MATHESON, Circuit Judge.
TABLE OF CONTENTS
Glossary ...............................................................................1156
I. Introduction .....................................................................1159
II. Hobby Lobby and this case ........................................................1160
III. Background .......................................................................1160
A. Regulatory Background ........................................................1160
1. The ACA Mandate and the Religious Employer Exemption .....................1160
2. The Accommodation Scheme for Religious Non-Profit
Organizations ...........................................................1162
a. EBSA Form 700 ........................................................1163
b. Alternative notice ...................................................1163
3. The Mechanics of the Accommodation for Insured Plans, Self-Insured
Plans, and Self-Insured Church Plans ....................................1165
a. Insured plans ........................................................1165
b. Self-insured plans ...................................................1166
c. Self-insured church plans ............................................1166
d. Legal obligation to provide coverage after the accommodation .........1167
B. The Plaintiffs ...............................................................1167
1. Little Sisters of the Poor ...............................................1167
2. Southern Nazarene ........................................................1168
3. Reaching Souls ...........................................................1169 C. Procedural History ...........................................................1169 1. Little Sisters of the Poor ...............................................1169 2. Southern Nazarene ........................................................1170 3. Reaching Souls ...........................................................1171 IV. Unusual Nature of Plaintiffs' Claim ..............................................1171 V. RFRA .............................................................................1173 A. Legal Background .............................................................1174 1. Standard of Review .......................................................1174 2. RFRA and Free Exercise ...................................................1174 3. Elements of RFRA Analysis ................................................1175 4. Courts Determine Substantial Burden ......................................1176 5. Accommodations Can Lessen or Eliminate Burden ............................1177 B. Substantial Burden Analysis ..................................................1178 1. Plaintiffs' RFRA Arguments ...............................................1178 2. The Accommodation Scheme Eliminates Burdens on Religious Exercise ................................................................1179 3. The Accommodation Scheme Does Not Impose a Substantial Burden ..................................................................1180 a. Opting out does not cause contraceptive coverage .....................1180 b. No substantial burden from complicity ................................1190 c. No burden from ongoing requirements ..................................1193 C. Strict Scrutiny ..............................................................1195 D. Conclusion ...................................................................1195 VI. First Amendment ..................................................................1195 A. Free Exercise Clause .........................................................1196 1. Legal Background .........................................................1196 2. The Mandate and Accommodation Scheme are Neutral .........................1197 3. The Mandate and Accommodation Scheme are Generally Applicable ............1197 4. The Mandate and Accommodation Scheme Have a Rational Basis ...............1198 B. Establishment Clause .........................................................1199 1. Organizational Distinctions Well-Established in Federal Law ..............1199 2. Organizational Distinctions and Respecting the Religion Clauses ..........1200 3. Organizational Distinctions Compatible with Larson and Colorado Christian ...............................................................1200 4. Plaintiffs' Argument Based on the Departments' Rationale .................1201 C. Free Speech Clause ...........................................................1202 1. Compelled Speech .........................................................1203 2. Compelled Silence ........................................................1204 VII. Conclusion .......................................................................1205
This opinion is heavily laden with terms from the applicable statute and regulations, types of health insurance arrangements, and names of numerous entities. We appreciate the challenge this presents to the reader and provide this glossary to help navigate the opinion.
Legal and Regulatory Terms:
Health Insurance Terms:
Plaintiffs and Related Entities:
Little Sisters of the Poor:
Southern Nazarene:
Reaching Souls:
When Congress passed the Affordable Care Act ("ACA") in 2010, it built upon the widespread use of employer-based health insurance in the United States.
In response to religious concerns, the Departments implementing the ACA — Health and Human Services ("HHS"), Labor, and Treasury — adopted a regulation that exempts religious employers — churches and their integrated auxiliaries — from covering contraceptives. When religious non-profit organizations complained about their omission from this exemption, the Departments adopted a regulation that allows them to opt out of providing, paying for, or facilitating contraceptive coverage.
The Plaintiffs in the cases before us are religious non-profit organizations. They contend that complying with the Mandate or the accommodation scheme imposes a substantial burden on their religious exercise. The Plaintiffs argue the Mandate and the accommodation scheme violate the Religious Freedom Restoration Act ("RFRA") and the Religion and Speech Clauses of the First Amendment.
Last year, the Supreme Court decided Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), in which closely-held for-profit corporations challenged the Mandate under RFRA. The difference between Hobby Lobby and this case is significant and frames the issue here. In Hobby Lobby, the plaintiff for-profit corporations objected on religious grounds to providing contraceptive coverage and could choose only between (1) complying with the ACA by providing the coverage or (2) not complying and paying significant penalties. Id. at 2759-60. In the cases before us, the plaintiff religious non-profit organizations can avail themselves of an accommodation that allows them to opt out of providing contraceptive coverage without penalty. Plaintiffs contend the process to opt out substantially burdens their religious exercise.
In other words, unlike in Hobby Lobby, the Plaintiffs do not challenge the general obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with that obligation. The Plaintiffs do not claim the Departments have not tried to accommodate their religious concerns. They claim the Departments' attempt is inadequate because the acts required to opt out of the Mandate substantially burden their religious exercise. As we discuss more fully below, however, the accommodation relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise.
We begin by providing background information on the ACA and its implementing regulations, the Plaintiffs objecting to the accommodation scheme, and the procedural history of the three cases before us.
The regulations at issue in these cases have evolved in significant ways since their initial promulgation. We review: (1) the exemption from the ACA's contraceptive coverage requirement for churches and integrated auxiliaries, (2) the accommodation scheme for religious non-profit organizations, and (3) the mechanics of the accommodation scheme for different types of group health plans.
Under the ACA, employer-sponsored group health plans must meet minimum coverage requirements. As part of these requirements, both group health plans and health insurance issuers must cover preventive health care services and cannot require plan participants and beneficiaries
Among the services required by the ACA are preventive care and screenings for women "as provided for in comprehensive guidelines supported by the Health Resources and Services Administration" ("HRSA"), a federal agency within HHS. 42 U.S.C. § 300gg-13(a)(4). On August 1, 2011, after receiving recommendations from the Institute of Medicine ("IOM"), the HRSA issued its guidelines for women's preventive health services. The guidelines include coverage of "[a]ll Food and Drug Administration [("FDA")] approved contraceptives, sterilization procedures, and patient education and counseling for all women with reproductive capacity," as prescribed by a health care provider. HRSA, Women's Preventive Services Guidelines, http:// www.hrsa.gov/womensguidelines (last visited Mar. 25, 2015).
In accordance with the HRSA's guidelines, the Departments require coverage of the full range of FDA-approved contraceptive services. See 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv). Not all employers, however, are required to comply with the Mandate.
First, employers with 50 or fewer employees are exempt from the Mandate because they are not required to offer insurance under the ACA. See 26 U.S.C. §§ 4980H(c)(2)(A), 4980D(d).
Second, "grandfathered" plans are exempt from the Mandate because the ACA allows individuals to temporarily maintain the health coverage they possessed before the ACA was enacted. See 42 U.S.C. § 18011.
Third, and the most relevant here, is the exemption for religious employers. In response to concerns from religious organizations, the Departments amended the interim final regulations to give the HRSA authority to exempt group health plans established or maintained by religious employers. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed.Reg. 46,621, 46,623 (Aug. 3, 2011). The Departments defined a "religious employer" as one that: "(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code." Id. The cited sections "refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as the exclusively religious activities of any religious order." Id.
The Departments received more than 200,000 responses to their request for comments from a variety of entities both supporting and opposing expansion of the proposed exemption. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed.Reg. 8725, 8726 (Feb. 15, 2012). After reviewing these comments, they published final regulations on February 15, 2012, adopting their proposed definition of "religious employer." Id. at 8727. They also created a one-year safe harbor for religious non-profit organizations, during which the Departments would not enforce the Mandate against them. Id. at 8728.
In response to religious groups that were dissatisfied with the scope of the proposed religious employer exemption, the Departments issued an advance notice of proposed rulemaking ("ANPRM") in anticipation of creating additional accommodations for non-exempt religious non-profit organizations. Certain Preventive Services Under the Affordable Care Act, 77 Fed.Reg. 16,501 (Mar. 21, 2012). After reviewing the comments received from the ANPRM, the Departments published proposed rules creating an accommodation for a wider range of religious non-profit organizations. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed.Reg. 8456 (Feb. 6, 2013).
The Departments received over 400,000 comments on the proposed rules, and finalized two notable changes. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed.Reg. 39,870, 39,871 (July 2, 2013). First, the Departments simplified and clarified the existing exemption for religious employers by eliminating the first three elements of the definition, thereby defining "religious employer" as "an employer that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code [("IRC")]." Id. at 39,874. Second, they created an accommodation for religious non-profit organizations that did not meet this simplified definition of a religious employer. Id.
The regulations state a religious non-profit organization can receive this accommodation if it: (1) has religious objections to "providing coverage for some or all of the contraceptive services required to be covered" under the Mandate, (2) "is organized and operates as a nonprofit entity," (3) "holds itself out as a religious organization," and (4) "self-certifies that it satisfies the first three criteria." Id. The accommodation is available for both (1) insured group health plans, under which an employer contracts with a health insurance issuer to assume the risk of providing benefits to employees, and (2) self-insured group health plans, under which the employer itself assumes the risk of providing benefits to employees. Id. at 39,875-80.
To self-certify under the accommodation scheme, the Departments initially required religious non-profit organizations to use the Employee Benefits Security Administration's ("EBSA") Form 700 ("Form").
The back of the Form notifies TPAs of their obligations.
As part of this scheme, the regulations initially included a non-interference provision, which specified that objecting religious non-profit organizations "must not, directly or indirectly, seek to influence the third party administrator's decision" whether to provide coverage for contraceptives. 26 C.F.R. § 54.9815-2713A(b)(iii) (2013). When the Plaintiffs filed their suits, they sought a preliminary injunction relieving them from complying with this version of the accommodation scheme, arguing delivery of the Form to their health insurance issuer or TPA constituted a substantial burden on their religious exercise in violation of RFRA and the First Amendment.
In response to litigation by Plaintiffs and others, the Departments have since expanded the accommodation scheme.
These regulations relieve a religious non-profit organization from complying with the Mandate if it notifies HHS in writing of its religious objection to the provision of some or all contraceptive services. Id. at 51,094. The notice may be sent by letter or email, and must contain (1) "the name of the eligible organization and the basis on which it qualifies for an accommodation," (2) "its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services," including any particular subset to which it objects; (3) the name and type of the group health plan; and (4) the name and contact information for any of the plan's TPAs and/or health insurance issuers. Id. at 51,094-95. According to the Departments, these requirements constitute "the minimum information necessary for the Departments to determine which entities are covered by the accommodation, to administer the accommodation, and to implement the policies in the July 2013 final regulations." Id. at 51,095.
The revised regulations also repeal the non-interference provision by deleting language prohibiting organizations from interfering with or seeking to influence their TPA's decision to cover contraception. Id.
The Plaintiffs use different types of employer-sponsored group health plans, which the Departments treat differently within the accommodation scheme. By its own terms, the ACA obligates both group health plans and health insurance issuers to provide contraceptive coverage. 42 U.S.C. § 300gg-13 ("A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for ... with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph."); 26 C.F.R. § 54.9815-2713(a)(1); 29 C.F.R. § 2590.715-2713(a)(1); 45 C.F.R. § 147.130(a)(1). Because the differences among these arrangements are relevant to our discussion of the merits of Plaintiffs' claims, we consider it helpful to explain how the Mandate and accommodation scheme affect insured plans, self-insured plans, and self-insured church plans.
When a religious non-profit organization offers its employees an insured plan, the statutory language not only requires the group health plan to cover contraception, but also obligates the plan's health insurance issuer to ensure plan participants and beneficiaries receive contraceptive coverage. See 42 U.S.C. §§ 300gg-13; 300gg-22. Thus, even if a religious non-profit organization does not self-certify that it has an objection, its health insurance issuer is obligated to provide contraceptive coverage to plan participants and beneficiaries and charge the organization for the cost. See Priests for Life v. U.S. Dep't of Health & Hum. Servs., 7 F.Supp.3d 88, 95-96 & n. 2 (D.D.C.2013). The organization can free itself from complying with the Mandate and paying for that coverage, however, "if the eligible organization or group health plan provides either a copy of the self-certification to each issuer providing coverage in connection with the plan or a notice to the Secretary of Health and Human Services." 26 C.F.R. § 54.9815-2713AT(c)(1); 29 C.F.R. § 2590.715-2713A(c)(1); 45 C.F.R. § 147.131(c)(1). When an organization submits the Form expressing an objection to providing contraceptive coverage, "the issuer has sole responsibility for providing such coverage in accordance with § 147.130." 45 C.F.R. § 147.131(c)(1)(i); see also 26 C.F.R. § 54.9815-2713AT(c)(1)(i) (requiring coverage in accordance with § 54.9815-2713); 29 C.F.R. § 2590.715-2713A(c)(1)(i) (requiring coverage in accordance with § 2590.715-2713). Similarly, when an organization notifies HHS, the Department
In the context of insured plans, health insurance issuers are generally responsible for paying for contraceptive coverage when a religious non-profit organization opts out. See 45 C.F.R. § 156.50. The Departments expect this will be cost-neutral for issuers because of the cost savings that accompany improvements in women's health and lower pregnancy rates. See 78 Fed.Reg. at 39,877.
When a religious non-profit organization offers its employees a self-insured plan, the accommodation works in a slightly different fashion. A self-insured group health plan complies with the regulatory requirements and is excused from providing contraceptive coverage if "[t]he eligible organization or its plan contracts with one or more third party administrators" and "[t]he eligible organization provides either a copy of the self-certification to each third party administrator or a notice to the Secretary of Health and Human Services that it is an eligible organization and of its religious objection to coverage of all or a subset of contraceptive services." 26 C.F.R. § 54.9815-2713AT(b)(1); 29 C.F.R. § 2590.715-2713A(b)(1).
