 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



 Argued May 8, 2014                Decided November 14, 2014

                         No. 13-5368

                  PRIESTS FOR LIFE, ET AL.,
                        APPELLANTS

                              v.

   UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
                  SERVICES, ET AL.,
                     APPELLEES


            Consolidated with 13-5371, 14-5021


        Appeals from the United States District Court
                for the District of Columbia
                    (No. 1:13-cv-01261)
                    (No. 1:13-cv-01441)


    Robert J. Muise argued the cause for appellants/cross-
appellees Priests For Life, et al. Noel J. Francisco argued the
cause for appellants/cross-appellees Roman Catholic
Archbishop of Washington, et al. With them on the briefs
were Eric Dreiband and David Yerushalmi.

     Kimberlee Wood Colby was on the brief for amici curiae
The Association of Gospel Rescue Missions, et al. in support
of cross-appellants/cross-appellees.
                              2


    Mark B. Stern, Attorney, U.S. Department of Justice,
argued the cause for appellees/cross-appellants. With him on
the brief were Stuart F. Delery, Assistant Attorney General,
Ronald C. Machen Jr., U.S. Attorney, Beth S. Brinkmann,
Deputy Assistant Attorney General, and Alisa B. Klein and
Adam C. Jed, Attorneys.

    Martha Jane Perkins was on the brief for amici curiae
National Health Law Program, et al. in support of
appellees/cross-appellants.

     Marcia D. Greenberger and Charles E. Davidow were on
the brief for amici curiae The National Women’s Law Center,
et al. in support of appellees/cross-appellants.

    Ayesha N. Khan was on the brief for amici curiae
Americans United for Separation of Church and State, et al. in
support of appellees/cross-appellants.

    Before: ROGERS, PILLARD and WILKINS, Circuit Judges.

    Opinion for the Court filed by Circuit Judge PILLARD.

     PILLARD, Circuit Judge: These consolidated cases
present the question whether a regulatory accommodation for
religious nonprofit organizations that permits them to opt out
of the contraceptive coverage requirement under the Patient
Protection and Affordable Care Act (“ACA”), 42 U.S.C.
§ 300gg-13(a)(4), itself imposes an unjustified substantial
burden on Plaintiffs’ religious exercise in violation of the
Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.
§ 2000bb et seq. Plaintiffs’ principal claim is that the
accommodation does not go far enough. They believe that,
even if they opted out, they would still play a role in
                               3

facilitating contraceptive coverage. They view the regulation
as thereby substantially burdening their religious exercise by
involving them in what the Plaintiffs and their faith call
“scandal,” i.e., leading others to do evil. Plaintiffs claim that
the government lacks a compelling interest in requiring them
to use the specific accommodation the regulations authorize,
making the burden unjustified and unlawful. They contend
that RFRA gives them a right to exclude contraceptive
coverage from their employees’ and students’ plans without
notice, and requires that the government be enjoined from
implementing the contraceptive coverage requirement.

                             * * *

     As a consequence of a period of wage controls after
World War II during which employers created new fringe
benefits, the majority of people in the United States with
health insurance receive it under plans their employers
arrange through the private market. Congress chose in the
ACA not to displace that basic system. It sought instead to
expand the number of Americans insured and to improve and
subsidize health insurance coverage, in part by building on
the market-based system of employer-sponsored private
health insurance already in place. The contraceptive coverage
requirement and accommodation operate through that system.

     The regulations implementing the ACA and its Women’s
Health Amendment impose a range of standard requirements
on group health plans, including that they cover contraceptive
services prescribed by a health care provider without
imposing any cost sharing on the patient. The contraceptive
coverage requirement derives from the ACA’s prioritization
of preventive care, and from Congress’ recognition that such
care has often been modeled on men’s health needs and thus
left women underinsured. As discussed below, Congress
                               4

included the Women’s Health Amendment in the ACA to
remedy the problem that women were paying significantly
more out of pocket for preventive care and thus often failed to
seek     preventive   services,    including    consultations,
prescriptions, and procedures relating to contraception. The
medical evidence prompting the contraceptive coverage
requirement showed that even minor obstacles to obtaining
contraception led to more unplanned and risky pregnancies,
with attendant adverse effects on women and their families.

