United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2014 Decided November 14, 2014 

No. 13-5368 

PRIESTS FOR LIFE, ET AL., 

APPELLANTS

v. 

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN 

SERVICES, ET AL., 

APPELLEES

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/cross-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 appellees/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: ROGERS, PILLARD and WILKINS, Circuit Judges. 

Opinion for the Court filed by Circuit Judge PILLARD. 

PILLARD, 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 Care Act (“ACA”), 42 U.S.C. 

§ 300gg-13(a)(4), itself imposes an unjustified substantial 

burden on Plaintiffs’ religious exercise in violation of the 

Religious Freedom Restoration 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 in 
3 

facilitating contraceptive coverage. They view the regulation 

as thereby substantially burdening their religious exercise by 

involving them in what the Plaintiffs 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 and 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 contraceptive coverage requirement. 

* * * 

As a consequence of a period of wage controls after 

World War II during which employers 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 that basic system. It sought instead to 

expand the number of Americans insured and to improve and 

subsidize health insurance coverage, 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 implementing the ACA and its Women’s 

Health Amendment impose a range of standard requirements 

on group health plans, including that they cover contraceptive 

services prescribed by a health care provider without 

imposing any cost sharing on the patient. The contraceptive 

coverage requirement derives from the ACA’s prioritization 

of preventive care, and from Congress’ recognition that such 

care has often been modeled on men’s health needs and thus 

left women underinsured. As discussed below, Congress 
4 

included the Women’s Health Amendment in the ACA to 

remedy the problem that women were paying significantly 

more out of pocket for preventive care and thus often failed to 

seek preventive services, including consultations, 

prescriptions, and procedures relating to contraception. The 

medical evidence prompting the contraceptive coverage 

requirement showed that even minor obstacles to obtaining 

contraception led to more unplanned and risky pregnancies, 

with attendant adverse effects on women and their families. 

 

Some employers, including the 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 marriage: 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 requirement, but Catholic nonprofits 

have a long and broad history of service that goes far beyond 

worship or proselytizing. Nationally, Catholic hospitals, 

clinics, universities, schools, and social services groups 

provide many services that are 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 opposition to contraception. 
5 

Faced with an employer-based health insurance system, 

forceful impetus to require coverage of contraceptive 

services, and religious opposition 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 contraceptive services to women who 

want them, for whom they are medically appropriate, and 

who personally have no objection to using them. 

The regulatory opt out works simply: A religious 

organization that objects on religious 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 notice extinguishes the religious 

organization’s obligation to contract, arrange, pay, or refer for 

any coverage that includes contraception. The regulations 

then require group health plan insurers or administrators to 

offer separate coverage for contraceptive 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 health coverage for their 

employees and students. Plaintiffs oppose the ACA’s 

contraceptive coverage requirement on religious grounds and 

do not want to provide the requisite contraceptive coverage. 
6 

Instead of taking advantage of the accommodation, Plaintiffs 

filed suit to challenge it as a violation of their religious rights. 

Plaintiffs’ principal claim arises 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 the First Amendment “does not 

relieve an individual of the obligation to comply with a valid 

and neutral law of general applicability.” Id. at 879 (internal 

quotation marks omitted). Congress sought to reinstate as a 

statutory matter the pre-Smith free exercise standard. Under 

RFRA, the federal government may not “substantially 

burden” a person’s religious exercise—even where the burden 

results from a religiously neutral, 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 extricate them from providing, paying 

for, or facilitating access to contraception. In particular, they 

assert that the notice they submit in requesting 

accommodation is a “trigger” that activates substitute 

coverage, and that the government 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 serving any such interest. 

We conclude that the challenged regulations do not 

impose a substantial burden on Plaintiffs’ religious exercise 
7 

under RFRA. All Plaintiffs must do to opt out is express 

what they believe and seek what they want via a letter or twopage form. That bit of paperwork 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 role in the provision of 

contraceptive services, and they 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 coverage 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 accommodation involves them in 

providing contraception in a manner that substantially 

burdens their religious exercise, we would sustain the 

challenged regulations. A confluence 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 promotes 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 government’s compelling interests. 

Because the regulatory opt-out mechanism is the least 

restrictive means to serve compelling governmental interests, 

it is fully consistent with Plaintiffs’ 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 “group health plan”); 45 C.F.R. 

