue sample after the [Bureau] takes it may offend Kaemmerling’s religious beliefs,” but it rejected the

substantial burden contention because “Kaemmerling alleges no religious observance that the DNA Act impedes, [n]or acts in violation of his religious be liefs that it pressures him to perform.” Id.

In Henderson v. Kennedy , 253 F.3d 12, 17 (D.C. Cir. 2001), this Court similarly reject ed the plaintiffs’ formulation

of the substantial-burden test as forbidding the government’s general application of religious ly neutral law where it would impose any burden on religiously motivated conduct because doing so would “read out of RF RA the conditi on that only

substantial burdens on the exer cise of religion trigger the compelling interest requirement.” As RFRA sponsor Senator Orrin Hatch explained, the Act “does not require the Government to justify every act ion that has some effect on religious exercise. Only action that places a substantial burden on the exercise of religi on must meet the compelling

State interest . . . .” 139 Cong. Rec. 26,180 (1993) (statement of Sen. Hatch).

Under free exercise precedents that RFRA codified, the Supreme Court distinguished be tween substantial burdens on religious exercise, which are ac tionable, and burdens that are

not. Burdens that are onl y slight, negligible, or de minimis are not substantial. And burdens that fall only on third parties

not before the court do not s ubstantially burden plaintiffs. See, e.g.

, Bowen , 476 U.S. at 699 (“The Free Exercise Clause simply cannot be understood to require the Government to

conduct its own internal affairs in ways that comport with the religious beliefs of pa rticular citizens.”); Lyng , 485 U.S. at 447 (finding it undisputed that the government’s action “will29

have severe adverse effects on the practice of [plaintiffs’] religion,” but disagreeing that such burden was “heavy enough” to subject that acti on to strict scrutiny).

In Bowen , a Native American plaintiff brought a free exercise challenge to a statute requiring the state to use his daughter’s social security number to process welfare benefits requests. 476 U.S. at 695-96. Roy, the father, believed that the government’s use of the soci al security number of his daughter, Little Bird of the S now, would serve to “‘rob the spirit’ of his daughter and prev ent her from attaining greater spiritual power.” Id. at 696. The Court rejected Roy’s claim on the basis that, rather than complaining about a restriction on his own conduct, Roy sought to “dictate the conduct of the Government’s internal procedures.” Id. at 700. Roy’s claim failed because, even though it seriously offended Roy’s religious sensibilities, “[t]he Federal Government’s use of a Social Security number for Little Bird of the Snow d[id] not itself in any degree impair Roy’s freedom to believe, express, and exercise his religion.” Id. at 700-01 (internal quotation marks omitted).

Building on the analysis in Bowen , the Supreme Court refused to apply strict scrutiny to the government’s land use

decision in Lyng . 485 U.S. at 450. Ther e, members of Indian

tribes claimed that the federal government violated their right to free exercise by permitting timber harvesting and construction on land they used for religious purposes. Id. at
441-42. The Court stated that its free exercise jurisprudence “does not and cannot imply th at incidental effects of government programs, which ma y make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions.” Id. at 450-51.30

According to Plaintiffs, this Court is bound to accept their understanding of the ob ligations the regulations impose—including their view of the existence and substantiality of any burden on their own religious exercise—

because to do otherw ise would be tantam ount to questioning the sincerity of their beliefs. Indeed, under Plaintiffs’ view, we must accept a RFRA claimant’s understanding of what the challenged law requires her to do (or to refrain from doing), even if that subjective understa nding is at odds with what the law actually requires. 14 Plaintiffs’ approach collapses the distinction between sincerely held belief and substantial burden. We must give effect to each term in the governing statute, however, including the requirement that only “substantial” burdens on religious exercise trigger strict

14 Plaintiffs elaborated their position in their responses to a hypothetical posed during oral argument. We posited a situation in which an adherent, similar to the plaintiff in Thomas , objected to working in a factory on the gr ounds that the tools he was manufacturing were being used to support a war effort that his sincere religious beliefs prohibited him from supporting. See

Thomas , 450 U.S. at 710 (after being transferred to a department that “fabricated turrets for military tanks, . . . [Thomas] quit, asserting that he could not work on weapons withou t violating the principles of his religion”). Unlike the facts in Thomas , however, in our hypothetical, the adherent was not manufacturing tools used for war, but rather farm equi pment that had no relationship whatsoever to any military effort. Counsel for both the Priests for Life Plaintiffs and the RCAW Plaintiffs conceded that, under their view, if the religious objection w as to war machinery, not farm tools, a plaintiff who misperceived the facts underlying his challenge would be entitled nonetheless to a determination that requiring him to continue working in a farm tools factory imposed a substantial burden on his religious observance merely because he sincerely believed that it did. Oral Arg. Tr. at 9:3-11:16; 22:16-

23:24.31

scrutiny. We cannot accept Plaintiffs’ proposal to prevent the court from evaluating the substantiality of the asserted

burden.

2. The Accommodation Frees Eligible Organizations from the Contraceptive Coverage Requirement

A review of the regulatory accommodation shows that the opt-out mechanism imposes a de minimis requirement on any eligible organi zation: The organi zation must send a single sheet of paper honestly communicating its eligibility and sincere religious objection in order to be excused from the contraceptive coverage requirement. Once an eligible organization has taken the simple step of objecting, all action taken to pay for or provide it s employees with contraceptive services is taken by a third party.

Specifically, the regulations require that, to be eligible for the accommodation, an organiza tion must certify that it has a sincere religi ous objection to arra nging contraceptive

coverage. 15 See 45 C.F.R. § 1 47.131(b); 29 C.F.R. § 2590.715-2713A(a). The organization opts out under the regulations by affirming that it meets those eligibility criteria via a “self-certification” form sent to its group health plan issuer or TPA, or a letter to the Secretary of HHS (the “alternative notice”). 45 C.F.R. § 147.131(c)(1); 29 C.F.R. § 2590.715-2713A(b)(1)(ii); see also 79 Fed. Reg. 51,092,

15 The Supreme Court, in Hobby Lobby

, 134 S. Ct. at 2782, characterized the accommodation HHS designed for eligible organizations as a less restrictive means of serving the government’s interest in the contraceptive coverage requirement that should be made available to the closely-held, for-profit religious corporate plaintiffs in that case. The government accordingly is extending the accomm odation to such companies.

See 79 Fed. Reg. at 51,094.32

51,094-95 (Aug. 27, 2014). An a lternative notice to HHS must identify the forms of contraceptive services to which the employer objects, and specify, among other things, the name of the plan, the plan type, and the contact information for the plan issuer or TPA. 16 45 C.F.R. § 147.131(c)(1)(ii); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B). Once an eligible organization avails itself of the accommodation, that organization has discharged it s legal obligations under the challenged regulations. See 45 C.F.R. § 147.131(c)(1), (e)(2); 29 C.F.R. § 2590.715-2713A(b)(1); 79 Fed. Reg. at 51,094-

95.

The accommodation here works in the way such mechanisms ordinarily do: the objector completes the written equivalent of raising a hand in response to the government’s query as to which religious orga nizations want to opt out. Once the eligible organization expresses its desire to have no involvement in the practice to which it objects, the government ensures that a se paration is effectuated and arranges for other entities to step in and fill the gap as required to serve the legisl atively mandated regime. Specifically, the regulations:

 require that the group health plan insurer expressly exclude contraceptive cove rage from the eligible

16 Initially, an eligible organization could only avail itself of the accommodation by completing the self-certification form. The Supreme Court issued an interim order in Wheaton College v.

Burwell , 134 S. Ct. 2806 (2014), howe ver, permitting an eligible organization to notify the Secretary of HHS in writing of its objection instead of sending the self-certification directly to the

insurer or TPA. Id. at 2807. The Departments accordingly issued interim final regulations to authorize opting out using that alternative notice. 79 Fed. Reg. at 51,094-95.33

organization’s group health plan, 17 45 C.F.R. § 147.131(c)(2)(i)(A);

 fully divorce the eligible organization from payments for contraceptive coverage, see 45 C.F.R. § 147.131(c)(2); 29 C.F.R. § 2590.715- 2713A(b)(2)(i);

 require that the insurer or TPA notify the beneficiaries in separate mailings that it will be providing separate cont raceptive coverage, 45 C.F.R. § 147.131(d); 29 C.F.R. § 2590.715- 2713A(d);

 require that the insurer or TPA specify to the beneficiaries in those separate mailings that their employer is in no way “administer[ing] or fund[ing]” the contraceptive coverage. (The regulations include mode l language for such notice, suggesting that the insurer or TPA specify to employees that “your employer will not

contract, arrange, pay, or refer for contraceptive coverage.”) 45 C.F.R. § 147.131(d); 29 C.F.R. § 2590.715-2713A(d); and

 demand separate mailings and accounting on the part of the insurer or TPA, keeping contraceptive coverage separate for all purposes from the eligible organization’s pl an that exclude it, 45

17 There is no analogous requirement for TPAs because it is the self-insured employer that controls the scope of coverage provided under its plan. Once it has opted out, a self-insured employer has satisfied its legal obligation under the contraceptive-coverage regulations. 29 C.F.R. § 2590.715-2713A(b)(1).34

C.F.R. § 147.131(c)(2)(ii), (d); 29 C.F.R. § 2590.715-2713A(b)(2), (d).

The regulations leave eligible organizations free to express to their employees their opposition to contraceptive coverage. In sum, both opt- out mechanisms let eligible organizations extricate themselves fully from the burden of providing contraceptive covera ge to employees, pay nothing toward such coverage, and ha ve the providers tell the employees that their employers play no role and in no way should be seen to endorse the coverage.

Plaintiffs’ opposition to the consequences of the ACA’s Women’s Health Amendment, even with the accommodation, amounts to an objection to the regulations’ requirement that third parties provide to Plaint iffs’ beneficiaries products and

services that Plaintiffs believe are sinful. Wh at Plaintiffs object to here are “the government’s independent actions in mandating contraceptive coverage , not to any action that the government has required [Plaintiffs] themselves to take.”

Notre Dame , 743 F.3d at 559 (quoting Order at 3, Priests for Life v. U.S. Dep’t of Health & Human Servs. , No. 13-5368 (Dec. 31, 2013) (Tatel, J., statemen t) (hereinafter “Emergency Injunctions Order”)). But RFRA does not grant Plaintiffs a religious veto against plan pr oviders’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties. See, e.g.

, Lyng , 485 U.S. at 452;

Bowen , 476 U.S. at 699-700; Kaemmerling , 553 F.3d at 679; see also Mich. Catholic Conf. , 755 F.3d at 388-89; Notre

Dame , 743 F.3d at 552.

