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

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


 MICHIGAN CATHOLIC CONFERENCE and CATHOLIC                         ┐
 FAMILY SERVICES D/B/A CATHOLIC CHARITIES                          │
 DIOCESE OF KALAMAZOO (13-2723); THE CATHOLIC                      │
 DIOCESE OF NASHVILLE, CATHOLIC CHARITIES OF                       │         Nos. 13-2723/6640
 TENNESSEE, INC., CAMP MARYMOUNT, INC., MARY,                      │
 QUEEN OF ANGELS, INC., ST. MARY VILLA, INC.,                       >
                                                     │
 DOMINICAN     SISTERS   OF     ST.     CECILIA      │
 CONGREGATION, and AQUINAS COLLEGE (13-6640),        │
                           Plaintiffs-Appellants,    │
                                                     │
        v.                                           │
 SYLVIA MATTHEWS BURWELL, Secretary of the │
 United States Department of Health and Human │
 Services, THOMAS E. PEREZ, Secretary of the United │
 States Department of Labor, JACOB J. LEW, │
 Secretary of the United States Department of │
 Treasury, UNITED STATES DEPARTMENT OF HEALTH │
 AND     HUMAN SERVICES, UNITED STATES │
 DEPARTMENT OF LABOR, and UNITED STATES │
                                                     │
 DEPARTMENT OF THE TREASURY,
                                                     │
                             Defendants-Appellees. │
                                                     ┘
                     Appeal from the United States District Court for the
                       Western District of Michigan at Grand Rapids.
                    No. 1:13-cv-01247—Gordon J. Quist, District Judge.
                         Appeal from the United States District Court for the
                              Middle District of Tennessee at Nashville.
                     No: 3:13-cv-01303—Todd J. Campbell, Chief District Judge.
                                    Decided and Filed: August 21, 2015

             Before: MOORE and ROGERS, Circuit Judges; NIXON, District Judge.*




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




                                                         1
Nos. 13-2723/6640         Mich. Catholic Conf., et al. v. Burwell, et al.            Page 2

                                       _________________

                                            COUNSEL

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

                                            OPINION
                                       _________________

       KAREN NELSON MOORE, Circuit Judge. The Patient Protection and Affordable Care
Act (“ACA”) requires health insurance plans to provide coverage for contraception—a
requirement commonly known as the contraceptive mandate. Religious employers, employers
with fewer than fifty employees, and grandfathered plans are exempt from this mandate. Non-
profit entities and closely held corporations who object to the mandate on religious grounds may
seek an accommodation.       That accommodation effectively insulates these entities from the
contraception-provision process: they no longer have to pay for contraceptive coverage, and all
individuals under their plans are notified of the entity’s religious objections. The insurance
issuers and third party administrators for these entities, however, must continue to provide
coverage for contraceptives to individuals insured under these plans.

       Plaintiffs in this case include both religious employers eligible for the exemption and
non-profit entities eligible for the accommodation. In the first instance, Plaintiffs challenged
both the exemption and the accommodation. They sought a preliminary injunction, arguing that
these provisions were being enforced in violation of their rights under the Religious Freedom
Restoration Act (“RFRA”), the First Amendment, and the Administrative Procedure Act
(“APA”).    We rejected this challenge, holding that the district courts did not abuse their
discretion in denying Plaintiffs preliminary injunctive relief. Mich. Catholic Conference &
Catholic Family Servs. v. Burwell, 

(6th Cir. 2014). Plaintiffs then filed a petition
for a writ of certiorari; that petition made clear that Plaintiffs were not challenging our decision
with respect to the exemption.       Nor did the petition make reference to any of the First
Amendment or APA arguments that Plaintiffs had previously raised. Rather, the petition focused
Nos. 13-2723/6640            Mich. Catholic Conf., et al. v. Burwell, et al.                     Page 3

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

(2015).

        In Hobby Lobby, 

(2014), the Supreme Court determined that closely
held, for-profit companies with sincerely held religious beliefs could not be compelled to provide
contraceptive coverage to their employees. In reaching this decision, the Court discussed the
accommodation favorably, noting for instance that the accommodation served the government’s
interests in providing access to contraception while at the same time not impinging on the
religious beliefs of objecting non-profits. The Court did not suggest that the accommodation
violated RFRA.

        After carefully reviewing the Hobby Lobby opinion, we adhere to our original
disposition. This opinion now addresses the impact of Hobby Lobby and the relevant circuit
court decisions that have been published since Hobby Lobby. We join our sister circuits in
holding (1) that the accommodation provision does not violate RFRA and (2) that nothing in
Hobby Lobby changes this conclusion. Accordingly, we AFFIRM the district courts’ judgments
denying Plaintiffs preliminary injunctive relief on all of their claims. We also RE-ISSUE and
RE-AFFIRM our prior opinion in order to address all remaining issues, including Plaintiffs’ First
Amendment and APA challenges to both the exemption and the accommodation.

                                            I. BACKGROUND

A. Factual Background1

        There are nine Plaintiffs in this case, listed below:

               • Michigan Catholic Conference (“MCC”)

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

               • Catholic Diocese of Nashville (“CDN”)


        1
         We have already set forth background of this appeal in detail, see Mich. Catholic 

–82, and take only a moment to summarize the most salient facts.
Nos. 13-2723/6640             Mich. Catholic Conf., et al. v. Burwell, et al.                     Page 4

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

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

               • Mary, Queen of Angels, Inc. (“MQA”)

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

               • Aquinas College

               • Dominican Sisters of St. Cecilia Congregation (“St. Cecilia Congregation”)

        Some of these Plaintiffs are eligible for the exemption, others for the accommodation.
These provisions work slightly differently from one another. See Little Sisters of the Poor Home
for the Aged v. Burwell, __ F.3d ___, 

, at *5–*8 (10th Cir. July 14, 2015).