§ 147.131(c)(2)(ii) (cost-sharing includes copayments, 

coinsurance, and deductibles). In view of the greater 

preventive health care costs borne by women, the Women’s 

Health Amendment in the ACA specifically requires coverage 

for women of “such additional preventive care and 

screenings . . . as provided for in comprehensive guidelines 

supported by the Health Resources 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 Medicine (“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 established 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 provider 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, sterilization 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 Labor, 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 unintended pregnancies and the 

negative health risks associated with such pregnancies; they

“have medical benefits for women 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 women 

in 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 ability 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 the 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 avenues for religious organizations 

to exclude themselves from any obligation to provide such 

coverage. Those avenues track a longstanding and familiar 

distinction between houses of worship (e.g., temples, 

mosques, or churches) and religious nonprofits (e.g., schools, 

hospitals, or social service agencies 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 present 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 objecting organizations from 

contraceptive coverage while ensuring that the individuals 

covered under those organizations’ 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-religionists—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’ sincere religious belief that 

providing, paying for, or facilitating insurance coverage for 

contraceptives violates their religion, but the government 

sought at the same time to preserve unhindered access to 

contraceptives for insured individuals 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 challenges 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-Catholics and provide a range of 

spiritual and charitable services in the Washington, D.C. 

area.3 They fall into four categories that differ in ways that 

affect how the accommodation applies to them, and that are 

thus relevant to some aspects of our analysis. 

 

3

 Father Frank Pavone, Alveda King, 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 spiritual guidance to 

nearly 600,000 Catholics. It is undisputed that the 

Archdiocese itself is a religious employer and thus is 

categorically exempt from the requirement to include 

coverage for contraceptive services for its employees in its 

self-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 benefit plans, including health 

insurance plans. See 29 U.S.C. § 1002(33) (defining “church 

plan”); id. at § 1003(b)(2) (exempting church plans from 

ERISA); see generally id. § 1001 et seq. (governing employee 

benefit plans). The ACA amended 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 ERISA, 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 the 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 with contraceptive coverage. 

The remaining Plaintiffs are all religious nonprofits. It is 

undisputed that, under the government’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 educational, housing, and social 

services to the community and arrange for health insurance 

coverage 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 parties agree that the College’s 

plan is not exempt from ERISA as a church plan. 

In the fourth category are those 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 encourages clergy to emphasize the 

value and inviolability of human life, also provides its 

employees with health insurance through a group insurance 

plan offered by United Healthcare. 

It is undisputed that Plaintiffs 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 opposes and rejects the culture of 

death.” Pls.’ Br. 11. Catholic doctrine prohibits 

“impermissible cooperation with evil,” and thus opposes 

providing access to “contraceptives, 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 are “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 

employees6 that excluded coverage for “abortion-inducing 

products, contraception [except when used for noncontraceptive purposes], sterilization, or related counseling.” 

Id. at 16. They structured the coverage 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 opinion 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 they contract to provide the 

coverage, effectively require Plaintiffs 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 August 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 moot the parties’ cross-motions 

for summary judgment. Reasoning that “[t]he 

accommodation specifically ensures that provision of 

contraceptive services is entirely the activity of a third 

party—namely the issuer—and Priests for Life plays no role 

in that activity,” the court held that the Priests for Life

Plaintiffs failed to show a substantial 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 “RCAW
16 

Plaintiffs”)—filed their complaint and moved for a 

preliminary injunction in September 2013, challenging 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 interpretation of the “religious 

employer” categorical exemption that precludes the churchplan Plaintiffs from qualifying for it. They also claimed in 

supplemental briefing that the interim 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 the 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 University’s religious exercise 

because “the accommodation effectively severs an 

organization that offers its employees or students an insured 

group health plan from participation in the provision 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 substantial 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 other constitutional and APA 

claims.9

 

All Plaintiffs appealed and sought injunctions pending 

appeal, while the government cross-appealed the rulings in 

favor of the RCAW Plaintiffs. We consolidated the appeals 

and granted an injunction pending appeal. 