Although the text of the ACA does not specify a role for TPAs, it expressly requires group health plans to include contraceptive coverage, and federal regulations impose obligations on TPAs that administer self-insured group health plans. See 42 U.S.C. § 300gg-13; 26 C.F.R. § 54.9815-2713AT(b); 29 C.F.R. § 2590.715-2713A(b). The regulations require a TPA administering a group health plan to provide or arrange for contraceptive coverage without cost sharing with the organization or its beneficiaries when it: (1) receives a notification that an eligible employer has opted out of providing coverage and (2) decides to remain in a relationship with that employer or its plan to provide administrative services for the plan. 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The TPA's obligations are enforceable under the Employee Retirement Income Security Act ("ERISA"). See 78 Fed.Reg. at 39,879-80.
In the context of self-insured plans, a TPA may seek reimbursement if it has received the Form or a notification from the government and "provides or arranges payments for contraceptive services." See 26 C.F.R. § 54.9815-2713AT(b)(3); 29 C.F.R. § 2590.715-2713A(b)(3); 45 C.F.R. § 156.50(d)(2)(ii)-(iii). TPAs do so by working through health insurance issuers, who receive adjustments to fees they pay to the government under the ACA and pass along the reimbursements to TPAs. See 45 C.F.R. § 156.50(d).
Although federal regulations impose certain requirements on TPAs, the Departments concede they lack authority to enforce those requirements as to self-insured "church plans," which are group health plans established by a church or association of churches covering the church's or association's employees. 29 U.S.C. § 1002(33). Organizations that provide health care coverage for employees through self-insured church plans are exempt from regulation under ERISA. 29 U.S.C. § 1003(b)(2). Unless a church plan has made an election under 26 U.S.C. § 410(d), which opts plans into provisions of ERISA, the Departments concede they
Although the accommodation is available for both insured and self-insured group health plans, the source of the legal obligation to provide contraceptive coverage after a religious non-profit organization has opted out differs based on the type of insurance arrangement the organization uses. When an organization takes advantage of the accommodation, the ACA requires health insurance issuers to provide coverage for insured group health plans, while federal regulations adopted pursuant to the ACA require TPAs to arrange coverage for self-insured group plans that are subject to ERISA. As we discuss below, these distinctions shape the claims advanced by different Plaintiffs in the cases before us.
The Plaintiffs
The Little Sisters of the Poor Home for the Aged, Denver, Colorado and Little Sisters of the Poor, Baltimore ("Little Sisters") belong to an order of Catholic nuns who devote their lives to care for the elderly. The Little Sisters provide health insurance coverage to their employees through the Christian Brothers Employee Benefit Trust ("Trust"), a self-insured church plan that is not subject to ERISA. The Trust uses Christian Brothers Services ("Christian Brothers"), another Catholic organization, as its TPA.
The Little Sisters have always excluded coverage of sterilization, contraception, and abortifacients from their health care plan in accordance with their religious belief that deliberately avoiding reproduction through medical means is immoral. The Little Sisters "believe that it is wrong for them to intentionally facilitate the provision of these medical procedures, drugs, devices, and related counseling and services." LS Br. at 10. They cite "well-established Catholic teaching that prohibits encouraging, supporting, or partnering with others in the provision of sterilization, contraception, and abortion." LS Br. at 9-10. The Little Sisters contend they "cannot provide these things, take actions that directly cause others to provide them, or otherwise appear to participate in the government's delivery scheme," as the mere appearance of condoning these services "would violate their public witness to the sanctity of human life and human dignity and could mislead other Catholics and the public." LS Br. at 10.
The Little Sisters are subject to the Mandate unless they take advantage of the accommodation scheme by delivering the Form to the Christian Brothers, their TPA, or notifying HHS of their religious objection. If they do not take one of these steps and do not provide contraceptive coverage, they estimate a single Little Sisters home could incur penalties of up to $2.5 million per year, and allege the Trust could lose up to $130 million in plan contributions.
Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and Mid-America Christian University are "Christ-centered institutions of higher learning." SN Br. at 1-2. Southern Nazarene is partially self-insured; it generally assumes the risks of providing coverage but contracts with a health insurance issuer to pay all claims over $100,000. For its insured employee coverage, it uses Blue Cross Blue Shield of Oklahoma. It offers separate coverage to students through an insured plan. Oklahoma Baptist is an insured university. It uses Blue Cross Blue Shield of Oklahoma, and offers separate coverage to students through an insured plan. Oklahoma Wesleyan is an insured university. It uses Community Care of Oklahoma. Mid-America Christian is a self-insured university on a church plan that is not subject to ERISA. It uses plans provided by Guide-Stone Financial Resources.
The universities have brought suit collectively, but they are in slightly different positions insofar as Mid-America Christian University uses a church plan and contracts with a TPA, Oklahoma Baptist University and Oklahoma Wesleyan use health insurance issuers, and Southern Nazarene contracts with a TPA but uses a health insurance issuer for student coverage and employee claims above $100,000.
The universities believe "it would be sinful and immoral for them to participate in, pay for, facilitate, enable, or otherwise support access to abortion, abortion-inducing drugs and devices, and related counseling." SN Br. at 1-2. They object to the provision of contraceptives they consider abortifacients. The universities currently offer health plans to students and employees that do not cover the contraceptives the universities find objectionable.
The universities are subject to the Mandate, but they may take advantage of the accommodation scheme by delivering the Form or notifying HHS of their religious objections to relieve themselves of the obligation to provide contraceptive coverage. They object to the accommodation, however, because they believe it requires them to expressly or functionally offer contraceptive coverage through their group health plan, interferes with the spiritual
Reaching Souls is a non-profit corporation founded by a Southern Baptist minister and based in Oklahoma. The organization trains pastors and evangelists and provides care to orphans in Africa, India, and Cuba. Truett-McConnell College is a private liberal arts college based in Georgia. Both Reaching Souls and Truett-McConnell use the GuideStone Plan, a self-insured church plan that is not subject to ERISA. GuideStone Financial Resources, a Texas non-profit corporation, established the GuideStone Plan and holds the assets funding it in trust. GuideStone Financial Resources has entered into agreements with other entities to provide claims administration as TPAs under the Guide-Stone Plan, including Connecticut General Life Insurance Company, Highmark Health Services, and Express Scripts, Inc.
Reaching Souls believes life begins at conception and objects to four of the twenty FDA-approved methods of contraception that Reaching Souls characterizes as abortifacients. Truett-McConnell has adopted the Southern Baptist Convention's statement of faith and objects to the same four methods of contraception. Guide-Stone Financial Resources, as an arm of the Southern Baptist Convention, also opposes coverage of contraception methods it believes to be abortifacients. The organizations ground their beliefs in the sanctity of human life and opposition to elective abortion in the religious teachings of the Southern Baptist Convention.
Both Reaching Souls and Truett-McConnell College are subject to the Mandate, but they may take advantage of the accommodation scheme by delivering the Form or notifying HHS of their religious objections. If they do, GuideStone Financial Resources would have to pass the information to the TPAs of the GuideStone Plan to effectuate the coverage. The plaintiffs believe this would violate their religious beliefs "by making them complicit in the government's scheme to provide abortifacients." RS Br. at 4. If the organizations do not take advantage of the accommodation scheme or provide coverage, they contend they will incur millions of dollars in fines, which "would crush the ministries and force a mass exodus from GuideStone." RS Br. at 3.
The district courts reached different results in the three cases before us, denying a preliminary injunction to the plaintiffs in Little Sisters but granting a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls. Reviewing the reasoning behind their determinations clarifies the claims before us on appeal.
In Little Sisters, the district court determined that complying with the accommodation scheme would not impose a substantial burden on the Little Sisters' or Christian Brothers' religious exercise. 6 F.Supp.3d at 1239-45. The court's analysis of the preliminary injunction factors began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied. Id. at 1236. After determining it was the court's duty to determine how the regulations operate as a matter of law, id. at 1239, the court concluded the accommodation scheme does not require the Little Sisters to provide contraceptive coverage or to participate in the provision of contraceptive coverage, id. at 1239-42.
The Little Sisters next asked the Tenth Circuit for an injunction pending appeal, which this court denied. The Supreme Court subsequently granted their request for an injunction pending appeal, allowing the Little Sisters to notify HHS of their religious objection instead of sending the Form to their TPA as the regulations at the time required. See Little Sisters, 134 S.Ct. 1022. The Little Sisters now appeal the district court's denial of a preliminary injunction.
In Southern Nazarene, the district court granted a preliminary injunction to the plaintiffs. 2013 WL 6804265, at *11. The court's analysis focused mainly on the plaintiffs' likelihood of success on the merits.
The court concluded the plaintiffs had shown they were likely to succeed on the merits. Id. After reaching this conclusion, it briefly reviewed the other preliminary injunction factors and entered a preliminary injunction that prevented the Departments from enforcing the Mandate, requiring
Like the district court in Southern Nazarene, the district court in Reaching Souls granted a preliminary injunction to the plaintiffs. 2013 WL 6804259, at *8. The court primarily analyzed the likelihood of plaintiffs' success on the merits. Id. at *6-8. It characterized the Government's substantial burden argument as "simply another variation of a proposition rejected by the court of appeals in Hobby Lobby," likening it to the argument that the Mandate was not a substantial burden on for-profit employers because it required intervening acts by third parties — employees deciding whether to acquire contraception. Id. at *7. It emphasized that regardless of whether the Form actually triggers the provision of contraceptive services, the plaintiffs believe that signing it would signal their tacit support or cooperation. Id.
The court thus determined "the accommodation scheme applies substantial pressure on Plaintiffs to violate their belief that participating in or facilitating the accommodation is the moral equivalent of directly complying with the contraceptive mandate." Id. at *8. It briefly reviewed the other preliminary injunction factors and enjoined the Government from requiring the plaintiffs to comply with the Mandate and accommodation scheme or penalizing the plaintiffs for noncompliance. Id. The Government now appeals the district court's ruling.
Before we present our analysis of the issues, we wish to highlight the unusual nature of Plaintiffs' central claim, which attacks the Government's attempt to accommodate religious exercise by providing a means to opt out of compliance with a generally applicable law.
Most religious liberty claimants allege that a generally applicable law or policy without a religious exception burdens religious exercise, and they ask courts to strike down the law or policy or excuse them from compliance. Our circuit's three most recent RFRA cases fall into this category. In Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir.2013) (en banc), aff'd sub nom. Hobby Lobby, 134 S.Ct. 2751, the ACA required the plaintiffs to provide their employees with health insurance coverage of contraceptives against their religious beliefs. In Yellowbear v. Lampert, 741 F.3d 48 (10th Cir.2014), a prison policy denied the plaintiff access to a sweat lodge, where he wished to exercise his Native American religion. In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir.2010), a prison policy denied the plaintiff a halal diet, which is necessary to his Muslim religious exercise. In each instance, the law or policy failed to provide an exemption or accommodation to the plaintiff(s).
The Supreme Court's recent ruling in Holt v. Hobbs, ___ U.S. ___, 135 S.Ct. 853, 190 L.Ed.2d 747 (2015), which concerned a prison ban on inmates' growing beards, is another recent example of the more common RFRA claim. The plaintiff in Holt sought to grow a beard in accordance with his Muslim faith. In Holt, like in Hobby Lobby, the government defendants insisted on a complete restriction and did not attempt to accommodate the plaintiff's religious exercise. The plaintiff in Holt proposed a compromise — he would be allowed to grow only a half-inch beard — which the prison refused. 135 S.Ct. at 861. The Court ultimately approved this compromise in its ruling. Id. at 867.
In the cases before us, by contrast, the Departments have developed a religious
The closest Tenth Circuit case we have found is United States v. Friday, 525 F.3d 938 (10th Cir.2008), in which defendant Winslow Friday argued his conviction for shooting a bald eagle without a permit violated RFRA because he shot the eagle for use in a tribal religious ceremony. The Bald and Golden Eagle Protection Act forbids killing a bald eagle, but an applicant can obtain a permit to "take" a live eagle for a religious ceremony. See 16 U.S.C. §§ 668, 668a. We recognized the potential question of "whether it substantially burdens Mr. Friday's religion to require him to obtain a permit in advance of taking an eagle." Friday, 525 F.3d at 947. We said we were "skeptical that the bare requirement of obtaining a permit can be regarded as a `substantial burden' under RFRA," id., but Mr. Friday did not make that specific argument, and we decided the permit accommodation otherwise met RFRA's strict scrutiny element, id. at 948.
We spoke favorably of the government's accommodation scheme in Friday, even though "[t]hat accommodation may be more burdensome than the [religious objectors] would prefer, and may sometimes subordinate their interests to other policies not of their choosing." Id. at 960. As we noted in conclusion: "Law accommodates religion; it cannot wholly exempt religion from the reach of the law." Id. We therefore turn to uncharted Tenth Circuit terrain.
The Plaintiffs in the three cases before us assert claims against the Mandate and accommodation scheme under RFRA and the First Amendment's Free Exercise, Establishment, and Free Speech Clauses.
Under RFRA, the government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless "it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1.
Plaintiffs argue the ACA and its implementing regulations violate RFRA because they substantially burden their religious exercise by forcing them to do one of three things: (a) comply with the Mandate and provide contraceptive coverage, (b) take advantage of the accommodation scheme, or (c) pay steep fines for non-compliance.
To explain why the accommodation is permissible under RFRA, we first review the RFRA framework and consider how religious accommodations may lessen or eliminate the substantiality of a burden on religious exercise. We then apply this framework to the accommodation scheme before us, which exempts religious non-profits from providing contraceptive coverage and instead assigns that task to health insurance issuers and TPAs.
We conclude the accommodation does not substantially burden Plaintiffs' religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not "trigger" or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to
The dissent parts ways with our majority opinion on the self-insured plaintiffs' RFRA claims. It stresses that, by opting out, the self-insured plaintiffs would cause the legal responsibility to provide contraceptive coverage to shift to their TPAs.
Each appeal before us seeks review of a district court order granting or denying a preliminary injunction. We review orders granting or denying a preliminary injunction for abuse of discretion. See Hobby Lobby, 723 F.3d at 1128; Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir.2006).
