United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1507
                        ___________________________

 Sharpe Holdings, Inc. a Missouri Corporation; Rita Joanne Wilson, a Missouri
resident; Judi Diane Schaefer, a Missouri resident; Charles N. Sharpe, a Missouri
    resident; CNS Corporation, a Missouri Corporation; Ozark National Life
  Insurance Company, a Missouri Corporation; N.I.S. Financial Services, Inc. a
   Missouri Corporation; CNS International Ministries, A Missouri Non-Profit
  Corporation; Heartland Christian College, A Missouri Non-Profit Corporation

                       lllllllllllllllllllll Plaintiffs - Appellees

                                           v.

    United States Department of Health and Human Services; Sylvia Mathews
Burwell, in her official capacity as the Secretary of the United States Department
of Health and Human Services; United States Department of the Treasury; United
States Department of Labor; Jacob J. Lew, in his official capacity as the Secretary
of the United States Department of the Treasury; Thomas E. Perez, in his official
       capacity as the Secretary of the United States Department of Labor1

                     lllllllllllllllllllll Defendants - Appellants

                             ------------------------------

  American Civil Liberties Union; American Civil Liberties Union of Missouri;
Julian Bond; National Women’s Law Center; American Association of University
Women; American Federation of State, County and Municipal Employees; Black
 Women’s Health Imperative; Feminist Majority Foundation; Ibis Reproductive
Health; Legal Momentum; MergerWatch; NARAL Pro-Choice America; NARAL
Pro-Choice Minnesota; NARAL Pro-Choice Missouri; NARAL Pro-Choice South

      1
       Secretary of Health and Human Services Sylvia Mathews Burwell is
substituted for her predecessor, Kathleen Sebelius. See Fed. R. App. P. 43(c)(2).
 Dakota; National Organization for Women Foundation; National Partnership for
 Women and Families; Planned Parenthood of the Heartland; Planned Parenthood
of Kansas & Mid-Missouri; Planned Parenthood Minnesota, North Dakota, South
  Dakota; Planned Parenthood of the St. Louis Region and Southwest Missouri;
 Population Connection; Raising Women’s Voices for the Health Care We Need;
Service Employees’ International Union; National Health Law Program; American
  Public Health Association; National Family Planning & Reproductive Health
  Association; National Women’s Health Network; National Latina Institute for
 Reproductive Health; National Asian Pacific American Women’s Forum; Asian
Americans Advancing Justice; Asian Americans Advancing Justice - Los Angeles;
   Asian & Pacific Islander American Health Forum; Forward Together; Ipas;
Sexuality Information and Education Council of the U.S.; HIV Law Project; 30 for
                 30 Campaign; California Women’s Law Center

                 lllllllllllllllllllllAmici on Behalf of Appellant(s)

  Liberty, Life, and Law Foundation; Association of Gospel Rescue Missions;
  Prison Fellowship Ministries; Association of Christian Schools International;
 National Association of Evangelicals; Ethics and Religious Liberty Commission
   of the Southern Baptist Convention; American Bible Society; The Lutheran
  Church-Missouri Synod; Institutional Religious Freedom Alliance; Christian
                                 Legal Society

                  lllllllllllllllllllllAmici on Behalf of Appellee(s)
                                       ____________

                   Appeal from United States District Court
                 for the Eastern District of Missouri - Hannibal
                                 ____________

                          Submitted: December 10, 2014
                            Filed: September 17, 2015
                                 ____________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                       ____________



                                         -2-
WOLLMAN, Circuit Judge.

       Contending that the district court2 abused its discretion, the Departments of
Health and Human Services (HHS), Labor (DOL), and Treasury, as well as their
respective Secretaries, (collectively, the government) appeal from the entry of a
preliminary injunction enjoining the government from enforcing certain provisions
of the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 300gg-13,
against CNS International Ministries, Inc. (CNS) and Heartland Christian College
(HCC), each of which is a nonprofit religious organization that offers healthcare
coverage to employees through a self-insured plan.3 We affirm the order granting the
preliminary injunction.

       CNS, a Missouri nonprofit corporation with more than fifty employees,
provides full-time residential services to men, women, and children with behavioral
problems or who suffer from alcohol or drug dependencies, and it operates a school
that serves the children of individuals in its recovery program, as well as its
employees’ children. HCC, also a Missouri nonprofit corporation but with fewer than
fifty employees, provides post-secondary higher education to employees and residents
of CNS and their dependents. Christian belief and practice are integral to the
identities of both CNS and HCC, and they strive “to promote certain moral and
ethical standards in their employees, including . . . a belief in the sanctity of life
which precludes abortion on demand.” As part of their religious mission to promote


      2
       The Honorable David D. Noce, United States Magistrate Judge for the Eastern
District of Missouri (hereinafter the district court), to whom the case was assigned by
consent of the parties under 28 U.S.C. § 636(c).
      3
        In separate orders that are not at issue in this appeal, the district court granted
(1) a temporary restraining order for Appellants Sharpe Holdings, Inc.; Charles N.
Sharpe; Rita Joanne Wilson; and Judi Diane Schaefer and (2) a preliminary injunction
for Appellants CNS Corporation; Ozark National Life Insurance Company; and N.I.S.
Financial Services, Inc.

                                           -3-
the well-being and health of their employees, both CNS and HCC offer healthcare
coverage to employees through self-insured group health plans, although HCC, with
fewer than fifty employees, is not required by the ACA to offer healthcare coverage.

