GRACE SCHOOLS, et al., AND DIOCESE OF FORT WAYNE-SOUTH BEND, INC., et al., Plaintiffs-Appellees, v. SYLVIA MATHEWS BURWELL, et al., Defendants-Appellants.
Nos. 14-1430 & 14-1431
United States Court of Appeals For the Seventh Circuit
September 4, 2015
ARGUED DECEMBER 3, 2014 — DECIDED SEPTEMBER 4, 2015
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. The district court entered a preliminary injunction in favor of the plaintiffs, a number of religious, not-for-profit organizations, preventing the defendants from applying or enforcing the so-called “contraceptive mandate” of the Patient Protection and Affordable Care Act of 2010 (“ACA“) to the plaintiffs. See
I.
The ACA requires group health plans and third-party administrators of self-insured plans to cover preventive care for women under guidelines supported by the Health Resources and Services Administration (“HRSA“), a component of the Department of Health and Human Services (“HHS“).
In anticipation of objections from religious organizations to these requirements, the Departments provided an exemption from the contraception coverage provision for religious employers.
(b) Eligible organizations. An eligible organization is an organization that satisfies all of the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.
Eligible organizations are not required “to contract, arrange, pay, or refer for contraceptive coverage” to which they have religious objections. 78 Fed. Reg. 39,874. The government developed a two-page form for eligible organizations to use to comply with this accommodation, the “EBSA Form 700 – Certification.”3 The short form requires the eligible organization to supply its name, the name and title of the individual authorized to make the certification on behalf of the organization, and a mailing address and telephone number for that individual. The form also requires a signature verifying the statement, “I certify the organization is an eligible organization (as described in
The plaintiffs are various religiously-based non-profit organizations including the Diocese of Fort Wayne-South Bend, Inc. (“Diocese“); Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. (“Catholic Charities“); Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-
The Diocese itself is exempted from challenged requirements under the religious employer exemption,9 and the remaining plaintiffs are subject to the accommodation for non-profit, religiously-affiliated employers. The government does not contest the sincerity of the plaintiffs’ religious objections to the required contraceptive coverage. Moreover, all of the plaintiffs consider the provision of health insurance for their employees and students to be part of their religious mission.
The district court noted that the RFRA prohibits the federal government from placing substantial burdens on a person‘s exercise of religion unless it can demonstrate that applying the burden is “in furtherance of a compelling governmental interest,” and is the “least restrictive means of furthering that compelling governmental interest.”
And the plaintiffs sincerely believe that invoking the accommodation facilitates and enables the provision of contraceptive services to their employees and students; the accommodation, in short, makes them complicit in the provision of services to which they possess a religious objection. That they need not pay for the services provides no relief from their religious dilemma, the district court reasoned, because they must violate their religious beliefs by either forgoing providing health insurance to their employees and students, or they must take critical steps (i.e. comply with the accommodation) to facilitate a third party‘s provision of the objectionable coverage. Because failure to take either of these equally objectionable routes would result in the imposition of large financial penalties, the district court found that the plaintiffs demonstrated that the ACA imposes a substantial burden on their free exercise rights in contravention of the RFRA. The court then assumed that the government possessed a compelling interest in providing seamless contraceptive services to women in group health plans, but found that the accommoda-
II.
Several months after the district court entered the injunctions for the plaintiffs here, we issued our opinion in Notre Dame I, where we affirmed the denial of a motion for a preliminary injunction under strikingly similar circumstances to those presented by these appeals. The government asserts that our decision in Notre Dame I controls the result here and requires that we reverse the preliminary injunctions granted by the district court. The plaintiffs argue that Notre Dame I is distinguishable and that application of the substantial burden test from Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and Korte requires that we affirm the preliminary injunctions here. After this appeal was fully briefed and argued, the Supreme Court vacated and remanded our opinion in Notre Dame I “for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).” University of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015). We recently issued a new opinion addressing the effect of Hobby Lobby on Notre Dame‘s appeal. See Notre Dame II, 786 F.3d at 615–19. We will begin our analysis with our original Notre Dame I opinion, which continues to apply to some of the questions raised here,
A.
In Notre Dame I, a non-profit Catholic university moved to enjoin the enforcement of the ACA‘s contraception provisions against it. 743 F.3d at 551. Notre Dame provides health benefits to its employees and students. The university self-insures the employees and utilizes a third-party administrator to manage the plan. It contracts directly with an insurance provider for the student health plan. 743 F.3d at 549. The ACA requires the university, as an eligible organization, either to provide contraceptive coverage for its employees or to comply with the accommodation by opting out through the use of the EBSA Form 700 certification (“Form 700“), which we described above. 743 F.3d at 550. The relevant regulations required Notre Dame to provide the completed Form 700 to its third-party administrator and to the insurer of the student plan. Notre Dame filed suit shortly before the deadline for complying with the accommodation and moved for a preliminary injunction. The district court denied the motion and Notre Dame appealed, with fewer than two weeks left to meet the deadline for
We noted that Notre Dame‘s primary objection was to the regulations surrounding the Form 700 certification. One regulation provides that:
the copy of the self-certification [EBSA Form 700] provided by the eligible [to opt out] organization [Notre Dame] to a third party administrator [Meritain] (including notice of the eligible organization‘s refusal to administer or fund contraceptive benefits) … shall be an instrument under which the plan is operated, [and] shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered under § 2590.715–2713(a)(1)(iv) of this chapter to which the eligible organization objects on religious grounds.