A preliminary injunction may be granted if the party seeking it shows: "(1) a likelihood of success on the merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the movant outweighs any harm to the non-moving party; and (4) an injunction is in the public interest." Hobby Lobby, 723 F.3d at 1128. A district court abuses its discretion by granting or denying a preliminary injunction based on an error of law. See id.; Aid for Women, 441 F.3d at 1115.
RFRA was enacted in 1993 in response to Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), in which the Supreme Court held that burdens on religious exercise are constitutional under the Free Exercise Clause if they result from a neutral law of general application and have a rational basis. Id. at 878-80, 110 S.Ct. 1595; United States v. Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002). Congress enacted RFRA to restore the pre-Smith standard, which permitted legal burdens on an individual's religious exercise only if the government could show a compelling need to apply the law to that person and that the law did so in the least restrictive way. Smith, 494 U.S. at 882-84; see also Hobby Lobby, 134 S.Ct. at
By restoring the pre-Smith compelling interest standard, Congress did not express any intent to alter other aspects of Free Exercise jurisprudence. See id.; Hobby Lobby, 723 F.3d at 1133 ("Congress, through RFRA, intended to bring Free Exercise jurisprudence back to the test established before Smith. There is no indication Congress meant to alter any other aspect of pre-Smith jurisprudence...."). Notably, pre-Smith jurisprudence allowed the government "wide latitude" to administer large administrative programs, and rejected the imposition of strict scrutiny in that context. As the Supreme Court indicated in Bowen v. Roy,
476 U.S. 693, 707, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986). As we discuss at greater length below, the pre-Smith standards restored by RFRA permitted the Government to impose de minimis administrative burdens on religious actors without running afoul of religious liberty guarantees.
RFRA analysis follows a burden-shifting framework. "[A] plaintiff establishes a prima facie claim under RFRA by proving the following three elements: (1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion." Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir.2001); see 42 U.S.C. § 2000bb-1(a).
We have previously stated "a government act imposes a `substantial burden' on religious exercise if it: (1) requires participation in an activity prohibited by a sincerely held religious belief, (2) prevents participation in conduct motivated by a sincerely held religious belief, or (3) places substantial pressure on an adherent to engage in conduct contrary to a sincerely held religious belief." Hobby Lobby, 723 F.3d at 1125-26 (quotations and alterations
To determine whether plaintiffs have made a prima facie RFRA claim, courts do not question "whether the petitioner ... correctly perceived the commands of [his or her] faith." Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 716, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); see Hobby Lobby, 723 F.3d at 1138-40. But courts do determine whether a challenged law or policy substantially burdens plaintiffs' religious exercise. RFRA's statutory text and religious liberty case law demonstrate that courts — not plaintiffs — must determine if a law or policy substantially burdens religious exercise.
RFRA states the federal government "shall not substantially burden a person's exercise of religion." 42 U.S.C. § 2000bb-1(a). We must "give effect ... to every clause and word" of a statute when possible. United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955). Drafts of RFRA prohibited the government from placing a "burden" on religious exercise. Congress added the word "substantially" before passage to clarify that only some burdens would violate the act. 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statements of Sen. Kennedy and Sen. Hatch).
We therefore consider not only whether a law or policy burdens religious exercise, but whether that burden is substantial. If plaintiffs could assert and establish that a burden is "substantial" without any possibility of judicial scrutiny, the word "substantial" would become wholly devoid of independent meaning. See Menasche, 348 U.S. at 538-39, 75 S.Ct. 513. Furthermore, accepting any burden alleged by Plaintiffs as "substantial" would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.
Every circuit that has addressed a RFRA challenge to the accommodation scheme at issue here has concluded that whether the government has imposed a "substantial burden" is a legal determination. See E. Tex. Baptist Univ. v. Burwell, Nos. 14-20112, 14-10241, 14-40212, 14-10661, 793 F.3d 449, 455-59, 2015 WL 3852811, at *3-5 & n. 33 (5th Cir. June 22, 2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 612 (7th Cir.2015); Geneva Coll. v. Sec'y of U.S. Dep't of Health & Human Servs., 778 F.3d 422, 436 (3d Cir. 2015); Priests for Life v. U.S. Dep't of Health & Human Servs., 772 F.3d 229, 247-49 (D.C.Cir.2014); Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372, 385 (6th Cir.2014), vacated and remanded, ___ U.S. ___, 135 S.Ct. 1914, 191 L.Ed.2d 760 (2015). This is consistent with our determination that we review de novo "what constitutes [a] substantial burden ... and the ultimate determination as to whether the RFRA has been violated." United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir.1996); see also Yellowbear, 741 F.3d at 56 (determining "a reasonable finder of fact could conclude the prison has substantially burdened Mr. Yellowbear's religious exercise"). Thus, we "accept[] as true the factual allegations that [Plaintiffs'] beliefs are sincere and of a religious nature — but not the legal conclusion, cast as a factual allegation, that [their] religious exercise is substantially burdened." Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C.Cir.2008);
We have cautioned that substantiality does not permit us to scrutinize the "theological merit" of a plaintiff's religious beliefs — instead, we analyze "the intensity of the coercion applied by the government to act contrary to those beliefs." Hobby Lobby, 723 F.3d at 1137 (emphasis omitted). "Our only task is to determine whether the claimant's belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief." Id.
When evaluating RFRA claims, we have therefore recognized that not all burdens alleged by plaintiffs amount to substantial burdens. See Abdulhaseeb, 600 F.3d at 1321 ("We are not willing to conclude, however, that every single presentation of a meal an inmate considers impermissible constitutes a substantial burden on an inmate's religious exercise."); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 654 (10th Cir.2006) ("[W]e are not persuaded by Grace United's assertion that the Board's denial of a zoning variance for its proposed daycare operation constitutes more than an incidental burden on religious conduct."); Kikumura, 242 F.3d at 961 (requiring evidentiary proof from the plaintiff that an alleged burden was "substantial" and remanding to the district court). Furthermore, as we discuss in the following section, the existence of an accommodation may affect whether a law or policy burdens religious exercise and whether that burden is substantial.
We finally note that accommodations function to lessen or eliminate the burden of a generally applicable law. In Hobby Lobby, this court said the stark choice between providing contraceptive coverage and paying steep fines constitutes a sufficiently
Accommodations may eliminate burdens on religious exercise or reduce those burdens to de minimis acts of administrative compliance that are not substantial for RFRA purposes. The Supreme Court recognized this point in Hobby Lobby when it suggested an accommodation to exempt the plaintiff corporations from complying with the Mandate could satisfy RFRA concerns. Hobby Lobby, 134 S.Ct. at 2782 ("At a minimum, [the accommodation] does not impinge on the plaintiffs' religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS's stated interests equally well."); see also id. at 2786-87 (Kennedy, J., concurring). The D.C. Circuit observed that "[a] burden does not rise to the level of being substantial when it places an inconsequential or de minimis burden on an adherent's religious exercise." Priests for Life, 772 F.3d at 246 (quotations, citations, and alterations omitted). Were it otherwise, our substantial burden inquiry would become a blunt tool incapable of recognizing the meaningful difference between forcing organizations to provide or pay for contraceptives and allowing them to opt out of that requirement. To determine whether the accommodation scheme in these cases renders the alleged burden on Plaintiffs' religious exercise nonexistent or insubstantial, we turn to the merits of Plaintiffs' RFRA arguments.
The cases before us turn on whether complying with the accommodation constitutes a substantial burden. The Government does not dispute the sincerity of Plaintiffs' religious belief that they may not provide, pay for, or facilitate contraceptive coverage. The parties dispute whether the accommodation scheme substantially burdens the Plaintiffs' exercise of religion.
Plaintiffs oppose completing the Form or notifying HHS because they believe they are being asked to play a causal role in the delivery of contraceptive coverage and would be complicit or perceived to be complicit in the overall contraceptive delivery scheme by virtue of their opting out. They also allege their continuing involvement in the regulatory scheme is a substantial burden.
Under the accommodation scheme, the act of opting out relieves objecting religious non-profit organizations from complying with the Mandate and excuses them from participating in the provision of contraceptive coverage. The Departments designed the accommodation so that, upon receipt of the Form or a notification from the government, health insurance issuers and TPAs — not the objecting religious non-profit organization — provide contraceptive coverage and ensure the organization will not be required to provide, pay for, or otherwise facilitate that coverage. See Mich. Catholic Conf., 755 F.3d at 391. We review this feature of the accommodation scheme to show how it eliminates burdens Plaintiffs otherwise would face, similar to the burdens the for-profit plaintiffs faced in Hobby Lobby.
First, the regulations specify a health insurance issuer must handle contraceptive coverage separately from the insurance provided under the religious non-profit organization's plan.
45 C.F.R. § 147.131(c)(2)(i).
Second, after a religious non-profit organization opts out, a health insurance issuer may not share the costs of providing contraception with the employer or employees.
45 C.F.R. § 147.131(c)(2)(ii); see also 26 C.F.R. § 54.9815-2713A(c)(2)(ii); 29 C.F.R. § 2590.715-2713A(c)(2)(ii). TPAs are subject to similar requirements. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
Finally, a health insurance issuer or TPA must, in communicating with plan participants or beneficiaries, send separate notice regarding contraceptive coverage from other plan notifications and make clear the employer neither administers nor funds contraceptive benefits. A health insurance issuer or TPA
26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d); see also 45 C.F.R. § 147.131(d).
All of the foregoing remove the objecting religious non-profit organizations from providing contraceptive coverage, but Plaintiffs argue these protections of their religious liberty are insufficient because they still must deliver a Form or notify HHS to opt out of the Mandate. They contend this act substantially burdens their religious exercise because it "triggers" the provision of contraceptive coverage, makes them complicit in the larger delivery scheme, and demands their ongoing involvement. We disagree. The accommodation relieves Plaintiffs of their statutory obligation to provide contraceptive coverage to their plan participants and beneficiaries, and as we discuss below, taking advantage of that accommodation is not a substantial burden on religious exercise.
To explain why the accommodation scheme does not substantially burden Plaintiffs' religious exercise, we look at the theories argued by the Plaintiffs and why they fail.
Although the accommodation scheme frees Plaintiffs from providing, paying for, or facilitating contraceptive coverage, they contend that, by delivering the Form or notifying HHS, they nevertheless "trigger" or cause contraceptive coverage. They do not. As we explain below, Plaintiffs' causation argument misconstrues the statutory and regulatory framework. Federal law, not the Form or notification to HHS, provides for contraceptive coverage without cost sharing to plan participants and beneficiaries. Because the mechanics of the accommodation scheme differ slightly for different types of plans, we examine how the regulations work for insured plans, self-insured plans, and self-insured church plans. But in each circumstance, Plaintiffs' causation argument fails to establish any burden on Plaintiffs' religious exercise.
The plaintiffs with insured plans deal directly with a health insurance issuer and do not use a TPA.
The regulations do not burden the religious exercise of employers using insured plans. The ACA obligates both group health plans and health insurance issuers to provide contraceptive coverage. A religious non-profit organization may comply with the Mandate and provide coverage to its employees, opt out using the accommodation, or not comply with the law and pay fines. But in each instance, the health insurance issuer must ensure the organization's employees receive contraceptive coverage.
By delivering the Form or notifying HHS, an organization with an insured plan does not enable coverage — to the contrary, it simply notifies its health insurance issuer the organization will not be providing coverage. The health insurance issuer then has an independent and exclusive obligation to provide that coverage without cost sharing. The relevant regulation states: "When a self-certification is provided directly to an issuer, the issuer has sole responsibility for providing such coverage in accordance with § 147.130." 45 C.F.R. § 147.131(c)(1)(i). Because the ACA obligates health insurance issuers to provide contraceptive coverage, they must meet this obligation independently and irrespective of the notification. The self-certification does not impose any responsibility; it merely makes it the issuer's sole responsibility rather than one shared with the group health plan itself.
Because federal law requires the health insurance issuer to provide coverage and the accommodation process removes an objecting organization from participating, plaintiffs with insured plans fail to show the accommodation burdens their religious exercise. The insured plaintiffs are not burdened when they are relieved of their responsibility and their insurers provide coverage as required by independent obligations set out in the ACA.
The accommodation scheme permits religious non-profit organizations with self-insured plans to opt out by delivering the Form to their TPA or notifying HHS that they have a religious objection and will not comply with the Mandate. When the objecting organization opts out, the TPA that administers its group health plan is responsible for providing contraceptive coverage if it wishes to remain a TPA for the plan. In this section, we address this self-insured arrangement. In the next section, we consider the subset of self-insured plaintiffs having church plans over which the government lacks enforcement authority under ERISA to compel the TPA to comply with its legal obligations.
The only plaintiff with a self-insured plan subject to ERISA is Southern Nazarene. Southern Nazarene argues the accommodation scheme substantially burdens its religious exercise because the scheme requires it to "comply with the Mandate by either (a) setting up a self-insured plan that includes abortifacients; or (b) setting up a self-insured plan that functionally includes abortifacients by guaranteeing separate payments for them
Plaintiffs and the dissent emphasize that the TPA may arrange or provide coverage only after a religious non-profit organization opts out.
Plaintiffs suggest this shift in legal responsibility for contraceptive coverage substantially burdens their religious exercise under RFRA. They argue their opting out would trigger, cause, or offer a "permission slip" for the delivery of contraception by allowing their TPA to provide the coverage. Southern Nazarene, 2013 WL 6804265, at *8. We disagree.
The ACA requires all group health plans to cover preventive services, including contraception, without cost sharing. Because a group health plan must include contraceptive coverage under the ACA, the accommodation scheme requires a TPA that administers a self-insured religious non-profit organization's group health plan to provide coverage if the organization opts out. The TPA must then arrange coverage for plan participants and beneficiaries if it wishes to continue functioning as the TPA for the objecting organization. This arrangement allows religious non-profit organizations to opt out and ensures plan participants and beneficiaries will receive the contraceptive coverage to which they are entitled by law.