Plaintiffs seek to distinguish Kaemmerling and Bowen on the ground that, unlike the plai ntiffs in those cases, they object to what the re gulations require of them . But the only35

action the regulations require of Plaintiffs—completion of the self-certification or alternative notice—imposes a de minimis administrative obligation. 18 To the extent that their objection is to the role of that action in the broader regulatory scheme— a scheme that permits or re quires independent coverage providers to take actions to which Plaintiffs object—their challenge is governed by Kaemmerling and Bowen . As in

Bowen , even though Plaintiffs’ “religious views may not accept this distinction between individual and governmental conduct,” the Constitution does “recognize such a

distinction.” 476 U.S. at 701 n.6. So, too, does RFRA. And just as the plaintiffs in Bowen and Kaemmerling could not successfully challenge what the government chose to do with their social security numbers or DNA specimens, respectively, Plaintiffs have no RFRA claim against the government’s arrangements with others to provide coverage to women left partially uninsured as a result of Plaintiffs’ opt out. RFRA does not treat the government requiring third parties to provide contraceptive coverage in the face of an employer’s religious disapprov al as tantamount to the government requiring the employer itself to sponsor such

coverage. See Mich. Catholic Conf. , 755 F.3d at 388-89;

Notre Dame , 743 F.3d at 554-55; id. at 559 (quoting Emergency Injunctions Order at 3 (Tatel, J., statement)).

Plaintiffs nonetheless insist that, even with the accommodation, the regulations substantially burden their religious exercise by continuing to require that they play a

18 Plaintiffs object that characterizing the accommodation as simply filling out a form ignores the meanings that Plaintiffs attach to the form. But the meaning Plaintiffs attach to the form derives from their contention that their comp letion of the form causes third parties to take action. The error of that contention is discussed more fully infra Section IV.A.2.a.36

role in the facilitation of contraceptive use. In particular, theycontend that: (1) “signing and submitting the selfcertification” or alternative notice “triggers” or “impermissibly facilitates de livery of the objectionable coverage” to the beneficiaries of their health plans; (2) the regulations require “contracting with third parties authorized or obligated to provide the mandated coverage;” and (3) the regulations require “maintaining health plans that will serve as conduits for the delivery of the mandated coverage.” Pls.’ Br. 12, 18; Pls.’ Supp’l Br. 1. Additionally, self-insured

Plaintiffs contend that their self-certification expressly and impermissibly authorizes their TPAs to provide contraceptive

coverage.

Each of those separate, but related, arguments fails for fundamentally the same reason: Notwithstanding Plaintiffs’ contrary contentions, the regul ations provide an opt-out

mechanism that shifts to third parties the obligat ion to provide contraceptive coverage to which health insurance beneficiaries are entitled, and that fastidiously relieves Plaintiffs of any obligation to contract, arrange, pay, or refer for access to contraception in any way that might constitute a

substantial burden on their re ligious exercise under RFRA.

a. Plaintiffs’ Opt-Out Does Not Trigger Contraceptive Coverage

Plaintiffs claim that the requi rement that they submit the self-certification to their plan issuers or TPAs, or submit the alternative notice to the govern ment, makes them “authorize” or “trigger” the provision of th e contraceptive coverage theyfind religiously abhorrent. They characterize the selfcertification and alternative not ice as “permission slips” for their plan issuers and TPAs to provide contraceptive coverage to Plaintiffs’ employees. Pointing to the regulatory37

requirements of an insurer or TPA after an eligible organization has availed itself of the accommodation, Plaintiffs argue that it is thei r own act of self-certifying or completing the alternative notic e that “confers . . . both the authority and obligation” on the insurance companies and TPAs to provide the objected-to coverage to Plaintiffs’ employees. Pls.’ Br. 9.

Plaintiffs’ “permission slip” argument misstates how the regulations operate. As the Si xth and Seventh Circuits have also concluded, the insurers’ or TPAs’ obligation to provide contraceptive coverage origin ates from the ACA and its attendant regulations, not from Pl aintiffs’ self-certification or

alternative notice. See Mich. Catholic Conf. , 755 F.3d at 387;

Notre Dame , 743 F.3d at 554. The regulations require that “a group health plan, or a health insurance is suer offering group

or individual health insura nce coverage, must provide coverage” for a variety of types of preventive care, including the coverage to which Plai ntiffs object. 45 C.F.R. § 147.130(a)(1). That obligation exists apart from any action that Plaintiffs take. “‘Because Congress has imposed an independent obligation on insure rs to provide contraceptive coverage to [an eligible or ganization’s] employees, those employees will receive contraceptive coverage from their

insurers even if [objectors] self-certify—but not because [objectors] self-certify.’” Notre Dame , 743 F.3d at 559 (quoting Emergency Injunctions Order at 3 (Tatel, J., statement)).

Indeed, contrary to Plainti ffs’ characterization, what the

self-certification or alternative notice actually triggers is a series of steps designed to ensu re that eligible organizations

such as Plaintiffs do not contract, arrange, pay, or refer for access to contraceptive services. The regulations fully relieve Plaintiffs from the obligati on to provide or pay for38

contraceptive coverage, and inst ead obligate a third party to provide that coverage separately.

The illogic of Plaintiffs ’ “trigger” argument is highlighted by the conscientious objector scenario recounted above. The implication of Plaintiffs’ position is that the Selective Service could deny a religious conscientious objector’s RFRA claim against calling up the next draftee only if the government’s decision to do so survived strict scrutiny. That strikes us as “a fantastic suggestion.” Notre

Dame , 743 F.3d at 556. There, as here, the feature that defeats Plaintiffs’ argument is plain: It was the government’s selective service draft quota, not the conscientious objector exercising his accommodation right, that determined whether a replacement would be called. So, too, it is the ACA that requires that plan issuers and TPAs fill the resulting gaps, not the opt-out notice. In neither case is the objecting party substantially burdened by, and thus entitled to accommodation from, the sequelae of opting out. Accurately understood, the opt-out mechanis m imposes on Plaintiffs only

the de minimis administrative burden associated with completing the self-certificatio n form or the alternative

notice. See id . As long as Plaintiffs complete either notice, the regulations excuse them fr om any further involvement in providing contraceptive coverage . As discussed above, the beneficiaries receive contraceptive coverage not because Plaintiffs have completed the self-certification or alternative notice, but because the ACA imposes an independent obligation on insurers and TPAs to provide this coverage.

b. Plaintiffs’ Contracts with Providers Do Not Authorize or Facilitate Contraceptive Coverage

Plaintiffs further conte nd that the regulations substantially burden their relig ious exercise by requiring39

contraceptive coverage to be provided for their employees and students by the same entities with which Plaintiffs have contracted to provide non-cont raceptive health coverage. Once Plaintiffs opt out of the contraceptive coverage requirement, however, contraceptiv e services are not provided

to women because of Plaintiffs’ contracts with insurance companies; they are provided because federal law requires insurers and TPAs to provide insurance beneficiaries with coverage for contraception. Plai ntiffs’ contracts do not in any way authorize or condone the in surers’ or TPAs’ provision of the coverage. The separate interactions between nonobjecting insurance companies and beneficiaries do not substantially burden Plaintiffs’ religious exercise, just as third-party actions in other relig ious-exercise cases have been held not to burden plaintiffs. See, e.g.

, Bowen , 476 U.S. at 699-700; Kaemmerling , 553 F.3d at 679; see also Notre

Dame , 743 F.3d at 552. We do not understand Plaintiffs to contend that RFRA privileges th em generally to require that the extra-contractual rights and legal obligations of

individuals and entities with w hom they contract conform to Plaintiffs’ religious be liefs, nor could they.

c. Plaintiffs’ Plans Are Not Conduits for Contraceptive Coverage

Plaintiffs also argue that the regulations substantially burden their religious exercise by permitting their insurance plans to be used as conduits through which their employees receive contraception. Plainti ffs identify a number of acts— such as paying premiums and offering enrollment paperwork—that they contend they must take that ensure that the contraceptive “pipeline” re mains open. None of those acts, however, requires Plaintiffs to contract, arrange, pay, or refer for access to contraception. Once Plaintiffs take advantage of the accommodation, they are dissociated from40

the provision of contraceptive services. The premiums and enrollment paperwork support the provision of health care coverage to which Plaintiffs have no objection—and nothing

more.

Plaintiffs contend that thei r plans remain a conduit for the provision of contraceptives because they are required to pay premiums or fees to entitie s in charge of the plans that provide contraceptive benefits. The regulations, however, expressly prevent insurers and TPAs from directly or indirectly charging Plaintiffs for the cost of contraceptive coverage and obligate thir d parties to pay for the contraceptive services. 45 C.F.R. § 147.131(c)(2)(ii); 29 C.F.R. § 2590.715-2713A(b)(2). Therefore, although Plaintiffs are required to pay pr emiums and fees to their group health plan issuers or TPAs, those entities are legally prohibited from using Plaintiffs’ payments to fund contraceptive services.

Plaintiffs further contend th at their plans are used as conduits because, they assert , they must provide their beneficiaries with enrollment paperwork to enable them to participate in a plan that provi des coverage for contraceptives, and they must send, or tell thei r beneficiaries where to send, the enrollment paperwork. U nder the regulations, however, the employer has no such obligation. The insurer or TPA is entirely responsible for any paperwork related to contraceptive coverage. The insurer or TPA must provide beneficiaries with notice of the availability of contraceptive coverage, the notice must be separate from any materials

distributed in connection with the individual’s enrollment in the employer’s plan, and the notice must make clear that the employer is not playing any role in the contraceptive coverage. 45 C.F.R. § 147.131(d); 29 C.F.R. § 2590.715- 2713A(d).41

Plaintiffs also argue that their plans serve as conduits because they must identify their health plan beneficiaries to

their insurers or TPAs. No regulation related to the accommodation imposes any such duty on Plaintiffs. See Mich. Catholic Conf. , 755 F.3d at 389. Plai ntiffs will have necessarily provided their plans or TPAs with the names of employees enrolling in their health care plan so that those individuals may be provided with health care coverage. To the extent that Plaintiffs object to the actions the insurers or TPAs will take after receiving those names, Plaintiffs are objecting to an independent obligation imposed on a third party by the government. As discussed above, RFRA does not protect parties from obliga tions imposed on third parties by outside sources. In short, none of the actions that Plaintiffs identify is actual ly required of them under the regulations, and none of those actions makes their plans conduits for contraceptive coverage. 19

d. Regulations Specific to th e Self-Insured Plaintiffs

Do Not Create a Substantial Burden

Finally, the self-insured Plaintiffs object to the regulatory provisions that apply partic ularly to self-insured organizations. They object that their self-certification forms are what designate their TPAs as the plan administrators for contraceptive benefits under se ction 3(16) of ERISA and also

19 On a related note, Plaintiffs contend that they must refrain from canceling their contract with a third party authorized to provide coverage for contraceptive services and from attempting to influence a third party’s decision to provide the coverage for contraception. The government de nied that the regulations would require Plaintiffs to refrain from taking either of those actions. Gov. Br. 33-34; Oral. Arg. Tr. at 46:15-48:1. In any event, as

discussed infra note 28, the regulations have been revised to remove the provision that Plaintiffs alleged so constrained them.42

serve as instruments under wh ich the health plans are operated. See 29 C.F.R. § 2510.3-16(b). They argue that the regulations thus put them in the position of facilitating the provision of contraceptives by au thorizing the TPAs to take actions they previously could not have taken.