       Under authority granted by the ACA, HHS promulgated regulations requiring
“group health plan[s]” and “health insurance issuer[s] offering group or individual
health insurance coverage” to cover, “[w]ith respect to women, . . . preventive care
and screenings provided for in binding comprehensive health plan coverage
guidelines supported by the Health Resources and Services Administration.” 45
C.F.R. § 147.130(a)(1)(iv). At the recommendation of the Institute of Medicine, HHS
adopted guidelines providing that nonexempt employers generally must provide
“coverage, without cost sharing, for ‘[a]ll Food and Drug Administration [(FDA)]
approved contraceptive methods, sterilization procedures, and patient education and
counseling for all women with reproductive capacity’” (the contraceptive mandate).
77 Fed. Reg. 8725, 8725 (Feb. 15, 2012); see 29 C.F.R. § 2590.715-2713(a).4
Contraceptive methods approved by the FDA include intrauterine devices (IUDs),
levonorgestrel (Plan B), and ulipristal acetate (ella), each of which “may have the
effect of preventing an already fertilized egg from developing any further by
inhibiting its attachment to the uterus.” Burwell v. Hobby Lobby, 

,
2762-63 (2014). In general, any employer that offers employees a group health plan
must comply with the contraceptive mandate or face penalties of $100 per day per
affected “individual.” 26 U.S.C. § 4980D(b). An employer with more than fifty
employees that fails to provide employees with a group health plan is generally
subject to penalties of $2,000 per year per full-time employee. 

(c).

      The ACA provides an exemption from the contraceptive mandate for
“grandfathered” health plans, i.e., those in existence at the time of the ACA’s


      4
       Treasury and HHS regulations were similarly revised, but we cite only to DOL
regulations unless otherwise indicated.

                                        -4-
adoption. 42 U.S.C. § 18011; 29 C.F.R. § 2590.715-1251. The ACA also provides
an exemption from the contraceptive mandate for group health plans sponsored by
religious employers. 45 C.F.R. § 147.131(a) (HHS). The term “religious employer”
is defined narrowly by reference to the Internal Revenue Code to include “churches,
their integrated auxiliaries, and conventions or associations of churches,” as well as
“the exclusively religious activities of any religious order.” 

Internal
Revenue Code, 26 U.S.C. § 6033(a)(3)(A)(i), (iii)). Under these exemptions,
employers with grandfathered plans and religious employers may continue to offer
their employees healthcare coverage that does not include contraceptives.

       The regulations also provide an “accommodation” for certain religious
organizations that have religious objections to the contraceptive mandate but do not
qualify for the religious-employer exemption.5 78 Fed. Reg. 39,870, 39,871 (July 2,
2013); see also 29 C.F.R. § 2590.715-2713A. The accommodation is intended to
protect religious organizations “from having to contract, arrange, pay, or refer for”
contraceptive coverage. 78 Fed. Reg. at 39,872. It is available for a religious
organization that (1) has religious objections to providing healthcare coverage for
some or all contraceptive services, (2) “is organized and operates as a nonprofit
entity,” (3) “holds itself out as a religious organization,” and (4) complies with a self-
certification process. 29 C.F.R. § 2590.715-2713A(a). A self-insured6 religious


      5
        After the Supreme Court’s decision in Hobby Lobby, the government revised
the relevant regulations effective September 14, 2015, to extend this accommodation
to certain closely held for-profit entities that have a religious objection to providing
coverage for some or all of the FDA-approved contraceptive methods. See 80 Fed.
Reg. 41,318 (July 14, 2015).
      6
        A self-insured employer bears the financial risk of paying its employees’
health-insurance claims rather than contracting with a separate insurance company
to provide the coverage and bear the financial risk. A self-insured employer often
hires a third-party administrator to manage administrative functions like processing
claims. See, e.g., 1A Steven Plitt, et al., Couch on Insurance § 10:1 n.1 (3d ed. 2013).

                                           -5-
organization, after “contract[ing] with one or more third party administrators,” 29
C.F.R. § 2590.715-2713A(b)(1)(i), complies with the self-certification process in one
of two ways.

       The organization may self-certify by completing and submitting directly to its
third-party administrator (TPA) an EBSA Form 700–Certification (Form 700),
certifying that it is a religious nonprofit entity that has religious objections to
providing coverage for some or all of the contraceptives required by the mandate. 29
C.F.R. § 2590.715-2713A(a)-(b). The organization may also self-certify by providing
notice to HHS stating the organization’s name; the basis on which it qualifies for an
accommodation; its religious objections to providing coverage for some or all
contraceptives, including the specific contraceptives to which it objects; its insurance
plan name and type; and its TPA’s name and contact information (HHS Notice).7 See
79 Fed. Reg. 51,092, 51,094-95 (Aug. 27, 2014); 80 Fed. Reg. 41,318, 41,323 (July
14, 2015); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B). The religious organization must

Because CNS and HCC offer self-insured plans, we focus our discussion on
regulations applicable to those plans.
      7
        This self-certification method was added to the regulations after the Supreme
Court’s order in Wheaton College v. Burwell, 

(2014). Wheaton
College, a religious organization, challenged the accommodation process, arguing
that completing Form 700 and forwarding the Form to its insurance issuer made it
complicit in the provision of contraceptive coverage in violation of its religious
beliefs. The Supreme Court granted injunctive relief, enjoining the government from
enforcing the contraceptive mandate while the college’s challenge to the
accommodation process was pending, provided that the college inform HHS “in
writing that it is a nonprofit organization that holds itself out as religious and has
religious objections to providing coverage for contraceptive services.” 

