1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0202p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

M ICHIGAN C ATHOLIC C ONFERENCE and C ATHOLIC F AMILY S ERVICES D / B / A C ATHOLIC C HARITIES D IOCESE OF K ALAMAZOO (13-2723); T HE C ATHOLIC D IOCESE OF N ASHVILLE , C ATHOLIC C HARITIES OF T ENNESSEE , I NC ., C AMP M ARYMOUNT , I NC ., M ARY , Q UEEN OF A NGELS , I NC ., S T

. M ARY V ILLA , I NC ., D OMINICAN S ISTERS OF S T

. C ECILIA C ONGREGATION , and A QUINAS C OLLEGE (13-6640), Plaintiffs-Appellants ,
v

. S YLVIA M ATTHEWS B URWELL , Secretary of the United States Department of Health and Human Services, T HOMAS E. P EREZ , Secretary of the United States Department of Labor, J ACOB J. L EW , Secretary of the United States Department of Treasury, U NITED S TATES D EPARTMENT OF H EALTH AND H UMAN S ERVICES , U NITED S TATES D EPARTMENT OF L ABOR , and U NITED S TATES D EPARTMENT OF THE T REASURY , Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ ┘ Nos. 13-2723/6640

Appeal from the United Stat es District Court for the Western District of Mich igan at Grand Rapids. No. 1:13-cv-01247—Gordon J. Quist, District Judge. Appeal from the United Stat es District Court for the Middle District of Tennessee at Nashville. No: 3:13-cv-01303—Todd J. Campbell, Chief District Judge. Decided and Filed: August 21, 2015
Before: MOORE and ROGERS, Circu it Judges; NIXON, District Judge. *

* The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by designation. 

### >Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 2

_________________ COUNSEL

ON BRIEF: Matthew A. Kairis, JONES DAY, Columbus , Ohio, for Appellants. Adam C. Jed, Mark B. Stern, Alisa B. Klein, UNITED STAT ES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

_________________

OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. The Patient Protection and Affordable Care Act (“ACA”) requires health insurance plans to provide coverage for contraception—a requirement commonly known as the contraceptive mandate. Religious employers, employers with fewer than fifty employees, and grandfathere d plans are exempt from this mandate. Nonprofit entities and closely held corporations who object to the mandate on religious grounds may
seek an accommodation. That accommodation effectively insula tes these entities from the contraception-provision process: they no longer ha ve to pay for contraceptive coverage, and all individuals under their plans are notified of the entity’s religi ous objections. The insurance issuers and third party administrators for these entities, however, must continue to provide coverage for contraceptives to indi viduals insured unde r these plans.
Plaintiffs in this case include both religious employers eligible for the exemption and non-profit entities eligible for the accommodation. In the first instance, Plaintiffs challenged both the exemption and the accommodation. They sought a preliminary injunction, arguing that these provisions were being enforced in viol ation of their rights unde r the Religious Freedom Restoration Act (“RFRA”), the First Amendmen t, and the Administrative Procedure Act (“APA”). We rejected this challenge, holding that the district courts did not abuse their discretion in denying Plaintiffs pr eliminary injunctive relief. Mich. Catholic Conference & Catholic Family Servs. v. Burwell , 755 F.3d 372 (6th Cir. 2014). Pl aintiffs then filed a petition for a writ of certiorari; that peti tion made clear that Pl aintiffs were not cha llenging our decision with respect to the exemption. Nor did the petition make reference to any of the First Amendment or APA arguments that Plaintiffs had previously raised. Rath er, the petition focusedNos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 3

entirely on whether the accommodation violated Plaintiffs’ rights under RFRA. The Supreme Court granted this petition, vacated our judgment, and remanded the case back to us “for further consideration in light of Burwell v. Hobby Lobby Stores, Inc. ” Mich. Catholic Conference v.
Burwell , 135 S. Ct. 1914 (2015).

In Hobby Lobby , 134 S. Ct. 2751 (2014), the Supreme Court determined that closely held, for-profit companies with si ncerely held religious beliefs c ould not be compelled to provide contraceptive coverage to their employees. In reaching this decision, the Court discussed the accommodation favorably, noting for instance that the accommodation served the government’s interests in providing access to contraception while at the same time not impinging on the religious beliefs of objecting non-profits. The Court did not suggest that the accommodation
violated RFRA.
After carefully reviewing the Hobby Lobby opinion, we adhere to our original disposition. This opinion now addresses the impact of Hobby Lobby and the relevant circuit court decisions that have been published since Hobby Lobby . We join our sister circuits in holding (1) that the accommodation provision does not violate RFRA a nd (2) that nothing in Hobby Lobby changes this conclusion. Accordingly, we AFFIRM the district courts’ judgments denying Plaintiffs preliminary in junctive relief on all of their claims. We also RE-ISSUE and RE-AFFIRM our prior opinion in orde r to address all remaining issu es, including Plaintiffs’ First Amendment and APA challenges to both the exemption and the accommodation.

I. BACKGROUND
A. Factual Background 1

There are nine Plaintiffs in this case, listed below:

• Michigan Catholic Conference (“MCC”)

• Catholic Charities Diocese of Kalamazoo (“Catholic Charities of Kalamazoo”)

• Catholic Diocese of Nashville (“CDN”)

1 We have already set forth background of this appeal in detail, see Mich. Catholic Conference , 755 F.3d at 378–82, and take only a moment to summarize the most salient facts.Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 4

• Catholic Charities of Tennessee, Inc. (“Catholic Charities of Tennessee”)

• Camp Marymount, Inc. (“Camp Marymount”)

• Mary, Queen of Angels, Inc. (“MQA”)

• St. Mary Villa, Inc. (“St. Mary Villa”)

• Aquinas College

• Dominican Sisters of St. Cecilia C ongregation (“St. Cecilia Congregation”)
Some of these Plaintiffs are eligible for the exemption, others for the accommodation. These provisions work slightly differently from one another. See Little Sisters of the Poor Home for the Aged v. Burwell , __ F.3d ___, 2015 WL 4232096, at *5–*8 (10th Cir. July 14, 2015).
1. The Exemption
Under the exemption, religious empl oyers (as defined by federal law 2 ) do not need to provide contraceptive coverage to individuals covered under th eir insurance plans. These employers did not need to provide or pay for (or have their insura nce issuer provid e or pay for) contraceptive coverage prior to the enactment of the ACA, and they do not need to do so now. There is no need for them to object to the co ntraceptive mandate because, for these entities, nothing has changed. Three Plaintiffs in this case (MCC, CDN, and St. Cecilia Congregation) are eligible for the exemption. See Mich. Catholic Conference , 755 F.3d at 385.