That argument miscasts the regulations, which do not require the self-insured Plaintiffs to name their TPAs as ERISA plan fiduciaries. Plaintiffs submit forms to communicate their decisions to op t out, not to authorize TPAs to do anything on their behalf. The regulatory treatment of the form as sufficient under ERISA does not change the reality that the objected-to services are made available because of the regulations, not because Plaintiffs complete a self-certification. 29 C.F.R. § 2510.3-16(b); see Notre Dame

, 743 F.3d at 554-55; 78 Fed. Reg. at 39,880.

The self-insured Plaintiffs raise a parallel objection to the alternative process establishe d by the revised regulations. Under the revised regulations, once the government receives

an alternative notice from an eligible organization, the government sends the TPA a notification that will “designate the relevant [TPA] as plan ad ministrator under section 3(16) of ERISA for those contracep tive benefits that the [TPA] would otherwise manage.” 79 Fed. Reg. at 51,095; see also 29 C.F.R. § 2510.3-16(b). The regulations make the government’s notification to the TPA “an instrument under which the plan is operated.” 29 C.F.R. § 2510.3-16(b).

The self-insured Plaintiffs contend that the revised regulations thereby violate ERISA because the government lacks authority to name a pl an administrator or amend Plaintiffs’ plan instruments. Plaintiffs do not contend, however, that the government lack s authority to author a plan instrument or designate a pa rticular writing as a plan43

instrument, and it is this auth ority the regulations deploy. Once the government receives the alternative notice, it directs the TPA to cover contraceptive services and, treating its own direction as the new plan in strument, the government names the TPA as the plan administrator of contraceptive coverage. ERISA expressly permits a plan instrument to name a plan

administrator. 29 U.S.C. § 1002(16)(A)(i) (defining “administrator” as “the person specifically so designated by the terms of the instrument under which the plan is operated”). 20 By naming the plan administrator in the plan instrument, the government co mplies with ERISA. The government’s approach does not, contrary to Plaintiffs’ contention, amend or alter Plain tiffs’ own plan instruments; the government directs only the contraceptive coverage.

The self-insured Plaintiffs also contend that they are required to facilita te access to contraceptive coverage because, if their existing TP As decline to assume the responsibility to provide contraceptive coverage, the regulations obligate Plaintiffs to take affirmative steps to identify and contract with ne w TPAs. The district court granted summary judgment fo r Plaintiff Thomas Aquinas College on this ground. RCAW , 2013 WL 6729515, at *24. Upon de novo review, we reject Thomas Aquinas’s argument as premature. Thomas Aquinas has not made any showing that its TPA has any intent ion of refusing to provide contraceptive coverage to its employees. 21 Moreover, the

20 ERISA also states that “in the case of a plan for which an administrator is not designated and a plan sponsor cannot be identified,” the administrator is “such other person as the Secretary [of Labor] may by regulation prescribe.” 29 U.S.C. § 1002(16)(A)(iii).

21 See 29 C.F.R. § 2590.715-2713A(b)(2) (“If a [TPA] receives a copy of the self-certification . . . and agrees to enter into or remain44

government has clarified that, if an eligible organization’s existing TPA were to decline to assume responsibility for providing contraceptive covera ge, the regulations do not require the eligible organization to identify and contract with

a new one. See 78 Fed. Reg. at 39,880-81. We believe that clarification requires us to vacat e the district court’s grant of summary judgment for Thomas Aquinas.

* * *

In sum, RFRA grants Plaintiffs a right to be free of any unjustified substantial governme ntal burden on their religious exercise. The regulatory requireme nt that they use a sheet of paper to signal their wish to opt out is not a burden that any precedent allows us to characterize as substantial. It is as a result of the ACA, and not becau se of any actions Plaintiffs must take, that Plaintiffs’ employees are entitled to contraceptive coverage provided by third parties and that their insurers or TPA must provide it; RFRA does not entitle Plaintiffs to control their empl oyees’ relationships with other entities willing to provide health insurance coverage to which the employees are legally entitled. A religious adherent’s distaste for what the law require s of a third party is not, in itself, a substantial burden; that is true even if the third party’s conduct towards others offends the religious adherent’s sincere religious sens ibilities. The regulations go to great lengths to separate Plainti ffs from the provision of contraceptive coverage. Plainti ffs have failed to demonstrate

a substantial burden on their re ligious exercise that would

in a contractual relationship with the eligible organization or its plan to provide administrative ser vices for the plan, the [TPA] shall provide or arrange payments for contraceptive services . . .” (emphasis added)); 78 Fed. Reg. at 39,880.45

subject the contraceptive coverage requirement to strict judicial scrutiny.

B. The Accommodation Survives Strict Scrutiny

When the parties filed their initial briefs on appeal, the government conceded that this Court’s decision in Gilardi v. U.S. Department of Health & Human Services , 733 F.3d 1208 (D.C. Cir. 2013), vacated

, 134 S. Ct. 2902 (2014), controlled the compelling-interest inquiry here. Gov. Br. 44. In Gilardi

, we held at the preliminary injunction stage that, while a closely-held, for-profit busin ess corporation was not a “person” whose religious exer cise was protected by RFRA,

its individual owners had RFRA rights that were injured by application of the contraceptive coverage requirement to their

firm. 733 F.3d at 1214-19. Lack of a regulatory accommodation applicable to such religious objectors

constituted a substantial burde n, and the government failed to establish a compelling interest that justified it. Id. at 1219-22.

While this appeal was pending, the Supreme Court

vacated Gilardi in view of its decision in Hobby Lobby . 134 S. Ct. 2902 (2014). The Court also, in Wheaton College v.

Burwell , 134 S.Ct. 2806 (2014), prel iminarily enjoined the requirement that a party seek ing to opt out use the selfcertification form as specified in the regulations. The plaintiff in that case already had no tified the government of its eligibility and desire for exem ption without using that form, and the Court required HHS to accept that as adequate notice.

Because the Court’s decisions and a new Interim Final Rule responding to the Wheaton College order ( see 79 Fed. Reg. at46

51,092) unsettled the governing law, we requested supplemental briefing. 22

We directed the parties to brief the implications for this appeal of the intervening legal developments. We specifically requested briefing on the substantial-burden and strict-scrutiny issues, and received such briefing from both parties.

Hobby Lobby ’s analysis is instructive, even though the substantial-burden and least-restrictive-means questions posed by the lack of any accommodation available to the plaintiffs in Hobby Lobby are very different from those presented here, where the government has provided an accommodation. As discussed above, we conclude that the accommodation does not impose a substantial burden on

Plaintiffs in this case. See Mich. Catholic Conf. , 755 F.3d at 390; Notre Dame , 743 F.3d at 554-559. To the extent that the Supreme Court’s recent order in Wheaton College might be read to signal a different conc lusion, analysis of the strict scrutiny question is also called for. The Hobby Lobby Court’s discussion of the weightiness of the government’s interests is

in substantial tension with Gilardi ’s approach to the strict scrutiny analysis. We thus proceed in light of the intervening decisions to analyze whether the accommodation is the least

restrictive means to serve a co mpelling governmental interest.

The challenged regulations seek to ensure timely and effective access to contraception for all women who want it and for whom it is medically appropriate. The government contends that the regulations are amply supported because they arise at the intersectio n of overlapping governmental interests, each of which is compelling: public health, and

22 See supra notes 15 & 16.47

women’s well-being. The governme nt claims an interest in independently assuring seamless contraceptive coverage, regardless of whether the insured woman receives her other health insurance coverage through her (or her family member’s) employment at a reli gious nonprofit that objects to providing it.

The Supreme Court’s char acterizations of the government’s asserted compelling interest and the narrow tailoring of the accommodation were dicta in Hobby Lobby

. The accommodation was not challenged there; it was only adverted to as a potential remedy for the non-accommodated plaintiffs in that case. As next discussed, however, the

Court’s characterizations are c onsistent with our conclusions that (1) the contraceptive coverage requirement—and, specifically, its guarantee for employees whose employers partake of the accommodation—is supported by compelling governmental interests, and (2) it imposes no unnecessary

constraints on Plainti ffs’ religious exercise.

1. The Government Has Demonstrated Compelling Interests That Support Seamless Provision of Contraceptive Coverage

In promulgating the challenged regulations, the government asserted an inte rest in supporting women’s unhindered, cost-free access to contraceptive services. See 78 Fed. Reg. at 39,887-88. The Supreme Court in Hobby Lobby assumed, without deciding, that the governmental interest in “guaranteeing cost-free access” to contraception was “compelling.” Hobby Lobby , 134 S. Ct. at 2780. Five members of the Court separately signed onto opinions that appear to be more affirmative. Justice Kennedy, concurring, found it “important to confirm” that the “premise of the Court’s opinion is its assump tion that the HHS regulation48

here at issue furthers a legitimate and compelling interest in the health of female employees.” Id . at 2786. He noted that the government “makes the cas e” that the contraceptive coverage requirement “serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee.” Id. at 2785-86. Justice Ginsburg, writing for four dissenting justices, recounted the governme nt’s evidence establishing the importance of contraception to a range of women’s health needs, and concluded that contraceptive coverage under the ACA “furthers compelling interests in public health and women’s well being.” Id. at 2799-2800.

There is no simple formula for identifying which governmental interests rank as compelling, but certain touchstones aid our analysis. Interests in public health, safety, and welfare—and the viab ility of public programs that guard those interests—may qualify as compelling, as may legislative measures to protect and promote women’s well being and remedy the extent to which health insurance has not served women’s specific health needs as fully as those of

men.

The government’s asserted compelling interest here, writ large, is in a sustainable syst em of taxes and subsidies under the ACA to advance public health. That interest is as strong

as those asserted in cases such as United States v. Lee , 455 U.S. 252, 258 (1982), and Hernandez v. Comm’r of Internal
Revenue, 490 U.S. 680, 699-700 (1989), recognizing governmental interests in broad participation in public tax and benefits systems as sufficiently compelling to outweigh countervailing claims that they unjustifiably burdened religious exercise.49

In Lee , the Supreme Court held that the government’s interest in a nationwide social security system was sufficiently weighty to require that an Amish employer pay unemployment and social security taxes, even though the Court acknowledged that doing so would burden the Amish employer’s religious beliefs. 455 U.S. at 258. The Court observed that the social security system “serves the public interest by providing a comprehe nsive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees.” Id. The system would

not have been viable unless br oad participation was required, and the Court held that the govern mental interest “in assuring mandatory and continuous partic ipation in and contribution to the social security system” sufficed to justify the acknowledged burden on the empl oyer’s religious exercise.

Id. at 258-59.