The college was not required to self-certify using Form 700. 

also
stated, “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” ACA to Wheaton College’s employees and students. 

update its HHS Notice “[i]f there is a change in any of the information required
to be included.” 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B). According to the
government, this information is “the minimum information necessary . . . to determine
which entities are covered by the accommodation, to administer the accommodation,
and to implement” government policy. 79 Fed. Reg. 51,092, 51,095 (Aug. 27, 2014);
80 Fed. Reg. 41,318, 41,323 (July 14, 2015). After HHS receives the Notice, it
provides the information to DOL, which sends a separate notification to the religious
organization’s TPA. See 

TPA receives Form 700 from the religious organization or the separate
notification from DOL “and agrees to enter into or remain in a contractual
relationship with” the religious organization, the TPA must “provide or arrange
payments for contraceptive services” for beneficiaries of the organization’s group
health plan either by providing those payments itself or by arranging for another party
to do so. 29 C.F.R. § 2590.715-2713A(b)(2). The TPA is also “designat[ed] . . . plan
administrator and claims administrator for contraceptive benefits” for the religious
organization. 78 Fed. Reg. at 39,879. If a self-insured religious organization uses
Form 700, the form becomes “an instrument under which the plan is operated [and
is] treated as a designation of the [TPA] as the plan administrator under section 3(16)
of ERISA[, 29 U.S.C. § 1002(33),] for any contraceptive services required to be
covered.” 29 C.F.R. § 2510.3-16(b). Form 700 authorizes the TPA to “provide or
arrange payments for contraceptive services” and requires the TPA to provide
separate notice regarding those services to participants and beneficiaries enrolled in
the religious organization’s group health plan. 29 C.F.R. § 2590.715-2713A(b)(2).
If the self-insured religious organization instead self-certifies by HHS Notice, DOL’s
ensuing notification to the TPA also operates to “designate” the TPA “as plan
administrator” under ERISA for contraceptive benefits. 79 Fed. Reg. at 51,095; see
also 29 C.F.R. § 2510.3-16(b). Once the TPA receives Form 700 or notification from
DOL, it also becomes eligible to be reimbursed for the full cost of contraceptive
coverage, plus an additional allowance of “no less than 10 percent.” 45 C.F.R.

                                         -7-
§ 156.50 (HHS); 79 Fed. Reg. 13,744, 13,809 (Mar. 11, 2014) (noting that HHS
specifies the amount of the yearly allowance and setting that amount at fifteen percent
for 2015). The TPA must provide or arrange for separate payments for contraceptive
coverage for a religious organization’s plan beneficiaries “so long as [the
beneficiaries] are enrolled in [the organization’s] group health plan.” 29 C.F.R.
§ 2590.715-2713A(d); see 45 C.F.R. § 147.131(c)(2)(i)(B) (HHS).8

       CNS and HCC, in accordance with their sincerely held religious beliefs,
oppose the use, funding, provision, or support of abortion on demand, and they
believe that certain contraceptives required under the contraceptive mandate—Plan
B, ella, and copper IUDs—are functionally equivalent to abortion on demand. As
have a number of other religious organizations that do not qualify for the religious-
employer exemption from the contraceptive mandate, CNS and HCC brought suit
against the government, arguing that both the contraceptive mandate and the
accommodation process impose a substantial burden on their exercise of religion in
violation of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C.
§§ 2000bb to 2000bb-4, and the Free Exercise Clause of the First Amendment to the

      8
        It is not clear whether the ACA’s implementing regulations impose a separate
legal obligation on a TPA to provide contraceptive coverage to a religious
organization’s employees and plan beneficiaries or whether that obligation arises only
after the TPA receives a copy of the organization’s Form 700 or DOL notification and
is thereby designated as a plan administrator for purposes of ERISA. See Priests for
Life v. U.S. Dep’t of Health & Human Servs., No. 13-5368, slip op. at 12 n.3 (D.C.
Cir. May 20, 2015) (Brown, J., dissenting from denial of rehearing en banc); Little
Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 

,
1208 (10th Cir. 2015) (Baldock, J., dissenting in part) (discussing effect of
accommodation regulations in context of self-insured nonprofit religious
organizations), petition for cert. filed, 

(U.S. July 23, 2015) (No.
15-105); see also Wheaton College v. Burwell, 

, 2814 n.6 (2014)
(Sotomayor, J., dissenting) (explaining that a TPA does not have an independent
obligation to provide contraceptive coverage but “bears the legal obligation to
provide contraceptive coverage only upon receipt of a valid self-certification”).

                                         -8-
U.S. Constitution. CNS and HCC contend that the government is coercing them to
violate their religious beliefs by threatening to impose severe monetary penalties
unless they either directly provide coverage for objectionable contraceptives through
their group health plans or indirectly provide, trigger, and facilitate that objectionable
coverage through the Form 700/HHS Notice accommodation process. They
accordingly moved for a temporary restraining order and a preliminary injunction to
enjoin enforcement of the contraceptive mandate and the accommodation regulations
against them. The district court granted injunctive relief,9 relying on an earlier order
enjoining enforcement of “the ACA Mandate regulations regarding abortifacient
devices and related counseling” against the for-profit plaintiffs, D. Ct. Order of Dec.
31, 2012, at 9, and reasoning that “the arguments for those plaintiffs are substantially
similar to the arguments” raised by the nonprofit religious organizations, D. Ct. Order
of Dec. 30, 2013, at 5.

       After the notice of appeal was filed, the Supreme Court issued its order in
Wheaton College v. Burwell, 

(2014), and the government revised the
accommodation regulations to permit religious organizations to self-certify using
HHS Notice, as well as Form 700. We granted the parties’ joint motion for
permission to file supplemental briefs regarding the impact of the revised regulations
on the issues presented in this appeal. CNS and HCC assert that the addition of HHS
Notice as an alternative method to apply for accommodation does not alleviate the
substantial burden imposed on their religious exercise, because it does “nothing more
than coerce [them] into another avenue that violates their religion.” They argue that
they “must still submit a document that they believe wrongfully facilitates the
delivery of such coverage.”




      9
        The district court did not specify whether its ruling was based on the RFRA
or the Free Exercise claim. Because we conclude that CNS and HCC were entitled
to relief based on their RFRA claim, we decline to address their Free Exercise claim.