2 The regulatory framework behind the exemption is so mewhat complex. First, 45 C.F.R. § 147.131(a) provides that “the Health Resources and Services Administration may establish an exemption from such guidelines with respect to a group health plan established or maintain ed 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 cove r contraceptive services under such guidelines.” That regulation, in turn, implicates 76 Fed. Reg. 46,621 (Aug. 3, 2011), “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act.” This provision proposed to define “religious employ er” as follows: “a religious employer is one that: (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious te nets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)( A)(i) or (iii) of the Code.” Id. at 46,623. After reviewing hundreds of thousands of comments to this proposed definition, the federal government adopted this definition into law in February 2012. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8727 (Feb. 15, 2012).Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 5

2. The Accommodation
The accommodation applies to objecting non-p rofit entities and—in the wake of Hobby Lobby —to closely held, for-profit corporations as we ll. None of the remaining Plaintiffs are closely held corporations; they fall within th e accommodation because they are non-profits that object to the contraceptive mandate. Of these si x Plaintiffs, five offer a “fully-insured group health plan[]”: Catholic Charities of Tenness ee, Camp Marymount, MQA, St. Mary Villa, and Aquinas College. Id. at 379. Only one—Catholic Charities of Kalamazoo—offers a self-insured plan. Id. at 386 n.10. Fully-insured group health plans operate somewhat differently from selfinsured health plans—with different imp lications for the contraceptive mandate. See, e.g. , Little Sisters of the Poor , 2015 WL 4232096, at *8–*10; E. Tex. Baptist Univ. v. Burwell , __ F.3d ____, 2015 WL 3852811, at *2 (5th Cir. June 22, 2015).
a. Fully-Insured Plans vs. Self-Insured Plans
Under a fully-insured group plan (also known as a fully-insured plan or an insured plan), “insurance [for the non-profit entity] is purchased from a regulated insurance company.” Mich. Catholic Conference , 755 F.3d at 379 n.4 (quoting 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013)). Typically, “the em ployer pays a per-employee premium to an insurance company, and the insurance co mpany assumes the risk of providing health coverage for insured events.” Health Plan Differences: Fully-Insured vs. Self-Insured , E MP

. B ENEFIT R ESEARCH I NST ., Fast Facts from EBRI (Feb. 11, 2009), http://www.ebri.org/pdf/FFE114.11Feb09.Final .pdf (“Fast Facts from EBRI”).
Under a self-insured health plan, “benefits are paid from contributions supplied by the employer without the assistan ce of outside insurance.” Mich. Catholic Conference , 755 F.3d at 378 n.2 (quoting 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1). Thus, employers “bear[] the financial risk of paying claims.” Id. (quoting Government Br. at 7 n.1); see also Fast Facts from EBRI (“In a self-insured plan, in stead of purchasing health insurance from an insurance company and paying the insurer a pe r-employee premium, the employer acts as its own insurer.”). “Self-insured plans often contr act with an insurance company or other third party to administer the plan, but the employer b ears the risk associated with offering health
benefits.” Fast Facts from EBRI.Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 6

b. Complying with the Contraceptive Mandate
For entities that offer a fully-insured plan, the contraceptive mandate works by requiring the insurance company to provide contraceptive coverage without cost-sharing to insured
individuals. See 42 U.S.C. §§ 300gg-13. The process is straightforward for non-objecting entities: the insurance company provides contra ceptive coverage to indi viduals under the plan, and the non-objecting entity pays for that covera ge through the premium that it is charged.
If an eligible non-profit enti ty objects to such coverage, it must make its objections known, either through a self-certific ation procedure or by notifying the Secretary of Health and
Human Services. See 45 C.F.R. § 147.131(c)(1). We describe these procedures in greater detail below. After the eligib le non-profit entity obje cts, “the [insurance] issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or benefi ciaries.” 45 C.F.R. § 147.131(c)(2)(ii). Instead, “[t]he [insurance] issu er must segregate premium revenue collected from the eligible organization from the monies used to provide paym ents for contraceptive
services.” Id. In addition, the insurance company must send notice to plan participants, separately from regular plan ma terials, explaining that the em ployer does not administer or fund contraceptives but that the insurance company pr ovides separate payments for these services. 45 C.F.R. § 147.131(d).
Under a fully-insured plan, the oblig ations of the insurance company remain the same , regardless of whether the non-profit entity that it works with objec ts to contraceptive coverage. If a non-profit entity does not object, the insura nce company must, as a matter of federal law, provide contraceptive coverage to insured individua ls without cost-sharing. If a non-profit entity does object, the insurance company must, as a matter of federal law, provide contraceptive coverage to insured individuals without cost-sharing. The sole point of difference between an entity that decides to exercise the accommodation and an entity that does not is who must pay for the coverage: the insurance company (if the entity objects) or the entity (if the entity does not object).Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 7