So, too, in Hernandez , the Court rejected a claim that

denial of certain tax deducti ons violated the plaintiffs’ religious exercise because “even a substantial burden [on the exercise of religion] would be justified by the broad public interest in maintaining a s ound tax system.” 490 U.S. at 699- 700 (internal quotation marks omitted). The government

concluded that the success of the ACA’s effort to expand access to health care, improve outcomes, and control costs similarly depends on widespr ead use of preventive care, which the Act encourages by requiring that particular preventive measures be provided free of cost. See 78 Fed. Reg. at 39,872.

The Supreme Court’s recognition of compelling governmental interests in the physic al health and safety of the public, albeit in factually very different contexts, further supports the gravity of the government’s interest in the contraceptive coverage requirement. See, e.g.

, Prince v.50

Massachusetts , 321 U.S. 158, 165-67 (1944); Jacobson v.

Massachusetts , 197 U.S. 11, 25 (1905). The Court in Prince sustained child labor laws against a free exercise challenge based on the government’s paramo unt interest in protecting

the health and welfare of child ren. 321 U.S. at 165-71. In

Jacobson , a mandatory, mass vaccina tion program withstood a constitutional liberty challe nge because it served the government’s interest in “the public health and the public safety.” 197 U.S. at 25-26. T hose cases support the strength of health interests behind the contraceptive coverage regulations, which include interest s in avoiding health risks to women and children from unplanned pregnancies. Indeed, these very same interests—pediatric care and immunizations—are protected by companion provisions to

the Women’s Health Amendment in the ACA. See 42 U.S.C. § 300gg-13(a)(2), (3). Under Plaintiffs’ argument, and

contrary to Prince and Jacobson , those interests could fall to the same type of religious chal lenge as is leveled here by organizations that sincerely obj ect to the types of care they

cover.

The Supreme Court has rec ognized the interest in eliminating discrimination ag ainst women as sufficiently compelling to justify incursions on rights to expressive

association. See Bd. of Dirs. of Rotary Int’l v. Rotary Club of

Duarte , 481 U.S. 537, 549 (1987); see also Roberts v. U.S. Jaycees , 468 U.S. 609, 625-26 (1984) (recognizing compelling interest in creating “rights of public access” to private goods and services in or der to promote women’s equal enjoyment of leadership sk ills, business contacts, and employment promotions). T hose cases lend gravitas to the government’s interest in the contraceptive coverage requirement as an effort to er adicate lingering effects of sex

discrimination. See generally Nev. Dep’t of Human Res. v.

Hibbs , 538 U.S. 721 (2003).51

The Supreme Court majority in Hobby Lobby characterized the government’s interests in “promoting public health and gender equality” as “broadly framed” and noted that RFRA “contemplates a more focused inquiry.” 134 S. Ct. at 2779 (internal quotation marks omitted). The government has pathmarked the more focused inquiry by explaining how those larger interests inform and are specifically implicated in its decision to support women’s unhindered access to contraceptive coverage. We do not take the government to suggest that its interests in “public health” and “gender equality” necessa rily render compelling every subsidiary governmental action th at advances them. Each of those interests, however, sp ecifically undergirds the government’s decision here to pr ovide seamless coverage of contraceptive services for wo men who want them and whose doctors prescribe them.

As we explain below, comp elling interests converge to support the government’s decision, reflected in the challenged regulations, to provide cost-fr ee contraceptive coverage and to remove administrative and logistical obstacles to accessing contraceptive care. Those compelling governmental interests suffice to support requiring eligib le organizations to ask for an accommodation if they want to take advantage of one, so that the government can protect its interests by ensuring that the resulting coverage gaps are filled.

a. Improving Public Health Through Contraceptive Coverage

The ACA is an ambitious effort to reform the health care system in the United States. It is designed to expand access to comprehensive insurance coverage as a means of controlling spiraling health care costs while improving health.

See Cong. Budget Office, Key Issues in Analyzing Major52

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

Congress understood that impr oved health at affordable

cost cannot be attained w ithout increased reliance on preventive care. Most people underestimate the importance of prevention and are easily hindered from undertaking preventive steps because the costs and effort of preventive

health care are immediate wh ile benefits typically are uncertain and deferred. Many adverse health conditions and an enormous amount of costly care can be avoided if people better understand risky behavior , plan more carefully, and

take measures to reduce their risks, exposures, and errors. Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps 16-17 (2011) (“IOM Report”). 23 Providing preventive care—including patient education, screenings, preventive medications and de vices, and early treatment—can be less costly than treating adva nced diseases and conditions.

See id. ; Chronic Diseases and Health Promotion , Centers for Disease Control and Prevention, http://www.cdc.gov/chronicdiseas e/overview/ (last visited Nov. 5, 2014); see also CBO Report at 136-38. Yet, before enactment of the ACA, only a small portion of health care

23 As noted above, the government directed the HRSA, in consultation with IOM, to develop guidelines for women’s preventive care services. This report was part of that effort.53

spending went to prevention. See Centers for Disease Control and Prevention, The Power of Prevention (2009), available at http://www.cdc.gov/chroni cdisease/pdf/2009-power-ofprevention.pdf.

Congress and the Executive Branch determined that serving the government’s compe lling public health interests depends on overcoming the human behavioral tendencies of denial and delay documented in the legislative and regulatory record. People tend to eschew preventive care when they have to pay for it, make even minor efforts to learn about and enroll in new programs, keep multiple appointments, or

follow new routines. Because “[i]ndividuals ar e more likelyto use preventive services if they do not have to satisfy costsharing requirements,” 78 Fed. Reg. at 39,872, the ACA requires group or individual hea lth plans to include coverage for a variety of preventive he alth services without cost sharing. 42 U.S.C. § 300gg-13(a) . “Studies have . . . shown that even moderate copayments for preventive services” can “deter patients from receiving t hose services.” IOM Report at

19.

The government further determined that the imperative of providing broad access to prev entive care applies with full force to women’s health. Congress was informed during debates on the ACA that “too many women are delaying or skipping preventive care because of the costs of copays and limited access. In fact, more th an half of women delay or avoid preventive care because of its costs.” 155 Cong. Rec. 28,843 (2009) (statement of Sen. Gillibrand); see also 155 Cong. Rec. 28,842-43 (2009) (state ment of Sen. Mikulski). In light of this reality, Senator Mikulski proposed the Women’s Health Amendment, which expanded the list of preventive health services th e ACA required that insurers cover without cost sharing to include preventive health care54

and screenings for women. 155 Cong. Rec. 28,800-02 (2009) (codified at 42 U.S.C. § 300gg- 13(a)(4)). Congress in the

ACA directed the HRSA to de velop the list of covered preventive services. The HRSA commissioned the IOM to identify preventive health services with strong scientific

evidence of health benefits. The IOM’s report recommended preventive services it deemed necessary for women’s health and well-being. HRSA accepted IOM’s findings and recommendations, and the Departments relied on them when crafting both the exemption and the accommodation.

The HRSA and IOM concl uded that, given women’s reproductive health needs, prev entive health services for women should include contracep tive coverage. IOM Report at 109-10; see also 77 Fed. Reg. at 8,725. The government recognized that the cost of repr oductive health care, including contraceptives, is significant, and it falls disproportionately on women. 78 Fed. Reg. at 39,873, 39,887. The vast majority of women who have sex with men use contraceptives at least some of the time. See IOM Report at 103. Most contraceptives used by women, and the forms that are most effective and fully reversible, are available only with a prescription and in some cases must be administered by a medical professional. See id. at 105; Kimberly Daniels, et al., Contraceptive Methods Women Have Ever Used: United
States, 1982-2010 , 62 Nat’l Health Stat. Rep. 1 (2013),

available at http://www.cdc.gov/nchs/data/nhsr/nhsr062.pdf (hereinafter “Daniels”). Those forms—including birth control pills, injectable met hods, contraceptive patches, and intrauterine devices (“IUD”)—ha ve been used at one time or another by 88 percent of wo men who have had sexual

intercourse. Daniels at 1.

The Institute of Medicine observed that high costs regularly cause women to forego contraception completely or55

to choose less effective methods: “Even small increments in cost sharing have been shown to reduce the use of preventive services . . . . The elimination of cost sharing for contraception therefore could greatly increase its use, including the use of the more effective and longer-acting methods, especially among poor and low-income women most at risk for unintended pr egnancy.” IOM Report at 109;

see also 78 Fed. Reg. at 39,873. Pr escription methods of contraception have lower failure rates than non-prescription methods such as condoms, IOM Report at 105, but can be quite expensive. The cost of an IUD, one of the most

convenient and effectiv e forms of reversible contraception, is nearly a month’s full-time pay for workers earning the minimum wage, and its cost make s it less likely that women

will use it. Hobby Lobby , 134 S. Ct. at 2800 (Ginsburg, J., dissenting).

Thus the government decided to require contraceptive coverage without cost shar ing because appropriate and

consistent use of contrace ptives furthers women and children’s health in a variety of ways. Enabling couples to control the timing and spaci ng of pregnancies improves

women’s health outcomes. Short intervals betweenpregnancies increase maternal mortality and pregnancyrelated complications. IOM Repor t at 103-04. Even a normal and healthy pregnancy is a de manding physical process for a woman. Pregnancy increases ri sks of health complications, such as anemia, gestati onal diabetes, hypertension, hyperemesis gravidarum, and even death. See generally 78 Fed. Reg. at 39,872, 39,887 (stressing the importance of covering preventive care to re spond to women’s unique health needs); Pregnancy Complications , Centers for Disease Control and Prevention, http://www.cdc.gov/reproductiveh ealth/maternalinfanthealth/ pregcomplications.htm (last visited Nov. 5, 2014); Pregnancy56

Related Deaths , Centers for Disease C ontrol and Prevention, http://www.cdc.gov/reproductiveh ealth/MaternalInfantHealth/ Pregnancy-relatedMortality.ht m (last visited Nov. 5, 2014).

A core reason the government sought under the ACA to expand access to contraception is that use of contraceptives reduces unintended pregnancies. According to the Institute of Medicine, in 2001, “49 percent of all pregnancies in the United States were unintended.” IOM Report at 102. There is “an 85 percent chance of an unintended pregnancy within 12 months among couples using no method of contraception.”

Id. at 105. Unintended pregnancie s elevate health risks for women and children and impos e other costs on society. Women whose pregnanc ies are unintended are more likely to experience depression, anxiety, or domestic violence during those pregnancies. IOM Report at 103; see also Korte v.

Sebelius , 735 F.3d 654, 725 (7th Cir. 2013) (Rovner, J., dissenting). “In 2001, 42 percent of U.S. unintended pregnancies ended in abortion.” IOM Report at 102. Reducing the frequency of unintended pregnancies would reduce the frequency of abortions. 78 Fed. Reg. at 39,872;

see also IOM Report at 105. Supporting access to contraception empowers women to avoid the physical burdens and risks of pregnancy unl ess and until they decide to

undertake them.