                                           -9-
      The government asserts—as it did with respect to Form 700—that HHS Notice
does not substantially burden CNS and HCC’s exercise of religion, because the
Notice does not facilitate the provision of contraceptive coverage by CNS and HCC’s
TPAs, which have a separate and independent legal obligation under the ACA to
provide contraceptive coverage to CNS and HCC’s employees. The government also
argues that even if there were a substantial burden on the exercise of religion, it has
employed the least restrictive means to accomplish its compelling interest in ensuring
access to no-cost contraceptive coverage.

        “A district court has broad discretion when ruling on [a] request[] for [a]
preliminary injunction[], and we will reverse only for clearly erroneous factual
determinations, an error of law, or an abuse of that discretion.” Med. Shoppe Int’l,
Inc. v. S.B.S. Pill Dr., Inc., 

, 803 (8th Cir. 2003) (quoting United Indus.
Corp. v. Clorox Co., 

, 1179 (8th Cir. 1998)). In determining whether
to grant injunctive relief, a district court generally considers “(1) the threat of
irreparable harm to the movant; (2) the balance between the potential harm and any
harm that granting the injunction will cause to other parties to the litigation; (3) the
probability that the movant will succeed on the merits; and (4) the public interest.”

see also Dataphase Sys., Inc. v. C.L. Sys., Inc., 

,
113 (8th Cir.1981)). Although “no single factor is determinative,” 

, the probability-of-success factor is the most significant, see Home
Instead, Inc. v. Florance, 

, 497 (8th Cir. 2013).

       RFRA provides that a federal law may not “substantially burden a person’s
exercise of religion” unless the government “demonstrates that application of the
burden to the person . . . is in furtherance of a compelling governmental interest” and
“is the least restrictive means of furthering that compelling governmental interest.”




                                         -10-
42 U.S.C. § 2000bb-1.10 To state a claim under RFRA, a religious objector must
show that the government substantially burdens a sincere religious exercise or belief.
See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 

, 428
(2006). The burden then shifts to the government to show that it has a “compelling
interest” in applying “the challenged law ‘to the person’—the particular claimant
whose sincere exercise of religion is being substantially burdened.” 

(quoting 42 U.S.C. § 2000bb-1(b)). To satisfy the compelling-interest requirement,
the government must do more than identify “broadly formulated interests justifying
the general applicability of government mandates.” 

The government also
bears the burden of showing that “application of the burden to the person . . . is the
least restrictive means of furthering” its compelling interest. 

This
burden-shifting approach applies even at the preliminary-injunction stage. 

30.

       Under RFRA, the government substantially burdens the exercise of religion
when it “conditions receipt of an important benefit upon conduct proscribed by a
religious faith” or “denies such a benefit because of conduct mandated by religious
belief, thereby putting substantial pressure on an adherent to modify his behavior and
to violate his beliefs.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 

,
717-18 (1981). In other words, governmental action substantially burdens the
exercise of religion when it coerces private individuals into violating their religious
beliefs or penalizes them for those beliefs by denying them the “rights, benefits, and
privileges enjoyed by other citizens.” Lyng v. Nw. Indian Cemetery Protective Ass’n,

, 449 (1988).




      10
        “RFRA expressly adopted the compelling interest test ‘as set forth in Sherbert
v. Verner, 

(1963) and Wisconsin v. Yoder, 

(1972).’”
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 

, 431
(2006).

                                         -11-
       Here, the substantial burden imposed by the government on CNS and HCC’s
exercise of religion is the imposition of significant monetary penalties should CNS
and HCC adhere to their religious beliefs and refuse to comply with the contraceptive
mandate or the accommodation regulations. This burden mirrors the substantial
burden recognized by the Supreme Court in Hobby Lobby. CNS and HCC face the
same consequences for noncompliance as did the plaintiffs in Hobby Lobby. 134 S.
Ct. at 2759, 2775-76. Like the plaintiffs in Hobby Lobby, if CNS and HCC fail to
comply with the challenged regulations, they will be subject to substantial monetary
penalties. See 

(citing 26 U.S.C. §§ 4980D, 4980H). When the
government imposes a direct monetary penalty to coerce conduct that violates
religious belief, “[t]here has never been a question” that the government “imposes a
substantial burden on the exercise of religion.” Priests for Life v. U.S. Dep’t of
Health & Human Servs., No. 13-5368, slip op. at 6 n.3 (D.C. Cir. May 20, 2015)
(Kavanaugh, J., dissenting from denial of rehearing en banc); see also Hobby 

(imposing penalty for refusal to provide contraceptive coverage);
Wisconsin v. Yoder, 

, 208, 218 (1972) (imposing penalty for refusal to
send children to high school); Sherbert v. Verner, 

, 404 (1963) (equating
denial of benefits with imposition of penalty for Saturday worship); Univ. of Notre
Dame v. Burwell, 

, 628 n.1 (7th Cir. 2015) (Flaum, J., dissenting)
(“[O]nce we determine a religious belief is burdened, substantiality is measured by
the severity of the penalties for non-compliance.”). As noted by the Court in Hobby
Lobby, “[i]f these consequences do not amount to a substantial burden, it is hard to
see what 

.

       The “exercise of religion” protected under RFRA “involves not only belief and
profession but the performance of (or abstention from) physical acts that are engaged
in [or forborne] for religious reasons.” Hobby 

(internal
quotation and citation omitted). “RFRA was designed to provide very broad
protection for religious liberty,” indeed, protection “far beyond what [the Supreme]
Court has held is constitutionally required.” 

Significantly, RFRA

                                        -12-
protects “any exercise of religion, whether or not compelled by, or central to, a system
of religious belief” and “mandate[s] that this concept be construed in favor of a broad
protection of religious exercise.” 

(internal quotation and citation omitted).