        1. The Exemption

        Under the exemption, religious employers (as defined by federal law2) do not need to
provide contraceptive coverage to individuals covered under their insurance plans.                          These
employers did not need to provide or pay for (or have their insurance issuer provide or pay for)
contraceptive coverage prior to the enactment of the ACA, and they do not need to do so now.
There is no need for them to object to the contraceptive mandate because, for these entities,
nothing has changed. Three Plaintiffs in this case (MCC, CDN, and St. Cecilia Congregation)
are eligible for the exemption. See Mich. Catholic 

.




        2
          The regulatory framework behind the exemption is somewhat complex. First, 45 C.F.R. § 147.131(a)
provides that “the Health Resources and Services Administration may establish an exemption from such guidelines
with respect to a group health plan established or maintained by a religious employer (and health insurance coverage
provided in connection with a group health plan established or maintained by a religious employer) with respect to
any requirement to cover contraceptive services under such guidelines.”
         That regulation, in turn, implicates 76 Fed. Reg. 46,621 (Aug. 3, 2011), “Group Health Plans and Health
Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care
Act.” This provision proposed to define “religious employer” as follows: “a religious employer is one that: (1) Has
the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets;
(3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section
6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.” 

         After reviewing hundreds of thousands of comments to this proposed definition, the federal government
adopted this definition into law in February 2012. See Group Health Plans and Health Insurance Issuers Relating to
Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8727
(Feb. 15, 2012).
Nos. 13-2723/6640        Mich. Catholic Conf., et al. v. Burwell, et al.                 Page 5

       2. The Accommodation

       The accommodation applies to objecting non-profit entities and—in the wake of Hobby
Lobby—to closely held, for-profit corporations as well. None of the remaining Plaintiffs are
closely held corporations; they fall within the accommodation because they are non-profits that
object to the contraceptive mandate. Of these six Plaintiffs, five offer a “fully-insured group
health plan[]”: Catholic Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, and
Aquinas College. 

Only one—Catholic Charities of Kalamazoo—offers a self-insured
plan. 

n.10. Fully-insured group health plans operate somewhat differently from self-
insured health plans—with different implications for the contraceptive mandate. See, e.g., Little
Sisters of the Poor, 

, at *8–*10; E. Tex. Baptist Univ. v. Burwell, __ F.3d
____, 

, at *2 (5th Cir. June 22, 2015).

               a. Fully-Insured Plans vs. Self-Insured Plans

       Under a fully-insured group plan (also known as a fully-insured plan or an insured plan),
“insurance [for the non-profit entity] is purchased from a regulated insurance company.” Mich.
Catholic 

n.4 (quoting 1A Steven Plitt, et al., Couch on Insurance
§ 10.1 n.1 (3d ed. 2013)).     Typically, “the employer pays a per-employee premium to an
insurance   company,    and    the   insurance     company    assumes      the   risk    of     providing
health coverage for insured events.” Health Plan Differences: Fully-Insured vs. Self-Insured,
EMP.    BENEFIT     RESEARCH       INST.,   Fast    Facts    from   EBRI         (Feb.    11,      2009),
http://www.ebri.org/pdf/FFE114.11Feb09.Final.pdf (“Fast Facts from EBRI”).

       Under a self-insured health plan, “benefits are paid from contributions supplied by the
employer without the assistance of outside insurance.” Mich. Catholic 

n.2 (quoting 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1). Thus, employers
“bear[] the financial risk of paying claims.” 

Br. at 7 n.1); see also Fast
Facts from EBRI (“In a self-insured plan, instead of purchasing health insurance from an
insurance company and paying the insurer a per-employee premium, the employer acts as its
own insurer.”). “Self-insured plans often contract with an insurance company or other third
party to administer the plan, but the employer bears the risk associated with offering health
benefits.” Fast Facts from EBRI.
Nos. 13-2723/6640         Mich. Catholic Conf., et al. v. Burwell, et al.          Page 6

               b. Complying with the Contraceptive Mandate

       For entities that offer a fully-insured plan, the contraceptive mandate works by requiring
the insurance company to provide contraceptive coverage without cost-sharing to insured
individuals. See 42 U.S.C. §§ 300gg-13. The process is straightforward for non-objecting
entities: the insurance company provides contraceptive coverage to individuals under the plan,
and the non-objecting entity pays for that coverage through the premium that it is charged.

       If an eligible non-profit entity objects to such coverage, it must make its objections
known, either through a self-certification procedure or by notifying the Secretary of Health and
Human Services. See 45 C.F.R. § 147.131(c)(1). We describe these procedures in greater detail
below. After the eligible non-profit entity objects, “the [insurance] issuer may not impose any
cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any
premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible
organization, the group health plan, or plan participants or beneficiaries.”           45 C.F.R.
§ 147.131(c)(2)(ii). Instead, “[t]he [insurance] issuer must segregate premium revenue collected
from the eligible organization from the monies used to provide payments for contraceptive
services.”   

the insurance company must send notice to plan participants,
separately from regular plan materials, explaining that the employer does not administer or fund
contraceptives but that the insurance company provides separate payments for these services.
45 C.F.R. § 147.131(d).