The government further re lied on the ways that contraceptive use can promote and improve women’s health apart from their procreative health needs. Women contraindicated for pregnancy, such as those with certain heart conditions, hypertension, diabetes, Marfan Syndrome, or lupus, face health hazards from pregnancy that can be life threatening. See 78 Fed. Reg. at 39,872; IOM Report at 103- 04; Hobby Lobby , 134 S. Ct. at 2786 (Kennedy, J., concurring), id . at 2799 (Ginsburg, J., dissenting). Women57

with those conditions have espe cially critical needs to time their pregnancies appropriately, such as by waiting until their

conditions are under control. Doctors also recommend that women taking certain medications that pose risk to maternal and fetal health avoid getting pregnant. Hormones

manufactured and sold as contr aception are also used to treat, manage, or prevent other diseases, such as “certain cancers, menstrual disorders, and pelvic pain.” Hobby Lobby , 134 S. Ct. at 2799 (Ginsburg, J., dissenting); see also 78 Fed. Reg. 39,872; IOM Report at 107.

The Institute of Medicine reported that, for similar reasons, contraceptive use also promotes the health of infants

and children. Children who are born as the result of unintended pregnancy suffer increased health risks on average, including preterm birt h and low birth weight and associated complications. IOM Report at 103. Women who do not immediately know they are pregnant, or are ambivalent about bearing children, are more likely to delay prenatal care or engage in behaviors that pos e pregnancy related risks. 78 Fed. Reg. at 39,872; IOM Report at 103. Short intervals between pregnancies also can have serious health consequences for infants, such as low birth weight, prematurity, and small-for-gestational age. 78 Fed. Reg. at 38,872; IOM Report at 103. Women in hazardous jobs or precarious or dangerous living situations may need to delay pregnancy in order to reduce th e health risks for a child. Permitting women to control the timing and spacing of their pregnancies improves the hea lth and welfare of women, children, and infants.58

b. Assuring Women Equal Be nefit of Preventive Care By Requiring Coverage of Their Distinctive Health

Needs

The government also relied on evidence that advancing women’s well being by meeting their health needs as fully as those of men was a compelling reason for a contraceptive coverage requirement. In enacting and implementing the ACA, the government sought to provide coverage that offers equal benefit for men and women. 78 Fed. Reg. at 39,887. Before the ACA, insurance coverage for a female employee was “significantly more costly than for a male employee.” Hobby Lobby , 134 S. Ct

. at 2786 (Kennedy, J., concurring). Women paid more for the same health insurance coverage available to men and “in general women of childbearing age spen[t] 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. 28,843 (2009) (statement of Sen. Gillibrand); see 78 Fed. Reg. at 39,887.

The government recognized that women pay more for the same health benefits in part because services more important or specific to women have not been adequately covered by

health insurance. See 155 Cong. Rec. 28,843 (2009) (statement of Sen. Gillibrand). Contraception is a key element of preventive care for many women, yet the methods

that are most reliable and ar e under a woman’s control require prescriptions and are disproportionately more expensive than non-prescription forms of contraception. See IOM Report at 105, 108. Condoms, which are inexpensive and widely available over the counter, re quire men’s cooperation and are substantially less effective in pregnancy prevention than prescription methods. See id. at 105. When Congress added the Women’s Health Amendment to the ACA, which requires group health plans to include pr eventive health care services for women without cost sharing, it did so precisely to end “the59

punitive practices of the private insurance companies in their gender discrimination.” 155 Cong. Rec. 28,842 (daily ed. Dec. 1, 2009) (statement of Sen. Mikulski). The government concluded that a preventive care package that failed to cover contraception would not give women access, equal to that enjoyed by men, to the full ra nge of health care services recommended for their specific needs. See 78 Fed. Reg. at 39,887.

For most women, whether and under what circumstances

to bear a child is the most important economic decision of their lives. An unintended pre gnancy is virtually certain to impose substantial, unplanned-for expenses and time demands on any family, and those demands fall disproportionately on women. As the Supreme Court has recognized “[t]he ability of wo men to participate equally in

the economic and social life of the Nation has be en facilitated by their ability to control their reproductive lives.” Planned Parenthood of Se. Penn. v. Casey , 505 U.S. 833, 856 (1992); 78 Fed. Reg. at 39,873 (“[A]ccess to contraception improves the social and economic status of women.”). Congress noted when enacting the Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000e et seq. ), and Family and Medical Leave Act, Pub. L. No. 103-3, 107 Stat. 6 (codified at 29 U.S.C. § 2601 et seq. ), a woman’s ability to get pregnant has led to pervasive discrimination in the workplace. 24

24 See Hibbs , 538 U.S. at 736 (“‘Historically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing id eology about women’s roles has in turn justified discrimination against women when they are mothers or mothers-to-be.’” (quoting The Parental and Medical60

The government has amply substantiated its compelling interests in the accommodation. The government has overlapping and mutually reinforcing compelling interests in promoting public health and gender equality. The contraceptive coverage require ment specifically advances those interests. It was adopt ed to promote women’s equal access to health care appropriate to their needs, which in turn serves women’s health, the h ealth of children, and women’s equal enjoyment of their right to personal autonomy without unwanted pregnancy. We hold that the accommodation is supported by the government’s compelling interest in providing women full and equal be nefits of preventive health coverage, including contraception and other health services of particular relevance to women.

2. The Regulations Use the Least Restrictive Means to Ensure Contraceptive Coverage While Accommodating Religious Exercise

In addition to calling on us to inquire whether the challenged contraceptive coverage requirement serves a compelling interest, RFRA demands that we guard against unnecessary impositions on religious exercise by carefully examining the particular way the government has gone about serving that interest. Th e Departments designed the challenged accommodation for eligible organizations fully cognizant of RFRA’s mandate. See 78 Fed. Reg. at 39,886-

Leave Act of 1986: Joint Hearing before the Subcommittee on Labor–Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor , 99th Cong., 2d Sess., 100 (1986)); see also S. Rep. No. 95-331, at 3 (1977) (“A failure to address discrimination based on pregnancy, in fringe benefits or in any other employment practice, would prevent the elimination of sex discrimination in employment.”).61

88. As already described, the accommodation excuses eligible organizations from the contraceptive coverage requirement, severs them from any involvement in the separate contraceptive coverage to which the employees are entitled, and specifies that employ ees must be notified that the objecting organizations have no involvement in providing their contraceptive coverage.

Adverting to this accommodation in Hobby Lobby , the Supreme Court stressed that it alleviates the burden on the plaintiffs of having to provide contraceptive coverage and “serves HHS’s stated interests equally well.” Hobby Lobby

, 134 S. Ct

. at 2782. The Court described the accommodation

as “an alternative that achieves all of the Government’s aims while providing greater resp ect for religious liberty.” Id. at 2759; see id. at 2786 (Kennedy, J ., concurring) (the “accommodation equally furthers the Government’s interest but does not impinge on the plaint iff’s religious beliefs”). In fact, the Court explained that the effect of the accommodation on women “would be precisely zero.” Id. at 2760.

In determining whether the government has used the least restrictive means, the Supr eme Court has instructed that we focus on the context of the religious objectors, and consider whether and how the government’s compelling interest is harmed by “‘granting specific exemptions to particular religious claimants.’” Hobby Lobby , 134 S. Ct. at 2779 (quoting Gonzales v. O Centro Espírita Beneficiente Uniao Do Vegetal , 546 U.S. 418, 431 ( 2006)). We must “look to the marginal interest in enforcing” the regulation to which the plaintiffs object. Id. (citing O Centro , 546 U.S. at 431).

The government’s compelling interests in the contraceptive coverage requirement are met with the least62

imposition on religious exercise by allowing eligible organizations to opt out, but requiring them to identify themselves when they do. Only if the eligible organizations communicate that they are dropping contraceptive coverage from the health insurance they have arranged for their employees will the government be able to ensure that the resultant gaps in employees’ coverage are otherwise filled. The government contends that its interests would be impaired if eligible organizations were entitled to exempt themselves from the contraceptive coverage requirement without notifying either HHS, or their insurers or TPAs.

The government has an interest in the uniformity of the health care system the ACA put in place, under which all eligible citizens receive the same minimum level of coverage. Like the Social Security system at issue in Lee , the ACA “serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants.” 455 U.S. at 258. Contraceptive coverage must be effective if it is to serve the government’s compelling interests, and the Departments were justified in concluding that, to be effective, the cove rage must be provided to all women who want it, on the same terms as other preventive care. Providing contraceptive se rvices seamlessly together with other health services, wit hout cost sharing or additional administrative or logistical burdens and within a system familiar to women, is necessary to serve the government’s

interest in effective access. Imposing even minor added steps

would dissuade women from obt aining contraceptives and defeat the compelling interests in enhancing access to such

coverage. See 78 Fed. Reg. at 39,888.

The evidence shows that contraceptive use is highly vulnerable to even seemingly minor obstacles. Plaintiffs suggest that the government c ould offer tax deductions or63

credits for the purchase of c ontraceptive services, expand eligibility for existing federal programs that provide free contraception, allow women to submit receipts to the federal government for reimbursement, or provide incentives for pharmaceutical companies to provide contraceptives free of charge to women. Pls.’ R. Br . 22. Those alte rnatives would substantially impair the governme nt’s interest. Plaintiffs’ proposed alternatives each would add steps—requiring women to identify different providers or reimbursement sources, enroll in additional and unfamiliar programs, pay out of pocket and wait for reimbursement, or file for tax credits (assuming their income made them eligible)—or pose other financial, logistical, inform ational, and administrative

burdens. See 78 Fed. Reg. at 39,888. Ev en assuming that any alternative program had or woul d develop the cap acity to deal

with an enormous additional c onstituency, it would not serve the government’s compelling intere st with anywhere near the efficacy of the challenged acco mmodation and would instead deter women from accessing contraception. See id.

Plaintiffs also dispute the government’s compelling interest in applying the contraceptive cove rage requirement to them on the ground that there is “no evidence” showing that Plaintiffs’ employees lack access to or want contraception. Pls.’ Supp’l Br. 16-17. The da ta upon which the government relies support its conclusion that women generally benefit from access to contraceptive coverage, and are unlikely to use such coverage when it is costly or complicated to obtain. See 78 Fed. Reg. at 39,887-88. There is no reason to believe that the health needs of Plaintiffs’ employees or spouses and other covered beneficiaries in their families are materially different

from those of other women. Religious nonprofits like the Plaintiff organizations employ millions of Americans— including individuals who do not share their beliefs. As the government recognized, “[e]mployers that do not primarily64

employ employees who share th e religious tenets of the organization are more likely to employ individuals who have no religious objection to the use of contraceptiv e services and therefore are more likely to us e contraceptives.” 77 Fed. Reg. at 8,728. The evidence justifying the contraceptive coverage requirement equally supports it s application to Plaintiffs.