       CNS and HCC submit that their religious beliefs prohibit them from providing
healthcare coverage for certain contraceptives. They further assert that the
government’s purported accommodation of their religious beliefs—the requirement
that they submit Form 700 or HHS Notice so that their TPA can provide the
objectionable contraceptives—is no accommodation at all because it, too,
substantially burdens their exercise of religion. The government does not dispute the
sincerity of CNS and HCC’s religious beliefs. When sincerity is not in dispute, we
must consider the religious belief or exercise at issue and determine whether the
government has placed substantial pressure, i.e., a substantial burden, on the religious
objector to engage in conduct that violates the religious belief or to abstain from
engaging in conduct that is required by that belief. See Hobby 

(concluding that substantial burden arises when the government “demands”
that a religious objector either “engage in conduct that seriously violates [his]
religious beliefs” or suffer “substantial” “consequences”); Bowen v. Roy, 

, 703 (1986) (suggesting that substantial burden may exist when the government
compels a religious objector “by threat of sanctions, to refrain from religiously
motivated conduct or to engage in conduct that [he] find[s] objectionable for religious
reasons”) (footnote omitted).

       Our inquiry in this regard is necessarily constrained because “it is not within
the judicial function” to determine whether a religious belief or practice comports
with the tenets of a particular religion. 

(“Courts are not
arbiters of scriptural interpretation.”). Instead, we must accept a religious objector’s
description of his religious beliefs, regardless of whether we consider those beliefs
“acceptable, logical, consistent, or comprehensible.” 

In other words, a
religious objector is entitled to “dr[a]w a line” regarding the conduct that his religion

                                          -13-
deems permissible, and once that line is drawn, “it is not for [a court] to say that the
line . . . was . . . unreasonable.” 

“[O]ur ‘narrow function . . . in this
context,’” therefore, “‘is to determine’ whether the line drawn reflects ‘an honest
conviction.’” Hobby 

(quoting 

).

       CNS and HCC assert that their religious beliefs dictate that they abstain from
conduct that furthers the government’s regulatory scheme to provide their employees
and plan beneficiaries with coverage for objectionable contraceptives. They argue
that the accommodation provided via the Form 700/HHS Notice procedure does not
eliminate the substantial burden imposed on their religious beliefs because the
accommodation process itself triggers the provision of objectionable coverage by
their TPAs, making them complicit in conduct that violates their religious beliefs.

       The government argues that the accommodation process cannot substantially
burden CNS and HCC’s exercise of religion because, as a matter of law, it does not
trigger, facilitate, or make CNS and HCC complicit in the provision of that coverage.
This is true, the government says, because the ACA already imposes an obligation on
TPAs to provide contraceptive coverage to their employees and plan beneficiaries.

       The government’s argument has prevailed in several cases, in each of which
the courts concluded as a matter of law that because the accommodation process does
not trigger contraceptive coverage or make the religious objector complicit in the
provision of that coverage, the accommodation process cannot impose a substantial
burden on the exercise of religion.11 See Catholic Health Care Sys. v. Burwell, No.


      11
         In reaching this conclusion, the courts have reasoned that “[i]t is federal law,
rather than the religious organization’s signing and mailing [Form 700 or HHS
Notice], that requires health-care insurers, along with [TPAs] of self-insured health
plans, to cover contraceptive services. By refusing to fill out the form [the religious
objector] would subject itself to penalties, but [its insurer and TPA] would still be
required to provide [contraceptive] services to” employees and plan beneficiaries.

                                          -14-
14-427, 

, at *7 (2d Cir. Aug. 7, 2015) (noting that while the court
will accept the sincerity of an objector’s religious beliefs, “it must assess the nature
of a claimed burden on religious exercise to determine whether, as an objective legal
matter, that burden is ‘substantial’ under RFRA”); Little Sisters of the Poor Home for
the Aged, Denver, Colo. v. Burwell, 

, 1176 (10th Cir. 2015) (noting
that “courts—not plaintiffs—must determine if a law or policy substantially burdens
religious exercise”), petition for cert. filed, 

(U.S. July 23, 2015)
(No. 15-105); E. Tex. Baptist Univ. v. Burwell, 

, 457-59 (5th Cir. 2015)
(citing Bowen, 

, and Lyng, 

, as binding authority to
“decid[e], as a question of law, whether the challenged law pressures the objector to
modify his religious exercise), petition for cert. filed, 

(U.S. July


Univ. of Notre Dame v. Burwell, 

, 614 (7th Cir. 2015); see also Catholic
Health Care Sys. v. Burwell, No. 14-427, 

, at *12-13 (2d Cir. Aug.
7, 2015); Little Sisters of the Poor, 

, 1180-81; E. Tex. Baptist Univ. v.
Burwell, 

, 458-62 (5th Cir. 2015), petition for cert. filed, 

(U.S. July 8, 2015) (No. 15-35); Geneva Coll. v. Sec’y U.S. Dep’t of Health &
Human Servs., 

, 441-42 (3d Cir. 2015), petition for cert. filed sub nom.
Zubik v. Burwell, 

(U.S. May 29, 2015) (Nos. 14-1418, 14A1065),
and petition for cert. filed, 

(U.S. Aug. 11, 2015) (Nos. 15-191,
15A1); Priests for Life v. U.S. Dep’t of Health & Human Servs., 

, 256
(D.C. Cir. 2014) petition for cert. filed, 

(U.S. June 9, 2015) (No.
14-1453), and petition for cert. filed sub nom. Roman Catholic Archbishop of Wash.
v. Burwell, 

(U.S. June 19, 2015) (No. 14-1505); Mich. Catholic
Conference & Catholic Family Servs. v. Burwell, 

, 387-88 (6th Cir.
2014), cert. granted and judgment vacated, 

(2015) (vacating and
remanding for further consideration in light of Hobby Lobby), and reissued and
reaffirmed on remand, Nos. 13-2723, 13-6640, 

(6th Cir. Aug. 21,
2015); but see Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health
& Human Servs., 

, 1347 (11th Cir. 2014) (Pryor, J., specially
concurring in order granting injunction pending appeal) (disagreeing with conclusion
of Sixth and Seventh Circuits that “mandate imposes an independent obligation on”
TPAs that “does not constitute a substantial burden”).