       Under a fully-insured plan, the obligations of the insurance company remain the same,
regardless of whether the non-profit entity that it works with objects to contraceptive coverage.
If a non-profit entity does not object, the insurance company must, as a matter of federal law,
provide contraceptive coverage to insured individuals without cost-sharing. If a non-profit entity
does object, the insurance company must, as a matter of federal law, provide contraceptive
coverage to insured individuals without cost-sharing. The sole point of difference between an
entity that decides to exercise the accommodation and an entity that does not is who must pay for
the coverage: the insurance company (if the entity objects) or the entity (if the entity does not
object).
Nos. 13-2723/6640            Mich. Catholic Conf., et al. v. Burwell, et al.                  Page 7

        The contraceptive mandate works differently vis-à-vis self-insured plans. Under these
plans, employers bear the risk associated with offering health benefits to their employees. “In
[its] simplest form, the employer uses the money that it would have paid the insurance company
and instead directly pays health care claims to providers.” Fast Facts from EBRI. Functionally,
however, most companies work with a third-party administrator (“TPA”), which “perform[s]
functions such as developing networks of providers, negotiating payment rates, and processing
claims.” Mich. Catholic 

n.2 (quoting Government Br. at 7 n.1).
Here, Catholic Charities of Kalamazoo works with TPAs Blue Cross Blue Shield of Michigan
and Express Scripts.

        For non-objecting self-insured entities, compliance with the mandate is fairly
straightforward. An insured individual seeks coverage, the TPA processes the claim, and the
entity pays for that claim. Objecting self-insured entities, on the other hand, must make their
concerns known, through the same procedures provided for fully-insured plans.                     After the
objecting entity does so, responsibility shifts to the TPA:              the TPA must now provide
contraceptive coverage to insured individuals. The federal government will reimburse TPAs for
their expenses for providing such coverage. See 45 C.F.R. § 156.50(d). As with fully-insured
plans, the TPAs must give notice to plan participants explaining that the employer does not
administer or fund contraceptives but that the services are nonetheless provided for and covered
by the TPA. 29 C.F.R. § 2590.715-2713A(d). The table below makes clear where each Plaintiff
in this case stands.

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

                        Camp Marymount                             CDN

                        MQA                                        St. Cecilia Congregation

                        St. Mary Villa

                        Aquinas College

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

                 c. Exercising the Accommodation

        Objecting entities may exercise the accommodation in one of two ways.                       The first
procedure requires the entity to fill out a two-page form, EBSA Form 700. This form requires
organizations to list three pieces of information: the “[n]ame of the objecting organization,” the
“[n]ame and title of the individual who is authorized to make, and makes, this certification on
behalf of the organization,” and the “[m]ailing and email addresses and phone number for the
individual listed above.”           EBSA Form 700, U.S. DEP’T                  OF   LABOR, available at
http://www.dol.gov/ebsa/healthreform/regulations/coverageofpreventiveservices.html.                    EBSA
Form 700 also requires that the organization self-certify that it is eligible for and seeks to
exercise the accommodation. See Mich. Catholic 

(describing
criteria for eligibility).3 “The organization or its plan using this form must provide a copy of this
certification to the plan’s health insurance issuer (for insured health plans) or a third party
administrator (for self-insured health plans) in order for the plan to be accommodated with
respect to the contraceptive coverage requirement.” EBSA Form 700. This completes the self-
certification process.

        Objecting entities may also opt for a second approach: providing notice directly to the
Secretary of Health and Human Services. This alternative emerged in the aftermath of the
Supreme Court’s order on application for an injunction in Wheaton College v. Burwell, 134 S.
Ct. 2806, 2807 (2014), where the Court held in an interim order that objecting entities “need not
use the form prescribed by the Government, EBSA Form 700, and need not send copies to health
insurance issuers or third-party administrators” in order to obtain the accommodation. As the
Court noted, the contraceptive mandate would not be enforced against an objecting entity so long
as that entity “informs the Secretary of Health and Human Services in writing that it is a
nonprofit organization that holds itself out as religious and has religious objections to providing
coverage for contraceptive services.” 

have since specified that, if an
entity opts to take this approach in lieu of self-certification, the notice must include:



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

        a.       “the name of the eligible organization and the basis on which it qualifies
                 for an accommodation,”
        b.       “its objection based on sincerely held religious beliefs to coverage of some
                 or all contraceptive services,”
        c.       “the [insurance] plan name and type,” and
        d.       “the name and contact information for any of the plan’s third party
                 administrators and health insurance issuers.”

29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B) (self-insured plans); 29 C.F.R. § 2590.715-
2713A(c)(1)(ii) (fully-insured plans). As evidenced below, these approaches are remarkably
similar to one another.

                                    Self-Certification                                   Notice

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

 Must provide . . .     Name of organization                          Name of organization

                        Name and title of individual authorized to    Name and type of insurance plan
                        make certification

                        Contact     information    of    individual   Contact information of TPA or health
                        authorized to make certification              insurance issuer

 Must be delivered to   TPA or health insurance issuer                Secretary of HHS
 ...



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

B. Procedural History

       This case is a consolidated appeal of two cases, one arising out of the U.S. District Court
for the Western District of Michigan and the other from the U.S. District Court for the Middle
District of Tennessee. Both district courts denied Plaintiffs’ request for preliminary injunctive
relief. Mich. Catholic 

–82. We affirmed. 

Plaintiffs then
filed a petition for a writ of certiorari. Pet. for Writ of Cert., Mich. Catholic Conference v.
Burwell (No. 14-701), 

. The Supreme Court granted this petition, vacated our
judgment, and remanded the case back to us for further consideration in light of Hobby Lobby.
We requested and received supplemental briefing from the parties.