Accommodating religious entiti es need not come at the cost of the compelling interests the government program serves. When the interests of religious adherents collide with an individual’s access to a government program supported by a compelling interest, RFRA calls on the government to reconcile the competing intere sts. In so doing, however, RFRA does not permit religious exercise to “unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.” Hobby Lobby

, 134 S. Ct. at 2786-87 (Kennedy, J., concurring); see also id. at 2781 n.37 (“It is certainly true that in applying RFRA ‘courts must take adequate acc ount of the burdens a requested accommodation may impose on nonbeneficiaries.’”). The opt out offered to religious adhere nts allows the government to further its compelling interests with the least restriction on religious exercise. Under the accommodation, eligible organizations are relieved of the obligation to include contraceptive coverage in their health care plans, but “women

would still be entitled to a ll FDA-approved contraceptives without cost sharing.” Id. at 2760. Allowing eligible organizations to exempt themselves completely from the contraceptive coverage require ment, without so much as notifying their plan or HHS that they have done so, would undermine the government’s interest in the breadth of the

scheme established in the ACA.

The government’s interest in a comprehensive, broadly available system is not undercut by the other exemptions in65

the ACA, such as the exemptions for religious employers, small employers, and grandfathered plans. The government can have an interest in the uniform application of a law, even if that law allows some exceptions. See, e.g.

, Lee , 455 U.S. at 261. In any event, the exemptions to the ACA are limited and the rationales that support them do not extend to exempting Plaintiffs. Currently, only religious employers’ plans and grandfathered health plans (empl oyer health plans that existed prior to March 23, 2010, and that have not made particular changes after that date) are not required to include coverage for preventive services. 42 U.S.C. § 18011(a), (e). Religious employers are exempt from the contraceptive coverage provision because the government reasonably assumed that if the church opposed contracepti on, the church’s employees would, too. See 77 Fed. Reg. at 8,728. The exception for grandfathered plans sought to limit disruption by enabling individuals temporarily to maintain their health care coverage as it existed prior to enactment of the ACA. That exception is a transitional measure and will be eliminated as employers make changes to their health care plans. See 45 C.F.R. § 147.140(g) (a health plan ceases to be a grandfathered plan when it eliminates benefits, increases cost-sharing requirements, or changes its employer-contribution terms). According to HHS estimates, 66 percent of small-employer plans and 45 percent of large- employer plans were expected to lose their grandfathere d status by the end of 2013. 25 75

25 According to a 2013 study conducted by Kaiser Health News, the grandfathering is already quickly phasing down. Thirty-six percent

of individuals who receive health care coverage through their employer in 2013 were enrolled in a grandfathered health plan, as compared to 48 percent in 2012 and 56 percent in 2011. Employer Health Benefits: 2013 Annual Survey, Kaiser Family Foundation and Health Research & Educational Trust, at 221, available at66

Fed. Reg. 34,538, 34,552 (June 17, 2010). The exemption for small employers (those with fewer than 50 employees) is not an exemption from the contraceptive coverage requirement, but from the requirement to pr ovide any health insurance to their employees. 26 U.S.C. § 4980H(c)(2). Employees who do not get insurance through their jobs because they work for exempt small employers are elig ible to purcha se it through the exchanges, where all listed plans are required to cover contraceptive services without cost sharing. None of the three exemptions is analogous to what the Plaintiffs here seek.

* * *

The accommodation is the least restrictive method of ensuring that women continue to receive contraceptive coverage in a seamless manner while simultaneously relieving the eligible organi zations of any obligation to provide such coverage. Because the government has used the least restrictive means possible to further its compelling interest, RFRA does not excuse Plaintiffs from their duty under the ACA either to provide the required contraceptive coverage or avail themselves of the offered accommodation to opt out of that requirement. The accommodation meets the twin aims of respecting religious freedom and ensuring that women continue to receive contraceptive coverage without administrative, financial, or logistical burdens. The regulations thus respond appropr iately to RFRA’s explicit

demand for “sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. § 2000bb(a)(5).

http://kaiserhealthnews.files.wordpress.com/2013/11/8465- employer-health-benefits-20131.pdf.67

V. Constitutional Claims

Plaintiffs raise several constitutional challenges to the regulations. We address each in turn, concluding that the regulations do not violate any of the constitutional provisions identified by Plaintiffs.

A. Free Exercise of Religion

Plaintiffs claim that the contraceptive coverage requirement violates the Free Exercise Clause of the First Amendment because it categorically exempts houses of worship from the contraceptive coverage requirement and temporarily relieves grandfathe red plans from the requirement to cover any preventive servi ces without cost sharing, while not similarly exempting Plaintiffs. The Free Exercise Clause embodies a “fundamental nonpersecution principle.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 523 (1993). But it “does not relieve an individual of the obligation to comply with a va lid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Smith , 494 U.S. at 879 (internal quotation marks omitted). A Free Exercise Clause challenge, in contrast to a claim under RFRA, receives strict scrutiny only if the challenged law is either not neutral or not generally applicable. See Lukumi Babalu , 508 U.S. at 531. We have held that the regulations comp ly with RFRA; they readily satisfy the less stringent free exercise standard.

“Neutrality and general appli cability are interrelated,”

but distinct. Id. A law is not neutral if it facially “refers to a religious practice without a secu lar meaning discernable from the language or context,” or if “the object of a law is to infringe upon or restrict practic es because of their religious68

motivation.” Id. at 533. A law is not ge nerally applicable if, “in a selective manner,” it “impose[s] burdens only on conduct motivated by religious belief.” Id. at 543.

Plaintiffs do not conte nd that the challenged contraceptive coverage requireme nt is religiously non-neutral on its face, nor that it was enacted for an anti-religious purpose, but that the exemptions provided to houses of worship and grandfathered pl ans render the contraceptive coverage requirement non-ne utral and not generally applicable. Those exemptions, however, do not impugn the contraceptive coverage requirement’s neutrality and generality: it is both, in the relevant sense of not selectively targeting religious conduct, whet her facially or intentionally, and broadly applying across reli gious and nonreligious groups

alike. See Mich. Catholic Conf.

, 755 F.3d at 394; RCAW

, 2013 WL 6729515, at *27-31; Priests for Life , 7 F. Supp. 3d

at 105-07.

The contraceptive coverage requirement is a religiously neutral part of a national effort to expand health coverage and

make it more efficient and effective. The ACA’s limited or temporary exemptions do not amoun t to the kind of pattern of exemptions from a facially neutral law that demonstrate that the law was motivated by a discriminatory purpose. See

supra Section IV.B.2. The Florida prohibition on animal killing invalidated in Lukumi Babalu , by contrast, responded to the opening of a Santeria c hurch, which practiced religious

animal-sacrifice rituals. 508 U.S. at 524. The ordinance elaborated a putatively general prohibition on animal killings with specific disapproval of k illing for “sacrifice” as part of “any type of ritual,” while exempting as “necessary” killings for sport hunting, slaughtering animals to eat them, eradication of pests, and euth anasia—killings that were “no more necessary or humane” than the forbidden Santeria69

sacrifices. Id. at 536-37. That exemption for so many nonreligious types of an imal killing helped to make clear that “suppression of the central element of the Santeria worship service was the object of the ordinances.” Id. at 534. The exemptions in the ACA do not si ngle out any religion and are wholly consistent with the law’s neutral purpose. Indeed, the existence of an exemption for religious employers substantially undermines conten tions that government is

hostile toward such employers’ religion. 26

The contraceptive coverage requirement also does not target religious organizations, but applies acro ss the board. The exemptions do not render the law so under-inclusive as to belie the government’s interest in protecting public health and promoting women’s well-being or to suggest that disfavoring Catholic or other pro-life em ployers was its objective. See

RCAW , 2013 WL 6729515, at *30. For example, the Supreme Court has held that, de spite statutory exemptions for self-employed Amish employers, the social security system was “uniformly applicable to all.” United States v. Lee , 455 U.S. 252, 260-61 (1982); see also id. at 262 (Stevens, J., concurring in the judgment) (des cribing the challenged law as “a valid tax law that is entirely neutral in its general application”). As the Sixth Circuit recently explained: “General applicability does not mean absolute universality.”

26 See, e.g.

, RCAW , 2013 WL 6729515, at *28 (availability of the religious employer exemption “cuts against the conclusion that the contraceptive mandate was specifically designed to oppress those of the Catholic faith as plaintiffs suggest”); Catholic Diocese of

Nashville v. Sebelius , No. 3:13-01303, 2013 WL 6834375, at *6 (M.D. Tenn. Dec. 26, 2013) (noting that exemption for religious employers and accommodation for eligible organizations “evidences an intent, not to burden Plaintiffs’ religious beliefs, but to recognize and respect them”).70

Mich. Catholic Conf. , 755 F.3d at 394 (internal quotation marks omitted).

Plaintiffs contend that the ACA’s exemptions make it under-inclusive in a way that suggests that the government believes that “secular motivations [for providing an exemption] are more important than religious motivations,” Pls.’ Br. 50 (internal quotation marks omitted), evidencing that the government “devalues religious reasons,” Pls.’ R. Br. 25 (internal quotation marks omitted). But, for the same reasons the exemptions do not undermine the government’s interest in a uniform system, see supra Section IV.B.2, the exemptions do not demonstrat e the government’s hostility toward religious concerns

.

Because the contraceptive coverage requirement is a neutral law of general applicability, Plaintiffs’ free exercise

claim fails.

B. Expressive Association

The Priests for Life Plaintiffs argue that the contraceptive coverage requirement violates their First Amendment rights to expressive association, wh ich protects the “right to associate for the purpose of speaking.” See Rumsfeld v. Forum for Academic & Institutional Rights, Inc. ( FAIR ), 547 U.S. 47, 68 (2006). The regulation s infringe that right, the Priests for Life Plaintiffs contend, by requiring them to promote the government’s immoral objective of expanding access to contraceptives, which undermines the organization’s “very reason for its existence.” Pls.’ Br. 51. The Priests for Life Plaintiffs base their expre ssive association claim, like their RFRA claim, on a misreading of what the regulations require of them, suggesting that the regulations require them71

to disclose the identities of their employees and plan

beneficiaries. See, e.g. , Pls.’ Br. 52-53. They do not.

A law may violate the First Amendment right to expressive association where it directly interferes with an expressive association’s member ship decisions or where it indirectly affects the gr oup’s composition by making membership less attractive. FAIR , 547 U.S. at 69. In FAIR

, the Supreme Court held that a law requiring law schools receiving federal funds to give military recruiters access to the schools’ facilities equal to the access it afforded other recruiting employers did not vi olate the objecting schools’ rights to associate. Id. at 69-70. The law schools’ nondiscrimination policies prohibi ted discrimination based on sexual orientation, and, because the United States Military refused at that time to hire any openly gay or lesbian applicants, the law schools we re strongly oppos ed to hosting military recruiters and actively facilitating their access to the schools’ students. The Court rejected that claim, holding that the military recruiters’ presence on campus “does not violate a law school’s right to associat e, regardless of how repugnant the law school considers the recruiter’s message.” Id. at 70. The Court acknowledged that th e plaintiffs there had to “‘associate’ with military recruiters in the sense that they interact with them,” but held th at, because the recruiters were

as an institutional matter out siders who would “come onto campus for the limited purpose of trying to hire students,” they did not impinge on the sc hools’ expressive association.