The contraceptive mandate works differently vis-à-vis self-insured plans. Under these plans, employers bear the risk associated with offering health benefits to their employees. “In [its] simplest form, the employer uses the money that it would have paid the insurance company and instead directly pays health care claims to providers.” Fast Facts from EBRI. Functionally, however, most companies work with a third-pa rty administrator (“TPA”), which “perform[s] functions such as developing netw orks of providers, negotiating payment rates, and processing
claims.” Mich. Catholic Conference , 755 F.3d at 378 n.2 (quoting Gove rnment Br. at 7 n.1). Here, Catholic Charities of Kalamazoo works with TPAs Blue Cross Blue Shield of Michigan and Express Scripts.
For non-objecting self-insured entities, compliance with the mandate is fairly straightforward. An insured i ndividual seeks coverage, the TP A processes the claim, and the entity pays for that claim. Objecting self-ins ured entities, on the other hand, must make their concerns known, through the same procedures pr ovided for fully-insured plans. After the objecting entity does so, responsibility shifts to the TPA: the TPA must now provide contraceptive coverage to insured individuals. The federal government will reimburse TPAs for their expenses for prov iding such coverage. See 45 C.F.R. § 156.50(d). As with fully-insured plans, the TPAs must give notice to plan pa rticipants explaining that the employer does not administer or fund contraceptives but that the se rvices are nonetheless provided for and covered by the TPA. 29 C.F.R. § 2590.715-2713A(d). The ta ble below makes clear where each Plaintiff
in this case stands.

Eligible for Accommodation Eligible for Exemption Fully-Insured Catholic Charities of Tennessee

Camp Marymount

MQA
St. Mary Villa
Aquinas College MCC

CDN
St. Cecilia Congregation

Self-Insured Catholic Charities of KalamazooNos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 8

c. Exercising the Accommodation
Objecting entities may exercise the accomm odation in one of two ways. The first procedure requires the entity to fill out a two-page form, EBSA Form 700. This form requires organizations to list three pieces of information: the “[n]ame of the objecting organization,” the “[n]ame and title of the individual who is authorized to make, and makes, this certification on behalf of the organization,” and the “[m]ailing and email addresses and phone number for the individual listed above.” EBSA Form 700, U.S. D EP ’ T OF L ABOR , available at http://www.dol.gov/ebsa/healthreform/regula tions/coverageofpreventiveservices.html. EBSA Form 700 also requires that the organization self-certify that it is eligible for and seeks to
exercise the accommodation. See Mich. Catholic Conference , 755 F.3d at 381 (describing criteria for eligibility). 3 “The organization or its plan using this form must provide a copy of this certification to the plan’s health insurance issuer (for insured health pl ans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement .” EBSA Form 700. This completes the selfcertification process.
Objecting entities may also opt for a second approach: providing not ice directly to the Secretary of Health and Human Services. This alternative emerged in the aftermath of the Supreme Court’s order on appli cation for an injunction in Wheaton College v. Burwell , 134 S. Ct. 2806, 2807 (2014), where the Court held in an interim order th at objecting entities “need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators” in order to ob tain the accommodation. As the Court noted, the contraceptive mandate would not be enforced against an objecting entity so long as that entity “informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itse lf out as religious and has religious objec tions to providing coverage for contraceptive services.” Id. Federal regulations have si nce specified that, if an entity opts to take this appr oach in lieu of self-certific ation, the notice must include:

3 Since we published our initial opinion, the only change to these eligibility requirements has been to expand them to include “closely held for-profit entit[ies],” in light of Hobby Lobby. See 29 C.F.R. § 2590.715- 2713A(a)(2)(ii); 29 C.F.R. § 2590.715-2713A(a)(4).Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 9

a. “the name of the eligible organi zation and the basis on which it qualifies for an accommodation,” b. “its objection based on sincerely held religious beliefs to coverage of some or all contraceptive services,” c. “the [insurance] plan name and type,” and d. “the name and contact information for any of the plan’s third party administrators and hea lth insurance issuers.” 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B) (sel f-insured plans) ; 29 C.F.R. § 2590.715- 2713A(c)(1)(ii) (fully-insured plan s). As evidenced below, thes e approaches are remarkably
similar to one another.

Self-Certification Notice

Must be . . . An eligible organization with a sincerely held religious objection to providing contraceptive coverage An eligible organization with a sincerely held religious objection to providing contraceptive coverage Must provide . . . Name of organization

Name and title of individual authorized to make certification

Contact information of individual authorized to make certification Name of organization Name and type of insurance plan

Contact information of TPA or health insurance issuer

Must be delivered to

. . . TPA or health insurance issuer Secretary of HHS

That is not a coincidence. Consider the ac tors at play: the non-profit, the insurance issuer (or, for self-insured pl ans, the TPA), and the government . When a non-profit chooses to exercise the accommodation via self-certification, it essentially says to its insurer, “I don’t support providing contraception coverage and I’m not going to pay for it. You and the government need to figure out what to do from here.” On the other hand, when a non-profit chooses to exercise the accommodation via notice, it essentially says to the government, “I don’t support providing contraception coverage and I’m not going to pay for it. You and my insurer need to figure out what to do from here.” These procedures are f unctionally equivalent.Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 10

B. Procedural History
This case is a consolidated appeal of two cases , one arising out of th e U.S. District Court for the Western District of Michigan and the ot her from the U.S. District Court for the Middle
District of Tennessee. Both dist rict courts denied Plaintiffs’ re quest for preliminary injunctive
relief. Mich. Catholic Conference , 755 F.3d at 381–82. We affirmed. Id. at 398. Plaintiffs then filed a petition for a writ of certio rari. Pet. for Writ of Cert., Mich. Catholic Conference v.
Burwell (No. 14-701), 2014 WL 7166539. The Supreme Co urt granted this petition, vacated our judgment, and remanded the case back to us for further consideration in light of Hobby Lobby

. We requested and received supplemen tal briefing from the parties.

II. ANALYSIS

A. Standard of Review
“We review the district court’s denial of pr eliminary . . . injunctive relief for abuse of
discretion.” Jolivette v. Husted , 694 F.3d 760, 765 (6th Cir. 2012). “In considering whether preliminary injunctive relief should be granted, a court considers four fact ors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the p ublic interest would be served by issuance of the injunction.” Id. (internal quotation marks omitted). “A lthough no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Id. (internal quotation marks omitted).