                                         II. ANALYSIS

A. Standard of Review

       “We review the district court’s denial of preliminary . . . injunctive relief for abuse of
discretion.” Jolivette v. Husted, 

, 765 (6th Cir. 2012). “In considering whether
preliminary injunctive relief should be granted, a court considers four factors: (1) whether the
movant has a strong likelihood of success on the merits; (2) whether the movant would suffer
irreparable injury without the injunction; (3) whether issuance of the injunction would cause
substantial harm to others; and (4) whether the public interest would be served by issuance of the
injunction.” 

marks omitted). “Although no one factor is controlling, a
finding that there is simply no likelihood of success on the merits is usually fatal.” 

marks omitted).

B. Likelihood of Success on the Merits

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

         1. Hobby Lobby

         The central issue in Hobby Lobby was whether the federal government may, under
RFRA, “demand that three closely held corporations provide health-insurance coverage for
methods of contraception that violate the sincerely held religious beliefs of the companies’
owners.” Hobby 

. The Court answered this question in the negative.
This conclusion was the product of a multi-step analysis. First, the Court determined that HHS’s
contraceptive mandate “impose[d] a substantial burden” on the corporations’ exercise of their
religious 

–79. Next, it assumed without deciding that the mandate
served a compelling government interest.                 

      Notwithstanding this assumption,
however, it held that the regulations were nonetheless not “the least restrictive means of
furthering th[is] compelling governmental interest.” 

tells us, in sum, that the government cannot compel closely held companies
with sincere religious objections to provide contraception coverage to their employees. But that
issue is fundamentally different from the issue at the heart of this case—whether an entity’s
decision not to provide such coverage by exercising an accommodation is, by itself, a violation
of that entity’s religious beliefs.4 We upheld this accommodation against a RFRA challenge in
our initial opinion. Nothing in Hobby Lobby changes this analysis.

         In fact, the Court made abundantly clear in its opinion that it was not going to rule on the
legality of the accommodation. 

(“We do not decide today whether an approach of
this type complies with RFRA for purposes of all religious claims.”). There are, however, at
least some indications from the Court that this arrangement would pass muster. First, the Court
discussed the accommodation favorably when compared alongside the more onerous practices
that were being contested by petitioners in Hobby Lobby. See 

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.”). Second, the Court, in responding to the charge that it was adopting an

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

all-too-expansive reading of RFRA, described its holding in Hobby Lobby as being “very
specific.” 

       To be fair, neither of these passages provides us with a definitive signal one way or
another. But that should not come as a surprise. As we and other courts have made clear, Hobby
Lobby attempted to address a question different from the question that we must now take up.
See, e.g., Little Sisters of the Poor, 

, at *4 (“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.”). Under Hobby Lobby, closely held companies with sincere
religious objections cannot be compelled to comply with the contraceptive mandate; indeed, like
certain non-profit organizations, they are now eligible for an accommodation.             But the
availability of an accommodation that allows an organization to refrain from paying for
contraception does not negate the underlying federal requirement that some entity must provide
contraceptive coverage.

       2. Plaintiffs’ RFRA Challenge to the Accommodation

               a. Question of Law

       We made this point clear in our original opinion, stating at the outset that we were
presented with a question of “how the regulatory measure actually works”—i.e., what the law
actually requires of the various actors (the non-profit entity, the insurer or the TPA, and the
federal government). Mich. Catholic 

. That, we held, was a
question of law, separate and apart from “the moral or theological consequences of appellants
requesting the exemption or accommodation.” 

law imposes a substantial burden
on a party is something that a court must decide, not something that a party may simply allege.

       Every other circuit court to have addressed this issue has come to the same conclusion.
In Geneva College v. Secretary of the U.S. Department of Health and Human Services, 

, 435 (3d Cir. 2015), for example, the Third Circuit rejected Plaintiffs’ argument “that the
accommodation requires them to be ‘complicit’ in sin.” The court noted that, regardless of “the
reasonableness of the appellees’ religious beliefs,” the court’s legal analysis would instead focus
Nos. 13-2723/6640           Mich. Catholic Conf., et al. v. Burwell, et al.         Page 13

on “how the regulatory measure actually works”—echoing our language. 

See also
Priests for Life v. U.S. Dep’t of Health & Human Servs., 

, 247 (D.C. Cir. 2014)
(“Accepting the sincerity of Plaintiffs’ beliefs, however, does not relieve this Court of its
responsibility to evaluate the substantiality of any burden on Plaintiffs’ religious exercise, and to
distinguish Plaintiffs’ duties from obligations imposed, not on them, but on insurers and TPAs.
Whether a law substantially burdens religious exercise under RFRA is a question of law for
courts to decide, not a question of fact.”); E. Tex. Baptist Univ., 

, at *5 (“[W]e
are bound to follow [the Supreme Court’s decisions in] Roy and Northwest Indian Cemetery by
deciding, as a question of law, whether the challenged law pressures the objector to modify his
religious exercise.”); Univ. of Notre Dame v. Burwell, 

, 614 (7th Cir. 2015) (“The
delivery of a copy of the form to [the insurance issuer] reminds it of an obligation that the law,
not the university, imposes on it—the obligation to pick up the ball if Notre Dame decides, as is
its right, to drop it.”).

        On this point, we are particularly mindful of the Tenth Circuit’s analysis in Little Sisters
of the Poor. In that case, the court noted that “whether a law substantially burdens religious
exercise in one or more of these ways is a matter for courts—not plaintiffs—to decide.” 