Under this framework, the plaintiffs' argument does not identify a substantial burden on religious exercise. The opt out does not "cause" contraceptive coverage; it relieves objectors of their coverage responsibility, at which point federal law shifts that responsibility to a different actor. The ACA and its implementing regulations have already required that group health plans will include contraceptive
The dissent argues that our reasoning fails to appreciate the difference between insured and self-insured plans. With insured plans, the health insurance issuer bears legal responsibility to provide contraceptive coverage whether or not the religious non-profit has opted out. With self-insured plans, the TPA shoulders legal responsibility for coverage only after the religious non-profit has opted out.
We agree this is a distinction between these types of plans, but the dissent overplays its importance. See Dissent at 1210 (deeming the difference between insured and self-insured plans "the critical distinction").
A religious accommodation tries to reconcile religious liberty with the rule of law. When faced with an unavoidable conflict between following the law or religious belief, RFRA provides a religious objector a means to challenge a generally applicable law and seek an exception to avoid following that law without having to break it. A statutory accommodation, as we have here, serves the same purpose. As noted above, this case is unusual because the Plaintiffs do not seek an accommodation where none exists, but instead challenge a statutory accommodation and argue that the process for seeking refuge in it substantially burdens their religious exercise. As to the self-insured plaintiffs, the dissent contends that if they opt out and transfer their duty to provide contraceptive coverage to the TPA, they necessarily cause such coverage. We disagree.
By opting out, the self-insured plaintiffs shift their duty to provide coverage to a TPA, but they do not change their plan participants and beneficiaries' entitlement to contraceptive coverage under federal law.
In making this argument, the dissent focuses almost exclusively on whether the plaintiffs' opt out is a but-for cause of the TPAs' authority to provide contraceptive coverage.
The ACA requires that either the religious non-profit organization or the TPA must provide contraceptive coverage for a self-insured group health plan, and the accommodation must be evaluated with that provision in mind. The scheme allows the religious non-profit organization to opt out of the responsibility of providing coverage and assigns that duty to the TPA administering the group health plan. Crucially, it does not change or expand contraceptive coverage beyond what federal law has already guaranteed. As the Supreme Court said in Hobby Lobby, the effect of the accommodation on employees "would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing." 134 S.Ct. at 2760.
The government has designed the accommodation so plaintiffs that opt out are freed from providing, paying for, or facilitating contraception, and the TPA's responsibility to provide coverage in their stead stems from federal law. Because this arrangement does not substantially burden the plaintiffs when they comply with the law, it does not matter whether the plaintiffs could prevent plan participants and beneficiaries from receiving coverage by violating the law. The dissent seems to suggest the ACA and its implementing regulations give self-insured plaintiffs discretion to decide whether their employees receive contraceptive coverage. The ACA and its implementing regulations do not, and the plaintiffs do not contend that they do. To the contrary, federal law generally requires that all people must have health insurance and that all health insurance must include preventive services, including contraceptive coverage. See 42 U.S.C. § 300gg-13.
In sum, the self-insured plaintiffs' causal analysis falters regarding the effect of opting out, which is to shift legal responsibility to provide contraceptive coverage from plaintiffs to their TPAs. When the government establishes a scheme that anticipates religious concerns by allowing objectors to opt out but ensuring that others will take up their responsibilities, plaintiffs are not substantially burdened merely because their decision to opt out cannot prevent the responsibility from being met.
To establish a claim under RFRA, about which the dissent says little, a plaintiff must show the government substantially burdens its sincere religious exercise. The ACA states group health plans must cover contraception, and the regulations state that if a religious non-profit organization opts out, that coverage will be provided by a TPA. Opting out does not cause the coverage itself; federal law does, by establishing a scheme that permits plaintiffs to opt out of their legal responsibility while simultaneously ensuring that plan participants and beneficiaries receive the coverage to which they are legally entitled. Allowing plaintiffs to opt out is not a substantial burden under RFRA.
The foregoing analysis of self-insured plans applies to the subset of self-insured church plans. We address additional reasons here to reject the church plan plaintiffs' RFRA claims.
The plaintiffs with self-insured church plans are in a unique position.
The lack of enforcement authority makes any burden on plaintiffs with church plans even less substantial than the burden on plaintiffs with self-insured plans that are subject to ERISA. Nonetheless, plaintiffs with church plans offer the following arguments as to why the accommodation scheme might still burden their religious exercise. First, the Departments could decide to alter the regulations and assert authority over church plans under ERISA. Second, the mere act of signing the Form or delivering the notification may involve them in the provision of contraception, either by cooperating with the Departments or by providing authorization to a TPA, which then decides it wants to provide contraceptive coverage after all. Third, their opting out incentivizes TPAs to provide coverage even if they are exempt from ERISA. Fourth, the Government has not demonstrated why the plaintiffs must complete the self-certification if their TPAs can decline to provide contraceptive coverage. In addition to the reasons self-insured plans in general are not substantially burdened by the accommodation scheme, we conclude the plaintiffs with self-insured church plans have failed to identify a substantial burden on religious exercise.
The plaintiffs argue the Departments could assert authority over church plans under ERISA at some point in the future. We assess the regulations as they currently exist, not amendments to ERISA's implementing regulations the
The plaintiffs contend completing the self-certification would be a substantial burden because it would allow TPAs to provide coverage to their group health plan participants and beneficiaries, even if the Departments cannot compel the TPA to do so under ERISA. But plaintiffs with self-insured church plans are not substantially burdened by the requirement that they complete the Form or notification to HHS. As we explained in the previous section on self-insured plans, when a religious non-profit organization opts out of the Mandate, the requirement that the group health plan include contraceptive coverage is a product of federal law, not the product of the organization's opting out. Opting out frees plaintiffs from their obligation to provide contraceptive coverage under the ACA. The lack of substantial burden is especially evident when the group health plan is administered by a TPA that has made clear it will not provide contraceptive coverage on religious grounds. The Little Sisters' TPA, for example, is Christian Brothers, their co-plaintiff in this case. It is clear Christian Brothers need not, and will not, provide contraceptive coverage if the Little Sisters opt out of the Mandate.
Even when TPAs for self-insured church plans indicate they may comply with the Mandate, the TPAs make that decision, and the objecting religious non-profit organization is not substantially burdened. The plaintiffs in Reaching Souls argue one of their TPAs, Highmark, has indicated it will provide contraceptive coverage if they opt out of the Mandate. The Reaching Souls plaintiffs argue their act of opting out would not only provide Highmark with permission to provide contraceptive coverage, but would incentivize it to do so because Highmark could then seek reimbursement from the government.
Plaintiffs fail to demonstrate the reimbursement provision actually gives TPAs an incentive to provide coverage. They claim a TPA that receives the Form or a letter from the government "becomes eligible for government payments that will both cover the TPA's costs and include an additional payment (equal to at least 10% of costs) for the TPA's margin and overhead." LS Br. at 16. At a hearing in Reaching Souls, counsel for the Government seemed to accept this characterization. But the regulations themselves expressly contradict this reading. They state the payment for margin and overhead goes to health insurance issuers who act as intermediaries for the reimbursement, and need not go to TPAs.
Moreover, even if TPAs were to receive a payment for margin and overhead — set at 15% of costs for 2014 — plaintiffs do not demonstrate this allowance actually functions as an incentive to provide contraceptive coverage rather than repayment for the administrative costs TPAs incur by stepping in to arrange for or provide coverage. Plaintiffs have not demonstrated the allowance for administrative overhead actually generates a profit for TPAs, nor have they demonstrated that the allowance would incentivize TPAs to provide coverage where they otherwise would not.
Plaintiffs finally argue that if the Departments lack ERISA enforcement authority against TPAs of self-insured church plans, the Government has no reason to require religious non-profit organizations to comply with the accommodation scheme and deliver the Form or notify HHS. It is the plaintiffs' burden, however, to state a prima facie case under RFRA. Because they cannot establish that signing the Form or notifying HHS constitutes a substantial burden on their religious exercise, we do not question the Departments' interest in requiring them to opt out of the Mandate to avoid penalties for failure to provide contraceptive coverage.
We conclude the Plaintiffs' causation arguments do not establish a burden on their religious exercise, much less a substantial burden, because opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage.
The accommodation relieves Plaintiffs from providing, paying for, or facilitating contraceptive coverage, and federal law requires health insurance issuers and TPAs to provide contraceptive coverage when religious non-profit organizations take advantage
First, the purpose and design of the accommodation scheme is to ensure that Plaintiffs are not complicit — that they do not have to provide, pay for, or facilitate contraception. Plaintiffs' concern that others may believe they condone the Mandate is unfounded. Opting out sends the unambiguous message that they oppose contraceptive coverage and refuse to provide it, and does not foreclose them from objecting both to contraception and the Mandate in the strongest possible terms.
Second, to the extent Plaintiffs assert that completing the Form or notification violates their religious beliefs, they state a necessary but not a sufficient predicate for a RFRA claim. Under RFRA, they must establish that completing the Form or notification substantially burdens their religious exercise; otherwise, this argument could be used to avoid almost any legal obligation that involves a form. Plaintiffs do not object to signing forms and paperwork generally — they object to the Form or notification to HHS, and they do so because they believe it involves them in directly or indirectly providing, paying for, or facilitating contraceptive coverage, which they oppose as a matter of religious conviction. As we have explained, the Plaintiffs misstate their role in the accommodation scheme. RFRA does not require us to defer to their erroneous view about the operation of the ACA and its implementing regulations.
The Government may therefore require religious objectors to complete de minimis administrative tasks to opt out. Filing the Form or notifying HHS easily fits within this category. The Departments have made opting out of the Mandate at least as easy as obtaining a parade permit, filing a simple tax form, or registering to vote — in other words, a routine, brief administrative task. The purpose of the Form or notification to HHS is to extricate Plaintiffs from their legal obligation to provide contraceptive coverage. Opting out ensures they will play no part in the provision of contraceptive coverage, prohibits TPAs and health insurance issuers from sharing the costs of providing coverage with them, and requires notice to employees that they do not administer or fund contraceptive services.
The notification to HHS is especially minimal, as it requires Plaintiffs only to register their objection with HHS and does not require any contact with their health insurance issuers or TPAs. Although Plaintiffs must tell HHS which health insurance issuer or TPA they use to opt out of the Mandate, this is not a substantial burden on religious exercise.
Finally, Plaintiffs are not substantially burdened when, after they opt out and are relieved of their obligations under the Mandate, health insurance issuers or TPAs must provide contraception to plan participants and beneficiaries. Plaintiffs sincerely oppose contraception, but their religious objection cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled under the ACA. "Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out." Priests for Life, 772 F.3d at 246. Pre-Smith case law and RFRA's legislative history underscore that religious exercise is not substantially burdened merely because the Government spends its money or arranges its own affairs in ways that plaintiffs find objectionable. See Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 450-54, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988); Bowen, 476 U.S. at 699-700, 106 S.Ct. 2147; Tony & Susan Alamo Found., 471 U.S. at 303, 105 S.Ct. 1953; S.Rep. No. 103-111, at 9 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898 ("[P]re-Smith case law makes it clear that strict scrutiny does not apply to government actions involving only management of internal Government affairs or the use of the Government's own property or resources."). RFRA does not prevent the Government from reassigning obligations after an objector opts out simply because the objector strongly opposes the ultimate goal of the generally applicable law.
Plaintiffs' complicity argument therefore fails. Opting out would eliminate their complicity with the Mandate and require only routine and minimal administrative paperwork, and they are not substantially burdened by the Government's subsequent efforts to deliver contraceptive coverage in their stead.
As a final argument, Plaintiffs deny the act of opting out would free them from further involvement in the provision of contraceptive coverage. They argue the accommodation scheme would require their ongoing participation, and give two examples to support this claim.
First, Plaintiffs argue they would remain involved because the Departments
Plaintiffs have not shown, assuming they opt out, how the provision of coverage to plan participants and beneficiaries through the health insurance issuer or TPA would substantially burden their religious exercise. Plaintiffs' plan participants and beneficiaries are not guaranteed contraceptive coverage without cost sharing because they work for the Plaintiffs; they are guaranteed contraceptive coverage under the ACA. The ACA mandates health insurance that includes contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). Plaintiffs' theory would not only relieve them of complying with the Mandate, it would prevent health insurance issuers and TPAs from stepping in under the ACA to provide plan participants and beneficiaries with the coverage they are entitled to receive under federal law.
Second, Plaintiffs object that they must (a) notify their TPA or health insurance issuer when employees join or leave their broader health insurance scheme, and (b) complete the self-certification or notification to HHS when they create or terminate a relationship with a TPA or health insurance issuer. As to the first requirement, employers already must notify their TPA or health insurance issuer when they hire or fire employees. The communication with the TPA or health insurance issuer regarding general health insurance coverage for entering or exiting plan participants and beneficiaries would occur regardless of any legal obligation under the accommodation scheme. The latter requirement, however, is an obligation specific to the accommodation scheme. An insured or self-insured employer using the Form must send it to "each" TPA or health insurance issuer as the employer forms contractual relationships with them. 26 C.F.R. § 54.9815-2713AT(b)(1)(ii); 29 C.F.R. § 2590.715-2713A(b)(1)(ii). If the employer instead uses the notification process, the regulations state: "If there is a change in any of the information required to be included in the notice, the organization must provide updated information to the Secretary of Health and Human Services." 26 C.F.R. § 54.9815-2713AT(b)(1)(ii)(B); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B).
Once again, this does not constitute a substantial burden. The only new requirement is that employers must complete the Form or notify HHS of their objection when they contract with a new health insurance issuer or TPA. Plaintiffs do not argue the time, cost, or energy required to comply with this requirement constitutes a substantial burden; they argue it is the moral significance of their involvement which burdens their religious exercise.
The regulations require the Plaintiffs to complete the Form or deliver the notification if they wish to opt out. But this ministerial act to opt out is not a substantial burden on religious exercise, nor are the collateral requirements of the scheme. The Departments have allowed Plaintiffs to opt out of a neutral and generally applicable requirement imposed by federal law, and have done so in a manner that affirmatively distances those organizations from the provision of contraceptive coverage that other employers must provide. It is not a substantial burden to require organizations to provide minimal information for administrative purposes to take advantage of that accommodation.