                                         -15-
8, 2015) (No. 15-35); Univ. of Notre 

(“Although Notre Dame
is the final arbiter of its religious beliefs, it is for the courts to determine whether the
law actually forces Notre Dame to act in a way that would violate those beliefs.”);
Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 

, 435 (3d
Cir. 2015) (“Without testing the appellees’ religious beliefs, we must nonetheless
objectively assess whether the appellees’ compliance with the self-certification
procedure does, in fact, trigger, facilitate, or make them complicit in the provision of
contraceptive coverage.”), petition for cert. filed sub nom. Zubik v. Burwell, 

(U.S. May 29, 2015) (Nos. 14-1418, 14A1065), and petition for cert.
filed, 

(U.S. Aug. 11, 2015) (Nos. 15-191, 15A1); 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 . . . . Whether a law substantially burdens religious exercise under RFRA is
a question of law for courts to decide, not a question of fact.”), petition for cert. filed,

(U.S. June 9, 2015) (No. 14-1453), and petition for cert. filed sub
nom. Roman Catholic Archbishop of Wash. v. Burwell, 

(U.S. June
19, 2015) (No. 14-1505); Mich. Catholic Conference & Catholic Family Servs. v.
Burwell, 

, 385 (6th Cir. 2014) (“[A]lthough we acknowledge that the
appellants believe that the regulatory framework makes them complicit in the
provision of contraception, we will independently determine what the regulatory
provisions require and whether they impose a substantial burden on appellants’
exercise of religion.”), cert. granted and judgment vacated, 

(2015)
(vacating and remanding for further consideration in light of Hobby Lobby) and
reissued and reaffirmed on remand, Nos. 13-2723, 13-6640, 

(6th
Cir. Aug. 21, 2015); but cf. Eternal Word Television Network, Inc. v. Sec’y, U.S.
Dep’t of Health & Human Servs., 

, 1340 (11th Cir. 2014) (granting
motion for injunction pending appeal against enforcement of contraceptive mandate
in light of Hobby Lobby).



                                           -16-
        As Hobby Lobby instructs, however, we must accept CNS and HCC’s assertion
that self-certification under the accommodation process—using either Form 700 or
HHS Notice—would violate their sincerely held religious beliefs. See Hobby 

; see also Hernandez v. Comm’r, 

, 699 (1989) (“It is
not within the judicial ken to question the centrality of particular beliefs or practices
to a faith, or the validity of particular litigants’ interpretations of those creeds.”). It
is not our role to second-guess CNS and HCC’s honest assessment of a “difficult and
important question of religion and moral philosophy, namely, the circumstances under
which it is wrong for a person to perform an act that is innocent in itself but that has
the effect of enabling or facilitating the commission of an immoral act by another.”
Hobby 

. As discussed above, Form 700 or HHS Notice will
inform CNS and HCC’s TPA of its obligations to facilitate contraceptive coverage
for CNS and HCC’s employees and plan beneficiaries and thus will play a part in
providing the objectionable contraceptives. As in Hobby Lobby, CNS and HCC
sincerely believe that the actions “demanded by the . . . regulations [are] connected
to” illicit conduct “in a way that is sufficient to make it immoral for them to” take
those actions. 

HCC have drawn a line between actions they find “to be
consistent with [their] religious beliefs” and actions they consider “morally
objectionable.” 

450 U.S. at 715). And it is not for us “‘to say that
the line [they] drew was an unreasonable one.’” Id. (quoting 

); see also Priests for Life, slip op. at 12 (Kavanaugh, J., dissenting from denial
of rehearing en banc) (“Judicially second-guessing the correctness or reasonableness
(as opposed to the sincerity) of plaintiffs’ religious beliefs is exactly what the
Supreme Court in Hobby Lobby told us not to do.”).

       The government insists that because the ACA’s requirement that insurance
issuers and group health plans include contraceptive coverage is wholly independent
of CNS and HCC’s self-certification, their exercise of religion cannot be substantially
burdened by the accommodation process. Even if the ACA requires that insurance
issuers and group health plans include contraceptive coverage regardless of whether

                                           -17-
CNS and HCC self-certify, it also compels CNS and HCC to act in a manner that they
sincerely believe would make them complicit in a grave moral wrong as the price of
avoiding a ruinous financial penalty. If one equates the self-certification process
with, say, that of obtaining a parade permit, then indeed the burden might well be
considered light. But if one sincerely believes that completing Form 700 or HHS
Notice will result in conscience-violating consequences, what some might consider
an otherwise neutral act is a burden too heavy to bear. “The Supreme Court has
emphasized that judges in RFRA cases may question only the sincerity of a plaintiff’s
religious belief, not the correctness or reasonableness of that religious belief.” Priests
for Life, slip op. at 8 (Kavanaugh, J., dissenting from denial of rehearing en banc);
see also Eternal 

(Pryor, J., specially concurring in order
granting injunction pending appeal) (noting that religious objector’s “legal
interpretation is beside the point” because “[w]hat matters is whether the [objector’s]
participation in the contraception scheme—however minimal—violates its religious
beliefs”); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell,
Nos. 13-1540, 14-6026, 14-6028, 

, at *2 (10th Cir. Sept. 3, 2015)
(Hartz, J., dissenting from denial of rehearing en banc) (“I am aware of no precedent
holding that a person’s free exercise was not substantially burdened when a
significant penalty was imposed for refusing to do something prohibited by the
person’s sincere religious beliefs (however strange, or even silly, the court may
consider those beliefs).”); Grace Schs. v. Burwell, Nos. 14-1430, 14-1431, 

, at *18 (7th Cir. Sept. 4, 2015) (Manion, J., dissenting). Religious beliefs
need not be “acceptable, logical, consistent, or comprehensible to others” to deserve
protection. 