II. Standard of Review

Whether claims are decided on a motion to dismiss or for 

summary judgment, we review 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 regulation 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 matter 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 appropriate only if “there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a); 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 concluded 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 have an independent obligation to 

confirm our jurisdiction. See Ams. for Safe Access v. DEA, 

706 F.3d 438, 442 (D.C. Cir. 2013). “[I]n determining 

whether plaintiffs have standing, we must assume that on the 

merits they would be successful 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. The government has offered them a 

third option in the form of the accommodation: exclude 

contraceptive coverage from their plans. They object to that, 

too, however, because if they exclude contraceptive coverage 
19 

from their plans, the regulations 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, the government argued that it lacks 

authority to impose on those particular 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 contraceptive 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 plans (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 contraception 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 themselves of the accommodation 

because doing so would render them complicit in a scheme 

aimed at providing contraceptive coverage. They thus 

contend that the burden on their religious exercise is the same 

as the burden on any Plaintiff whose TPA or insurer provides 

coverage according to the regulations. 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 their 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 future injury on the basis of 

religious belief were sufficient 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 whether that affects their standing, 

however, because the presence of other 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 the church-plan 

Plaintiffs participate. It argues that, despite its own 

exemption, it faces an impossible 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 entities, leaving them exposed to 

penalties if they do not contract with another provider that 

will provide the coverage. The first option, in its view, 

substantially burdens its sincerely held religious beliefs in 

violation of RFRA, and the second option allows the 

government to interfere with what it casts as its internal 

operations, in violation of the Religion Clauses of the First 

Amendment. Our holding that the church-plan Plaintiffs have 

standing also supports the Archdiocese’s claim of redressable 

injury adequate to support its standing to sue.12

IV. RFRA Claim 

The claim that lies at the heart of this case is Plaintiffs’ 

RFRA challenge to the accommodation. 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 interest; and (2) is the least 

restrictive means of furthering 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 its 

sponsorship 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, Congress 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. 2008) (quoting 42 U.S.C. 

§ 2000bb(b)(1)). Congress directly 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 challenge 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-profit corporations because those 

plaintiffs were required either to provide health insurance 

coverage that included contraceptive 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-compliance by opting out of the 

contraceptive coverage requirement 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 as 
23 

would providing contraceptive coverage 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 holding 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 cases 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 emphasized the same point, that 

extending the accommodation to for-profit corporations 

“equally furthers the Government’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 their religious mission and would deny 

them the recruitment and retention 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 them 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 and others like it involving the 

contraception exemption paradoxical and virtually 

unprecedented is that the beneficiaries of the religious 

exemption are claiming that the exemption process itself 

imposes a substantial burden on their religious faiths.” Notre 

Dame, 743 F.3d at 557. As the Notre Dame court noted, it is 

analogous to a religious conscientious objector to a military 

draft claiming that the act of identifying himself as such on 

his Selective Service card constitutes 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) (distinguishing 
25 

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 operate if it were required to 

satisfy every citizen’s religious needs and desires.” Id. at 

453. 

We now turn to the substance of Plaintiffs’ RFRA 

claims. We first consider their contention that the 

accommodation imposes a substantial burden on their 

religious exercise that is cognizable under RFRA. We then 

analyze the government’s claim that any such burden is 

justified under RFRA because it could not be made any 

lighter and still serve the government’s compelling interests. 

A. The Accommodation Does Not 

Substantially Burden Plaintiffs’ 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 standard Congress 

enacted in RFRA as well as the constitutional baseline set by 

the Free Exercise Clause. The limitations that prove 

determinative here are that only “substantial” burdens on 

religious exercise require accommodation, and that an 

adherent may not use a religious objection to dictate the 

conduct of the government or of third parties. This Court 

explained in Kaemmerling that “[a] substantial burden exists 

when government action puts ‘substantial 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, abortion, or related counseling in 

a manner that violates the teachings 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 form for opting out and washing 

their hands of any involvement 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 litigation. Plaintiffs are correct that they—and 

not this Court—determine what religious observance their 

faith commands. There is no dispute about the sincerity of 

Plaintiffs’ belief that providing, 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 Plaintiffs’ 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 the 
27 

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 Kaemmerling’s beliefs are sincere and 

of a religious nature—but not the legal conclusion, cast as a 

factual allegation, that his religious exercise is substantially 

burdened”). “[A]lthough we acknowledge 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] process 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 asserted 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 objection 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 the 
28 

burden to which he objects.” Id. at 679. The court 

acknowledged that “the government’s activities with 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 beliefs that it pressures him to 

perform.” Id. 

In Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 

2001), this Court similarly rejected the plaintiffs’ formulation 

of the substantial-burden test as forbidding the government’s 

general application of religiously neutral law where it would 

impose any burden on religiously motivated conduct because 

doing so would “read out of RFRA the condition that only 

substantial burdens on the exercise of religion trigger the 

compelling interest requirement.” As RFRA sponsor Senator 

Orrin Hatch explained, the Act “does not require the 

Government to justify every action that has some effect on 

religious exercise. Only action that places a substantial 

burden on the exercise of religion 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 between substantial burdens on 

religious exercise, which are actionable, and burdens that are 

not. Burdens that are only slight, negligible, or de minimis

are not substantial. And burdens that fall only on third parties 

not before the court do not substantially 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 particular citizens.”); Lyng, 485 U.S. at 

447 (finding it undisputed that the government’s action “will 
29 

have severe adverse effects on the practice of [plaintiffs’] 

religion,” but disagreeing that such burden was “heavy 

enough” to subject that action 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 social security number of his 

daughter, Little Bird of the Snow, would serve to “‘rob the 

spirit’ of his daughter and prevent 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. There, 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 that incidental effects of 

government programs, which may 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 obligations the regulations 

impose—including their view of the existence and 

substantiality of any burden on their own religious exercise—

because to do otherwise would be tantamount 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 understanding 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 grounds 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 without 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 equipment 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 was 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 organization: The organization 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 its employees with contraceptive 

services is taken by a third party. 

Specifically, the regulations require that, to be eligible 

for the accommodation, an organization must certify that it 

has a sincere religious objection to arranging contraceptive 

coverage.15 See 45 C.F.R. § 147.131(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 accommodation to such companies. 

See 79 Fed. Reg. at 51,094.
32 

51,094-95 (Aug. 27, 2014). An alternative 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 its 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 organizations 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 separation is effectuated and 

arranges for other entities to step in and fill the gap as 

required to serve the legislatively mandated regime. 

Specifically, the regulations: 

 require that the group health plan insurer expressly 

exclude contraceptive coverage 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), however, 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 contraceptive 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 model 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 plan 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 coverage to employees, pay nothing 

toward such coverage, and have 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 Plaintiffs’ beneficiaries products and 

services that Plaintiffs believe are sinful. What 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., statement) (hereinafter “Emergency 

Injunctions Order”)). But RFRA does not grant Plaintiffs a 

religious veto against plan providers’ 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 plaintiffs in those cases, they 

object to what the regulations require of them. But the only 
35 

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 requires 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 disapproval 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 completion 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, they 

contend that: (1) “signing and submitting the selfcertification” or alternative notice “triggers” or 

“impermissibly facilitates delivery 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 regulations provide an opt-out 

mechanism that shifts to third parties the obligation 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 religious exercise under RFRA. 

a. Plaintiffs’ Opt-Out Does Not Trigger 

Contraceptive Coverage 

Plaintiffs claim that the requirement that they submit the 

self-certification to their plan issuers or TPAs, or submit the 

alternative notice to the government, makes them “authorize” 

or “trigger” the provision of the contraceptive coverage they 

find religiously abhorrent. They characterize the selfcertification and alternative notice as “permission slips” for 

their plan issuers and TPAs to provide contraceptive coverage 

to Plaintiffs’ employees. Pointing to the regulatory 
37 

requirements of an insurer or TPA after an eligible 

organization has availed itself of the accommodation, 

Plaintiffs argue that it is their own act of self-certifying or 

completing the alternative notice 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 Sixth and Seventh Circuits have 

also concluded, the insurers’ or TPAs’ obligation to provide 

contraceptive coverage originates from the ACA and its 

attendant regulations, not from Plaintiffs’ 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 issuer offering group 

or individual health insurance coverage, must provide 

coverage” for a variety of types of preventive care, including 

the coverage to which Plaintiffs 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 insurers to provide contraceptive 

coverage to [an eligible organization’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 Plaintiffs’ characterization, what the 

self-certification or alternative notice actually triggers is a 

series of steps designed to ensure 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 obligation to provide or pay for 
38 

contraceptive coverage, and instead 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 mechanism imposes on Plaintiffs only 

the de minimis administrative burden associated with 

completing the self-certification form or the alternative 

notice. See id. As long as Plaintiffs complete either notice, 

the regulations excuse them from 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 contend that the regulations 

substantially burden their religious exercise by requiring 
39 

contraceptive coverage to be provided for their employees 

and students by the same entities with which Plaintiffs have 

contracted to provide non-contraceptive health coverage. 