Because we determine Plaintiffs have failed to demonstrate a substantial burden on their religious exercise, we need not address whether the Departments have shown a compelling state interest and adopted the least restrictive means of advancing that interest.
In the absence of a substantial burden, Plaintiffs have not demonstrated a strong likelihood of success on the merits of their RFRA claim, nor have they demonstrated they will suffer irreparable injury if an injunction is denied. Accordingly, a preliminary injunction on RFRA grounds is inappropriate.
Although the district courts focused almost exclusively on RFRA, Plaintiffs also raised constitutional claims. They argue the accommodation scheme violates the Free Exercise and Establishment Clauses of the First Amendment by exempting religious employers from the Mandate but requiring religious non-profit organizations to seek an accommodation.
Plaintiffs contend the ACA and its implementing regulations violate the Free Exercise Clause by exempting some religious objectors — churches and their "integrated auxiliaries" — from the Mandate, while requiring others — specifically, religious non-profit organizations — to comply with the Mandate, seek an accommodation, or pay substantial fines. They have not explained how their Free Exercise claim differs from their Establishment Clause claim, nor do they explain how they could prevail under the standard in Smith if they are unlikely to succeed under RFRA. Because we conclude the Mandate and accommodation scheme are neutral and generally applicable laws, they are subject only to rational basis review, which they survive.
The First Amendment's religion clauses state: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. 1. To resolve challenges under the Free Exercise Clause, we use a well-established framework. If a law is neutral and generally applicable, it does not violate the Free Exercise Clause "even if the law has the incidental effect of burdening a particular religious practice." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d
To determine whether a law is generally applicable, we ask if the "legislature decide[d] that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation." Id. at 542-43, 113 S.Ct. 2217. "[A] law that is both neutral and generally applicable need only be rationally related to a legitimate governmental interest to survive a constitutional challenge." Grace United, 451 F.3d at 649.
The Mandate and the accommodation scheme are neutral laws. See Priests for Life, 772 F.3d at 267-69; Mich. Catholic Conf., 755 F.3d at 393-94. The Mandate is facially neutral with regard to employers, and neither the history nor the text of the ACA and its implementing regulations suggest the Mandate was targeted at a particular religion or religious practice. Plaintiffs cannot show Congress or HHS "had as their object the suppression of religion." Lukumi Babalu, 508 U.S. at 542, 113 S.Ct. 2217. To the contrary, the Mandate arose from concerns about the personal and social costs of barriers preventing women from receiving preventive care, including reproductive health care. See IOM, Clinical Preventive Services for Women: Closing the Gaps 102-03 (2011), available at www.nap.edu/catalog.php? record_id=13181. The accommodation scheme was developed to facilitate the free exercise of religion, not to target religious groups or burden religious practice. To that end, the Departments expanded the religious employer exemption and religious non-profit organization accommodation to respond to the concerns of religious groups. The Plaintiffs' apparent dissatisfaction with the accommodation offered to them does not mean the Mandate or the accommodation scheme is non-neutral.
The Mandate and the accommodation scheme are also generally applicable. See Priests for Life, 772 F.3d at 267-69; Mich. Catholic Conf., 755 F.3d at 393-94. Plaintiffs cannot show Congress or the Departments sought to impose the Mandate only against religious groups; to the contrary, the Mandate applies to all employers with more than fifty employees using non-grandfathered health plans.
Rather than make an argument based on the rational relationship standard, Plaintiffs instead contend our decision in Hobby Lobby precludes us from finding that public health and gender equality, without greater specificity, constitute compelling governmental interests. But, as we have explained, the compelling interest test does not apply; the rational basis test does. Grace United, 451 F.3d at 649. The Government observes that in the cases before us, the accommodation scheme rationally serves the twin interests of facilitating religious exercise and filling coverage gaps resulting from accommodating that religious exercise.
On rational basis review, these interests are sufficient. Alleviating governmental interference with religious exercise, which the accommodation scheme does, is a permissible legislative purpose. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987). And we need not scrutinize whether the Government's interest in public health and gender equality is more compelling in this case than in Hobby Lobby. We need only determine that public health and gender equality are legitimate state interests. We believe they meet this more permissive standard, which is not foreclosed by our compelling interest analysis in Hobby Lobby. See, e.g., Hobby Lobby, 723 F.3d at 1143 (determining public health and gender equality are too broad to satisfy the compelling interest test but noting "[w]e recognize the importance of these interests").
Furthermore, when applying the rational basis test, we are not limited to interests specifically articulated by the Departments. We may look to any conceivable legitimate governmental interest, and "the burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis." Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (citations and internal quotations omitted). The more specific governmental interest in health by ensuring access to contraception without cost sharing, which we did not specifically address in Hobby Lobby, would constitute a legitimate interest conceivably advanced by the accommodation scheme. See Hobby Lobby, 723 F.3d at 1160 (Bacharach, J., concurring) ("[T]he plurality does not mention the public interest that the government had relied on at the preliminary-injunction hearing: the health reasons for promoting employee access to emergency contraceptives."). The Departments' recognized interest in the uniformity and ease of administration of its programs would also meet this standard. See, e.g., Bowen, 476 U.S. at 707, 106 S.Ct. 2147; Hernandez, 490 U.S. at 682, 109 S.Ct. 2136; United States v. Lee, 455 U.S. 252, 258-59, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982).
The Mandate and accommodation scheme easily pass the rational basis test. Because the Mandate is both neutral and generally applicable and supported by a rational basis, Plaintiffs fail to make out a plausible claim under the Free Exercise Clause.
Plaintiffs contend that exempting churches and integrated auxiliaries from the Mandate but requiring religious non-profit organizations to seek an accommodation violates the Establishment Clause. We disagree. Because the Departments have chosen to distinguish between entities based on neutral, objective organizational criteria and not by denominational preference or religiosity, the distinction does not run afoul of the Establishment Clause.
Federal law distinguishes between different types of religious organizations, and as we discuss below, this differentiation is constitutionally permissible. Under the ACA and its implementing regulations, a religious employer "is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended." 45 C.F.R. § 147.131(a). The regulations at issue in this case draw on the tax code's distinction between houses of worship and religious non-profits, a "longstanding and familiar" distinction in federal law. Priests for Life, 772 F.3d at 238; see also Geneva Coll., 778 F.3d at 443 (determining it was permissible for the Departments to base the exemption on the IRC's provision "because that provision was a bright line that was already statutorily codified and frequently applied").
Exempting churches while requiring other religious objectors to seek an accommodation is standard practice under the tax code. The IRC and other regulations award benefits to some religious organizations — typically, houses of worship — based on articulable criteria that other religious organizations do not meet. See 26 U.S.C. § 6033(a)(3)(A)(i), (iii). Churches, their integrated auxiliaries, and conventions or associations of churches are automatically considered tax exempt and need not notify the government they are applying for recognition, but other religious non-profit organizations must apply for tax-exempt status
Congress has used similar organizational distinctions in the realm of religious accommodations. Churches and qualified church-controlled organizations that object to paying Social Security and Medicare taxes for religious reasons may opt out of paying them by filing a form with the IRS, but other religious non-profit organizations may not. See id. § 3121(w).
Distinctions based on organizational form enable the government to simultaneously respect both the Free Exercise Clause and Establishment Clause and permit the construction of accommodation schemes that pass constitutional muster. The Supreme Court has concluded
Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 669, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970); see also Catholic Charities of Diocese of Albany v. Serio, 7 N.Y.3d 510, 825 N.Y.S.2d 653, 859 N.E.2d 459, 469 (2006) (observing the Plaintiffs' argument here "would call into question any limitations placed by the Legislature on the scope of any religious exemption — and thus would discourage the Legislature from creating any such exemptions at all," and thus concluding "[a] legislative decision not to extend an accommodation to all kinds of religious organizations does not violate the Establishment Clause"). We recognize the Government enjoys some discretion in fashioning religious accommodations, and believe doing so on the basis of organizational form comports with the Establishment Clause.
The Departments have offered the accommodation to Plaintiffs based on their organizational form. Plaintiffs rely on the decisions in Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), and Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir.2008), to support their Establishment Clause claim. But those cases do not hold that distinctions based on organizational type are impermissible.
Larson involved an Establishment Clause challenge to a Minnesota law that imposed registration and reporting requirements on religious organizations that received less than half of their contributions from members or affiliated organizations. Larson, 456 U.S. at 231, 102 S.Ct. 1673. The legislature drew this distinction to discriminate against particular religions, which was evident in the legislative history. Id. at 253-54, 102 S.Ct. 1673 ("[T]he history of [the challenged law] demonstrates
Larson and Colorado Christian prohibit preferences based on denomination (e.g., Catholic, Jewish, Islamic, etc.) and religiosity (e.g., pervasively sectarian, moderately sectarian, non-sectarian, etc.), but do not prohibit distinctions based on organizational type (e.g., church, non-profit, university, etc.). As Larson noted: "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." 456 U.S. at 244, 102 S.Ct. 1673. In Colorado Christian, we determined that "defendants supply no reason to think that the government may discriminate between `types of institution' on the basis of the nature of the religious practice these institutions are moved to engage in." 534 F.3d at 1259. As a result, Establishment Clause jurisprudence clearly indicates denominational preferences expressed by the government are subject to strict scrutiny. See id. Religiosity distinctions are subject to strict scrutiny as well because they involve the government in scrutinizing and making decisions based on particular expressions of religious belief. See id. at 1256 (invalidating Colorado law because it "expressly discriminates among religions, allowing aid to `sectarian' but not `pervasively sectarian' institutions, and it does so on the basis of criteria that entail intrusive governmental judgments regarding matters of religious belief and practice").
Plaintiffs cite no case holding that organizational distinctions, as opposed to those based on denomination or religiosity, run afoul of the Establishment Clause. Unlike Awad v. Ziriax, 670 F.3d 1111, 1128-29 (10th Cir.2012), which concerned a state constitutional amendment forbidding courts from considering or using Sharia law, evidence of animus or favoritism aimed at a denomination or degree of religiosity is absent here. "Because the law's distinction does not favor a certain denomination and does not cause excessive entanglement between government and religion, the framework does not violate the Establishment Clause." Mich. Catholic Conf., 755 F.3d at 395; see also Priests for Life, 772 F.3d at 272-74.
Neither Larson nor Colorado Christian supports Plaintiffs' claim that distinctions between churches and other religious entities is impermissible. As we concluded in Colorado Christian, "if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices." 534 F.3d at 1266. This is what the Departments have done with the accommodation scheme in compliance with the First Amendment's Establishment Clause.
Plaintiffs seize on the Departments' rationale for the distinction that religious nonprofit organizations are more likely than churches to employ individuals who do not share their employers' beliefs but are nevertheless entitled to contraceptive coverage under the ACA. See 78 Fed.Reg.
The Departments' rationale may not be perfectly accurate, but it does not make the accommodation scheme unconstitutional. The class of religious non-profit organizations encompasses a vast array of religiously affiliated universities, hospitals, service providers, and charities, some of them employing thousands of people. Of course, some religious non-profit organizations may be more likely than some churches to employ co-religionists, but the Departments may reasonably recognize that, on the whole, churches are more likely to employ those who share their beliefs. Priests for Life, 772 F.3d at 272. The Departments originally exempted religious employers to "respect[] the unique relationship between a house of worship and its employees in ministerial positions." 76 Fed.Reg. at 46,623. We recognize that relationship between houses of worship and ministerial employees has been given special solicitude under the First Amendment. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, ___ U.S. ___, 132 S.Ct. 694, 712-13, 181 L.Ed.2d 650 (2012). The Departments must avoid inquiries that involve them in "excessive entanglement" between religion and government, see Colorado Christian, 534 F.3d at 1261-62, and the general notion that houses of worship are more likely than religious non-profit organizations to employ people of the same faith avoids impermissible scrutiny into the beliefs of religious entities and their employees.
Drawing a distinction between religious employers and religious non-profit organizations is a neutral and reasonable way for the Departments to pursue their legitimate goals in a constitutional manner. It gives special solicitude to churches to facilitate the liberties guaranteed by the Free Exercise Clause, and offers the accommodation scheme to relieve religious non-profit organizations of their obligation to provide contraceptive coverage under the Mandate without imposing a substantial burden on their religious exercise. The accommodation scheme does not violate the Establishment Clause.
Plaintiffs finally contend the accommodation scheme violates the Free Speech Clause of the First Amendment, which states that "Congress shall make no law... abridging the freedom of speech," U.S. Const. amend. 1, by compelling them both to speak and remain silent, see Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796-97, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). First, they argue that requiring them to sign and deliver the
The compelled speech claim fails. To the extent such a claim requires government interference with the plaintiff's own message, see Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 557, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005) (stating a compelled speech claim arises when "an individual is obliged personally to express a message he disagrees with, imposed by the government"), the regulations do not require an organization seeking an accommodation to engage in speech it finds objectionable or would not otherwise express. The only act the accommodation scheme requires is for religious non-profit organizations with group health plans to sign and deliver the Form or notification expressing their religious objection to providing contraceptive coverage. The Sixth Circuit reasoned: "Even assuming the government is compelling this speech, it is not speech that the appellants disagree with and so cannot be the basis of a First Amendment claim." Mich. Catholic Conf., 755 F.3d at 392; see also Geneva Coll., 778 F.3d at 438-39 ("If anything, because the appellees specifically state on the self-certification form that they object on religious grounds to providing such coverage, it is a declaration that they will not be complicit in providing coverage."). Plaintiffs cannot point to speech they are required to express and find objectionable.
Indeed, Plaintiffs have not shown any likelihood that their sending in the Form or the notification would convey a message of support for contraception. Plaintiffs do not demonstrate their TPA, their health insurance issuer, or HHS — any one of which would be the sole recipient of the Form or notification — would view it as anything other than an objection to providing contraception. Rumsfeld v. Forum for Academic & Inst. Rights, Inc. ("FAIR"), 547 U.S. 47, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006), is instructive. In FAIR, a group of law schools challenged the Solomon Amendment, a federal statute that denied federal funding to universities that barred military recruiters from their campuses. At that time, the military did not permit gay, lesbian, and bisexual individuals to serve. The schools claimed a First Amendment compelled speech violation, arguing their compliance with the Solomon Amendment would signal their agreement with this policy. The Supreme Court rejected the argument, noting compliance did not signal agreement with the military's positions, and the Solomon Amendment did not prevent the schools from making their own position clear. FAIR, 547 U.S. at 65, 126 S.Ct. 1297.