B. Likelihood of Success on the Merits
We begin our analysis by reviewing Hobby Lobby , as the Supreme Court instructed us to do. We then examine what effect (if any) Hobby Lobby had on our initial op inion, and explain why we adhere to our original di sposition. Finally, we survey case law from our sister circuits to show that our conclusions are well supported by the reasoning of our judicial colleagues.Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 11

1. Hobby Lobby

The central issue in Hobby Lobby was whether the federal government may, under RFRA, “demand that three closely held corpor ations provide health-i nsurance coverage for methods of contraception that violate the sincer ely held religious beliefs of the companies’
owners.” Hobby Lobby , 134 S. Ct. at 2759. The Court answered this question in the negative. This conclusion was the product of a multi-step anal ysis. First, the Court determined that HHS’s contraceptive mandate “impose[d] a substantial burden” on the corporations’ exercise of their religious beliefs. 134 S. Ct. at 2775–79. Next , it assumed without deci ding that the mandate served a compelling government interest. Id. at 2780. Notwithstanding this assumption, however, it held that the regulations were none theless not “the least restrictive means of furthering th[is] compelling governmental interest.” Id.
Hobby Lobby tells us, in sum, that the government cannot compel closely held companies with sincere religious objections to provide contraception coverage to their employees. But that issue is fundamentally different from the issue at the heart of this case—whether an entity’s decision not to provide such coverage by exer cising an accommodation is, by itself, a violation of that entity’s religious beliefs. 4 We upheld this accommodation against a RFRA challenge in our initial opinion. Nothing in Hobby Lobby changes this analysis.
In fact, the Court made abundantly clear in its opinion that it was not going to rule on the legality of the accommodation. Id. at 2782 (“We do not decide t oday whether an approach of this type complies with RFRA for purposes of al l religious claims.”). There are, however, at
least some indications from the Court that this arrange ment would pass muster. First, the Court discussed the accommodation favorably when comp ared alongside the more onerous practices that were being contested by petitioners in Hobby Lobby

. See id. (“At a minimum . . . [the accommodation] does not impinge on the plaintiffs ’ religious belief that providing insurance coverage for the contraceptives at issue here vi olates their religion, and it serves HHS’s stated interests equally well.”). Second, the Court, in responding to the charge that it was adopting an

4 Plaintiffs raised a number of other claims in their initial briefs before us, alleging, for instance, that the exemption and accommodation also ran af oul of the APA and the First Amendmen t. Plaintiffs, however, did not renew these challenges in their petition for a writ of certiorari, focusing entirely on the legality of the accommodation vis-à-vis RFRA. This opinion addresses this central issue. We re-iss ue and re-affirm our prior opinion on all other issues.Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 12

all-too-expansive reading of RF RA, described its holding in Hobby Lobby as being “very specific.” Id. at 2760.
To be fair, neither of these passages provides us with a definitive signal one way or
another. But that should not come as a surprise. As we and other courts have made clear, Hobby Lobby attempted to address a question different from the question that we must now take up. See, e.g. , Little Sisters of the Poor , 2015 WL 4232096, at *4 (“In other words, unlike in Hobby Lobby, the Plaintiffs do not challenge the gene ral obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with th at obligation.”). Under Hobby Lobby , closely held companies with sincere religious objections cannot be compelled to comp ly with the contraceptive mandate; indeed, like certain non-profit organizations, they are now eligible for an accommodation. But the availability of an accommodati on that allows an organizati on to refrain from paying for contraception does not negate the un derlying federal requirement that some entity must provide contraceptive coverage.
2. Plaintiffs’ RFRA Challeng e to the Accommodation
a. Question of Law
We made this point clear in our original opini on, stating at the out set that we were presented with a question of “how the regulatory measure actually works ”—i.e., what the law actually requires of the various actors (the non- profit entity, the insurer or the TPA, and the federal government). Mich. Catholic Conference , 755 F.3d at 385. That, we held, was a question of law, separate and apart from “the moral or theological cons equences of appellants requesting the exemption or accommodation.” Id. Whether a law imposes a substantial burden on a party is something that a court must decide , not something that a party may simply allege.
Every other circuit court to ha ve addressed this issue has co me to the same conclusion.
In Geneva College v. Secretary of the U .S. Department of Health and Human Services , 778 F.3d 422, 435 (3d Cir. 2015), for example, the Third Circ uit rejected Plainti ffs’ argument “that the accommodation requires them to be ‘complicit’ in si n.” The court noted that, regardless of “the reasonableness of the appellees’ religious beliefs, ” the court’s legal analysis would instead focusNos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 13

on “how the regulatory measure actua lly works”—echoing our language. Id. at 436. See also Priests for Life v. U.S. Dep’ t of Health & Human Servs. , 772 F.3d 229, 247 (D.C. Cir. 2014) (“Accepting the sincerity of Plaintiffs’ beliefs , however, does not relieve this Court of its responsibility to evaluate the s ubstantiality of any burden on Plain tiffs’ 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.”); E. Tex. Baptist Univ. , 2015 WL 3852811, at *5 (“[W]e are bound to follow [the Supreme Court’s decisions in] Roy and Northwest Indian Cemetery by deciding, as a question of law, whether the chal lenged law pressures the objector to modify his religious exercise.”); Univ. of Notre Dame v. Burwell , 786 F.3d 606, 614 (7th Cir. 2015) (“The delivery of a copy of the form to [the insuranc e issuer] reminds it of an obligation that the law , not the university, imposes on it—the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it.”).
On this point, we are particularly mindf ul of the Tenth Circuit’s analysis in Little Sisters of the Poor. In that case, the court noted that “wheth er a law substantially burdens religious exercise in one or more of these ways is a matter for courts—not plaintiffs—to decide.” 2015 WL 4232096, at *18. The court acknowledged that “substantiality doe s not permit us to scrutinize the theological merit of a plainti ff’s religious beliefs—instead, we analyze the intensity of the coercion app lied by the government to act co ntrary to those beliefs.” Id. at *19 (internal quotation marks omitted). “Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to
violate that belief.” Id. (quoting Hobby Lobby v. Sebelius , 723 F.3d 1114, 1137 (10th Cir. 2013)) (emphasis added). “In determining whether a la w or policy applies substantial pressure on a
claimant to violate his or he r beliefs, we consider how the law or policy being challenged actually operates and affect s religious exercise.” Id. The Tenth Circuit cited legislative history in support of this point, noting that “Congress added the word ‘sub stantially’ befo re passage to clarify that only some burden s would violate the act.” Id. at *18. The court also pointed out that, “[i]f plaintiffs could as sert and establish th at a burden is ‘substa ntial’ without any possibility of judicial scrutiny, the word ‘s ubstantial’ would become wholly devoid of independent meaning.” Id.Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 14