Id. at 69.

The same is true here: the Priests for Life Plaintiffs object to interacting with covera ge providers that must make contraceptive coverage available, but such interaction does not make those providers part of the organization’s expressive association or otherwise impair its ability to express its72

message. Just as the students and faculty in FAIR remained “free to associate to voice their disapproval of” the military’s policy against gays or lesbians serving openly in the military,

id. at 69-70, Priests for Life’s members and employees remain free to associate with each other to promote their religious views on contraception and other matters, and to voice their disapproval of health -care products and services that they believe to be immoral. “Nothing in the[] final regulations prohibits an eligib le organization from expressing its opposition to the use of cont raceptives.” 78 Fed. Reg. at 39,880 n.41. Accordingly, the Priests for Life Plaintiffs’ expressive association claim fails.

C. Compelled Speech

It is “a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc. , 133 S. Ct. 2321, 2327 (2013) (internal quotation marks omitted); see Knox v. Serv. Emps. Int’l Union, Local 1000 , 132 S. Ct. 2277, 2282 (2012) (“The government may not . . . compel the endorsement of ideas that it approves.”). Plaintiffs c ontend that the regulations impermissibly compel their speech in three ways.

First, Plaintiffs claim that the regulations require them to

authorize and facilita te health care coverage for counseling that encourages and promotes contraception, in violation of their right against compelled sp eech. Plaintiffs appear to contend that the regulations commandeer them to echo or

facilitate the words of medi cal professionals who might communicate to insured women the availability and potential appropriateness of various contraceptive methods. But the regulations do not require Plai ntiffs to communicate any procontraceptive-coverage message, no r to authorize or facilitate73

counseling in favor of contraception. See supra Section IV.A.2; Mich. Catholic Conf. , 755 F.3d at 391. They leave Plaintiffs free to voice their opposit ion to contraception.

Plaintiffs’ reliance on Arizona Free Enterprise Club’s

Freedom Club PAC v. Bennett , 131 S. Ct. 2806 (2011), is misplaced. Arizona Free Enterprise Club concerned a state campaign finance law under which candidates for state office who accepted public funding could receive additional state funds in the event that privately financed candidates and independent expenditure groups exceeded spending limits.

See id. at 2813. Under Arizona’s law, the volume of political expenditures by or in support of a privately financed candidate triggered funding to his or her opponent. See id. at 2818-19. Plaintiffs’ completion of the self-certification form has no similar triggering role, and there is no interest or effect here to level competing voices, which was a significant aspect of the constitutional infirmity of Arizona’s campaign finance

law. See id. at 2825. Furthermore, contrary to Plaintiffs’ argument, nothing in Arizona Free Enterprise Club suggests that the prohibition on compelling a party to “help disseminate hostile views” the party opposes, id. at 2821 n.8 (internal quotation marks omitted), applies to laws that require a party to engage in non -expressive behavior, such as the provision of health insurance.

Second, Plaintiffs argue th at completing the selfcertification form requires them to express a particular view, namely, that they oppose providi ng their plan participants with coverage for contraceptive services, and that it deprives them of the freedom to speak on this issue on their own74

terms. 27 The self-certification form and alternative notice are the methods through which Plaintiffs can opt out of the requirement to provide their employees with health insurance coverage for contraceptive serv ices. The filing of the form, though it may include “elements of speech,” is “a far cry from the compelled speech” that the Supreme Court previously has

found to be unconstitutional. FAIR , 547 U.S. at 61-62 (citing W. Va. Bd. of Ed. v. Barnette , 319 U.S. 624, 642 (1943), and Wooley v. Maynard , 430 U.S. 705, 717 (1977)). Just as the compelled speech that the law schools identified in FAIR was “plainly incidental to the Solomon Amendment’s regulation of conduct,” id. at 62, any speech required by the selfcertification or alternative notice is similarly incidental to the accommodation’s regulation of conduct. Compelling an organization to send a form to a third party to claim eligibility for an exemption “is simply not the same as forcing a student to pledge allegiance, or fo rcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it

is.” Id. Requiring Plaintiffs to give notice that they wish to opt out of the contraceptive coverage requirement no more compels their speech in viola tion of the First Amendmentthan does demanding that a conscientious objector selfidentify as such.

The regulations do nothing to de prive Plaintiffs of “the freedom to speak on the issue of abortion and contraception on their own terms, at a time and place of their own choosing.” Pls.’ Br. at 55. Completing the self-certification form does not limit what Plaintiffs may say about contraception—or any other to pic—nor does it limit where,

27 Plaintiffs’ briefing contends only that their speech is impermissibly compelled by the self-certification form, and does not address their compelled speech claim to the alternative notice.75

when, or how they may say it. See Mich. Catholic Conf. , 755 F.3d at 392. Indeed, un like the law schools in FAIR that had to host military recruiters and thus might have mistakenly been viewed as endorsing the military’s discriminatory recruitment approach, the opt out here is designed to ensure

that Plaintiffs do not have to express, in words or symbolic backing, any support for contraception. Cf. FAIR , 547 U.S. at 64-65 (government is limited in its “ability to force one speaker to host or accommodate another speaker’s message” where accommodating that message interferes with the plaintiff’s desired message).

Finally, Plaintiffs object to the regulations because they require that Plaintiffs’ plan pa rticipants receive notice of the availability of payments for contraceptive serv ices. Thus, according to Plaintiffs, the regulations coerce them to provide access to their plan participan ts and either create the appearance that Plaintiffs agr ee with the notification or call on them to respond to the notice to inform participants of Plaintiffs’ objections to contraception.

But the regulations actually require quite the contrary: the plan issuer or TPA mu st send a message explicitly distancing the employer from the offered contraceptive coverage, and do so in a completely separate mailing from any communication regarding th e employer-sponsored plan. 45 C.F.R. § 147.131(d) (insured group health plans); 29 C.F.R. § 2590.715-2713A(d) (self-insured plans). The regulations, therefore, take care to inform plan participants that the coverage for contraceptives is not paid for,76

administered by, or connected to Plaintiffs. That is a long way from unconstitutionally co mpelling Plaintiffs to speak. 28

D. Establishment of Religion

Plaintiffs advance two Establishment Clause claims. They first contend that th e regulations impermissibly discriminate between types of re ligious institutions by making a general distinction, familiar in tax law, between churches and other houses of worship (which are automatically exempt), and nonprofit organizations that may have a religious character or affiliation, such as universities and hospitals (which may use the a ccommodation to opt out). 26 U.S.C. § 6033(a)(3)(A)(i), (iii) (exempting “churches, their integrated auxiliaries, and c onventions or associations of churches,” and “the exclusivel y religious acti vities of any

28 The RCAW Plaintiffs challenged the regulations’ “noninterference” provision as an unconstitutional speech restriction, but as that provision has been rescinded, their challenge is moot. The provision originally barred self-insured employers from “directly or indirectly, seek[ing] to influence the [TPA’s] decision” to provide or arrange separate payments for contraceptive services. 79 Fed. Reg. at 51,095. The government interpreted that bar as applicable only to the use of br ibery, threats, or coercion to dissuade or hinder a TPA from fulfilling its legal obligation to provide contraceptive coverage. Id. The government has now rescinded the non-interference provision in its entirety. Id. Plaintiffs maintain that they still challenge the non-interference provision “to the extent the Government contends it continues to be unlawful to ‘say to the[ir] TPA , if you don’t stop making the payments for contraceptives, we’re going to fire you.’” Pls.’ Supp’l Br. 27 n.12 (internal br ackets omitted). As the government asserted at oral argument, however, even when the non-interference provision was in effect, Plaintiffs were free to fire their insurers or TPAs as they wished. Oral. Arg. Tr. at 46:15-48:1.77

religious order” from an annua l return filing requirement). Second, they contend that the regulations entail excessive entanglement between the government and religious institutions. Specifically, to th e extent that the regulations seek to be more nuanced and context specific, looking at specific attributes of each organi zation in an effort accurately to distinguish among them, Plai ntiffs contend the government impermissibly interferes with internal church governance.

The regulations draw a long -recognized and permissible distinction between houses of worship and religious nonprofits. The Seventh Circui t, in rejecting a similar challenge to the contraceptive coverage regulations, noted that “religious employers, define d as in the cited regulation, have long enjoyed advantages (notably tax advantages) over other entities, without these advantages being thought to

violate the establishment clause.” Notre Dame , 743 F.3d at 560 (internal citation omitted). The churches gained the categorical exemption on the assumption that the relatively small numbers of employees who are employed by a church will, if their church’s mission opposes contraception, be ministers or clerics likely to share that view, or at least have knowingly joined a pervasively sectarian institution that expects them to. 77 Fed. Reg. at 8,728. The categorical exemption was not extended to th e broader group of religious nonprofits, however, because relig iously affiliated hospitals,

universities and social service agencies employ a wide range of people of diverse faiths an d are thus “more likely to employ individuals who have no religious objection to the use of contraceptive services and therefore are more likely to use contraceptives.” Id. Limiting the exemption, but making the opt out available, limits the burdens that flow from organizations “subject[ing] thei r employees to the religious views of the employer.” Id.78

Plaintiffs equate the familiar regulatory distinction between houses of worship and religiously affiliated organizations, based on organizational form and purpose, with constitutionally impermissi ble distinctions based on denomination. They quote Larson v. Valente , 456 U.S. 228, 231-32, 246 n.23 (1982) and Colorado Christian University v.

Weaver , 534 F.3d 1245, 1259 (10th Cir. 2008), for the notion that the Establishment Clause forbids distinguishing between “types of institutions” as su rely as between “sects or

denominations.” Pls.’ Br. 57-58 (internal quotation marks omitted). Both of the cases Plaintiffs rely on, however, were

concerned with lines drawn based on denomination, rather than organizational form or purpose. 29 In Larson , the Supreme Court invalidated a state law that imposed special registration requirements on church es that received a majority

of their donations from non-me mbers because it facially discriminated against religious denominations that were newer or chose to rely on public solicitation rather than financial support from member s. 456 U.S. at 246-48. The

distinction invalidated in Colorado Christian authorized public scholarships for stude nts at Methodist and Roman Catholic universities while refusing them to students attending non-denominational ev angelical Protestant or

Buddhist universities. See 534 F.3d at 1258. The Colorado

Christian court contrasted that de nominational discrimination with the permissible exclusion “of all devotional theology majors equally.” Id . at 1256 (citing Locke v. Davey , 540 U.S. 712, 715-16 (2004)). This Court in University of Great Falls

v. NLRB , 278 F.3d 1335, 1343 (D.C. Cir. 2002), similarly

29 Indeed, the Plaintiffs’ argument would call into question the tax advantages that have long been av ailable to houses of worship, but not other types of religious orga nizations. Those tax advantages have not been thought to violate the Establishment Clause. See

Notre Dame , 743 F.3d at 560.79

invalidated a regulatory line th at effectively asked whether

certain schools were “ sufficiently religious” to be exempt from NLRB jurisdiction, admi nistration of which line had drawn the government into questioning whether the university “was legitimately ‘Catholic.’” Id

. University of Great Falls favors a test relying on more objective factors about the

institution’s structure and activities. Id . The regulations at

issue here draw distinctions ba sed on organizational form and purpose, and not religious belief or denomination, in keeping

with Larson, Colorado Christian , and University of Great

Falls. See also Mich. Catholic Conf. , 755 F.3d at 395; Notre

Dame , 743 F.3d at 560.