, at *18.         The court acknowledged 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.” 

(internal quotation marks omitted). “Our only task is to determine whether the claimant’s belief
is sincere, and if so, whether the government has applied substantial pressure on the claimant to
violate that belief.” 

Lobby v. Sebelius, 

, 1137 (10th Cir. 2013))
(emphasis added). “In determining whether a law or policy applies substantial pressure on a
claimant to violate his or her beliefs, we consider how the law or policy being challenged
actually operates and affects religious exercise.” 

Circuit cited legislative history
in support of this point, noting that “Congress added the word ‘substantially’ before passage to
clarify that only some burdens would violate the act.” 

The court also pointed out
that, “[i]f 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.” 

        Mich. Catholic Conf., et al. v. Burwell, et al.           Page 14

       We are in accord with this reasoning. If the substantiality of a burden were to turn on the
“moral or theological consequences” of Plaintiffs’ religious beliefs, then the substantial-burden
analysis would not be much of an analysis at all. Indeed, every party alleging a RFRA violation
could state that their religious beliefs were being burdened and that the burden was substantial.
This was not Congress’s intent when it drafted RFRA, nor have we found any case law to
support this interpretation.

               b. The Exemption

       After determining in our initial opinion that we were confronted with a question of law,
we then noted that all Plaintiffs were either “eligible for the religious-employer exemption” or
“for the accommodation.” Mich. Catholic 

.

       We held that those entities eligible for the religious-employer exemption—MCC, CDN,
and St. Cecilia Congregation—had “not demonstrated a strong likelihood of success on the
merits” because they had failed to “identify any particular action that they must take to obtain the
exemption.” 

status as religious employers meant that they did not need to
comply with “the requirement to provide contraceptive coverage.” 

marks
omitted). Plaintiffs did not challenge this determination in their petition for a writ of certiorari.
See Pet. for Writ of Cert., 

, at *3 (“This case is also not about a challenge to
an exemption.”). We see no need to revisit our analysis. For entities entitled to the exemption,
the ACA does not change a thing. Religious employers did not need to provide, pay for, or
facilitate access to contraceptives prior to the ACA, and they do not need to do so now.

               c. The Accommodation

       We also, in our initial opinion, rejected Plaintiffs’ argument “that the . . . accommodation
arrangement forces them to provide, pay for, and/or facilitate access to contraceptive coverage.”
Mich. Catholic 

. We adhere to this disposition today, and elaborate
upon our reasoning by examining fully-insured and self-insured plans separately.
Nos. 13-2723/6640         Mich. Catholic Conf., et al. v. Burwell, et al.         Page 15

                       (1) Fully-Insured Plans

       Five of the remaining six Plaintiffs—Catholic Charities of Tennessee, Camp Marymount,
MQA, St. Mary Villa, and Aquinas College—offer fully-insured plans. Under these plans, the
insurance company bears the risk of providing coverage and paying for individual claims. In
exchange, the non-profit entity pays a premium for each employee. “[P]remiums vary . . . based
on employer size, employee population characteristics, and health care use.” Fast Facts from
EBRI. Smaller employers are more likely to be fully-insured because such plans insulate them
from having to bear the cost of coverage should their employees have to file a number of
significant claims. Insurance companies can offer these types of plans so long as they work with
multiple entities, thereby evening out the risk associated with any particular entity. Here, for
instance, Plaintiffs MQA and St. Mary Villa “collaborate with one another and pool their
resources in order to provide a health benefits plan to their employees.” R. 1 (Compl. at ¶ 79)
(Page ID #20) (M.D. Tenn.). This health plan “is a fully-insured plan, offered and administered
by Blue Cross Blue Shield of Tennessee.” 

80 (Page ID #20).

       Under federal law, insurance companies that provide fully-insured plans must provide
contraceptive coverage—this is an obligation independent and irrespective of the wishes of the
non-profit entity that it works with. Mich. Catholic 

–88. This legal
requirement applies whether or not the non-profit entity objects. The only difference between
objecting and non-objecting entities is the cost of the premium that the entity must pay. If the
entity does not object, the premium will include the cost of contraceptive coverage. If the entity
does object, the premium will not include the cost of coverage. Importantly, for the insured, the
effect is the same: under either scenario, the insured will receive coverage.

       The process for making one’s objections known is straightforward, and not substantially
burdensome. Consider, for instance, what a plaintiff would need to do in order to self-certify.
The plaintiff would complete EBSA Form 700 and deliver this form to its insurer. That form
requires the entity to state its name, the name of the individual who has made the authorization
on behalf of the entity, and that individual’s contact information. This is not a substantial
Nos. 13-2723/6640            Mich. Catholic Conf., et al. v. Burwell, et al.                  Page 16

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

        Our reasoning tracks the Tenth Circuit in this respect. In Little Sisters of the Poor, that
court noted that “[b]y 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 that
the organization will not be providing coverage.” 

, at *22. “The health
insurance issuer then has an independent and exclusive obligation to provide that coverage
without cost sharing.” 

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.” 

to the contrary are without merit. First, Plaintiffs contend that
“[m]ost obviously, if Plaintiffs stopped offering health plans, their insurers . . . would have no
obligation whatsoever to provide Plaintiffs’ beneficiaries with the objectionable coverage.” Pls.’
Supp. Br. at 11. This argument is not persuasive. It is true that if Plaintiffs decided not to offer
health coverage at all, then they would not have to offer coverage for contraceptives. But they
would also be breaking the law.6 RFRA does not give parties license to break the law. See Little
Sisters of the Poor, 

, at *26.