We are in accord with this reasoning. If the substantiality of a burde n were to turn on the “moral or theological consequen ces” of Plaintiffs’ religious belie fs, then the substantial-burden analysis would not be much of an analysis at a ll. Indeed, every party alleging a RFRA violation could state that their religious beliefs were bein g burdened and that the bur den was substantial. This was not Congress’s intent when it draf ted RFRA, nor have we found any case law to support this in terpretation.
b. The Exemption
After determining in our initial opinion that we were confronted with a question of law, we then noted that all Plaintiffs were either “eligible for the religious-employer exemption” or
“for the accommodation.” Mich. Catholic Conference , 755 F.3d at 385.
We held that those entities eligible for the religious-employer exemption—MCC, CDN, and St. Cecilia Congregation—had “not demons trated a strong likelihood of success on the merits” because they had failed to “identify any part icular action that they must take to obtain the exemption.” Id. Their mere status as religious employe rs meant that they did not need to comply with “the requirement to provide contraceptive coverage.” Id. (internal quotation marks omitted). Plaintiffs did not challenge this determinati on in their petition for a writ of certiorari.
See Pet. for Writ of Cert., 2014 WL 7166539, at *3 (“This case is also not about a challenge to an exemption.”). We see no need to revisit our analysis. For entities entitled to the exemption, the ACA does not change a thing. Religious employers did not need to provide, pay for, or facilitate access to contraceptives prior to th e ACA, and they do not need to do so now.

c. The Accommodation
We also, in our initial opinion, rejected Plaintiffs’ argument “that the . . . accommodation arrangement forces them to provide, pay for, and/ or facilitate access to contraceptive coverage.” Mich. Catholic Conference , 755 F.3d at 384. We adhere to this disposition today, and elaborate upon our reasoning by examining fully-insured and self-insured plans separately.Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 15

(1) Fully-Insured Plans
Five of the remaining six Plaintiffs—Catho lic Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, and Aqui nas College—offer fully-insured pl ans. Under these plans, the insurance company bears the risk of providing c overage and paying for individual claims. In exchange, the non-profit entity pays a premium fo r each employee. “[P]remiums vary . . . based on employer size, employee population characteristics, and health ca re use.” Fast Facts from EBRI. Smaller employers are more likely to be fully-insured because such plans insulate them from having to bear the cost of coverage shoul d their employees have to file a number of significant claims. Insurance companies can offer th ese types of plans so long as they work with multiple entities, thereby evening out the risk associated with any particular entity. Here, for instance, Plaintiffs MQA and St. Mary Villa “collaborate w ith one another and pool their resources in order to provide a h ealth benefits plan to their empl oyees.” R. 1 (Compl. at ¶ 79) (Page ID #20) (M.D. Tenn.). This health plan “i s a fully-insured plan, offered and administered by Blue Cross Blue Shield of Tennessee.” Id. at ¶ 80 (Page ID #20).
Under federal law, insurance compan ies that provide fully-insured plans must provide contraceptive coverage—this is an obligation independent and irre spective of the wishes of the non-profit entity that it works with. Mich. Catholic Conference , 755 F.3d at 387–88. This legal requirement applies whether or not the non-profit entity objects. The only difference between objecting and non-objecting entities is the cost of the premium that the entity must pay. If the entity does not object, the premium will include the cost of contraceptive coverage. If the entity does object, the premium will not include the cost of coverage. Importantly, for the insured, the
effect is the same: under either scen ario, the insured will receive coverage.
The process for making one’s objections known is straightforward, and not substantially burdensome. Consider, for instance, what a plainti ff would need to do in order to self-certify. The plaintiff would complete EBSA Form 700 and deliver this form to its insurer. That form requires the entity to state its name, the name of the individual who has made the authorization on behalf of the entity, and that individual’s contact informati on. This is not a substantialNos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 16

burden. It is, in fact, diffi cult to think of a more de minimis request: tell us who you are, and tell us how we can contact you. 5

Our reasoning tracks the Tenth Circuit in this respect. In Little Sisters of the Poor , that court noted that “[b]y deliveri ng the Form or notifying HHS, an organization with an insured plan does not enable coverage—to the contrary, it simply notifies its health insurance issuer that the organization will not be providing c overage.” 2015 WL 4232096, at *22. “The health
insurance issuer then has an independent and exclusive obliga tion to provide that coverage without cost sharing.” Id. “Because the ACA obligates health insurance issuers to provide contraceptive coverage, they must meet this obligation independently and irrespective of the
notification. The self-certifi cation does not impose any responsibility; it merely makes it the
issuer’s sole responsibility rather than one shared with the group health plan itself.” Id.
Plaintiffs’ arguments to the contrary are without merit. First, Plaintiffs contend that “[m]ost obviously, if Plaintiffs stopped offering hea lth plans, their insurers . . . would have no obligation whatsoever to provide Plaintiffs’ benefi ciaries with the objecti onable coverage.” Pls.’ Supp. Br. at 11. This argument is not persuasive. It is true that if Plaint iffs decided not to offer health coverage at all, then they would not have to offer coverage for contraceptives. But they would also be breaking the law. 6 RFRA does not give parties license to break the law. See Little Sisters of the Poor , 2015 WL 4232096, at *26.
Plaintiffs’ remaining contenti ons are equally unavail ing. They argue th at, “in the context of an insured plan, a religious organization’s in surance issuer has no enforceable obligation to provide the mandated coverage unless the orga nization submits the self-certification or notification form. Without the form, the regulati ons purport to require th e religious organization itself to pay for the objectionable coverage, an arrangement precluded by Hobby Lobby .” Pls.’ Supp

. Br. at 12–13 (citation omitted). This is a clever (but incorrect) sleight of hand.