Once Plaintiffs opt out of the contraceptive coverage 

requirement, however, contraceptive 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. Plaintiffs’ contracts do not in any 

way authorize or condone the insurers’ 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 religious-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 them generally to require that 

the extra-contractual rights and legal obligations of 

individuals and entities with whom they contract conform to 

Plaintiffs’ religious beliefs, 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. Plaintiffs 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” remains 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 from 
40 

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 their plans remain a conduit for 

the provision of contraceptives because they are required to 

pay premiums or fees to entities 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 third 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 premiums 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 that 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 provides coverage for contraceptives, 

and they must send, or tell their beneficiaries where to send, 

the enrollment paperwork. Under 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. Plaintiffs 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 obligations imposed on third parties 

by outside sources. In short, none of the actions that 

Plaintiffs identify is actually required of them under the 

regulations, and none of those actions makes their plans 

conduits for contraceptive coverage.19 

d. Regulations Specific to the Self-Insured Plaintiffs 

Do Not Create a Substantial Burden 

Finally, the self-insured Plaintiffs object to the regulatory 

provisions that apply particularly to self-insured 

organizations. They object that their self-certification forms 

are what designate their TPAs as the plan administrators for 

contraceptive benefits under section 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 denied 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 which 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 authorizing 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 opt 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 established 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 administrator under section 3(16) 

of ERISA for those contraceptive 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 plan administrator or amend 

Plaintiffs’ plan instruments. Plaintiffs do not contend, 

however, that the government lacks authority to author a plan 

instrument or designate a particular writing as a plan 
43 

instrument, and it is this authority 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 instrument, 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 complies with ERISA. The 

government’s approach does not, contrary to Plaintiffs’ 

contention, amend or alter Plaintiffs’ own plan instruments; 

the government directs only the contraceptive coverage. 

The self-insured Plaintiffs also contend that they are 

required to facilitate access to contraceptive coverage 

because, if their existing TPAs decline to assume the 

responsibility to provide contraceptive coverage, the 

regulations obligate Plaintiffs to take affirmative steps to 

identify and contract with new TPAs. The district court 

granted summary judgment for 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 intention 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 remain
44 

government has clarified that, if an eligible organization’s 

existing TPA were to decline to assume responsibility for 

providing contraceptive coverage, 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 vacate 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 governmental burden on their religious 

exercise. The regulatory requirement 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 because 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 employees’ 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 requires 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 sensibilities. The regulations go to great 

lengths to separate Plaintiffs from the provision of 

contraceptive coverage. Plaintiffs have failed to demonstrate 

a substantial burden on their religious exercise that would 

 

in a contractual relationship with the eligible organization or its 

plan to provide administrative services 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 business corporation was not a 

“person” whose religious exercise 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 burden, 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), preliminarily enjoined the 

requirement that a party seeking to opt out use the selfcertification form as specified in the regulations. The plaintiff 

in that case already had notified the government of its 

eligibility and desire for exemption 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. at 
46 

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 conclusion, 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 compelling 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 intersection of overlapping governmental 

interests, each of which is compelling: public health, and 

 

22 See supra notes 15 & 16. 
47 

women’s well-being. The government 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 religious nonprofit that objects to 

providing it. 

The Supreme Court’s characterizations 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 consistent 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 Plaintiffs’ 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 interest 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 assumption that the HHS regulation 
48 

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 case” 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 government’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 viability 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 system 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 comprehensive 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 broad participation was required, 

and the Court held that the governmental interest “in assuring 

mandatory and continuous participation in and contribution to 

the social security system” sufficed to justify the 

acknowledged burden on the employer’s religious exercise. 

Id. at 258-59. 

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

denial of certain tax deductions 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 sound 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 widespread 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 physical 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 paramount interest in protecting 

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

Jacobson, a mandatory, mass vaccination program withstood 

a constitutional liberty challenge because it served the 

government’s interest in “the public health and the public 

safety.” 197 U.S. at 25-26. Those cases support the strength 

of health interests behind the contraceptive coverage 

regulations, which include interests 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 challenge as is leveled here by 

organizations that sincerely object to the types of care they 

cover. 

The Supreme Court has recognized the interest in 

eliminating discrimination against 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 order to promote women’s equal 

enjoyment of leadership skills, business contacts, and 

employment promotions). Those cases lend gravitas to the 

government’s interest in the contraceptive coverage 

requirement as an effort to eradicate 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” necessarily render compelling every 

subsidiary governmental action that advances them. Each of 

those interests, however, specifically undergirds the 

government’s decision here to provide seamless coverage of 

contraceptive services for women who want them and whose 

doctors prescribe them. 

As we explain below, compelling interests converge to 

support the government’s decision, reflected in the challenged 

regulations, to provide cost-free contraceptive coverage and 

to remove administrative and logistical obstacles to accessing 

contraceptive care. Those compelling governmental interests 

suffice to support requiring eligible 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 Major 
52 

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-american-medical-association. 