. The question here is not whether CNS and
HCC have correctly interpreted the law, but whether they have a sincere religious
belief that their participation in the accommodation process makes them morally and
spiritually complicit in providing abortifacient coverage. Their affirmative answer
to that question is not for us to dispute.




                                          -18-
       As it did in Hobby Lobby, the government argues here that CNS and HCC’s
objection to the contraceptive mandate is really an objection to the conduct of third
parties and that “the connection between what [CNS and HCC] must do . . . and the
end that they find to be morally wrong . . . is simply too attenuated.” See Hobby

. In Hobby Lobby, the third parties were the plaintiffs’
employees who would use the contraceptive benefits provided in the group health
plan. Here, the third parties are TPAs, who will provide the objectionable coverage
to CNS and HCC’s employees through the group health plan. The Supreme Court
rejected this argument in Hobby Lobby, characterizing it as tantamount to “tell[ing]
the [religious objectors] that their beliefs” about complicity in the provision of
contraceptive coverage were “flawed,” “mistaken[,] or insubstantial”—moral and
philosophical judgments that are not for the courts to make. 

Instead,
when a religious objector deems the required conduct to cross the line of morally and
religiously acceptable behavior, “it is not for us to say that their religious beliefs are
mistaken or insubstantial.” 

       The government also argues that the self-certification process cannot
substantially burden CNS and HCC’s exercise of religion because they were already
instructing their TPA not to provide contraceptive coverage and thus had already
declared their religious objection to such devices and products. What this argument
fails to appreciate, however, is that self-certification under the accommodation
process accomplishes what CNS and HCC’s prior instructions had specifically
prevented: the provision of objectionable coverage through their group health plans.
We need look no further than to the government’s own litigation behavior to gauge
the importance of self-certification in the regulatory scheme. If TPAs had a wholly
independent obligation to provide contraceptive coverage to religious objectors’
employees and plan beneficiaries, there would be no need to insist on CNS and
HCC’s compliance with the accommodation process.




                                          -19-
      In light of CNS and HCC’s sincerely held religious beliefs, we conclude that
compelling their participation in the accommodation process by threat of severe
monetary penalty is a substantial burden on their exercise of religion. See Hobby

(“Arrogating the authority to provide a binding national
answer to this religious and philosophical question, [the government] in effect tell[s]
the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly
refused to take such a step.”). That they themselves do not have to arrange or pay for
objectionable contraceptive coverage is not determinative of whether the required or
forbidden act is or is not religiously offensive. See 

. We thus conclude that CNS and HCC have shown a substantial likelihood of
success on the merits of their claim that the contraceptive mandate and
accommodation process impose a substantial burden on their religious beliefs.

        The question remains whether the government has established a compelling
interest which it has used the least restrictive means to further. As noted above, under
RFRA, the “[g]overnment may substantially burden a person’s exercise of religion
only if it demonstrates that application of the burden to the person . . . is the least
restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C.
§ 2000bb-1(b). The government must “demonstrate that the compelling interest test
is satisfied through application of the challenged law to . . . the particular claimant
whose sincere exercise of religion is being substantially burdened.” Hobby 

(quoting O 

). “[B]roadly formulated,”
O 

, or “sweeping” governmental interests are inadequate,

. Rather, the government must show with “particularity how
[even] admittedly strong interest[s] . . . would be adversely affected by granting an
exemption” to a particular claimant. 

      The government has asserted that its compelling interests in safeguarding
public health and in ensuring that women have equal access to health care are
furthered by the contraceptive mandate and the accommodation process. See 78 Fed.

                                         -20-
Reg. at 39,872. In Hobby Lobby, Justice Alito, writing for the Court, “assume[d] that
the interest in guaranteeing cost-free access to the four challenged contraceptive
methods is compelling within the meaning of 

. As did the
Supreme Court, we will entertain the same assumption and proceed to consider
whether the government has shown that the contraceptive mandate and
accommodation process are the least restrictive means of furthering the government’s
compelling interests. See Hobby 

.

       Under the “exceptionally demanding” least-restrictive-means test, Hobby

, “if there are other, reasonable ways to achieve those
[interests] with a lesser burden on . . . protected activity, [the government] may not
choose the way of greater interference,” Dunn v. Blumstein, 

, 343
(1972). Thus, a regulation may constitute the least restrictive means of furthering the
government’s compelling interests if “no alternative forms of regulation” would
accomplish those interests without infringing on a claimant’s religious-exercise
rights. See 

.

      We first reiterate that the government bears the burden of proof on this issue,
which requires it to come forward with evidence that the contraceptive mandate and
the accommodation process are the only feasible means to distribute cost-free
contraceptives to women employed by religious organizations and that no alternative
means would suffice to achieve its compelling interest. It must show “that it lacks
other means of achieving its desired goal without imposing a substantial burden on
the exercise of religion by” CNS and HCC. Hobby 

.

      In Hobby Lobby, the Supreme Court determined that the accommodation
process was “less restrictive than requiring employers to [directly] fund contraceptive
methods that violate their religious beliefs.” 

But the Court also
emphasized that it was specifically “not decid[ing] . . . whether an approach of this
type complies with RFRA for purposes of all religious claims.” 

                                         -21-
suggested that the accommodation process would be an acceptable alternative for
organizations that did not assert a religious objection to the accommodation process
itself. See 

& n.40 (“The less restrictive approach we describe
accommodates the religious beliefs asserted in these cases, and that is the only
question we are permitted to address.” (emphasis added)); 

(Kennedy, J.,
concurring) (noting that “the plaintiffs have not criticized [the accommodation
process] with a specific objection that has been considered in detail”).