5 Other circuits have compared the accommodation pr ovision to the conscientious-objector process. See Priests for Life , 772 F.3d at 246. This analogy is apt. 6 “The ACA requires that employers with 50 or more fu ll-time employees provide health insurance for their full-time employees or pay a penalty on their federal tax return.” Mich. Catholic Conference v. Sebelius , 989 F. Supp. 2d 577, 582 (W.D. Mich. 2013).Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 17

As other courts have made clear, “[w]ith insu red plans, the health insurance issuer bears legal responsibility to pr ovide contraceptive coverage whether or not the relig ious non-profit has opted out .” Little Sisters of the Poor , 2015 WL 4232096, at *24 (empha sis added). In other words, Plaintiffs are fundamentally wrong in th eir understanding of how the law actually works. Contrary to Plaintiffs’ char acterization, the religious orga nization’s insurance issuer does have an enforceable obligation to provide coverage regardless of whether the organization submits a selfcertification or notification form. To be sure, if an organization decides not to self-certify or decides not to notify HHS, then th e organization will have to pay for contraceptive coverage. But that is the entire purpose of having an opt-out process: so th at objecting entities can identify themselves and so that other actors can proceed accordingly.

(2) Self-Insured Plans
We turn finally to the one Plaintiff in this case offering a self-insured plan: Catholic
Charities of Kalamazoo. In our original opinion, we explained why its assertion that it was being compelled to provide, pay for, and/or facil itate contraceptive c overage was unavailing.
First, we held that Catholic Charities of Kalamazoo was “not required to ‘provide’ contraceptive coverage.” Mich. Catholic Conference , 755 F.3d at 386. After an organization makes its objections clear, “the eligible organiza tion’s health plan does not host the coverage.”
Id. “Instead, the [organization’s] third-party administrator ‘sha ll be responsible for . . . compliance with’ the preventive care and screeni ngs provided for in the HRSA guidelines.” Id. (quoting 29 C.F.R. §§ 2510.3-16(b), (b)(1)). “Thus, although the . . . third-party administrator will provide contraceptive coverage, [Catho lic Charities of Kalamazoo] will not.” Id. Nor, we noted, was Catholic Charities of Kalamazoo “required to ‘pay for’ contraceptive coverage.” Id. The TPA must instead pick up the tab. Regulati ons allow these companies to seek up to 110% reimbursement from the federal government. See Univ. of Notre Dame , 786 F.3d at 609. The accommodation, in other words, essentially shifts the cost of contraceptive coverage from the objecting entity to the federal government. Fina lly, we stated that Catholic Charities of Kalamazoo was “not required to ‘facilitate access to’ contraceptive coverage.” Mich. Catholic Conference , 755 F.3d at 387. “The obligation to cover co ntraception will not,” we noted, “be triggered by the act of self-certification—it already was triggered by the enactment of the ACA.”Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 18

Id. ; see also id. at 389 (“Self-certification al lows the eligible organiza tion to tell the insurance issuer and third-party ad ministrator ‘we’re excused from th e new federal oblig ation relating to contraception,’ and in turn, the government tells those insurance companies, ‘but you’re not.’” (quoting Univ. of Notre Dame v. Sebelius , 743 F.3d 547, 557 (7th Cir. 2014))).
This analysis remains valid. As other co urts have acknowledged, the contraceptive mandate works differently with re spect to a self-insured plan. See E. Tex. Baptist Univ. , 2015 WL 3852811, at *2; Little Sisters of the Poor , 2015 WL 4232096, at *24 (“With selfinsured plans, the TPA shoulders legal responsibility for coverage only afte r the religious nonprofit has opted out.”). Unlike the insurance i ssuer in a fully-insured plan, a TPA does not necessarily have an independent obligation to provide contraceptive coverage because, as a TPA,
it does not necessarily have an independent obligation to provide any coverage. For nonobjecting entities, all a TPA is supposed to do is assist the en tity by, for example, developing provider networks or negotiating discounted rates for services. The TPA is supposed to serve strictly as an administrator; th e risk and cost of providing coverage are borne by the entity. With respect to the contraceptive ma ndate, the TPA steps in only when the entity—here, Catholic
Charities of Kalamazoo—mak es its objections known. 7 According to Plaintiffs, this conditional language means that an action that a Plaintiff take s “triggers the TPA’s obligation to ‘provide or arrange payments for contraceptive services.’ ” Pls.’ Supp. Br. at 12 (quoting 26 C.F.R. § 54.9815-2713AT(b)(2)).