The United States in recent years spent far more on health 

care than did many other developed nations. At the same 

time, the quality of care Americans received was lower and 

our population was no healthier than people in countries that 

spent less. CBO Report at 1. 

Congress understood that improved health at affordable 

cost cannot be attained without 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 while 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 devices, and early treatment—can 

be less costly than treating advanced diseases and conditions. 

See id.; Chronic Diseases and Health Promotion, Centers for 

Disease Control and Prevention, 

http://www.cdc.gov/chronicdisease/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/chronicdisease/pdf/2009-power-ofprevention.pdf. 

Congress and the Executive Branch determined that 

serving the government’s compelling public health interests 

depends on overcoming the human behavioral tendencies of 

denial and delay documented in the legislative and regulatory 

record. 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 are more likely 

to use preventive services if they do not have to satisfy costsharing requirements,” 78 Fed. Reg. at 39,872, the ACA 

requires group or individual health plans to include coverage 

for a variety of preventive health 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 those services.” IOM Report at 

19. 

The government further determined that the imperative 

of providing broad access to preventive 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 than 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) (statement of Sen. Mikulski). 

In light of this reality, Senator Mikulski proposed the 

Women’s Health Amendment, which expanded the list of 

preventive health services the ACA required that insurers 

cover without cost sharing to include preventive health care 
54 

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 develop 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 concluded that, given women’s 

reproductive health needs, preventive health services for 

women should include contraceptive coverage. IOM Report 

at 109-10; see also 77 Fed. Reg. at 8,725. The government 

recognized that the cost of reproductive 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 methods, contraceptive patches, and 

intrauterine devices (“IUD”)—have been used at one time or 

another by 88 percent of women who have had sexual 

intercourse. Daniels at 1. 

The Institute of Medicine observed that high costs 

regularly cause women to forego contraception completely or 
55 

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 pregnancy.” IOM Report at 109; 

see also 78 Fed. Reg. at 39,873. Prescription 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 effective forms of reversible contraception, is 

nearly a month’s full-time pay for workers earning the 

minimum wage, and its cost makes 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 sharing because appropriate and 

consistent use of contraceptives furthers women and 

children’s health in a variety of ways. Enabling couples to 

control the timing and spacing of pregnancies improves 

women’s health outcomes. Short intervals between 

pregnancies increase maternal mortality and pregnancyrelated complications. IOM Report at 103-04. Even a normal 

and healthy pregnancy is a demanding physical process for a 

woman. Pregnancy increases risks of health complications, 

such as anemia, gestational 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 respond to women’s unique health 

needs); Pregnancy Complications, Centers for Disease 

Control and Prevention, 

http://www.cdc.gov/reproductivehealth/maternalinfanthealth/

pregcomplications.htm (last visited Nov. 5, 2014); Pregnancy 
56 

Related Deaths, Centers for Disease Control and Prevention, 

http://www.cdc.gov/reproductivehealth/MaternalInfantHealth/

Pregnancy-relatedMortality.htm (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 pregnancies elevate health risks for 

women and children and impose other costs on society. 

Women whose pregnancies 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 unless and until they decide to 

undertake them. 

The government further relied 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). Women 
57 

with those conditions have especially 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 contraception 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 birth 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 pose 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 the health risks for a child. 

Permitting women to control the timing and spacing of their 

pregnancies improves the health and welfare of women, 

children, and infants. 
58 

b. Assuring Women Equal Benefit 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 are 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, require 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 preventive health care services 

for women without cost sharing, it did so precisely to end “the 
59 

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 range 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 pregnancy 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 women to participate equally in 

the economic and social life of the Nation has been 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 ideology about women’s roles has 

in turn justified discrimination against women when they are 

mothers or mothers-to-be.’” (quoting The Parental and Medical 
60 

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 requirement specifically advances 

those interests. It was adopted to promote women’s equal 

access to health care appropriate to their needs, which in turn 

serves women’s health, the health 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 benefits 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. The 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 employees 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 respect 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 plaintiff’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 Supreme 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 least 
62 

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 coverage must be provided to all 

women who want it, on the same terms as other preventive 

care. Providing contraceptive services seamlessly together 

with other health services, without 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 obtaining 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 could offer tax deductions or 
63 

credits for the purchase of contraceptive 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 alternatives would 

substantially impair the government’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, informational, and administrative 

burdens. See 78 Fed. Reg. at 39,888. Even assuming that any 

alternative program had or would develop the capacity to deal 

with an enormous additional constituency, it would not serve 

the government’s compelling interest with anywhere near the 

efficacy of the challenged accommodation and would instead 

deter women from accessing contraception. See id. 