        Plaintiffs’ remaining contentions are equally unavailing. They argue that, “in the context
of an insured plan, a religious organization’s insurance issuer has no enforceable obligation to
provide the mandated coverage unless the organization submits the self-certification or
notification form. Without the form, the regulations purport to require the religious organization
itself to pay for the objectionable coverage, an arrangement precluded by Hobby Lobby.” Pls.’
Supp. Br. at 12–13 (citation omitted). This is a clever (but incorrect) sleight of hand.




        5
           Other circuits have compared the accommodation provision to the conscientious-objector process. See
Priests for 

. This analogy is apt.
        6
          “The ACA requires that employers with 50 or more full-time employees provide health insurance for their
full-time employees or pay a penalty on their federal tax return.” Mich. Catholic Conference v. Sebelius, 989 F.
Supp. 2d 577, 582 (W.D. Mich. 2013).
Nos. 13-2723/6640         Mich. Catholic Conf., et al. v. Burwell, et al.          Page 17

       As other courts have made clear, “[w]ith insured plans, the health insurance issuer bears
legal responsibility to provide contraceptive coverage whether or not the religious non-profit has
opted out.” Little Sisters of the Poor, 

, at *24 (emphasis added). In other
words, Plaintiffs are fundamentally wrong in their understanding of how the law actually works.
Contrary to Plaintiffs’ characterization, the religious organization’s insurance issuer does have an
enforceable obligation to provide coverage regardless of whether the organization submits a self-
certification or notification form. To be sure, if an organization decides not to self-certify or
decides not to notify HHS, then the organization will have to pay for contraceptive coverage.
But that is the entire purpose of having an opt-out process: so that objecting entities can identify
themselves and so that other actors can proceed accordingly.

                       (2) Self-Insured Plans

       We turn finally to the one Plaintiff in this case offering a self-insured plan: Catholic
Charities of Kalamazoo. In our original opinion, we explained why its assertion that it was being
compelled to provide, pay for, and/or facilitate contraceptive coverage was unavailing.

       First, we held that Catholic Charities of Kalamazoo was “not required to ‘provide’
contraceptive coverage.” Mich. Catholic 

. After an organization
makes its objections clear, “the eligible organization’s health plan does not host the coverage.”

[organization’s] third-party administrator ‘shall be responsible for . . .
compliance with’ the preventive care and screenings provided for in the HRSA guidelines.” 

C.F.R. §§ 2510.3-16(b), (b)(1)). “Thus, although the . . . third-party administrator
will provide contraceptive coverage, [Catholic Charities of Kalamazoo] will not.” 

noted, was Catholic Charities of Kalamazoo “required to ‘pay for’ contraceptive coverage.” 

must instead pick up the tab. Regulations allow these companies to seek up to 110%
reimbursement from the federal government. See Univ. of Notre 

. The
accommodation, in other words, essentially shifts the cost of contraceptive coverage from the
objecting entity to the federal government.        Finally, we stated that Catholic Charities of
Kalamazoo was “not required to ‘facilitate access to’ contraceptive coverage.” Mich. Catholic

. “The obligation to cover contraception will not,” we noted, “be
triggered by the act of self-certification—it already was triggered by the enactment of the ACA.”
Nos. 13-2723/6640           Mich. Catholic Conf., et al. v. Burwell, et al.                 Page 18

Id.; see also 

(“Self-certification allows the eligible organization to tell the insurance
issuer and third-party administrator ‘we’re excused from the new federal obligation relating to
contraception,’ and in turn, the government tells those insurance companies, ‘but you’re not.’”
(quoting Univ. of Notre Dame v. Sebelius, 

, 557 (7th Cir. 2014))).

        This analysis remains valid. As other courts have acknowledged, the contraceptive
mandate works differently with respect to a self-insured plan.                See E. Tex. Baptist Univ.,

, at *2; Little Sisters of the Poor, 

, at *24 (“With self-
insured plans, the TPA shoulders legal responsibility for coverage only after the religious non-
profit has opted out.”). Unlike the insurance issuer in a fully-insured plan, a TPA does not
necessarily have an independent obligation to provide contraceptive coverage because, as a TPA,
it does not necessarily have an independent obligation to provide any coverage. For non-
objecting entities, all a TPA is supposed to do is assist the entity by, for example, developing
provider networks or negotiating discounted rates for services. The TPA is supposed to serve
strictly as an administrator; the risk and cost of providing coverage are borne by the entity. With
respect to the contraceptive mandate, the TPA steps in only when the entity—here, Catholic
Charities of Kalamazoo—makes its objections known.7 According to Plaintiffs, this conditional
language means that an action that a Plaintiff takes “triggers the TPA’s obligation to ‘provide or
arrange payments for contraceptive services.’”             Pls.’ Supp. Br. at 12 (quoting 26 C.F.R.
§ 54.9815-2713AT(b)(2)).

        This assertion is incorrect. As the Tenth Circuit explained in Little Sisters of the Poor,
“[b]y opting out, the self-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.” 