Notre Dame I, 743 F.3d at 552–53 (quoting
In assessing the likelihood of Notre Dame‘s success on the merits, we considered and rejected the school‘s claim that filling out and mailing the Form 700 is a “substantial burden” on the university‘s exercise of religion. 743 F.3d at 554. Notre Dame complained that completing the form and distributing it to the insurer and third-party administrator triggered contraceptive coverage for employees and students, making the university complicit in the provision of objectionable services and burdening the university‘s religious exercise. We found that the Form 700 self-certification does not trigger, cause or otherwise enable the provision of contraceptive services:
Federal law, not the religious organization‘s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services. By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna [the insurer] and Meritain [the third-party administrator] would still be required by federal law to provide the services to the university‘s students and employees unless and until their contractual relation with Notre Dame terminated.
Notre Dame I, 743 F.3d at 554. We also rejected Notre Dame‘s argument that its insurer and third-party administrator would not have been authorized as plan fiduciaries to provide the contraceptive services until the school executed Form 700.
B.
As litigation on the ACA‘s contraception requirements has progressed in other cases and other circuits, new regulations have been issued in response to interim orders from the Supreme Court. In Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Sebelius, 134 S. Ct. 1022 (2014), after a district court declined to enjoin the operation of the ACA against a religious organization that did not wish to file the Form 700,
If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the Unitеd States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all the circumstances of the case, and this order should not be construed as an expression of the Court‘s views on the merits.
Little Sisters, 134 S. Ct. at 1022. The order, in short, relieved the Little Sisters of their obligation to file the Form 700 so long as they directly notified the government of their objection.
Subsequently, the Court entered a similar injunction in a case within our circuit. See Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). After essentially repeating the language from the very short order in Little Sisters, the Court clarified:
Nothing in this interim order affects the ability of the applicant‘s employees and students to obtain, without cost, the full range of FDA approved contra-
ceptives. The Government contends that the applicant‘s health insurance issuer and third-party administrator are required by federal law to provide full contraceptive coverage regardless whether the applicant completes EBSA Form 700. The applicant contends, by contrast, that the obligations of its health insurance issuer and third-party administrator are dependent on their receipt of notice that the applicant objects to the contraceptive coverage requirement. But the applicant has already notified the Government—without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.
Wheaton College, 134 S. Ct. at 2807. As with Little Sisters, the order relieved Wheaton College of its obligation to file Form 700 as long as it notified the government directly of its objection. But the government was permitted to use this direct notice to facilitate the coverage required by the ACA.
And finally, after the Third Circuit reversed a temporary injunction sought by a religious employer and granted by a district court, the Court again intervened:
The application for an order recalling and staying the issuance of the mandate of the Court of Appeals pending the filing and disposition of a petition for a
writ of certiorari, having been submitted to Justice Alito and by him referred to the Cоurt, the application as presented is denied. The Court furthermore orders: If the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR § 54.9815-2713A(a) or29 CFR § 2590.715-2713A(a) or45 CFR § 147.131(b) (as applicable), the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for certiorari. Nothing in this interim order affects the ability of the applicants’ or their organizations’ employees to obtain, without cost, the full range of FDA approved contraceptives. Nor does this order preclude the Government from relying on the information provided by the applicants, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act. See Wheaton College v. Burwell, 573 U. S. ___ (2014). This order should not be construed as an expression of the Court‘s views on the merits. Ibid. Justice Sotomayor would deny the application.
Zubik v. Burwell, 2015 WL 3947586 (June 29, 2015) (full text found at http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14a1065.htm, last visited September 3, 2015). As a result of these interim orders from the Supreme Court, the regulations have been amended so that objectors may now notify HHS directly rather than filing the Form 700.
C.
We turn to our recent decisions in Notre Dame II and Wheaton College v. Burwell, 791 F.3d 792 (7th Cir. 2015). In Notre Dame II, we noted that, shortly after filing its suit and immediately before the regulatory deadline, the university signed the Form 700 and sent it to the insurer of its students and the third-party administrator of its employee plan. That action left us wondering what relief Notre Dame sought. Ultimately, we determined, Notre Dame wanted
us to enjoin the government from forbidding Notre Dame to bar Aetna and Meritain from providing contraceptive coverage to any of the university‘s students or employees. Because of its contractual relations with the two companies, which continue to provide health insurance coverage and administration for medical services apart from contraception as a method of preventing pregnancy, Notre Dame claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain—with both of which, to repeat, it continues to have contractual relations—to provide any contraceptive coverage to Notre Dame students or staff. The result would be that the students and staff currently lacking coverage other than from Aetna or Meritain would have to fend for themselves, seeking contraceptive coverage elsewhere in the health insurance market.
We noted that, although Notre Dame is the final arbiter of its religious beliefs, only the courts may determine whether the law actually forces the university to act in a way that would violate those beliefs. 786 F.3d at 612. The record contained no evidence to support a conduit theory. Nor is it within our usual practice to enjoin non-parties such as Notre Dame‘s insurer and third-party administrator. We also rejected Notre Dame‘s claim that the regulation requiring employers to provide Form 700 to its insurers was the cause of the provision of contraceptive services; rather the services are provided because federal law requires the insurers to provide them. Notre Dame II, 786 F.3d at 613–14 (“It is federal law, rather than the religious organization‘s signing and mailing the form, that requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services.“). Because the insurer must provide the services no matter what the employer does, we noted that “signing the form simply shifts the financial burden from the university to the government, as desired by the university.” 786 F.3d at 615. See supra note 5. We thus re-asserted the core reasoning of our earlier opinion before turning to any effect that Hobby Lobby had on the case.