This assertion is incorrect. As the Tenth Circuit explained in Little Sisters of the Poor , “[b]y opting out, the self-ins ured plaintiffs shift their duty to provide coverage to a TPA, but they do not change their plan participants and benefi ciaries’ entitlement to contraceptive coverage under federal law.” 2015 WL 4232096, at *25. To be sure, “opting out is necessarily a but-for cause of someone else—the TPA—providing contraceptive coverage.” Id. But “that is the point of an accommodation—shifting a responsibility from an objector to a non-objector. That is how a legislative policy choice—here, to afford women contraceptive coverage—can be reconciled with religious objections to that policy.” Id. To put it another way, RFRA allows certain parties

7 We noted in our original opinion that “[n]othing in the record indicates that Catholic Charities of Kalamazoo’s third-party administrator has refused to provide contraceptive coverage upon receipt of a selfcertification form.” 755 F.3d at 386 n.11. Plaintiffs have not challenged this determination.Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 19

to request that the government create an exception to the rule for that particular party . It does not, however, allow accommodated partie s to challenge the rule itself. See Mich. Catholic Conference , 755 F.3d at 388 (“‘Never to our knowledge has th e Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family.’” (quoting Bowen v. Roy , 476 U.S. 693, 699 (1986))). Indeed, Plaintiffs have all but conceded this point. See Pet. for Writ of Cert., 2014 WL 7166539, at *3 (“Although Petitioners . . . oppose the Government’s goal of providing such coverage, they do not challenge the legality of that goal.”).
Despite our attempts to describe how the accommodation actually works, it is perhaps
inevitable that some Plaintiffs will still believe that they are morally complicit in sin, by being a part of a system that provides access to contraceptives. See, e.g. , id. (“Petitioners ask only that they not be forced to violate their religious beliefs by partic ipating in the regulatory scheme by
which the Government seeks to accomplish its ends.”). However, it is not our role to determine a party’s moral complicity; we do not question here Plaintiffs’ “desire not to participate in the provision of contraception.” Mich. Catholic Conference , 755 F.3d at 384. Our role is a more limited one: to determine whether, as a legal matter , the regulation repres ents a substantial burden to Plaintiffs’ rights under RFRA. That requires us to determine how the law works and what it asks of various actors. On this point, as we held before, “[t]he government’s imposition of an independent obligation on a third part y does not impose a subs tantial burden on the appellants’ exercise of religion.” Id. at 388.
3. Supporting Case Law

Our sister circuits have also arrived at this conclusion. Similar legal challenges have been brought in a number of other federal courts. As of this writing, si x other circuits have addressed whether the accommodation passes mu ster under RFRA. All six have upheld the accommodation, and all six have held that Hobby Lobby does not suggest anything to the contrary.

In Geneva College , the Third Circuit was confronted w ith a set of three plaintiffs—two
that offered self-insured health plans and one that offered a fully -insured health plan. In the course of upholding the accommodation against al l three plaintiffs, the court discussed andNos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 20

dismissed the plaintiffs’ reliance on Hobby Lobby . 778 F.3d at 436–37; see also id. at 441 (“[C]ase law clearly draws a distinction be tween what the law may impose on a person over religious objections, and what it permits or re quires a third party to do. Although that person may have a religious objection to what the government, or a nother third party, does with something that the law requires to be provided (whether it be a Social Security number, DNA, or a form that states that the person religiously objects to providing contraceptive coverage), RFRA does not necessarily permit that person to impose a restraint on another’s action based on the claim that the action is religiously abhorrent.”).
The D.C. Circuit likewise rejected plainti ffs’ RFRA challenge to the accommodation in Priests for Life . The court subsequently denied the plai ntiffs’ petition for rehearing en banc. The court’s decision to deny re hearing was accompanied by a si x-page concurral from Judge Pillard, which she wrote “only to underscore why our court’s [prior] approach accords with the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. ” Priests for Life , No. 13-5368, slip op. at 1 (D.C. Cir. May 20, 2015) (Pillard, J., concurral). Judge Pillard noted that the provisions at issue in Priests for Life were legally “distinct” from those that were challenged in Hobby Lobby

. Id. In Hobby Lobby , the petitioners were “accorded . . . a victory in a contest
over what religious meaning to ascribe to [their] payment for contraceptive coverage.” Id. at *5. “That holding,” however, “does not require us to credit Priests for Life’s legally inaccurate
assertions about the operation of the regulation they challenge.” Id. “[T]he whole point of the challenged regulation is to scrupu lously shield objecti ng religious nonprofits from any role in making contraception available to women”—in other words, to prevent organizations from having to provide, pay for, or facilitate access to contraceptives. Id. at *6; see also Catholic Health Care Sys. v. Burwell , ____ F.3d ____, ____, 2015 WL 4665049, at *10 (2d Cir. Aug. 7, 2015) (relying on Priests for Life , 722 F.3d at 253, and stating that “[v]iewed objectively, completing a form stating that one has a relig ious objection is not a substantial burden.”).
Next, the Fifth Circuit rejected an accommodation challenge in East Texas Baptist University . The court acknowledged that “the plaintiffs have identif ied several acts that offend their religious belief s.” 2015 WL 3852811, at *5. But “the acts they [the plaintiffs] are required to perform do not include providing or facilitating access to contraceptives.” Id. “Instead, theNos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 21

acts that violate their faith ar e those of third parties.” Id. RFRA, however, “confers no right to challenge the independent c onduct of third parties.” Id. The court went on to address and reject the plaintiffs’ remaining arguments in short order, noting that federal law, not the accommodation, triggers contraceptive coverage, id. ; that the regulations do not require plaintiffs to pay for contraceptive coverage (in fact, they do the exact opposite), id. at *6; and that the accommodation does “not make it easier for [insurers] to pay for contraceptives, and do[es] not imply endorsement of contraceptives,” id. at *7.
Finally, decisions from the Seventh Circui t and the Tenth Circuit are particularly informative, given the procedural similarity between our case and the Seventh Circuit’s Notre
Dame case and the thoroughness of the Tenth Circuit’s decision.
As in our case, the Seventh Circuit initially rejected appellants’ challenge to the accommodation, in a decision published before Hobby Lobby