This point is even stronger in the instant case, where Plaintiffs would send the Form or notification to convey their opposition to providing contraception, and the ACA and implementing regulations do not prevent them from expressing that opposition widely. Plaintiffs remain free to express opposition to contraception; "[n]othing in the[] final regulations prohibits an eligible organization from expressing its opposition to the use of contraceptives." 78 Fed.Reg. at 39,880 n.41. With the passage of the interim final rule, Plaintiffs also have the option to send a letter or
Even if Plaintiffs could identify speech they disagreed with — for example, identifying the name of their TPA or health insurance issuer — the argument that they are forced to send a message they do not wish to send is unavailing. The First Amendment does not — and cannot — protect organizations from having to make any and all statements "they wish to avoid." The cases cited by Plaintiffs are not about routine administrative burdens akin to complying with the accommodation scheme. These cases instead concern compelled ideological expression such as salutes to the flag, W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); messages on license plates, Wooley v. Maynard, 430 U.S. 705, 715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir.2013); wearing school slogans, Frudden v. Pilling, 742 F.3d 1199, 1203-04 (9th Cir.2014); and taking a political stance on commercial sex, Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., ___ U.S. ___, ___, 133 S.Ct. 2321, 2331, 186 L.Ed.2d 398 (2013).
"Compelling an organization to send a form to a third party to claim eligibility for an exemption `is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto "Live Free or Die," and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.'" Priests for Life, 772 F.3d at 271 (quoting FAIR, 547 U.S. at 62, 126 S.Ct. 1297). "That would be the equivalent of entitling a tax protester to refuse on First Amendment grounds to fill out a 1099 form and mail it to the Internal Revenue Service." Wheaton College, 791 F.3d at 800, 2015 WL 3988356, at *8. None of the cases cited by Plaintiffs involve compliance with the administrative requirements of a government program, and especially not a government program designed to exempt and distance an organization from activity it finds objectionable.
We finally note that Plaintiffs' signature and delivery of the Form or notification to HHS is "plainly incidental to the ... regulation of conduct" and thus is not protected speech. FAIR, 547 U.S. at 62, 126 S.Ct. 1297. The act of signing and delivering the Form or notification to HHS is required to opt out of the Mandate. The Supreme Court has "rejected the view that `conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea.' Instead, we have extended First Amendment protection only to conduct that is inherently expressive." Id. at 65-66, 126 S.Ct. 1297 (quoting United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). The fact that Plaintiffs must complete the Form or notification to HHS to opt out of coverage does not render the act inherently expressive. See id. at 62, 126 S.Ct. 1297.
For the foregoing reasons, we reject Plaintiffs' compelled speech claim.
We further reject the claim that the accommodation scheme compels Plaintiffs' silence. Like the Sixth and Seventh Circuits, we note Plaintiffs have made only general claims objecting to the non-interference regulation and have failed to indicate how it precludes speech in which they wish to engage. Mich. Catholic Conf., 755
We have reviewed the district courts' decisions to grant or deny a preliminary injunction to Plaintiffs in the three cases before us. Because we determine the ACA and its implementing regulations do not substantially burden Plaintiffs' religious exercise or violate the Plaintiffs' First Amendment rights, Plaintiffs have not established a likelihood of success on the merits or a likely threat of irreparable harm as required for a preliminary injunction. See Hobby Lobby, 723 F.3d at 1128.
We therefore affirm the district court's denial of a preliminary injunction in Little Sisters, 6 F.Supp.3d 1225, and reverse the district courts' grant of a preliminary injunction in Southern Nazarene, 2013 WL 6804265, and Reaching Souls, 2013 WL 6804259.
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 1210-0150. An organization that seeks to be recognized as an eligible organization that qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing may complete this self-certification form, or provide notice to the Secretary of Health and Human Services, in order to obtain or retain the benefit of the exemption from covering certain contraceptive services. The self-certification form or notice to the Secretary of Health and Human Services must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974, which generally requires records to be retained for six years. The time required to complete this information collection is estimated to average 50 minutes per response, including the time to review instructions, gather the necessary data, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of Labor, Employee Benefits Security Administration, Office of Policy and Research, 200 Constitution Avenue, N.W., Room N-5718, Washington, DC
BALDOCK, Circuit Judge, dissenting in part.
Today the Court holds, among other things, that the ACA contraceptive Mandate's accommodation scheme does not substantially burden religious non-profits that object to facilitating contraceptive or abortifacient coverage because opting out does not cause, authorize, or otherwise facilitate such coverage.
In reality, the accommodation scheme forces the self-insured plaintiffs to perform an act that causes their beneficiaries to receive religiously objected-to coverage. The fines the government uses to compel this act thus impose a substantial burden on the self-insured plaintiffs' religious exercise. Moreover, less restrictive means exist to achieve the government's contraceptive coverage goals here. I must therefore dissent in part.
The first step of a RFRA claim requires plaintiffs to show (1) that the federal government has imposed a substantial burden on a (2) sincere (3) exercise of religion. See 42 U.S.C. § 2000bb-1(a). The unique threshold question we and so many other courts are currently grappling with, however, is how to determine whether a substantial burden exists where a law compels religious adherents to perform an act they sincerely oppose when this opposition might be based on a faulty understanding of the law. See, e.g., E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449, 455-56, 2015 WL 3852811, at *3 (5th Cir. June 22, 2015).
Several learned judges have argued compellingly that, under Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), the amount of coercion the government uses to force a religious adherent to perform an act she sincerely believes is inconsistent with her understanding of her religion's requirements is the only consideration relevant to whether a burden is "substantial" under RFRA. See, e.g., Priests For Life v. U.S. Dep't of Health & Human Servs., No. 13-5368, slip op. at 17-22 (D.C.Cir. May 20, 2015) (Brown, J., dissenting from the denial of rehearing en banc); id. at 35 (Kavanaugh, J., dissenting from the denial of rehearing en banc); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 628 (7th Cir.2015) (Flaum, J., dissenting); Eternal Word Television Network, Inc. v. Sec'y, Dep't of Health & Human Servs., 756 F.3d 1339, 1340 (11th Cir.2014) (Pryor, J. specially concurring); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1137 (10th Cir.2013) ("Our only task is to determine whether the claimant's belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief."); cf. E.E.O.C. v. Abercrombie & Fitch Stores,
These judges assert that whether religious objectors properly understand the legal significance of the compelled act has no bearing on the substantial burden analysis. E.g. Priests For Life, No. 13-5368, slip op. at 35 (Kavanaugh, J., dissenting) ("But what if the religious organizations are misguided in thinking that this scheme... makes them complicit in facilitating contraception or abortion? That is not our call to make under the first prong of RFRA."). And Hobby Lobby supports this position well, as questioning a religious adherent's understanding of the significance of a compelled action comes dangerously close to questioning "whether the religious belief asserted in a RFRA case is reasonable" — a "question that the federal courts have no business addressing." Hobby Lobby, 134 S.Ct. at 2778.
Under this understanding of RFRA, the accommodation scheme substantially burdens any religious non-profit that objects to performing an act that would cause or otherwise make it complicit in providing contraceptive coverage simply because the scheme uses substantial fines to compel an act that the non-profit sincerely believes would have that effect. The actual legal significance of the compelled act is irrelevant to the substantial burden analysis. And because the government has conceded (2) the sincerity of (3) the religious exercise at issue, the only issue left to address is whether the government has shown that the accommodation scheme survives strict scrutiny. The judges who take this position, so far, all agree that the government has not made this showing. Priests For Life., No. 13-5368, slip op. at 22-25 (Brown, J., dissenting); id. at 46-51 (Kavanaugh, J., dissenting); Notre Dame, 786 F.3d at 629-30 (Flaum, J., dissenting); Eternal Word Television Network, 756 F.3d at 1348-49 (Pryor, J. specially concurring).
Notwithstanding the strength of those positions, I will proceed under the following assumptions to highlight an even deeper problem lurking within the self-insured accommodation scheme: First, I will assume that whether a burden on religious exercise is "substantial" turns not only on the amount of coercion the government uses to compel an act (no one disputes the substantiality of the fines at issue here), but also on "how the law or policy being challenged actually operates and affects religious exercise." Op. at 1177. Second, I will assume this Court may tell a religious adherent she does not face a substantial burden on her religious exercise if her understanding of the law is flawed. Third, I will assume that any burden the accommodation scheme imposes on Plaintiffs — who object to performing any act that would cause or otherwise make them complicit in providing various forms of contraceptive coverage — cannot be substantial unless they show, for example, how their compelled act causes that coverage. See Op. at 1180-91.
The Court tells Plaintiffs they cannot make this showing "because opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage." Op. at 1190. If showing this causation is a prerequisite to establishing a substantial burden, the Court properly rejects the insured plaintiffs' RFRA claim, as their action or inaction will not affect whether their plan beneficiaries receive objected-to coverage. But the self-insured plaintiffs' inaction will prevent their plan beneficiaries from receiving the coverage. If their beneficiaries receive this coverage, it is only because the self-insured plaintiffs,
I have nothing to add to the Court's summary of the background in these cases, and very little to add to its explanation of the detailed mechanics of the ACA accommodation scheme. But a critical distinction within scheme bears repeating. Under the ACA accommodation scheme, in the insured health plan context, "a health insurance issuer ... would be obligated to provide contraceptive coverage under the ACA whether or not [the insured non-profit] delivered the Form or notification to HHS." Op. at 1182 n. 28 (citing 42 U.S.C. § 300gg-13). But in the self-insured context, a TPA would be "authorized and obligated to provide the coverage... only if the religious non-profit ... opts out." Op. at 1182 (emphases added); see also 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
The Fifth, Sixth, and Seventh Circuits failed to recognize this distinction. See E. Tex. Baptist, 793 F.3d at 458-59, 2015 WL 3852811, at *5; Notre Dame, 786 F.3d at 614; Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 387 (6th Cir.2014) cert. granted, judgment vacated ___ U.S. ___, 135 S.Ct. 1914, 191 L.Ed.2d 760 (2015). The Third and D.C. Circuits failed to appreciate its significance. See Geneva Coll. v. Sec'y U.S. Dep't of Health & Human Servs., 778 F.3d 422, 438 (3d Cir.2015); Priests For Life v. U.S. Dep't of Health & Human Servs., 772 F.3d 229, 254-56 (D.C.Cir.2014). This Court considers the distinction "unremarkable." Op. at 1182. I disagree. The distinction makes a difference, and juxtaposing the insured plaintiffs and self-insured plaintiffs forces that difference into bold relief.
Assuming causation is key, I agree the accommodation scheme does not substantially burden the insured plaintiffs' religious exercise. As the Court explains, even total inaction on the part of an insured non-profit still results in its plan participants and beneficiaries receiving the coverage to which they are entitled under the ACA because the government has independently obligated a third party (insurance issuers) to provide it.
The same cannot be said of the self-insured plaintiffs, however.
Unlike the insured plaintiffs, the ACA leaves the self-insured plaintiffs in a position where, by refusing to opt out, they can prevent their plan beneficiaries from receiving the objected-to coverage the beneficiaries are entitled to and would otherwise receive under the ACA. In other words, their plan participants and beneficiaries will receive the coverage only if they opt out as the government commands. This makes their opting out a but-for cause of the receipt of the coverage.
The Court views this ability to prevent contraceptive coverage by inaction as nothing more than the ability to disobey the law. See Op. at 1184-85 & n. 35. But that is the same limited ability the plaintiffs in Hobby Lobby possessed, and it goes to the heart of the substantial burden the self-insured plaintiffs face here. "In Hobby Lobby, the plaintiff[s] ... could choose only between (1) complying with the ACA by providing the coverage or (2) not complying and paying significant penalties." Op. at 1160 (citing Hobby Lobby, 134 S.Ct. at 2759-60). Similarly, these self-insured plaintiffs must choose between (1) complying with the ACA by taking an action that ultimately causes their beneficiaries to receive this coverage or (2) not complying and paying significant penalties. This is a Hobson's choice, which we have long held imposes a substantial burden under RFRA. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir.2010) ("We conclude that a religious exercise is substantially burdened under [RFRA] 42 U.S.C. § 2000cc-1(a) when a government ... presents the plaintiff with a Hobson's choice — an illusory choice where the only realistically possible course of action trenches on an adherent's sincerely held religious belief."); Hobby Lobby, 723 F.3d at 1141 (10th Cir.2013) (explaining that the choice between compromising religious beliefs and paying fines under the ACA "is precisely the sort of Hobson's choice described in Abdulhaseeb").
If causation is key to showing a substantial burden, see Op. at 1173-74, 1180-91, the self-insured plaintiffs have surely shown that burden. Certainly, a shifting legal responsibility alone may not necessarily create a causal relationship. But here, the self-insured plaintiffs' opt out causes the coverage because (1) the government cannot force plaintiffs themselves to provide the coverage, Hobby Lobby, 134 S.Ct. at 2785, and (2) the government cannot shift the ability (let alone the responsibility) to provide the coverage to non-objectors unless the self-insured plaintiffs opt out. See 29 C.F.R. § 2590.715-2713A(b)(2); Op. at 1181-82. Opting out is thus the only way their plan participants and beneficiaries may receive the coverage.
Put another way, if the self-insured plaintiffs do not opt out, who will provide the coverage for their plan participants and beneficiaries? The answer: no one. The self-insured plaintiffs cannot do so per their faith; the TPAs cannot do so per the law. Thus, the self-insured accommodation renders any duty to provide, and any entitlement to receive, contraceptive coverage wholly unenforceable and thus illusory — unless and until the self-insured plaintiffs opt out. Cf. Pennington v. Northrop Grumman Space & Mission Sys. Corp., 269 Fed.Appx. 812, 819 (10th Cir.2008) (unpublished) ("[W]hen a promise, in reality, promises nothing — it is illusory." (Internal marks and citation omitted)).