, at *25. To be sure, “opting out is necessarily a but-for
cause of someone else—the TPA—providing contraceptive coverage.” 

is the point
of an accommodation—shifting a responsibility from an objector to a non-objector. That is how
a legislative policy choice—here, to afford women contraceptive coverage—can be reconciled
with religious objections to that policy.” 

it another way, RFRA allows certain parties


        7
           We noted in our original opinion that “[n]othing in the record indicates that Catholic Charities of
Kalamazoo’s third-party administrator has refused to provide contraceptive coverage upon receipt of a self-
certification 

n.11. Plaintiffs have not challenged this determination.
Nos. 13-2723/6640         Mich. Catholic Conf., et al. v. Burwell, et al.           Page 19

to request that the government create an exception to the rule for that particular party. It does
not, however, allow accommodated parties to challenge the rule itself. See Mich. Catholic

(“‘Never to our knowledge has the Court interpreted the First
Amendment to require the Government itself to behave in ways that the individual believes will
further his or her spiritual development or that of his or her family.’” (quoting Bowen v. Roy,

, 699 (1986))). Indeed, Plaintiffs have all but conceded this point. See Pet. for Writ
of Cert., 

, at *3 (“Although Petitioners . . . oppose the Government’s goal of
providing such coverage, they do not challenge the legality of that goal.”).

       Despite our attempts to describe how the accommodation actually works, it is perhaps
inevitable that some Plaintiffs will still believe that they are morally complicit in sin, by being a
part of a system that provides access to contraceptives. See, e.g., 

only that
they not be forced to violate their religious beliefs by participating in the regulatory scheme by
which the Government seeks to accomplish its ends.”). However, it is not our role to determine a
party’s moral complicity; we do not question here Plaintiffs’ “desire not to participate in the
provision of contraception.” Mich. Catholic 

. Our role is a more
limited one: to determine whether, as a legal matter, the regulation represents a substantial
burden to Plaintiffs’ rights under RFRA. That requires us to determine how the law works and
what it asks of various actors. On this point, as we held before, “[t]he government’s imposition
of an independent obligation on a third party does not impose a substantial burden on the
appellants’ exercise of religion.” 

       3. Supporting Case Law

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

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

dismissed the plaintiffs’ reliance on Hobby 

–37; see also 

(“[C]ase law clearly draws a distinction between what the law may impose on a person over
religious objections, and what it permits or requires a third party to do. Although that person
may have a religious objection to what the government, or another third party, does with
something that the law requires to be provided (whether it be a Social Security number, DNA, or
a form that states that the person religiously objects to providing contraceptive coverage), RFRA
does not necessarily permit that person to impose a restraint on another’s action based on the
claim that the action is religiously abhorrent.”).

       The D.C. Circuit likewise rejected plaintiffs’ RFRA challenge to the accommodation in
Priests for Life. The court subsequently denied the plaintiffs’ petition for rehearing en banc.
The court’s decision to deny rehearing was accompanied by a six-page concurral from Judge
Pillard, which she wrote “only to underscore why our court’s [prior] approach accords with the
Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc.” Priests for Life, No. 13-5368,
slip op. at 1 (D.C. Cir. May 20, 2015) (Pillard, J., concurral). Judge Pillard noted that the
provisions at issue in Priests for Life were legally “distinct” from those that were challenged in
Hobby Lobby. 

Lobby, the petitioners were “accorded . . . a victory in a contest
over what religious meaning to ascribe to [their] payment for contraceptive coverage.” 

“That holding,” however, “does not require us to credit Priests for Life’s legally inaccurate
assertions about the operation of the regulation they challenge.” 

point of the
challenged regulation is to scrupulously shield objecting religious nonprofits from any role in
making contraception available to women”—in other words, to prevent organizations from
having to provide, pay for, or facilitate access to contraceptives. 

see also Catholic
Health Care Sys. v. Burwell, ____ F.3d ____, ____, 

, at *10 (2d Cir. Aug. 7,
2015) (relying on Priests for 

, and stating that “[v]iewed objectively,
completing a form stating that one has a religious objection is not a substantial burden.”).

       Next, the Fifth Circuit rejected an accommodation challenge in East Texas Baptist
University. The court acknowledged that “the plaintiffs have identified several acts that offend
their religious beliefs.” 

, at *5. But “the acts they [the plaintiffs] are required
to perform do not include providing or facilitating access to contraceptives.” 

Nos. 13-2723/6640        Mich. Catholic Conf., et al. v. Burwell, et al.           Page 21

acts that violate their faith are those of third parties.” 

“confers no right to
challenge the independent conduct of third parties.” 

went on to address and reject
the plaintiffs’ remaining arguments in short order, noting that federal law, not the
accommodation, triggers contraceptive coverage, id.; that the regulations do not require plaintiffs
to pay for contraceptive coverage (in fact, they do the exact opposite), 

and that the
accommodation does “not make it easier for [insurers] to pay for contraceptives, and do[es] not
imply endorsement of contraceptives,” 

       Finally, decisions from the Seventh Circuit and the Tenth Circuit are particularly
informative, given the procedural similarity between our case and the Seventh Circuit’s Notre
Dame case and the thoroughness of the Tenth Circuit’s decision.

       As in our case, the Seventh Circuit initially rejected appellants’ challenge to the
accommodation, in a decision published before Hobby Lobby.             See Univ. of Notre 

. Notre Dame subsequently filed a petition for a writ of certiorari. The Supreme
Court granted Notre Dame’s petition, vacated the Seventh Circuit’s judgment, and remanded the
case “for further consideration in light of Burwell v. Hobby Lobby Stores, Inc.” 

(2015). On remand, the Seventh Circuit once again denied Notre Dame’s request for injunctive

. The court rejected Notre Dame’s allegation that it served as a “conduit
between the suppliers of [contraceptive] coverage and the university’s students and employees.”