. See Univ. of Notre Dame , 743 F.3d at 559. Notre Dame subsequently filed a petition for a writ of certiorari. The Supreme Court granted Notre Dame’s petition, vacated th e Seventh Circuit’s judgment, and remanded the
case “for further consid eration in light of Burwell v. Hobby Lobby Stores, Inc. ” 135 S. Ct. 1528 (2015). On remand, the Seventh Circuit once again denied Notre Dame’s request for injunctive
relief. 786 F.3d at 619. The cour t rejected Notre Dame’s allegatio n that it served as a “conduit between the suppliers of [contraceptive] coverage and the university’s students and employees.”
Id. at 612. As the Seventh Circui t explained, “the only ‘conduit’ is between the [insurance] companies and Notre Dame students and sta ff; the university has stepped aside.” Id. ; see also id. at 614 (“[I]n invoking the [accommodation] the unive rsity . . . throws the entire administrative and financial burden of providing contracepti on on the health insurer and third-party administrator, which are secula r organizations that unlike the university ha ve no aversion to providing contraceptive coverage. The result is to lift a burden from the university’s shoulders.”). The court also c onsidered various alternative m easures proposed by Notre Dame. It rejected all of them. It not ed that one alternative was “not contraception at all,” that another alternative “elide[d] all consideration of the costs and complications of the administrative machinery for providing tax incentives to consumers,” and that the remaining alternativesNos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 22

“involve[d] cumbersome administra tive machinery and . . . impose[d] a burden on Notre Dame’s female students and employees who want to obtain contraceptives.” Id. at 617.

The Seventh Circuit’s recent decision in Wheaton College v. Burwell , __ F.3d ____, 2015 WL 3988356 (7th Cir. July 1, 2015), is likewise informative. This decision came in the aftermath of the Supreme Court’s order, discu ssed above, where the Court held that Wheaton College need not complete EBSA Form 700, but c ould instead inform the Secretary of HHS of its objections to the contraceptive mandate. Desp ite this order, “[t]he college argue[d] that it remain[ed] involuntarily complicit in the provi sion of emergency contraception because its notification to the Department that it objects to the provision of contraception on religious grounds serves as the ‘trigger’ of the Department’s ordering th e insurers to cover emergency contraception.” Id. at *4. The Seventh Circuit rejected this characterization, carefully explaining why the college’s positio n was incorrect. “To exercise th is right of refusal the college has only to notify its health insurers, or if it prefers the Department of Health and Human Services, of its unwillingness to provide covera ge. The insurers are then obligated by the Affordable Care Act to provide th e coverage directly . . . . The college and its health plans are thus bypassed.” Id. at *3. “So when Wheaton College tells us that it is being ‘forced’ to allow ‘use’ of its health plans to cover emergency co ntraceptives, it is wrong. It’s being ‘forced’ only to notify its insurers (including third-party admi nistrators), whether directly or by notifying the government (which will forward the notifica tion to the insurers), that it will not use its health plans to cover emergency contraception.” Id.
Finally, and most recently, th e Tenth Circuit denied an accommodation challenge in Little Sisters of the Poor . We have referred to its reasoning throughout our opinion, and now take note of only a few of the court’s pertin ent observations. First, the cour t highlighted the unusual nature of the plaintiffs’ claims. As it noted, “[m]ost re ligious liberty claimants allege that a generally applicable law or policy without a religious exception burdens religious ex ercise, and they ask courts to strike down the law or policy or ex cuse them from compliance.” 2015 WL 4232096, at *14 (emphasis added). Yet, in this case, “t he Departments have developed a religious accommodation rather than leaving it for the courts to fashion judicial relief.” Id. Thus, “[p]laintiffs not only challenge a law that requ ires them to provide contraceptive coverageNos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 23

against their religious beliefs, they challenge the exception that the law affords to them.” Id. None of the legal precedents ci ted by the plaintiffs “involve a situation where the government offer[ed] religious objectors an accommodation.” Id. The court then took note of its prior
decision in United States v. Friday , 525 F.3d 938 (10th Cir. 2008), wh ere it had stated that, “[l]aw accommodates religion; it ca nnot wholly exempt religion from the reach of the law.” Id. at *15 (quoting Friday , 525 F.3d at 960). This discussion underscores the atypical nature of
Plaintiffs’ claim in this case. No court has invalidated an accommodation that is as simple to comply with as the one at issue in this case. We see no reason to do so now.

The Tenth Circuit’s discussion of the opt-out process also str ongly supports our analysis. The court stated that the “[p]laintiffs ar e not substantially burdened solely by the de minimis
administrative tasks this involves.” Id. at *30. “All opt-out schemes require some affirmative act to free objectors from the obligati ons they would otherwise face.” Id. “Having to file paperwork or otherwise register a religious objec tion, even if one disagrees with the ultimate aim of the law at issue, does not alone substantially burd en religious exercise.” Id. The point of the accommodation is to insulate objecting entities fr om providing, paying for, or facilitating access to contraception. The process for obtaining the accomm odation is not burdensome, as it requires no more effort than would be required for any routine administrative task.
These cases highlight the multitude of reasons wh y Plaintiffs’ arguments in this case fail: because there is an underlying fe deral obligation to provide cont raceptive coverage, because the opt-out is hardly a burden at all (much less a s ubstantial burden), because the whole point of a federal religious accommodation is to accommodate the beliefs of the religious organization with the valid legislative polic y goals set forth by Congress. The consistent reasoning of our sister circuits supports this conclusion.
C. Remaining Factors for Injunctive Relief
The remaining factors that we must consid er in evaluating a request for preliminary injunctive relief are: “(2) whether the movant would suffer irreparabl e injury without the injunction; (3) whether issuance of the injunction would cause substantia l harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Jolivette , 694 F.3d at 765 (internal quotation marks omitted). “[A] finding that there is simply noNos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al. Page 24

likelihood of success on the merits is usually fatal.” Id. (internal quotation marks omitted). There is nothing in the three remaining factors th at outweighs the clear unlikelihood of success
in this case. The district cour ts did not abuse their discretion by denying Plaintiffs preliminary injunctive relief.

III. CONCLUSION

The accommodation at issue here does not violate RFRA. We RE-ISSUE and REAFFIRM our prior opinion, Michigan Catholic Conference & Catholic Family Services v.
Burwell , 755 F.3d 372 (6th Cir. 2014), with respect to all other issues raised by Plaintiffs. Accordingly, we AFFIRM the district courts’ judgments denying preliminary injunctive relief to
Plaintiffs on all of their claims.