In Wheaton College, we similarly rejected a religious school‘s objections to the contraception regulations under the RFRA, the First Amendment and the Administrative Procedures Act. 791 F.3d at 801. The college asserted that the government was using the school‘s insurance plan and putting additional terms into its contracts with insurers in order to provide the objectionable coverage. The college sought an injunction prohibiting the government‘s effort to use Wheaton‘s plans as the vehicle for making contraceptive coverage available to its employees and students. It objected to notifying its insurers or the government that it claimed a religious exemption, and also to providing the government with the names of its insurers so that the government could then implement the coverage separate from the college. We noted that the ACA and accompanying regulations do not alter any employer‘s insurance plans or contracts. 791 F.3d at 794. Nor is the college being forced to allow the use of its plan to provide objectionable services. The ACA and regulations require only that the college notify either its insurers or the government that it objects, which takes the school out of the loop. 791 F.3d at 795. As in Notre Dame II, we rejected the claim that the provision of notice to insurers or the government somehow triggers or facilitates the provision of objectionable coverage. 791 F.3d at 796. As was the case with Notre Dame, Wheaton also objected to being forced to contract with insurers which, in turn, provided objectionable services, contending that this made the college
We again noted that courts generally do not enjoin non-parties, and Wheaton had not made its insurers parties to the suit. Wheaton also expressed a reluctance to identify its insurers to the government, instead preferring that the government discover through its own research the names of the insurers. But Wheaton made no connection between the means for identifying the insurers and its religious commitments. We also noted Wheaton‘s assertion that its students and employees sign a covenant agreeing to abide by the school‘s moral standards, indicating perhaps that Wheaton‘s concerns about the ACA are largely academic because the employees and students are unlikely to actually use the services offered. Finally, we rejected Wheaton‘s claims under the First Amendment, ERISA and the Administrative Procedures Act, all issues which were not argued in the instant appeal, and so we will not address them further. 791 F.3d at 797–800.
Before we move on to the plaintiffs’ objections in this case, we note that the case law analyzing the contraceptive mandate is rapidly evolving. Recently, the six other circuits to consider these same issues have all come to the same conclusion as our opinions in Notre Dame and Wheaton College, namely, that the contraceptive mandate, as modified by the accommodation, does not impose a substantial burden on religious organizations under the RFRA. See Catholic Health Care System v. Burwell, 796 F.3d 207, 2015 WL 4665049, *7-*16 (2d Cir. Aug. 7, 2015) (concluding that the accommodation does not impose a
D.
After this court issued its opinion in Notre Dame II, we asked the parties to file position statements addressing the effect of that opinion on this appeal. We turn now to the parties’ position statements as well as the arguments raised in their original briefs. The government, in its original brief, contended that Notre Dame I was controlling. It argued that the plaintiffs are permitted to opt out of providing contraceptive coverage, and that the plaintiffs improperly object to requirements imposed by the accommodation on third parties rather than on themselves. The government also asserted that it is the province of the court rather than the plaintiffs to determine whether a particular regulation or law “substantially” burdens the plaintiffs’ free exercise of religion under the RFRA. Finally, the government maintained that, even if we were to determine that the regulations impose a substantial burden on the plaintiffs under the RFRA, the government‘s interest in
In its position statement, the government adds that Notre Dame II rejected all of the arguments raised by the plaintiffs here. Specifically, the government again notes that the regulations allow the plaintiffs to opt out of providing the mandated contraceptive services, making them effectively exempt. After objectors opt out, the government tasks third parties with providing the coverage. Moreover, the opt-out does not operate as a trigger or cause for the coverage; rather federal law imposes on third parties the obligation to provide the coverage. Nothing in the ACA or regulations makes the plaintiffs complicit or allows their contracts with insurers or third party administrators to act as conduits for the provision of contraceptive services. The government repeats that, even if the regulations impose a substantial burden on the plaintiffs’ free exercise of religion under the RFRA, the regulations serve a compelling government interest and are the least restrictive means of achieving those interests. According to the government, our opinion in Notre Dame II demonstrates that the current regulations are narrowly tailored to achieve the compelling interest, and that none of the plaintiffs’ suggested alternatives would be effective.
In their opening brief, the plaintiffs argued, as they did below, that the contraception regulations impose a substantial burden on their exercise of religion. The plaintiffs asserted that they exercise their religion “by refusing to take actions in furtherance of a regulatory scheme to provide their employees with access to abortion-inducing products, contraceptives, sterilization, and related education and counseling.” Brief at
The plaintiffs also maintained in their opening brief that the government‘s “substantial burden” analysis incorrectly focuses on the nature of the actions that the regulations require the
In their position statement, the plaintiffs contend that Notre Dame II is distinguishable on the facts, that it is not binding here, and that it is based on legal errors. Finally, the plaintiffs argue that the strict scrutiny analysis in Notre Dame II is both foreclosed by the government‘s concession in this case and inconsistent with circuit precedent.
E.