Additionally, Plaintiffs assert that the regulations violate the Establishment Clause because they believe they call on the government impermissibly to “‘troll[] through a person’s or institution’s religious beli efs.’” Pls.’ Br. 60 (quoting

Mitchell v. Helms , 530 U.S. 793, 828 (2000) (plurality opinion)). The regulations define a “religious employer” as “an organization that is organi zed and operates as a nonprofit entity and is referred to in se ction 6033(a)(3)(A)(i ) or (iii) of

the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a); see also 78 Fed. Reg. at 8,461 (stating that the exemption is restricted prim arily to “churches, synagogues, mosques, and other houses of worship, and religious orders”). The IRS has developed a non-exhaustive, non-binding list of fourteen factors to consider when determining whether an entity is in fact a religious employer. See Am. Guidance Found., Inc. v. United States , 490 F. Supp. 304, 306 n.2 (D.D.C. 1980); Found. of Human U nderstanding v. United

States , 88 Fed. Cl. 203, 220 (2009).

Plaintiffs contend that, in or der to determine whether an entity is in fact a religious employer, the government asks intrusive questions about its reli gious beliefs in violation of80

the Establishment Clause. They complain that the IRS factors “favor some types of religious groups over others” and that “they do so on the basis of intrusive judgments regarding beliefs, practices, and organizationa l structures.” Pls.’ Br. at 61. It is undisputed in this case that the Archdiocese is a religious employer, and no other Plaintiff contends that it was improperly denied religious-empl oyer treatment. As a result, Plaintiffs do not challenge a determination that has been made using those factors, nor can they argue that the factors were impermissibly applied to them. Therefore, we agree with the

district court that this challe nge is not ripe for review.

RCAW , 2013 WL 6729515 at *43-44.

E. Internal Church Governance

Relying on Hosanna-Tabor Evangelical Lutheran

Church & School v. EEOC , 132 S. Ct. 694 (2012), the RCAW Plaintiffs allege that the re gulations violate the Religion

Clauses of the First Amendmen t by impermissibly interfering

with matters of internal church governance. They claim that the regulations “artificially split[]” the Catholic Church in two—into the Archdiocese (an exempt religious employer) and its related nonprofit orga nizations—and prevent the Archdiocese from “ensur[ing] that these organizations offer health plans consistent with Catholic beliefs.” Pls.’ Br. at 63-

64. Neither Hosanna-Tabor , nor any other precedent interpreting either of the Constitution’s Religion Clauses, supports this novel claim.

The ACA’s regulations do not address religious governance at all. The regulations’ se parate treatment of functions that Plaintiffs might prefer to group together does not interfere with how the Plaintiffs govern themselves internally. Plaintiffs invoke Hosanna-Tabor , but that case does not stand for Plaintiffs’ proposition that the First81

Amendment precludes application of a law simply because it may affect different types of re ligious institution differently.

In Hosanna-Tabor , the Supreme Court recognized a “ministerial exception, grounded in the First Amendment, that precludes application of [Title VII and other employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.” 132 S. Ct. at 705 (internal quotation marks omitted); see id. at 710. The Court expressly li mited its holding to “an employment discrimination su it brought on behalf of a minister, challenging her church ’s decision to fire her.” Id. The language from Hosanna-Tabor that plaintiffs invoke,

used there in the context of disapproving judicial review of

ministers’ discrimination claims because it would interfere

“with an internal church decision that affects the faith and mission of the church itself,” id. at 707, does not apply here. Unlike in that case, nothing a bout the regulation challenged here would “depriv[e] the church of control over the selection of those who [would] personify its beliefs”—the Church’s

own ministers. Id. at 706. The Court’s reasoning in

Hosanna-Tabor does not extend beyond ecclesiastical employment matters to regulations that may affect a church’sdecision about its health care plan. Accordingly, the churchgovernance claim must fail.

F. Equal Protection

The Priests for Life Plaintiffs argue that the regulations violate equal protection as guaranteed by the Fifth Amendment, by discriminating on the basis of religion and impinging on their fundamental righ ts. This claim is largely duplicative of Plaintiffs’ Establishment Clause challenge and

fails for similar reasons. The Priests for Life Plaintiffs cite no case in support of their contenti on that alleged discrimination82

between types of religious organizations within a denomination gives rise to an equal protection claim. Additionally, as the district court observed, the Priests for Life Plaintiffs’ fundamental rights claim is iden tical to their

other First Amendment claims. Priests for Life , 7 F. Supp. 3d at 110. Because we have reje cted those claims, we apply rational basis scrutiny to the regulations. See Locke v. Davey

, 540 U.S. 712, 720 n.3 (2004) (applyi ng rational-basis scrutiny to an Equal Protection Clause claim alleging discrimination based on religion where the plai ntiffs’ Free Exercise Clause challenge failed). Because, as discussed supra Section IV.B, the regulations survive strict scrutiny, they necessarily survive

this more limited form of review.

VI. Administrative Procedure Act

The RCAW Plaintiffs contend that the government

violated the Administrative Pr ocedure Act by erroneously interpreting the exemption to apply on an employer-byemployer basis, rather than a plan-by-plan basis. The regulations state that the HRSA “may establish an exemption from [the regulations] with re spect to a group health plan established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or main tained by a religious employer) with respect to any requirement to cover contraceptive services under such guidelines.” 45 C.F.R. § 147.131(a). With respect to “multiple employer plans”—plans established or maintained by an exempt re ligious employer as well as non-exempt organizations—the Departments concluded that “the availability of the exemption or an accommodation [will] be determined on an employe r-by-employer basis.” 78 Fed. Reg. at 39,886. This means that “each employer [is] required to independently meet the definition of religious employer or83

eligible organization in order to avail itself of the exemption

or an accommodation.” Id.

An agency’s interpretation of its own regulation is

entitled to substantial deference. Auer v. Robbins , 519 U.S. 452, 461 (1997). The RCAW Plaintiffs contend that such deference is not appropriate he re, however, for two reasons. First, they argue that, co ntrary to the government’s contention, the regulation una mbiguously states that the exemption applies on a plan-by-plan basis. See Christensen v. Harris Cnty. , 529 U.S. 576, 588 (2000) (“ Auer deference is warranted only when the language of the regulation is ambiguous.”). The regulation, however, is silent as to whether the exemption will apply on an employer-byemployer basis or a plan-by-plan basis. It uses the phrase “group health plan,” because the contraceptive-coverage requirement applies to group health plans (as opposed to employers), not because the regulatory unit for purposes of the exemption is the plan rather than the employer. Because the regulation does not speak to that issue, we reject the

RCAW Plaintiffs’ claim that the Departments’ interpretation is

not entitled to deference.

Second, the RCAW Plaintiffs assert that deference to the Departments’ interpretation is not warranted because it conflicts with a prior interpretation put forth by the

government. See Christopher v. SmithKline Beecham Corp.

, 132 S. Ct. 2156, 2166 (2012) (“[D ]eference is likewise

unwarranted when there is reason to suspect that the agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on the matte r in question.’ This might occur when the agency’s interpretation conflicts with a prior interpretation . . . .” (internal citations omitted)). But the Departments have not changed their position. When they issued the Notice of Proposed Rulemaking regarding84

“Coverage of Certain Preventive Services Under the Affordable Care Act,” the Depa rtments made clear that they intended the exemption to apply on an employer-by-employer

basis. See 78 Fed. Reg. at 8,467. (“The Departments propose to make the accommodation or the religious employer exemption available on an employer-by-employer basis. That is, each employer would have to independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respec t to its employees and their covered dependents.”). The language on which the RCAW Plaintiffs rely to demonstrate that the Departments have changed their position does not support their argument. See 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012). All they point to is a hypothetical that specifi es that an exempt religious school is categorically exem pt from the contraceptive coverage requirement, whether it establishes and maintains its own plan or offers its employees coverage through a plan established by the exempt religi ous diocese with which it is

affiliated. See id. Thus, contrary to the RCAW Plaintiffs’ contention, the Departments’ interpretation that the exemption applies on an employer-by-employer basis does not conflict with its earlier interpretation of the regulation,

and is entitled to Auer deference.

Finally, in their supplemental brief, Plaintiffs contend that the government lacked the “good cause” required to promulgate the interim final rule without notice and

comment. See 5 U.S.C. § 553(b)(3)(B) (authorizing promulgation of interim fina l rules without notice and comment when the agency finds on the record “that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”). Several reasons support HHS’s decision not to engage in notice and comment here. First, the agency made a good cause finding in the rule it85

issued. See 79 Fed. Reg. at 51,095-96. Second, the regulations the interim final rule modifies were recently enacted pursuant to notice and comment rulemaking, and presented virtually identical issues; moreover, HHS will expose its interim rule to notice and comment before its permanent implementation. See 5 U.S.C. § 553(b)(3)(B) (good cause exists when “notice and public procedure . . . are . . . unnecessary”). Third, the modifications made in the interim final regulations are minor, meant only to “augment current regulations in light of the Supreme Court’s interim order in connection with an application for an injunction in Wheaton College. ” 79 Fed. Reg. at 51,092; see also Tenn. Gas Pipeline Co. v. FERC , 969 F.2d 1141, 1144 (D.C. Cir. 1992) (“We have . . . indicated that the less expansive the interim rule, the less the need for public comment.”). The government reasonably interprete d the Supreme Court’s order

in Wheaton College as obligating it to take action to further alleviate any burden on the re ligious liberty of objecting religious organizations. See 79 Fed. Reg. at 51,095-96; see also Am. Fed’n of Gov’t Emp., AFL-CIO v. Block , 655 F.2d 1153, 1155-57 (D.C. Cir. 1981) (validating promulgation of

interim rule without not ice and comment because, inter alia

, it would comply with a court order). As the agency explained, delay in implementati on of the rule would interfere with the prompt availability of contraceptive coverage and delay the implementation of the alternative opt-out for religious objectors. See 5 U.S.C. § 553(b)(3)(B) (good cause exists when “notice and public pr ocedure . . . are . . . contrary to the public interest”).

* * *

In sum, we reject all of Plaintiffs’ challenges to the regulations. Accordingly, we affirm the district court’s opinion in Priests for Life in its entirety. As to the RCAW86

decision, we vacate the distri ct court’s grant of summary judgment for Thomas Aquinas and its holding as to the unconstitutionality of the non-interference provision, and

affirm the remainder of the decision.

So ordered.