To fully understand why no one can or will provide this objected-to coverage unless the self-insured plaintiffs perform a compelled act, one must view the ACA Mandate and accommodation scheme in light of Hobby Lobby. Hobby Lobby clearly holds forcing religious employers to provide
The Court believes we should focus on the fact that the ACA "entitle[s] plan participants and beneficiaries to coverage whether or not the plaintiffs opt out" and imposes a duty on "either the religious non-profit organization or the TPA" to provide that coverage. Op. at 1174, 1186. But this reasoning (1) fails to consider the ACA Mandate in light of the limitations Hobby Lobby already imposed, and (2) confuses legal concepts (duty and entitlement) with real-world effects (provision and receipt).
First, the Court's focus on the ACA's requirement that "either the religious non-profit organization or the TPA" provide the coverage, Op. at 1186, ignores the fact that the government cannot require the religious non-profit to provide the coverage under Hobby Lobby. By ignoring the limitation Hobby Lobby imposes on the government, the Court simultaneously acknowledges that "opting out is necessarily a but-for cause of someone else — the TPA — providing contraceptive coverage," Op. at 1186, and nevertheless rejects the self-insured plaintiffs' RFRA claims for lack of causation. Op. at 1189-90. But again, Hobby Lobby forbids the government from placing this requirement on the non-profits themselves. So if opting out is necessarily a but-for cause of someone else providing the coverage, it is necessarily a but-for cause of anyone providing the coverage at all. Essentially, the Court concedes but-for cause and then turns around and denies the existence of any causation. What?
Second, the Court asserts that the self-insured plaintiffs' opt out will not cause the actual provision and receipt of objected-to coverage because the ACA creates an independent, albeit illusory, duty and entitlement related to that coverage. True, opting out does not cause entitlement to contraceptive coverage — the ACA entitles all health plan beneficiaries to contraceptive coverage. But these beneficiaries will not receive that coverage unless the self-insured plaintiffs do something to cause its provision from a third party. In other words, the ACA may independently say "someone" has a duty to provide contraceptive coverage, see 29 C.F.R. § 2590.715-2713, but no one can or will honor that duty and provide the coverage unless the self-insured plaintiffs opt out. No self-insured plaintiff will honor it because the government cannot force them to under Hobby Lobby, and no third party can honor it because no third party has authority to do so without an opt out. Based on this error, the Court concludes that "federal law, not the actions of the religious objector, ensures that plan participants and beneficiaries will receive contraceptive coverage." Op. at 1183-84 (emphasis added). But that is simply wrong. As explained above, federal law alone does not ensure receipt of the coverage from the self-insured plaintiffs; and it does not even allow, let alone ensure, receipt of that
These errors, taken together, cause the Court to reject a straw man rather than the self-insured plaintiffs' RFRA claims. The self-insured plaintiffs do not claim a RFRA violation based on the fact that the ACA created an entitlement to contraceptive coverage; they object to the causal role they must play in providing that coverage.
A proper accommodation may relieve otherwise substantial burdens on religious exercise, but this accommodation fails to do so, at least in the self-insured context. And to be sure, "[a] burden does not rise to the level of being substantial when it places an inconsequential or de minimis burden on an adherent's religious exercise." Op. at 1178 (quoting Priests for Life, 772 F.3d at 246). But here, the accommodation scheme foists upon the self-insured plaintiffs a choice with dire consequences. Either (1) they refuse to act, which would avoid causing their plan beneficiaries to receive objected-to coverage but trigger crippling fines for violating the law or (2) they act, which would cause the receipt of this coverage and violate their faith. If "the purpose of religious accommodation" was to permit religious objectors "to avoid a religious burden and to comply with the law," see Op. at 1185, it fails to achieve that purpose. Rather, the accommodation foists upon the self-insured plaintiffs a Hobson's choice and thus a substantial burden on their exercise of religion. Abdulhaseeb, 600 F.3d at 1315.
The Court believes this accommodation scheme akin to the conscientious objector
Military conscription law generally requires male citizens to register for the draft and allows the President to draft a certain number of men from that pool of candidates into active duty in the Armed Forces.
Indeed, the Court's reliance on Sheridan v. United States, 483 F.2d 169 (8th Cir. 1973), highlights this difference. In Sheridan, the defendant registered for the draft but did not lawfully opt out. Instead, he simply refused to be inducted. Id. at 170. But the result under conscription law was the same: "another person [was] called in his place." Id. at 174. In other words, like the insured plaintiffs, no matter what conscientious objectors do or refuse to do, the government can and will achieve its military draft goals.
The opposite result occurs under the self-insured accommodation scheme. If a self-insured plaintiff simply refuses to provide coverage and does not opt out, the government cannot call a third party in its place. The accommodation scheme thus places the self-insured plaintiffs in a very different position vis-à-vis helping the government achieve its religiously objectionable goals. Conscientious objectors cannot prevent the government from conscripting their replacements; but the self-insured plaintiffs can completely prevent the government from even authorizing their TPAs to provide objected-to coverage. Conscientious objectors also need not identify a related third party to serve in their stead; but the self-insured plaintiffs must identify a related third party through a form or letter. And this form or letter is the only means by which the government can authorize that third party to serve in their stead. Under conscientious objector schemes, the government may independently draft non-objecting Americans into combat to further its war efforts; conscientious objectors have no power to stop it. But under the self-insured accommodation scheme the government needs the self-insured plaintiffs to commit an act to further its contraceptive coverage efforts; their beneficiaries will not receive this coverage unless they commit that act and cause that result. Such a conscientious objector scheme — where the government could draft a replacement soldier only if the initial conscientious objector opted out and identified a previously ineligible relative to serve in his stead — would be immensely problematic, to say the least.
The Court also believes the accommodation scheme does not impose a substantial burden on self-insured non-profits because the government's new alternative notice accommodation — which forces an objecting non-profit to write a letter to HHS opting out and identifying its TPAs and/or health insurance issuers — is essentially akin to the Supreme Court's injunctions pending appeal in Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, ___ U.S. ___, 134 S.Ct. 1022, 187 L.Ed.2d 867 (2014), Wheaton College v. Burwell, ___ U.S. ___, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014), and most recently Zubik v. Burwell, Nos. 14A1065, 14-1418, ___ U.S. ___, 135 S.Ct. 2924, 2924, ___ L.Ed.3d ___, 2015 WL 3947586, at *1 (U.S. June 29, 2015). See Op. at 1178-79 n. 25, 1187 n. 39. But the Court's reliance on these interim orders appears to be based on two flawed assumptions: (1) that the notices required by these orders were sufficient to authorize a TPA to provide coverage it could not provide before, and (2) even assuming this dubious interpretation of the orders, that they approved of compelling religious non-profits to play this causal role under RFRA's first step (no substantial burden) as opposed to approving of
As to the first assumption, the Little Sisters order nowhere contemplates allowing the government to use the Little Sisters' interim written notice to facilitate coverage by alternative means. And the Wheaton College order did not allow the government to rely on Wheaton's interim written notice, either. Rather, it allowed the government to rely on preexisting knowledge that Wheaton qualified for exemption and would not provide certain contraceptive coverage. See Wheaton Coll., 134 S.Ct. at 2807 ("But [Wheaton] has already notified the Government — without using EBSA Form 700 — that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act." (emphases added)). Moreover, as Justice Sotomayor's dissent in Wheaton College shows, the written notices required in Wheaton College, Little Sisters, and Zubik were insufficient to authorize TPA coverage under the then-effective accommodation, and may remain insufficient even under the new alternative accommodation. See Wheaton Coll., 134 S.Ct. at 2814 n. 6 (Sotomayor, J., dissenting).
To the extent Wheaton College allows the government to rely on its knowledge of Wheaton's objection, this merely tracks the Supreme Court's decision in Bowen v. Roy, where the Court rejected a Free Exercise challenge to the government's use of a social security number it already possessed and concluded that the First Amendment does not "require the government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." 476 U.S. at 693, 699, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986). But importantly:
Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 567 (7th Cir.2014) (Flaum, J., dissenting) (emphasis in original), cert. granted, judgment vacated sub nom. Univ. of Notre Dame v. Burwell, ___ U.S. ___, 135 S.Ct. 1528, 191 L.Ed.2d 557 (2015); see Roy, 476 U.S. at 714-16, 106 S.Ct. 2147 (Blackmun, J., concurring in part), 732, 106 S.Ct. 2147 (O'Connor, J., concurring in part and dissenting in part) ("The rise of the welfare state was not the fall of the Free Exercise Clause."), 733, 106 S.Ct. 2147 (White, J., dissenting).
Moreover, the Court may well have expressly allowed for this reliance in Wheaton College because, unlike the Little Sisters, Wheaton provides insurance through both self-insured plans and insured plans subject to the Mandate. See Wheaton Coll. v. Burwell, 50 F.Supp.3d 939, 944 (N.D.Ill.2014) (Wheaton "offers its health insurance pursuant to six plans: two insured
Thus, the Little Sisters, Wheaton College, and Zubik orders allow religious non-profits to simply notify the government that they qualify for exemption and will not provide contraceptive coverage. The government may use its knowledge of these objections when choosing between independently available alternative means to ensure coverage is provided (as the conscientious objector and insured schemes do). But these orders do not allow the government to compel religious non-profits to furnish the document that is essential to cause their plan beneficiaries to receive objected-to coverage.
And yet, suppose these orders could be read to say that the written notices they required were legally sufficient to authorize a previously ineligible TPA to provide objected-to coverage. Under that dubious interpretation, the orders would indeed force self-insured religious objectors to perform an act that causes the ultimate provision of the coverage, as they would make the provision of the coverage wholly contingent upon the religious objectors' acts of providing HHS with that notice. For all the reasons discussed above, that interpretation of the orders would impose a substantial burden on the self-insured plaintiffs' exercise of religion.
So, turning to the Court's second assumption, even under its dubious interpretation of the orders, the orders nowhere say that forcing religious non-profits to play this sort of causal role avoids imposing a substantial burden on their religious exercise. Instead, assuming the Court's interpretation of these orders is correct, these orders would impose a substantial burden under RFRA's first step and therefore must comply with RFRA's second step (strict scrutiny). Indeed, Judge Kavanaugh has compellingly argued that these orders simply set forth a less restrictive means of achieving the government's compelling interest in facilitating access to contraceptive coverage. See Priests For Life, No. 13-5368, slip op. at 46-51 (Kavanaugh, J., dissenting). These orders do not require religious non-profits to identify related third parties for the government to authorize and possibly conscript in their stead. Rather, they only require the non-profits to inform HHS that they qualify for exemption and will not provide objected-to coverage. As discussed above regarding conscientious objector schemes, a significant difference exists between asking a religious objector to say simply "no" and compelling that objector to identify a related entity to serve as a scapegoat where no one else can.
The burden the self-insured plaintiffs face is most salient with regards to Southern Nazarene, whose TPA is subject to ERISA enforcement and therefore will be not only authorized but also required to provide contraceptives to the participants and beneficiaries of Southern Nazarene's self-insured plan only if Southern Nazarene
But the lack of an enforcement mechanism as to ERISA-exempt church plans does not itself remove the causal role and substantial burden that the accommodation scheme foists upon the church-plan plaintiffs. For example, the GuideStone Plan is an ERISA-exempt church plan, but at least one of its TPAs, Highmark, has indicated it will provide full contraceptive coverage for those self-insured organizations that use the GuideStone Plan and validly opt out. And plaintiffs Reaching Souls, Truett-McConnell College, and Mid-America Christian University are all self-insured plaintiffs that use the GuideStone Plan. Op. at 1168; SN Supp. Br. II at 9 n.2. So even though their opting out might not trigger an enforceable duty to provide objected-to coverage, these church plan plaintiffs have established that their opting out will actually cause Highmark to provide the coverage — coverage it cannot provide unless they opt out.
True, given the repeal of the accommodation scheme's non-interference provision, church plans like the GuideStone Plan might try to fire TPAs like Highmark and replace them with TPAs that promise not to provide coverage for objected-to contraceptives, and those plaintiffs that use the GuideStone Plan might be able to fire GuideStone if it refuses to do so. See RS Oral at 12:57-13:10. Thus, by economic coercion, these plaintiffs might be able to ultimately stop the provision of the coverage they were initially forced to cause. But, the government maintains that "such conduct is generally unlawful and is prohibited under ... state and federal laws." See 79 Fed.Reg. at 51,095. And none of this changes the present fact that if plaintiffs who use the GuideStone Plan opt out, they will cause Highmark to perform a religiously objected-to act on their behalf where Highmark previously could not do so. Thus, those self-insured plaintiffs that use the GuideStone Plan have shown "presently threatened injuries" warranting injunctive relief. Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 75 L.Ed. 602 (1931).
The Little Sisters plaintiffs, on the other hand, have not established this causal connection. The Little Sisters' primary TPA, Brothers Services, is not bound by ERISA and has promised not to provide contraceptive coverage even if Little Sisters opts out. Little Sisters asserts that Brothers Trust also uses other TPAs who might choose to provide contraceptive coverage if they opt out, but they have not sufficiently developed this theory to bear the burden of establishing that their opting out will presently cause someone to provide contraceptive coverage to their plan beneficiaries.
The Court also suggests self-insured non-profits "could relieve themselves of any lingering doubts they may have about causation by [1] employing an insured plan, [2] employing a self-insured church plan where the Departments lack authority to enforce the Mandate against their TPA, or [3] administering the self-insured plan on their own in-house without using a TPA." Op. at 1183 n. 32. But none of these options alleviate the substantial burden the accommodation scheme imposes. First, choosing to switch from a self-insured plan, where no coverage can be provided without an opt out, to an insured plan, where coverage will be provided by a third party, would simply mean choosing to cause that coverage by switching plans rather than opting out. Second, as discussed above, even in the church plan context, opting out may still cause a TPA to provide the coverage. Third, no plaintiff
Given that we do not have jurisdiction to pass on this hypothetical, the self-insured plaintiffs should not have to rebut it to prove a present substantial burden under RFRA. But, because the Court goes there, administering a self-insured plan in-house without a TPA can be prohibitively complex, limit options for managing care, and create legal pitfalls that many non-profits simply cannot afford to handle. See Thomas R. McLean & Edward P. Richards, Health Care's "Thirty Years War": The Origins and Dissolution of Managed Care, 60 N.Y.U. ANN. SURV. AM. L. 283, 313 (2004); see generally Rhonda D. Orin and Daniel J. Healy, Self-Administering, Insuring and Funding Benefit Plans, 197-213 in HUMAN RESOURCES (Thompson 2007 Summer Edition).