Plaintiffs also dispute the government’s compelling 

interest in applying the contraceptive coverage 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 data 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 primarily 
64 

employ employees who share the religious tenets of the 

organization are more likely to employ individuals who have 

no religious objection to the use of contraceptive services and 

therefore are more likely to use contraceptives.” 77 Fed. Reg. 

at 8,728. The evidence justifying the contraceptive coverage 

requirement equally supports its application to Plaintiffs. 

Accommodating religious entities 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 interests. 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 account of the burdens a requested 

accommodation may impose on nonbeneficiaries.’”). The opt 

out offered to religious adherents 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 all FDA-approved contraceptives 

without cost sharing.” Id. at 2760. Allowing eligible 

organizations to exempt themselves completely from the 

contraceptive coverage requirement, 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 in 
65 

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 (employer 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 contraception, 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 grandfathered 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 at 
66 

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 provide 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 eligible to purchase 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 organizations 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 appropriately 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 grandfathered plans from the requirement 

to cover any preventive services 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 valid 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 comply with RFRA; they readily 

satisfy the less stringent free exercise standard. 

“Neutrality and general applicability are interrelated,” 

but distinct. Id. A law is not neutral if it facially “refers to a 

religious practice without a secular meaning discernable from 

the language or context,” or if “the object of a law is to 

infringe upon or restrict practices because of their religious 
68 

motivation.” Id. at 533. A law is not generally applicable if, 

“in a selective manner,” it “impose[s] burdens only on 

conduct motivated by religious belief.” Id. at 543. 

Plaintiffs do not contend that the challenged 

contraceptive coverage requirement 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 plans render the contraceptive 

coverage requirement non-neutral 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, whether facially or intentionally, 

and broadly applying across religious 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 amount 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 church, 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 killing 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 euthanasia—killings that were “no 

more necessary or humane” than the forbidden Santeria 
69 

sacrifices. Id. at 536-37. That exemption for so many nonreligious types of animal 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 single out any religion and are 

wholly consistent with the law’s neutral purpose. Indeed, the 

existence of an exemption for religious employers 

substantially undermines contentions that government is 

hostile toward such employers’ religion.26 

The contraceptive coverage requirement also does not 

target religious organizations, but applies across 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 employers was its objective. See

RCAW, 2013 WL 6729515, at *30. For example, the 

Supreme Court has held that, despite 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) (describing 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 demonstrate 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, which 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 regulations 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 expressive association claim, like 

their RFRA claim, on a misreading of what the regulations 

require of them, suggesting that the regulations require them 
71 

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 membership decisions or where it 

indirectly affects the group’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 violate the objecting schools’ 

rights to associate. Id. at 69-70. The law schools’ nondiscrimination policies prohibited 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 were strongly opposed 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 associate, regardless of how repugnant 

the law school considers the recruiter’s message.” Id. at 70. 

The Court acknowledged that the plaintiffs there had to 

“‘associate’ with military recruiters in the sense that they 

interact with them,” but held that, because the recruiters were 

as an institutional matter outsiders who would “come onto 

campus for the limited purpose of trying to hire students,” 

they did not impinge on the schools’ expressive association. 

Id. at 69. 

The same is true here: the Priests for Life Plaintiffs 

object to interacting with coverage 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 its 
72 

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 eligible organization from expressing 

its opposition to the use of contraceptives.” 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 contend that the regulations 

impermissibly compel their speech in three ways. 

First, Plaintiffs claim that the regulations require them to 

authorize and facilitate health care coverage for counseling 

that encourages and promotes contraception, in violation of 

their right against compelled speech. Plaintiffs appear to 

contend that the regulations commandeer them to echo or 

facilitate the words of medical professionals who might 

communicate to insured women the availability and potential 

appropriateness of various contraceptive methods. But the 

regulations do not require Plaintiffs to communicate any procontraceptive-coverage message, nor to authorize or facilitate 
73 

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 opposition 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 that completing the selfcertification form requires them to express a particular view, 

namely, that they oppose providing their plan participants 

with coverage for contraceptive services, and that it deprives 

them of the freedom to speak on this issue on their own 
74 

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 services. 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 forcing a Jehovah’s Witness to 

display the motto ‘Live Free or Die,’ and it trivializes the 

freedom protected in Barnette and Wooley to suggest that it 

is.” Id. Requiring Plaintiffs to give notice that they wish to 

opt out of the contraceptive coverage requirement no more 

compels their speech in violation of the First Amendment 

than does demanding that a conscientious objector selfidentify as such. 