We turn to the specific objections raised by the plaintiffs here. They contend that the accommodation does not operate as a true “opt-out” because it requires them to engage in numerous religiously objectionable actions. The actions to which the plaintiffs object fall under two categories: first, the mandate requires them to contract with insurance companies or third-party administrators that are authorized to provide the objectionable coverage and which will provide that coverage once the plaintiffs communicate their objections. Second, they must submit the Form 700 or notify the government directly of their objection. They sincerely believe that the required actions render them complicit in a grave moral wrong because their insurance contracts serve as conduits for the provision of the objectionable services, and the notification triggers or facilitates the provision of objectionable services. They practice their
The core of the disagreement between the plaintiffs and the government lies in how we apply the substаntial burden test. The plaintiffs cite our decision in Korte for the proposition that the substantial burden test under the RFRA focuses primarily on the intensity of the coercion applied by the government to act contrary to religious beliefs. Korte, 735 F.3d at 683. Citing Hobby Lobby, they also assert that the RFRA allows private religious believers to decide for themselves whether taking a particular action (such as filing the Form 700 or contracting with an insurance company) is connected to objectionable conduct in a way that is sufficient to make it immoral. Hobby Lobby, 134 S. Ct. at 2778.
In Korte, we noted that “exercise of religion” means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 735 F.3d at 682;
The plaintiffs are correct that it is not our province to decide religious questions. Hobby Lobby, 134 S. Ct. at 2778 (the RFRA presents the question of whether the mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs, but courts have no business addressing whether the religious belief asserted is reasonable); Notre Dame II, 786 F.3d at 612 (an objector is the final arbiter of its religious beliefs); Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096, at *19 (substantiality does not permit a court to scrutinize the theological merit of a plaintiff‘s religious beliefs); Geneva College, 778 F.3d at 436 (courts should defer to the reasonableness of a plaintiff‘s religious beliefs). The plaintiffs in Hobby Lobby were closely-held, for-profit corporations that were required by the ACA to provide and pay for health insurance which included coverage of certain emergency contraceptives that they believed operated as abortifacients. Similar to the plaintiffs here, they believed that providing the required coverage is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. “This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Hobby Lobby, 134 S. Ct at 2778.
The first action to which the plaintiffs object is filing the Form 700. They assert that the Form 700 is far more than a simple notification or objection, that it instead (1) designates the third party administrator as plan administrator and claims administrator for contraceptive benefits; (2) serves as an instrument under which thе plans are operated vis-à-vis contraceptive services; and (3) apprises the third party administrator of its obligations to provide contraceptive coverage. We rejected this very argument in Notre Dame II, holding that treating the mailing of the Form 700 as the cause of the provision of contraceptive services is legally incorrect. 786 F.3d at 613. The Form 700, we noted, has the effect of throwing the entire administrative and financial burden of providing contraception on the insurer and the third party administrator. 786 F.3d at 613–14. As a result, the burden is lifted from the objector‘s shoulders. 786 F.3d at 614. “It is federal law, rather than the religious organization‘s signing and mailing the form, that requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services.” 786 F.3d at 614. See also Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096 at *16 & *22-24 (finding that plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles
Moreover, the regulations have been amended during this litigation, and now employers need not file the Form 700. Instead, consistent with the Supreme Court‘s interim orders in Little Sisters of the Poor and Wheaton College, the plaintiffs may contact the Department of Health and Human Services directly, alerting the government that they have a religious objection to providing contraceptive coverage, and providing only the name and contact information for their insurers or third party administrators.
[T]he arrangements the government makes to find substitutes for those given the benefit of a religious exemption are imposed as a matter of federal law, not as a result of the exemption itself. The party claiming the exemption is not entitled to raise a religious objection to the arrangements the government makes for a substitute.
Notre Dame II, 786 F.3d at 623 (Hamilton, J., concurring). In short, requiring an employer to notify the government of its objection to the mandate is no more burdensome than the government‘s use of a girl‘s Social Security number in a benefits program even though her father sincerely believed that the use of the number would harm his daughter‘s spirit. See Notre Dame II, 786 F.3d at 618–19 (discussing Bowen v. Roy, 476 U.S. 693 (1986)). So too with the plaintiffs here.
The second action to which the plaintiffs object is contracting with insurers and third-party administrators who will then provide the objectionable coverage, albeit at no cost to, and without further involvement of, the plaintiffs. The plaintiffs admittedly want to provide their employees and students with health insurance; indeed they have said that it is part of their religious mission to do so. But they wish to provide health insurance without the objectionable coverage. Yet this is exactly what the accommodation allows them to do. Notre Dame II, 786 F.3d at 621–22 (Hamilton, J., concurring) (once an employer files the Form 700 or notifies the government directly of its religious objection, it can avoid contracting, paying, arranging, or referring for the objectionable contraceptive care); Wheaton College, 791 F.3d at 795–96 (once the college notifies its insurer or the government of its religious objections, the college and its health plans are bypassed). As with the notification requirement, the plaintiffs believe that their contracts further the provision of objectionable services. They assert that the government is using their health plans or altering the terms of their health plans to provide contraceptive coverage. But once they have objected, the government does not use the health plans or contracts at all, much less alter any terms. See Wheaton College, 791 F.3d at 796 (“Call this ‘using’ the health plans? We call it refusing to use the health plans.“). As we noted in Wheaton College:
The upshot is that the college contracts with health insurers for contraceptive coverage exclusive of coverage for emergency contraceptives, and the Department of Health and Human Services contracts with those insurers to cover emergency-contraceptive benefits. The latter contracts are not part of the college‘s health plans, and so the college is mistaken when it tells us that the government is “interfering” with the college‘s contracts with its insurers. The contracts, which do not require coverage of emergency contraception, are unchanged. New contracts are created, to which the college is not a party, between the government and the insurers.