As the Seventh Circuit explained, “the only ‘conduit’ is between the [insurance]
companies and Notre Dame students and staff; the university has stepped aside.” Id.; see also 

(“[I]n invoking the [accommodation] the university . . . throws the entire administrative
and financial burden of providing contraception on the health insurer and third-party
administrator, which are secular organizations that unlike the university have no aversion to
providing contraceptive coverage.      The result is to lift a burden from the university’s
shoulders.”). The court also considered various alternative measures proposed by Notre Dame.
It rejected all of them. It noted that one alternative was “not contraception at all,” that another
alternative “elide[d] all consideration of the costs and complications of the administrative
machinery for providing tax incentives to consumers,” and that the remaining alternatives
Nos. 13-2723/6640         Mich. Catholic Conf., et al. v. Burwell, et al.          Page 22

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

       The Seventh Circuit’s recent decision in Wheaton College v. Burwell, __ F.3d ____, 

(7th Cir. July 1, 2015), is likewise informative.            This decision came in the
aftermath of the Supreme Court’s order, discussed above, where the Court held that Wheaton
College need not complete EBSA Form 700, but could instead inform the Secretary of HHS of
its objections to the contraceptive mandate. Despite this order, “[t]he college argue[d] that it
remain[ed] involuntarily complicit in the provision of emergency contraception because its
notification to the Department that it objects to the provision of contraception on religious
grounds serves as the ‘trigger’ of the Department’s ordering the insurers to cover emergency
contraception.”   

    The Seventh Circuit rejected this characterization, carefully
explaining why the college’s position was incorrect. “To exercise this right of refusal the college
has only to notify its health insurers, or if it prefers the Department of Health and Human
Services, of its unwillingness to provide coverage. The insurers are then obligated by the
Affordable Care Act to provide the coverage directly . . . . The college and its health plans are
thus bypassed.” 

“So when Wheaton College tells us that it is being ‘forced’ to allow
‘use’ of its health plans to cover emergency contraceptives, it is wrong. It’s being ‘forced’ only
to notify its insurers (including third-party administrators), whether directly or by notifying the
government (which will forward the notification to the insurers), that it will not use its health
plans to cover emergency contraception.” 

most recently, the Tenth Circuit denied an accommodation challenge in Little
Sisters of the Poor. We have referred to its reasoning throughout our opinion, and now take note
of only a few of the court’s pertinent observations. First, the court highlighted the unusual nature
of the plaintiffs’ claims. As it noted, “[m]ost 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.” 

, at
*14 (emphasis added).       Yet, in this case, “the Departments have developed a religious
accommodation rather than leaving it for the courts to fashion judicial relief.” 

not only challenge a law that requires them to provide contraceptive coverage
Nos. 13-2723/6640         Mich. Catholic Conf., et al. v. Burwell, et al.         Page 23

against their religious beliefs, they challenge the exception that the law affords to them.” 

the legal precedents cited by the plaintiffs “involve a situation where the government
offer[ed] religious objectors an accommodation.” 

then took note of its prior
decision in United States v. Friday, 

(10th Cir. 2008), where it had stated that,
“[l]aw accommodates religion; it cannot wholly exempt religion from the reach of the law.” 

(quoting 

). This discussion underscores the atypical nature of
Plaintiffs’ claim in this case. No court has invalidated an accommodation that is as simple to
comply with as the one at issue in this case. We see no reason to do so now.

       The Tenth Circuit’s discussion of the opt-out process also strongly supports our analysis.
The court stated that the “[p]laintiffs are not substantially burdened solely by the de minimis
administrative tasks this involves.” 

“All opt-out schemes require some affirmative
act to free objectors from the obligations they would otherwise face.” 

file
paperwork or otherwise register a religious objection, even if one disagrees with the ultimate aim
of the law at issue, does not alone substantially burden religious exercise.” 

of the
accommodation is to insulate objecting entities from providing, paying for, or facilitating access
to contraception. The process for obtaining the accommodation is not burdensome, as it requires
no more effort than would be required for any routine administrative task.

       These cases highlight the multitude of reasons why Plaintiffs’ arguments in this case fail:
because there is an underlying federal obligation to provide contraceptive coverage, because the
opt-out is hardly a burden at all (much less a substantial burden), because the whole point of a
federal religious accommodation is to accommodate the beliefs of the religious organization with
the valid legislative policy goals set forth by Congress. The consistent reasoning of our sister
circuits supports this conclusion.

C. Remaining Factors for Injunctive Relief

       The remaining factors that we must consider in evaluating a request for preliminary
injunctive relief are:   “(2) whether the movant would suffer irreparable injury without the
injunction; (3) whether issuance of the injunction would cause substantial harm to others; and
(4) whether the public interest would be served by issuance of the injunction.”         

(internal quotation marks omitted).         “[A] finding that there is simply no
Nos. 13-2723/6640          Mich. Catholic Conf., et al. v. Burwell, et al.        Page 24

likelihood of success on the merits is usually fatal.” 

marks omitted).
There is nothing in the three remaining factors that outweighs the clear unlikelihood of success
in this case. The district courts did not abuse their discretion by denying Plaintiffs preliminary
injunctive relief.

                                        III. CONCLUSION

        The accommodation at issue here does not violate RFRA. We RE-ISSUE and RE-
AFFIRM our prior opinion, Michigan Catholic Conference & Catholic Family Services v.
Burwell, 

(6th Cir. 2014), with respect to all other issues raised by Plaintiffs.
Accordingly, we AFFIRM the district courts’ judgments denying preliminary injunctive relief to
Plaintiffs on all of their claims.