The Court concludes that the Plaintiffs' causation arguments fail because "opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage." Op. at 1190. This conclusion is correct in the insured context. But the self-insured plaintiffs, with the exception of Little Sisters, have shown exactly how their act of opting out will cause someone to provide contraceptive coverage where their refusal to act would prevent that result. Unfortunately, the Court fails to see this obvious causal relationship because it ignores the clear holding of Hobby Lobby and fails to comprehend the difference between unenforceable entitlement and actual receipt. The government has left self-insured plaintiffs in a position where they must decide whether their beneficiaries will actually receive objected-to contraceptive coverage. The accommodation does not absolve these plaintiffs of this responsibility. Instead, it forces them to either (1) violate their sincere religious beliefs by performing an action that will cause their beneficiaries to receive objected-to coverage, or (2) violate the law and incur steep fines to obey those religious beliefs. Again, this is a Hobson's choice and thus a substantial burden on their religious exercise under RFRA. Abdulhaseeb, 600 F.3d at 1317; Hobby Lobby, 723 F.3d at 1141.
Because the government has imposed a substantial burden on at least the self-insured plaintiffs' religious exercise, under RFRA it must demonstrate that this burden is "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1. Our precedent currently holds the government has no compelling interest in contraceptive coverage. See Hobby Lobby, 723 F.3d at 1143. But even assuming such a compelling interest, see Hobby Lobby, 134 S.Ct. at 2780 (assuming the same), 2785-86 (Kennedy, J., concurring), 2799 (Ginsburg, J., dissenting), the government cannot show this scheme is the least restrictive means of furthering that interest. As discussed above, the Supreme Court's interim orders in Little Sisters, Wheaton College, and Zubik, even when interpreted so as to force self-insured non-profits to play a necessary causal role in contraceptive coverage, provide a less restrictive means of achieving the
"Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty," Hobby Lobby, 134 S.Ct. at 2760, a liberty essential to our country's constitutional tradition, albeit with boundaries difficult to define, see id. at 2785 (Kennedy, J., concurring). The Court today makes causation one of those boundaries. Even assuming this boundary, however, the self-insured plaintiffs in this case, with the exception of the Little Sisters plaintiffs, have clearly shown how their compelled act will cause their plan beneficiaries to receive objected-to coverage that they could not otherwise receive. Therefore, I dissent from the Court's holding regarding these self-insured plaintiffs. Even assuming a causation requirement, I would still hold these self-insured plaintiffs have shown a substantial likelihood of success on the merits of their RFRA claim and that the other requirements for a preliminary injunction are met. I would therefore affirm the district court's denial of a preliminary injunction in Little Sisters, 6 F.Supp.3d 1225, affirm the district court's grant of a preliminary injunction in Reaching Souls, 2013 WL 6804259, and affirm in part (as to the self-insured plaintiffs: Southern Nazarene University and Mid-America University) and reverse in part (as to the insured plaintiffs: Oklahoma Baptist University and Oklahoma Wesleyan University) the district court's grant of a preliminary injunction in Southern Nazarene, 2013 WL 6804265.
Wheaton Coll., 134 S.Ct. at 2807.
79 Fed.Reg. at 51,095.
We treat Mid-America Christian's plan as a self-insured church plan. The parties in Southern Nazarene stipulated as fact that Mid-America Christian's group health plan is provided by GuideStone Financial Resources. Southern Nazarene, 2013 WL 6804265, at *2. Because we understand GuideStone Financial Resources to be a sponsor of self-insured church plans and not an insurer, we assume the latest characterization on appeal is correct and treat Mid-America Christian's group health plan as a self-insured church plan that is not subject to ERISA.
Because we determine the accommodation scheme is not a substantial burden, we need not decide whether this fourth option constitutes a substantial burden on religious exercise — or, if it does, whether it survives strict scrutiny.
For similar reasons, we need not address the safe harbor provision detailed in the June 2013 regulations, which indicates organizations with self-insured group health plans that bring administration of their plans in-house and thereby do not use third-party administrators currently are not subject to enforcement of the contraceptive coverage requirement. 78 Fed.Reg. at 39,880-81.
The Little Sisters and Reaching Souls plaintiffs have not convincingly explained how the notice to HHS promulgated by the Departments would substantially burden their religious exercise but the notice crafted by the Supreme Court does not. In Wheaton College, the Supreme Court emphasized the plaintiffs had functionally notified the Departments they met the necessary requirements to obtain an accommodation, and said "[n]othing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act." 134 S.Ct. at 2807; see also Zubik, 2015 WL 3947586.
The Southern Nazarene plaintiffs object to affirmatively voicing a religious objection, including the type of notice described in Wheaton College. See Oral Arg. in SN at 24:30-25:20. They appear to believe that exemption from the Mandate — like the exemption for religious employers — is the only proper result under RFRA.
We understand the mechanics of the accommodation to work differently. Aetna, as a health insurance issuer for Notre Dame's students, would be obligated to provide contraceptive coverage under the ACA whether or not Notre Dame delivered the Form or notification to HHS. See 42 U.S.C. § 300gg-13. Meritain, a TPA, would be obligated to provide contraceptive coverage only after Notre Dame delivered the Form or notification to HHS and opted out of the Mandate. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
We further note the notification to HHS requires self-insured plaintiffs only to register their objection and identify their TPA — it does not require them to inform their TPA of any legal responsibilities to provide contraceptive coverage. When the opt out is submitted to HHS, the plaintiffs are relieved of their responsibilities. The government then takes steps to ensure that coverage is provided — HHS notifies the Department of Labor of the objection, and the Department of Labor then contacts the TPA to inform it of its duties under the ACA.
The dissent points to differences between the religious accommodation here and the conscientious objector scheme. But the comparison is apt. Courts have recognized that, to opt out of military service for religious reasons, a conscientious objector must notify the government of his objection knowing that someone else will take his place. See Trans World Airlines v. Hardison, 432 U.S. 63, 96 n. 13, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (Marshall, J., dissenting) (recognizing that "the effect of excusing conscientious objectors from military conscription is to require a non-objector to serve instead, yet we have repeatedly upheld this exemption"); Sheridan v. United States, 483 F.2d 169, 174 (8th Cir. 1973) (acknowledging that when the plaintiff evaded induction, "another person had to be called in his place"); McKenzie v. Schuppener, 415 F.2d 1056, 1058 (5th Cir.1969) (characterizing a conscientious objection application as "the situation where appellant must go to Vietnam or someone else go in his place"). Similarly, to opt out of the Mandate, the self-insured religious objector must notify the government knowing that a TPA will take its place.
And historically, it is not unprecedented to require an objector to identify a substitute for military service. To the contrary, the first federal draft statute permitted a draftee to avoid service only by either providing a substitute or paying $300. See Act of March 3, 1863, ch. 75, § 13, 12 Stat. 731, 733 (1863). As the dissent observes, the Civil War Enrollment Act sparked riots, Dissent at 1214-15 n. 7, but these were triggered by opposition to the draft itself, the inability of working class people to pay the $300 exemption, and anxiety about freed slaves entering the labor market after the war — not the fact that the draft law allowed draftees to name a substitute in their place. See Leslie M. Harris, In the Shadow of Slavery: African Americans in New York City, 1626-1863, at 279-88 (2003). Although Congress later eliminated the $300 commutation fee (except for conscientious objectors), it retained the provision allowing enrollees to supply a substitute. See Act of July 4, 1864, ch. 237, §§ 2, 10, 11, 13 Stat. 379, 379-80 (1864). To the extent the dissent suggests Chief Justice Taney's thoughts on the topic are relevant, Dissent at 1214-15 n. 7, we note that he considered conscription itself unconstitutional, not the substitution provision. See Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich. L.Rev. 1493, 1546-48 (1969). In fact, Chief Justice Taney paid $100 to excuse his "body servant" from the draft. See Bernard C. Steiner, Life of Roger Brooke Taney: Chief Justice of the United States Supreme Court 511-12 (1922).
In Thomas, Mr. Thomas believed he could not participate in the production of war materials. Id. at 709, 101 S.Ct. 1425. The government argued Mr. Thomas's beliefs did not warrant protection by suggesting those beliefs were inconsistent and not shared by his co-religionists. Id. at 714-15, 101 S.Ct. 1425. The Supreme Court specifically rejected these attempts to impeach Mr. Thomas's religious beliefs, id. at 715-16, 101 S.Ct. 1425, but the Court was not confronted with the question of whether those beliefs were substantially burdened. Both the Supreme Court and the Tenth Circuit have indicated that accepting a plaintiff's religious belief does not foreclose an inquiry into whether religious exercise has been substantially burdened. See, e.g., Hernandez, 490 U.S. at 699, 109 S.Ct. 2136; Kikumura, 242 F.3d at 961.
The Government does not question Plaintiffs' religious beliefs that contraception is sinful and they cannot be involved in providing, paying for, or facilitating contraceptive coverage. But Plaintiffs go beyond Thomas when they insist that we cannot question whether opting out makes them complicit in providing contraceptive coverage. We may properly consider that opting out excuses them from providing coverage, does not cause that coverage to be extended to plan participants and beneficiaries, and involves only routine administrative tasks that are not substantial burdens under RFRA. See Little Sisters, 6 F.Supp.3d at 1239 ("Thus, Plaintiff's contention that the Court cannot look behind their statements about what offends their religious beliefs is well-supported. However, the Court is under no such restriction with regard to Plaintiffs' construction of how the Final Rules operate, including the administrative burdens imposed on the parties by these regulations.").
For these reasons, Thomas is inapposite when the inquiry focuses on whether a burden is substantial. It does not preclude courts from examining the relationship between a sincerely held religious belief and the alleged burden imposed by the Government. This important distinction prevents the Government from having to survive strict scrutiny whenever a plaintiff misunderstands the burden being placed upon them — for example, if Mr. Thomas had been required to produce equipment for farming and sincerely, but incorrectly, believed that equipment was being produced for war. See, e.g., Priests for Life, 772 F.3d at 249 n. 14.
79 Fed.Reg. at 51,094-95.
The district courts in Little Sisters and Reaching Souls did not reach the First Amendment claims. In Little Sisters, the court found the plaintiffs' assertion of irreparable harm — which they were required to show to obtain a preliminary injunction, see Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009) — was based only on RFRA. See Little Sisters, 6 F.Supp.3d at 1245. In Reaching Souls, the court determined it did not need to reach First Amendment claims because it granted a preliminary injunction on RFRA grounds. See Reaching Souls, 2013 WL 6804259, at *8 n. 9.
On appeal, we consider the First Amendment claims in both cases. First, the Little Sisters plaintiffs made a sufficient argument before the district court. They expressly sought a preliminary injunction on First Amendment as well as RFRA grounds. App. in LS at 136a-138a. They did not elaborate on their First Amendment claims in the irreparable harm analysis, but "[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary." Kikumura, 242 F.3d at 963 (quotations omitted). Second, although we reverse the district court's grant of a preliminary injunction on RFRA grounds in Reaching Souls, plaintiffs there raised the question whether that preliminary injunction is appropriate on First Amendment grounds. "If the district court fails to analyze the factors necessary to justify a preliminary injunction, this court may do so if the record is sufficiently developed." Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir.2009); see also Hobby Lobby, 723 F.3d at 1145 ("The record we have is the record the parties chose to create below-it is the record they deemed sufficient for the district court to decide the preliminary injunction question. For each element, we believe this record suffices for us to resolve each of the remaining preliminary injunction factors."). Because the First Amendment claims in both Little Sisters and Reaching Souls are legal questions that have been fully briefed on appeal, we resolve those questions in this opinion rather than remanding them to the district courts and prolonging this litigation.
By contrast, the Southern Nazarene plaintiffs included First Amendment claims in their complaint, but did not assert them in their motion for a preliminary injunction or accompanying memorandum of law. As a result, the district court did not reach any First Amendment claims in its decision. See Southern Nazarene, 2013 WL 6804265. Moreover, the Southern Nazarene plaintiffs do not make First Amendment claims in their opening brief on appeal.
Although we believe our First Amendment analysis applies to all group health plans and does not depend on whether they are insured, self-insured, or self-insured church plans, we note Little Sisters and Reaching Souls involve only self-insured church plans that are not subject to ERISA, and the insured and self-insured plans discussed in Southern Nazarene are not before us.
Axson-Flynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir.2004) (quotations and citations omitted). None of the categorical exemptions enacted by the ACA and its implementing regulations establish a system of individualized objections. And for the reasons detailed above, we believe the accommodation scheme effectively relieves objecting religious non-profit organizations of their obligations.
The Court's attempt to paint these contradictory positions as consistent suffers from the same logical flaw highlighted above; that is, it confuses the actual provision and receipt of coverage with a concededly unenforceable entitlement and duty to provide it. If the law cannot force an unwilling TPA to provide contraceptive coverage, the TPA will not provide it, and the plan beneficiaries will not receive it. Cf. Mach Mining, LLC v. E.E.O.C., ___ U.S. ___, 135 S.Ct. 1645, 1652-53, 191 L.Ed.2d 607 (2015) (acknowledging that even the government may violate the law, "especially so when [it faces] no consequence"). Thus, the existence of an unenforceable duty to provide contraceptive coverage does not ensure receipt, as this Court seems to believe.
Moreover, to the extent this language connotes dissatisfaction with the problems created by the self-insured accommodation, such dissatisfaction is irrelevant to whether the law imposes a substantial burden under RFRA. Our job is not to "add words to the law to produce what is thought to be a desirable result." Abercrombie & Fitch, 135 S.Ct. at 2033.