To the extent that the act of opting out causes the legal responsibility to provide contraceptive coverage to shift from the plaintiffs to their insurers or third-party administrators, this feature relieves rather than burdens their religious exercise. Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096 at *16. As our colleagues in the Tenth Circuit noted, “An opt out religious accommodation typically contemplates that a non-objector will replace the religious objector and take over any legal responsibilities.” Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096, *16 n.21; East Texas Baptist, 793 F.3d at 461–62 (RFRA does not entitle plaintiffs to block third parties such as the government or insurers from engaging in conduct with which the plaintiffs disagree); Geneva College, 778 F.3d at 438 n.13 (the provision of contraceptive coverage is not dependent upon the objector‘s contract with its insurance company); Michigan Catholic, 755 F.3d at 388 (the government‘s imposition of an independent obligation on a third party does
Finally, the Catholic plaintiffs here (namely, the Diocese, Catholic Charities, St. Anne Home, Franciscan Alliance, Specialty Physicians, St. Francis and Sunday Visitor) assert what they characterize as unique RFRA claims that were not presented in the Notre Dame appeal and therefore are not resolved by the Notre Dame opinions. In particular, they argue that the mandate substantially burdens the Diocese‘s religious exercise by forcing it to forgo almost $200,000 annually in increased premiums to maintain its grandfathered status so that it may avoid its health plan becoming a conduit for objectionable coverage for Catholic Charities’ employees who are enrolled in its health plan. See note 11 supra. But if the Diocese were to lose its grandfathered status, it would become exempt from the ACA‘s contraceptive mandate, and Catholic Charities would be able to opt out of the mandate by employing the accommodation. As we just concluded, that scenario would not impose a substantial burden on the free exercise rights of either the Diocese or Catholic Charities.
The Catholic plaintiffs also contend that the mandate has the effect of artificially dividing the Catholic Church into a “worship” arm (the Diocese) and a “good works” arm (the remaining Catholic plaintiffs). Again, though, groups affiliated with the Diocese may opt out of providing contraceptive coverage using the accommodation and thus continue to provide health coverage under the Diocese‘s health plan. Both arms of the Church are therefore extricated from the provision of objectionable contraceptive services, albeit through different means. Moreover, any division is created not by the ACA but
III.
The accommodation does not serve as a trigger or a conduit for the provision of contraceptive services. Notre Dame II, 786 F.3d at 612–15; Wheaton College, 791 F.3d at 795–97. It is the operation of federal law, not any actions that the plaintiffs must take, that causes the provisions of services that the plaintiffs find morally objectionable. The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptivе services. As we noted above, every other circuit court to consider the issue of whether the mandate imposes a substantial burden on religious exercise has come to the same conclusion. As a result, the plaintiffs are not entitled to a preliminary injunction against the enforcement of the ACA regulations. If they wish to object, they may either employ the Form 700 or they may notify the Department of Health and Human Services directly. We extend the injunctions here for 60 days so that the district court may consider in the first instance the additional arguments that plaintiffs raised in support of injunctive relief. We reverse the district court‘s judgments and remand for proceedings consistent with this opinion.
REVERSED AND REMANDED.
The HHS accommodation is the long and winding extension cord the government uses to power its contraceptive mandate. It winds through regulations and additions and revisions. The court, through a perfunctory examination, interprets the accommodation‘s twisted framework and holds that it frees the religious nonprofits from having to power the mandate themselves and, thus, does not violate the RFRA. The court is wrong: A thorough examination reveals that the accommodation‘s tangled mess is hiding the fact that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work. It also exposes the fact that the government is forcing the nonprofits to plug in the accommodation themselves by signing the self-certification or providing the alternative notice.
This dissent, as long and detailed as it is, reveals that the accommodation never relieves the religious nonprofits or their health plans from the provision of contraceptive services which burdens their religious exercise. Section I explains how the court, as many others have before it, uses a caricature of the HHS accommodation to avoid accepting the nonprofits’ sincerely held religious belief as required by the Supreme Court in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Section II shows that the nonprofits correctly understand the accommodation‘s operation, so that the court must accept their sincerely held religious belief and hold that the accommodation imposes a substantial burden on their religious exercise. Section III demonstrates that the government has utterly failed to prove that the HHS ac
I. The court refuses to apply RFRA.
RFRA prevents the government from substantially burdening a person‘s religious exercise unless the burden on the person is the least restrictive means of furthering a compelling governmental interest.
The court does not apply these straightforward steps because it balks at the idea that we must accept a person‘s assertion that a law burdens their religion. The court fears that such a rule will allow a person to escape any number of regulations, including this brave new world of free and universal contraceptives, unless the government can meet the strict scrutiny test laid down by
The court does this by improperly judging the nonprofits’ religious beliefs and ignoring the penalties used for compliance. Had the nonprofits said that they sincerely believe that the HHS accommodation violates their religion and left it at