The regulations do nothing to deprive 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 topic—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, unlike 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 participants receive notice of the 

availability of payments for contraceptive services. Thus, 

according to Plaintiffs, the regulations coerce them to provide 

access to their plan participants and either create the 

appearance that Plaintiffs agree 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 must send a message explicitly 

distancing the employer from the offered contraceptive 

coverage, and do so in a completely separate mailing from 

any communication regarding the 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 compelling Plaintiffs to speak.28 

D. Establishment of Religion 

Plaintiffs advance two Establishment Clause claims. 

They first contend that the regulations impermissibly 

discriminate between types of religious 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 accommodation to opt out). 26 

U.S.C. § 6033(a)(3)(A)(i), (iii) (exempting “churches, their 

integrated auxiliaries, and conventions or associations of 

churches,” and “the exclusively religious activities 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 bribery, 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 brackets 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 annual return filing requirement). 

Second, they contend that the regulations entail excessive 

entanglement between the government and religious 

institutions. Specifically, to the extent that the regulations 

seek to be more nuanced and context specific, looking at 

specific attributes of each organization in an effort accurately 

to distinguish among them, Plaintiffs 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 Circuit, in rejecting a similar 

challenge to the contraceptive coverage regulations, noted 

that “religious employers, defined 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 the broader group of religious 

nonprofits, however, because religiously affiliated hospitals, 

universities and social service agencies employ a wide range 

of people of diverse faiths and 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] their 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 impermissible 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 surely 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 churches that received a majority 

of their donations from non-members because it facially 

discriminated against religious denominations that were 

newer or chose to rely on public solicitation rather than 

financial support from members. 456 U.S. at 246-48. The 

distinction invalidated in Colorado Christian authorized 

public scholarships for students at Methodist and Roman 

Catholic universities while refusing them to students 

attending non-denominational evangelical Protestant or 

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

Christian court contrasted that denominational 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 available to houses of worship, but 

not other types of religious organizations. 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 that effectively asked whether 

certain schools were “sufficiently religious” to be exempt 

from NLRB jurisdiction, administration 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 based 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 beliefs.’” 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 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); see also 78 Fed. Reg. at 8,461 (stating that the 

exemption is restricted primarily 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 Understanding v. United 

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

Plaintiffs contend that, in order to determine whether an 

entity is in fact a religious employer, the government asks 

intrusive questions about its religious beliefs in violation of 
80 

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 organizational 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-employer 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 challenge 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 regulations violate the Religion 

Clauses of the First Amendment 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 organizations—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’ separate 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 First 
81 

Amendment precludes application of a law simply because it 

may affect different types of religious 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 limited its holding to “an 

employment discrimination suit 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 about 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’s 

decision 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 rights. 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 contention that alleged discrimination 
82 

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 identical to their 

other First Amendment claims. Priests for Life, 7 F. Supp. 3d 

at 110. Because we have rejected those claims, we apply 

rational basis scrutiny to the regulations. See Locke v. Davey, 

540 U.S. 712, 720 n.3 (2004) (applying rational-basis scrutiny 

to an Equal Protection Clause claim alleging discrimination 

based on religion where the plaintiffs’ 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 Procedure 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 respect 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 maintained 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 religious employer as well as 

non-exempt organizations—the Departments concluded that 

“the availability of the exemption or an accommodation [will] 

be determined on an employer-by-employer basis.” 78 Fed. 

Reg. at 39,886. This means that “each employer [is] required 

to independently meet the definition of religious employer or 
83 

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 here, however, for two reasons. 

First, they argue that, contrary to the government’s 

contention, the regulation unambiguously 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 matter 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 regarding 
84 

“Coverage of Certain Preventive Services Under the 

Affordable Care Act,” the Departments 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 respect 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 specifies that an exempt religious 

school is categorically exempt 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 religious 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 final 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 it 
85 

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 interpreted the Supreme Court’s order 

in Wheaton College as obligating it to take action to further 

alleviate any burden on the religious 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 notice and comment because, inter alia, 

it would comply with a court order). As the agency 

explained, delay in implementation 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 procedure . . . 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 RCAW 
86 

decision, we vacate the district 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.