     Some employers, including the Catholic nonprofits in
this case, oppose contraception on religious grounds. The
Catholic Church teaches that contraception violates God’s
design because the natural and non-sinful purpose of sex is to
conceive a child within a marriage: Plaintiff Priests for Life,
quoting the Papal Encyclical Humanae Vitae, declares that
“‘any action which either before, at the moment of, or after
sexual intercourse, is specifically intended to prevent
procreation, whether as an end or as a means’—including
contraception and sterilization—is a grave sin.” J.A. 49. In
the view of the Catholic Church expressed through Humanae
Vitae, contraception enables the separation of sex from
reverence for the sexual partner, the understanding that sex
makes children, and the imperative of deep commitment to
marriage and family.

     The Catholic Church itself is exempt from the
contraceptive coverage requirement, but Catholic nonprofits
have a long and broad history of service that goes far beyond
worship or proselytizing. Nationally, Catholic hospitals,
clinics, universities, schools, and social services groups
provide many services that are not inherently religious.
Catholic-identified nonprofits employ and enroll as students
millions of adults, not all of whom are co-religionists or share
the Catholic Church’s religious opposition to contraception.
                               5


     Faced with an employer-based health insurance system,
forceful impetus to require coverage of contraceptive
services, and religious opposition by some employers to
contraception, the government sought to accommodate
religious objections.    As detailed below, the ACA’s
implementing regulations allow religious nonprofits to opt out
of including contraception in the coverage they arrange for
their employees and students. The regulations assure,
however, that the legally mandated coverage is in place to
seamlessly provide contraceptive services to women who
want them, for whom they are medically appropriate, and
who personally have no objection to using them.

     The regulatory opt out works simply: A religious
organization that objects on religious grounds to including
coverage for contraception in its health plan may so inform
either the entity that issues or administers its group health
plan or the Department of Health and Human Services.
Delivery of the requisite notice extinguishes the religious
organization’s obligation to contract, arrange, pay, or refer for
any coverage that includes contraception. The regulations
then require group health plan insurers or administrators to
offer separate coverage for contraceptive services directly to
insured women who want them, and to inform beneficiaries
that the objecting employer has no role in facilitating that
coverage.

    Plaintiffs, the Roman Catholic Archbishop of
Washington and nonprofits affiliated with the Catholic
Church, arrange for group health coverage for their
employees and students. Plaintiffs oppose the ACA’s
contraceptive coverage requirement on religious grounds and
do not want to provide the requisite contraceptive coverage.
                                 6

Instead of taking advantage of the accommodation, Plaintiffs
filed suit to challenge it as a violation of their religious rights.

     Plaintiffs’ principal claim arises under RFRA. Congress
enacted RFRA in response to the Supreme Court’s decision in
Employment Division v. Smith, 494 U.S. 872 (1990), that the
Free Exercise Clause of the First Amendment “does not
relieve an individual of the obligation to comply with a valid
and neutral law of general applicability.” Id. at 879 (internal
quotation marks omitted). Congress sought to reinstate as a
statutory matter the pre-Smith free exercise standard. Under
RFRA, the federal government may not “substantially
burden” a person’s religious exercise—even where the burden
results from a religiously neutral, generally applicable law
that is constitutionally valid under Smith—unless the
imposition of such a burden is the least restrictive means to
serve a compelling governmental interest.

     The contraceptive coverage opt-out mechanism
substantially burdens Plaintiffs’ religious exercise, Plaintiffs
contend, by failing to extricate them from providing, paying
for, or facilitating access to contraception. In particular, they
assert that the notice they submit in requesting
accommodation is a “trigger” that activates substitute
coverage, and that the government will “hijack” their health
plans and use them as “conduits” for providing contraceptive
coverage to their employees and students. Plaintiffs dispute
that the government has any compelling interest in obliging
them to give notice of their wish to take advantage of the
accommodation. And they argue that the government has
failed to show that the notice requirement is the least
restrictive means of serving any such interest.