II. The accommodation imposes a substantial burden on the nonprofits’ religious exercise.
The court denies that the self-certification and alternative notice process trigger the provision of contraceptive coverage. According to the court, it is federal law, not the self-certification form or alternative notice, which results in the contraceptive coverage. The court says that self-certification throws the burden of contraceptive coverage on to the nonprofits’ health insurance issuers (insurers) and third party administrators (TPAs). Ante, at 32. But how does this lift the burden off the nonprofits when the accommodation imposes the “free” contraceptive coverage requirement only on the insurers and TPAs that the nonprofits have hired? In spite of that imposition, the court also denies that the accommodation uses the nonprofits’ health plans to provide the contraceptive coverage. Instead, it says that the government contracts with the insurers and TPAs to provide the coverage to only the beneficiaries on the nonprofits’ health plans. Ante, at 35. But, given that connection with the nonprofits’ health
The court can only make such sweeping claims by ignoring the true operation of the accommodation and the legal consequences the government has attached to the self-certification and alternative notice. The court may think that the nonprofits “throw” their burden onto their insurers and TPAs, but it ignores who is forced to do the throwing and who ultimately carries the burden once thrown. A close examination of the manner in which the regulations actually operate reveals that the government‘s promise of accommodation is illusory. The nonprofits’ claim that the HHS accommodation makes them complicit in the provision of contraceptive coverage becomes obvious.
A. The self-certification form and alternative notice trigger the coverage of contraceptive services.
The court holds that the self-certification and alternative notice are simply signs that the nonprofits have opted out of providing contraceptive coverage, and once the sign is made known the law obliges the nonprofits’ insurers and TPAs to provide the unwanted coverage. Ante, at 32–33. In reality, once the nonprofits formally object, they are opted in. The self-certification and alternative notice do more than give notice of the nonprofits’ objections. And they are much more than de minimis paperwork necessary to effectuate the nonprofits’ objection. They create the insurers’ and TPAs’ obliga-
For insurers the situation is not as clear, but it is not the less burdensome. The law requires insurers to include contraceptive coverage in every health plan they offer.8 (Insurers will not, however, provide something for which they are not
This is not like the case of a conscientious objector who objects and the government finds a replacement. Under the regulations, the government does not find the replacement, the nonprofit does. The designation does not take place unless the nonprofit either delivers the self-certification form to its insurer or TPA, or uses the alternative notice to inform the government who its insurer or TPA is and which health plan is at issue. By insisting that the nonprofit deliver the form or supply the plan information for the government‘s use, the government uses the objecting nonprofit to do its
Furthermore, this is not like the case of a conscientious objector who refuses to object and goes to jail, and the government still finds a replacement. If the nonprofits refuse to self-certify or provide the alternative notice and instead pay the huge fines, their insurers and TPAs will not automatically provide the contraception coverage. To comply with the law, the insurers would refuse to sell plans without the coverage, while the TPA would refuse to provide their services. In spite of the huge monetary penalties, the nonprofits would still be prevented from providing health plans for their employees, which they have asserted is also a violation of their religious beliefs. So the no-win substantial burden would hit them on both sides.
The court has implied that requiring the nonprofit to identify its insurer (or TPA) is merely the most efficient means for the government to achieve its objective, Wheaton, 791 F.3d at 798, but efficiency does not excuse the substantial burden imposed by the requirement. Identifying its insurer so that the government can instruct that insurer to provide
B. The accommodation uses the nonprofits’ health plans.
The HHS accommodation requires significantly more involvement on the part of the nonprofits and their health plans than the court relates. For starters, the accommodation does not create independent policies or contracts. In fact, as the nonprofits assert, the accommodation relies wholly on the existing contract between the nonprofits and the insurers and TPAs to provide separate payments directly to the nonprofits’ health plan beneficiaries.12 The accommodation must
A further indication that the accommodation uses the nonprofits’ health plans is the fаct that the only way an employee receives coverage for contraceptive services under the accommodation is to enroll in the objecting nonprofit‘s health plan. An employee cannot reject coverage under the nonprofit‘s plan and still receive coverage under the accommodation. The coverage under the accommodation is not separate from the coverage under the nonprofit‘s health plan. It is the employee‘s status as a beneficiary of the nonprofit‘s health plan, not as an employee, that entitles the employee to coverage under the accommodation. Simply being hired as an employee is not enough to receive coverage; an
C. The nonprofits are involved in the payment for contraceptive services.
Finally, there is the matter of payment. For TPAs, the self-certification and alternative notice act as authorizations for payment, without which the TPAs cannot receive reimbursement from the government for payments made under the accommodation.18 The government assumed that the reimbursements for TPAs would not be passed on to the non-
D. The proper substantial burden analysis: the court must accept the nonprofits’ sincere belief that the accommodation violates their religion because the nonprofits understand its operation.
The HHS accommodation is a purposely complicated act of bureaucratic legalese and accounting tricks that enables the government to claim that the objecting nonprofits have nothing to do with the provision of contraceptive services. Yet, as shown in much detail above, the accommodation infects the nonprofits’ health plans with an offensive provision that eradicates their purpose, which is the exercise of the nonprofits’ religion. It is the nonprofits which understand the operation of the HHS accommodation, not the court, and we must accept their sincere belief that it violates their religion. The accommodation imposes a substantial burden because the nonprofits have a sincere belief that compliance with the law violates their religion and the penalties applied by the government to coerce compliance are enormous.
III. The accommodation does not further a compelling governmental interest.
The government must grant the nonprofits an exemption from the accommodation unless “it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
“Congress‘s express decision to legislate the compelling interest test indicates that
The government asserts the same interest in furtherance of the HHS accommodation that it asserts in furtherance of the HHS contraceptive mandate, namely, the increased availability of contraceptive services to improve the health of women. The government also says that it wishes to increase the availability of contraceptive services to equalize the provision of preventive care for women and men so that women can participate in the workforce and society on an “equal playing field with men.” The latter interest boils down to a concern for women‘s health. The government claims that the inequality stems from the additional cost of contraception and that the additional cost can deter women from using contraceptives, thus allowing the negative health outcomes that prevent women from achieving equal economiс status. 77 Fed. Reg. 8728.