       Any suggestion that the Court in Hobby Lobby sanctioned the existing
accommodation process for all purposes was dispelled only days later when the Court
issued its order in Wheaton College and enjoined enforcement of the contraceptive
mandate and the Form 700 accommodation regulations as long as Wheaton College
directly notified HHS of its religious 

. The college was
not required to self-certify by Form 700 to obtain an accommodation, and it was not
required to provide the detailed information and updates demanded under the revised
accommodation regulations establishing HHS Notice. See Wheaton College, 134 S.
Ct. at 2807; see also Little Sisters of the Poor Home for the Aged, Denver, Colo. v.
Sebelius, 

(2014) (enjoining government from enforcing contraceptive
mandate if written notice is provided to HHS stating that objectors “are non-profit
organizations that hold themselves out as religious and have religious objections to
providing coverage for contraceptive services”). And on June 29, 2015, the Supreme
Court granted injunctive relief for the third time in another case involving a nonprofit
religious organization. Zubik v. Burwell, 

(2015) (order enjoining
enforcement of the “challenged provisions” of the ACA pending final disposition of
their petition for certiorari, provided that Wheaton College notice is submitted to
HHS). Thus, in Wheaton College, Little Sisters of the Poor, and Zubik, the Supreme
Court approved a method of notice to HHS that is arguably less onerous than either
Form 700 or HHS Notice yet permits the government to further its interests.
Although the Court’s orders were not final rulings on the merits, they at the very least
collectively constitute a signal that less restrictive means exist by which the

                                         -22-
government may further its interests. See Priests for Life, slip op. at 23 (Kavanaugh,
J., dissenting from denial of rehearing en banc) (“[R]egardless of whether we as a
lower court are formally bound by the Supreme Court stay orders in Wheaton College
and Little Sisters of the Poor, the notice identified by the Supreme Court in those two
cases is undoubtedly a less restrictive way for the Government to further its interest
than [Form 700 or HHS Notice].”). If the employer’s TPA is known to the
government, then there should be no cost to allowing the less onerous notice. Even
if the TPAs are not known, the government has not shown at this stage of the
proceedings that the inconvenience of identifying the TPAs likely would create an
administrative problem of sufficient magnitude to make the entire scheme
unworkable. See 

; 

(O’Connor,
J., concurring in part and dissenting in part).

        In addition, notice similar to that sanctioned by the Supreme Court in Wheaton
College and Zubik will not affect the ability of CNS and HCC’s employees and plan
beneficiaries to obtain contraceptive coverage or “preclude the Government from
relying on th[e] notice, to the extent it considers it necessary, to facilitate the
provision of full contraceptive coverage under the” ACA. Wheaton College, 134 S.
Ct. at 2807; 

(same). The impact a religious accommodation
may have on third parties is an important factor, because it “will often inform the
analysis of the Government’s compelling interest and the availability of a less
restrictive means of advancing that interest.” Hobby 

n.37;
see also 

(observing that “the effect of the . . . accommodation on the
women employed by Hobby Lobby . . . would be precisely zero” because they “would
still be entitled to all FDA-approved contraceptives without cost sharing”).

       CNS and HCC also suggest other less restrictive means that could accomplish
the government’s objectives and relieve the substantial burden on their exercise of
religion. These include what the Court in Hobby Lobby characterized as “[t]he most
straightforward way of doing this,” namely, “for the Government to assume the cost

                                         -23-
of providing the . . . contraceptives at issue to any women who are unable to obtain
them under their health-insurance policies due to their employers’ religious

. “[C]ost may be an important factor in the least-
restrictive means analysis, but both RFRA and its sister statute, RLUIPA, may in
some circumstances require the Government to expend additional funds to
accommodate citizens’ religious beliefs.” 

CNS and HCC urge that the
government could provide subsidies, reimbursements, tax credits, or tax deductions
to employees, or that the government could pay for the distribution of contraceptives
at community health centers, public clinics, and hospitals with income-based support.
On the minimal record thus far developed, the government has not shown that these
alternatives are infeasible. See Korte v. Sebelius, 

, 686-87 (7th Cir.
2013); Univ. of Notre 

(Flaum, J., dissenting); E. Tex. Baptist
Univ. v. Sebelius, 

, 770 (S.D. Tex. 2013), rev’d on other grounds,

.

       CNS and HCC also propose that the government could make contraceptives
available to employees through its own healthcare exchanges. Under this approach,
the government “could treat employees whose employers do not provide complete
coverage for religious reasons the same as it does employees whose employers
provide no coverage at all.” Priests for Life, slip op. at 17 (Brown, J., dissenting from
denial of rehearing en banc). “[I]f a less restrictive means is available for the
Government to achieve its goals, the Government must use it.” Holt v. Hobbs, 

, 864 (2015). As the government must prove that its proposed mandate is
the only feasible and effective means of achieving the asserted compelling interests,
we cannot say on this limited record that the government has eliminated the use of
healthcare exchanges as a viable option.

      Applying the substantial-burden test set forth in Hobby Lobby, we conclude
that CNS and HCC have established that they are likely to succeed on the merits of
their RFRA challenge to the contraceptive mandate and the accommodation

                                          -24-
regulations—the most significant factor in determining whether a preliminary
injunction should issue. See Home Instead, 

. They have also
established that in the absence of an injunction they will be forced to violate their
sincerely held religious beliefs by complying with either the contraceptive mandate
or the accommodation process or to incur severe monetary penalties for refusing to
comply. Keeping in mind the deference we owe the district court in reviewing a
decision to grant injunctive relief, we conclude that it did not abuse its discretion in
finding that CNS and HCC were substantially likely to succeed on the merits of their
claim that the contraceptive mandate and the accommodation process substantially
burden their exercise of religion in violation of RFRA and that the current
accommodation process is not the least restrictive means of furthering the
government’s interests. We therefore affirm the district court’s order granting
injunctive relief.
                        ______________________________




                                         -25-