    We conclude that the challenged regulations do not
impose a substantial burden on Plaintiffs’ religious exercise
                              7

under RFRA. All Plaintiffs must do to opt out is express
what they believe and seek what they want via a letter or two-
page form. That bit of paperwork is more straightforward and
minimal than many that are staples of nonprofit
organizations’ compliance with law in the modern
administrative state. Religious nonprofits that opt out are
excused from playing any role in the provision of
contraceptive services, and they remain free to condemn
contraception in the clearest terms. The ACA shifts to health
insurers and administrators the obligation to pay for and
provide contraceptive coverage for insured persons who
would otherwise lose it as a result of the religious
accommodation.

      Even if, as Plaintiffs aver, we must take as dispositive
their conviction that the accommodation involves them in
providing contraception in a manner that substantially
burdens their religious exercise, we would sustain the
challenged regulations. A confluence of compelling interests
supports maintaining seamless application of contraceptive
coverage to insured individuals even as Plaintiffs are excused
from providing it. That coverage offers adults and children
the benefits of planning for healthy births and avoiding
unwanted pregnancy, and it promotes preventive care that is
as responsive to women’s health needs as it is to men’s. The
accommodation requires as little as it can from the objectors
while still serving the government’s compelling interests.
Because the regulatory opt-out mechanism is the least
restrictive means to serve compelling governmental interests,
it is fully consistent with Plaintiffs’ rights under RFRA. We
also find no merit in Plaintiffs’ additional claims under the
Constitution and the Administrative Procedure Act.
                                 8

                         I. Background

               A. The ACA & Accommodation

     The ACA requires group health plans, including both
insured and self-insured employer-based plans, to include
minimum coverage for a variety of preventive health services
without imposing cost-sharing requirements on the covered
beneficiary.1 42 U.S.C. § 300gg-13(a); see also id. § 300gg-
91(a) (defining “group health plan”); 45 C.F.R.
§ 147.131(c)(2)(ii) (cost-sharing includes copayments,
coinsurance, and deductibles). In view of the greater
preventive health care costs borne by women, the Women’s
Health Amendment in the ACA specifically requires coverage
for women of “such additional preventive care and
screenings . . . as provided for in comprehensive guidelines
supported by the Health Resources and Services
Administration.” 42 U.S.C. § 300gg-13(a)(4).

     To determine which preventive services should be
required, the Health Resources and Services Administration
(“HRSA”), a component of HHS, commissioned a study from
the independent Institute of Medicine (“IOM” or “Institute”).
The Institute is an arm of the National Academy of Sciences
established in 1970 to inform health policy with available
scientific information. In reliance on the work of the
Institute, HRSA established guidelines for women’s

1
  An employer “self-insures” if it bears the financial risk of paying
its employees’ health insurance claims (as opposed to contracting
with an insurance company to provide coverage and bear the
associated financial risk). Many “self-insured” employers hire
third-party administrators (“TPAs”) to perform administrative
functions, such as developing provider networks and processing
claims. See generally Cong. Budget Office, Key Issues in
Analyzing Major Health Insurance Proposals 6 (2008).
                               9

preventive services that include any “[FDA] approved
contraceptive methods, sterilization procedures, and patient
education and counseling.” Health Resources & Servs.
Admin., Women’s Preventive Services Guidelines,
http://www.hrsa.gov/womensguidelines/, quoted in 77 Fed.
Reg. 8725, 8725 (Feb. 15, 2012).