A. A lack of available contraception and unintended pregnancies are not actual problems in need of solving.
The HHS accommodation relies on a lengthy chain of causality: 1) the accommodation will make contraceptives more available by removing administrative and cost burdens; 2) if contraceptives are more available, then more
First, the study admits that “for some outcomes [of unintended pregnancy], research is limited.” Id. at 103. It then proceeds to describe the outcomes correlated with unintended pregnancies: outcomes that “may” or “may not” happen, are “more” or “less likely,” have been “reported,” and have “increased odds,” or are “associated with.” IOM Study 103.
Second, the study discusses “evidence of [contraceptive] method effectiveness,” but dоes not prove that increasing the use of even an effective contraceptive causes fewer unintended pregnancies. This is because such a simple correlation does not take into account the factors that inhibit perfect use of contraception or the societal changes that result from increased reliance on contraception.23 Rather than prove that
Third, the study fails to prove that increasing the availability of contraceptives will cause an increase in their use, but concludes that “[t]he elimination of cost sharing for contraception therefore could greatly increase its use, including use of the more effective and longer-acting methods, especially among poor and low-income women most at risk for unintended pregnancy.” IOM Study, 109 (emphasis added). However, the conclusion that eliminating cost sharing “could” increase its use is based on two studies, neither of which concerned contraceptive services specifically. The first concerned preventative and primary care services generally, and the second concerned mammograms. Id. The final claim the study makes is that “when out-of-pocket costs for con-
Another reason the IOM Study fails to prove “an ‘actual problem’ in need of solving” is because it is overbroad. Brown, 131 S. Ct. at 2738. The study starts with the estimation that “[i]n 2001, ... 49 percent of all pregnancies in the United States were unintended,” but the study defines an unintended pregnancy as one that is “unwanted or mistimed at the time of conception.” IOM Study, 102. This definition includes pregnancies that were unwanted at the time of conception, but still wanted when the mother discovered she was preg
Overall, the IOM Study lacks the necessary quality and rigor. It heavily relies on studies from biased organizations, such as the Guttmacher Institute and the journal CONTRACEPTION, and offers no consideration of competing studies. Id. at 102–109. The study‘s own dissenting opinion says it best:
Readers of the Report should be clear on the fact that the recommendations were made without high quality, systematic evidence of the preventive nature of the services considered. Put differently, evidence that use of the services in question leads to lower rates of disability or disease and increased rates of well-being is generally absent.
The view of this dissent is that the committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee‘s composition. Troublingly, the process tended to result in a
mix of objective and subjective determinations filtered through a lens of advocacy. An abiding principle in the evaluation of the evidence and the recommendations put forth as a consequence should be transparency and strict objеctivity, but the committee failed to demonstrate these principles in the Report. This dissent views the evidence evaluation process as a fatal flaw of the Report particularly in light of the importance of the recommendations for public policy and the number of individuals, both men and women, that will be affected.
IOM Study, 232–33.
The study itself shows that the lack of available contraceptive services is not a problem in need of solving. According to the IOM Study, “[c]ontraceptive coverage has become standard practice for most private insurance and federally funded insurance programs.” Id. at 108. Further, “[s]ince 1972, Medicaid, the state-federal program for certain low-income individuals, has required coverage for family planning in all state programs and has exempted family planning services and supplies from cost-sharing requirements.” Id. Finally,
[C]omprehensive coverage of contraceptive services and supplies [is] “the current insurance industry standard,” with more than 89 percent of insurance plans covering contraceptive methods in 2002. A more recent 2010 survey of employers found that 85 percent of large
employers and 62 of small employers offered coverage of FDA-approved contraceptives.
Id. at 109 (citations omitted). Not only are contraceptive services already widely available, but they are also already widely used: “More than 99 percent of U.S. women aged 15 to 44 years who have ever had sexual intercourse with a male have used at least one contraceptive method.” IOM Study, 103 (citation omitted). According to the Centers for Disease Control and Prevention, contraceptive use is “virtually universal among women of reproductive age.”27
The study similarly fails to prove that there is a need to increase the availability of contraceptives to alleviate “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced” or for “women with certain chronic medical conditions” who “may need to postpone pregnancy” and “women with serious medical conditions” for whom “pregnancy may be contraindicated.” IOM Study, 103. Amazingly, the study does not even pretend to demonstrate a causal link in these circumstances, relying instead on the reader to mаke the inference mistakenly. The study hopes the reader ignores the common sense fact that women in these circumstances have a higher incentive to use contraceptives if that is their chosen method to prevent these outcomes.
Finally, the IOM Study does not concern the employees of the nonprofits who are less likely to use contraception given their own religious beliefs. Instead, its conclusions mostly concern the “poor and low-income women most at risk for unintended pregnancy.” Id. at 109. The study‘s hope is that the elimination of cost sharing for contraception will induce the poor to use more effective, long-acting methods, such as IUDs, implants, and sterilization. Id. at 108-109. However, “the government must establish a compelling and specific justification for burdening these claimants.” Korte, 735 F.3d at 685; see also Hobby Lobby, 134 S. Ct. at 2761. The IOM Study fails to prove any connection whatsoever with the nonprofits’ employees. In fact, there are already a high level of access to contraception, a higher rate of use, and an increased use of more effective methods among the women with more income and education.28 Simply put, the IOM study fails to “specifically identify an ‘actual problem’ in need of solving,” and, consequently, the government has
B. The accommodation is underinclusive.
The HHS accommodation‘s underinclusiveness is another sign that the governmental interest is not compelling. Id. at 2740. The government “leaves appreciable damage to that supposedly vital interest unprohibited” by allowing religious employers, grandfathered plans, and employers with fewer than 50 employees to avoid providing contraceptive coverage. Lukumi, 508 U.S. at 547 (internal quotation marks omitted). Although more health plans will lose their grandfathered status the longer the ACA is in place, the number of persons employed by religious employers and organizations with fewer than 50 employees will remain considerable in light of the less than 2,000 covered employees concerned here.
The accommodation is also underinclusive because it does not account for the other causes of the negative health outcomes the IOM Study correlates with unintended pregnancies. According to the study, “women with unintended pregnancies are more likely than those with intended pregnancies to receive later or no prenatal care, to smoke and consume alcohol during pregnancy, to be depressed during pregnancy, and to experience domestic violence during pregnancy.” IOM Study, 103. The study implies that unintended pregnancies cause these conditions, but there could just as well be another cause that causes not only these conditions, but the unintended pregnancy as well: poverty, lack of education, abuse, or other causes of risk taking behaviors.
Most damaging to the government‘s asserted interest in the contraceptive mandate is the fact that those women most at risk for an unintended pregnancy are “women who are aged 18 to 24 years and unmarried, who have a low income, who are not high school graduates, and who are members of a racial or ethnic minority group.” IOM Study, 102 (citation omitted). These women—let alone the nonprofits’ employees—are less likely to be served by the HHS accommodation, or the ACA‘s contraception mandate generally, because they are less likely to have the type of employment that qualifies them for the health insurance under the ACA. These women would not obtain contraceptive services through the HHS accommodation, but through a number of government programs such as Medicaid,
C. Forcing nonprofits to use the accommodation can only provide a marginal increase in contraceрtion.
Contraceptive services are already widely available and their use is virtually universal. The HHS accommodation only fills the “remaining modest gap” by making already prev
D. A primary concern underlying the accommodation is cost.
Cost appears to be a primary concern underlying the HHS accommodation. After all, babies are expensive. Of the IOM Study‘s eight-page discussion of contraceptives, a significant portion is spent on the cost savings to be expected from their use despite the study‘s acknowledgement that cost considerations are out of scope:
Although it is beyond the scope of the committee‘s consideration, it should be noted that contraception is highly cost-effective. The direct medical cost of unintended pregnancy in the United States was
estimated to be nearly $5 billion in 2002, with the cost savings due to contraceptive use estimated to be $19.3 billion. ... It is thought that greater use of long-acting, reversible contraceptive methods—including intrauterine devices and contraceptive implants that require less action by the woman and therefore have lower use failure rates—might help further reduce unintended pregnancy rates. Cost barriers to use of the most effective contraceptive methods are important because long-acting, reversible contraceptive methods and sterilization have high up-front costs.
IOM Study, 107–08 (citations omitted). The study‘s primary conclusion is that the use of contraceptive services—particularly longer-acting methоds like IUDs—will greatly increase if they are free, ”especially among poor and low-income women.” Id. at 109 (emphasis added). The appearance is that the government desires to use contraceptives that “require less action by the woman” to prevent poor, unmarried, minority women from having babies, as if babies were a costly disease. IOM Study, 108. Of course, this appearance is lessened by the fact that the government is vigorously enforcing the HHS contraception mandate on even religious nonprofits through the accommodation.
Because the government has failed to prove that the HHS accommodation furthers a compelling governmental interest, it is not allowed to burden the nonprofits’ religious exercise with the accommodation.
IV. The accommodation is not the least restrictive means.
Even if the government had proved that the HHS accommodation was in furtherance of a compelling interest, it would still have to grant the nonprofits’ an exemption from the accommodation because the accommodation is not the least restrictive means.
The most straightforward way of doing this would be for the Government to assume the cost of providing the [objectionable] contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown ... that this is not a viable alternative.
131 S. Ct. at 2780. The government argues that
The government also argues that a government-run program is not a valid means because it would create additional burdens for the nonprofits’ employees and
V. Conclusion
This dissent explores the road less traveled by. As detailed above, the detour exposes two serious misrepresentations. First, the so-called accommodation is nothing but a mirage. The government strung together the complicated
Second, deep into the detour is the falsehood behind the government‘s claim that increasing the availability of contraceptive services furthers a “compelling governmental interest.” That label is needed to overcome the nonprofits’ sincerely held religious beliefs that no one disputes. But, contraceptive services are already widely available from the great majority of employers. And, for the primarily targeted poor and/or unemployed women, whom the mandate does not affect, there are already programs like Medicaid and Title X that offer free contraceptive services. At its center, the IOM Study recognizes that babies are medically very expensive, so the government endeavors to reduce “unexpected” pregnancies to save money. In effect, the government considers pregnancy a preventable disease.
Aside from the fact that the government desires to substantially burden the nonprofits’ religious exercise in furtherance of an exaggerated, misnamed, and misdirected interest, there are, no doubt, less restrictive means of furthering its interest. But why even go there? The government cer
The nonprofits have shown a likelihood of success on their claims that the HHS accommodation violates
For all these reasons, I dissent.