       The three agencies responsible for the ACA’s
implementation—the Department of Health and Human
Services, the Department of Labor, and the Department of the
Treasury       (collectively,     the     “Departments”)—issued
regulations requiring coverage of all preventive services
contained in the HRSA guidelines, including contraceptive
services. See 45 C.F.R. § 147.130(a)(1)(iv) (HHS); 29 C.F.R.
§ 2590.715-2713(a)(1)(iv) (Labor); 26 C.F.R. § 54.9815-
2713(a)(1)(iv) (Treasury). The Departments determined that
contraceptives prevent unintended pregnancies and the
negative health risks associated with such pregnancies; they
“have medical benefits for women who are contraindicated
for pregnancy,” and they offer “demonstrated preventive
health benefits . . . relating to conditions other than pregnancy
. . . .” 77 Fed. Reg. at 8,727. Inadequate coverage for women
not only fails to protect women’s health, but “places women
in the workforce at a disadvantage compared to their male co-
workers.” Id. at 8,728. Providing contraceptive coverage
within the preventive-care package, the Departments
observed, supports the equal ability of women to be “healthy
and productive members of the job force.” Id. Because of the
importance of such coverage, and because “[r]esearch . . .
shows that cost sharing can be a significant barrier to
effective contraception,” the Departments included
contraceptive coverage among the services to be provided
without cost sharing. Id.
                                 10

     Objections by religious nonprofits to the use of
contraception, and to arranging health insurance for their
employees that covers contraceptive services, prompted the
Departments to create two avenues for religious organizations
to exclude themselves from any obligation to provide such
coverage. Those avenues track a longstanding and familiar
distinction between houses of worship (e.g., temples,
mosques, or churches) and religious nonprofits (e.g., schools,
hospitals, or social service agencies with a religious mission
or affiliation). First, in order to “respect[] the unique
relationship between a house of worship and its employees in
ministerial positions,” the Departments categorically
exempted “religious employers,” defined as churches or the
exclusively religious activities of any religious order, from
the contraceptive coverage requirement.2 76 Fed. Reg.
46,621, 46,623 (Aug. 3, 2011); see 45 C.F.R. § 147.131(a).
Second, the Departments created a mechanism for nonprofit
“eligible organizations,” i.e., groups that are not houses of
worship but nonetheless present themselves as having a
religious character, to opt out of having to “contract, arrange,
pay, or refer for [contraceptive] coverage.” 78 Fed. Reg.
39,870, 39,871 (July 2, 2013). This opt-out mechanism was
designed to dissociate the objecting organizations from
contraceptive coverage while ensuring that the individuals
covered under those organizations’ health plans—people not
fairly presumed to share the organizations’ opposition to

2
  An organization qualifies as a “religious employer” under the
regulations if it is “organized and operates as a nonprofit entity and
is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal
Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a).
Those provisions, in turn, refer to “churches, their integrated
auxiliaries, and conventions or associations of churches” and “the
exclusively religious activities of any religious order.” 26 U.S.C.
§ 6033(a)(3)(A)(i), (iii).
                                  11

contraception or to be co-religionists—could obtain coverage
for contraceptive services directly through separate plans
from the same plan providers. See id. at 39,874. Plaintiffs
challenge this second mechanism, which the regulations refer
to as the “accommodation.”

     The government designed the accommodation to avoid
encumbering Plaintiffs’ sincere religious belief that
providing, paying for, or facilitating insurance coverage for
contraceptives violates their religion, but the government
sought at the same time to preserve unhindered access to
contraceptives for insured individuals who use them. Many
religiously affiliated educational institutions, hospitals, and
social-service organizations have taken advantage of the
accommodation, and courts of appeals have uniformly
sustained it against challenges under RFRA and the
Constitution. See Mich. Catholic Conf. & Catholic Family
Servs. v. Burwell, 755 F.3d 372 (6th Cir. 2014); Univ. of
Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014) petition
for cert. filed (Oct. 3, 2014) (No. 13-3853).

              B. The Plaintiff Nonprofits Offer
              Health Insurance in Various Ways

     Plaintiffs are eleven Catholic organizations that employ
both Catholics and non-Catholics and provide a range of
spiritual and charitable services in the Washington, D.C.
area.3 They fall into four categories that differ in ways that
affect how the accommodation applies to them, and that are
thus relevant to some aspects of our analysis.

3
 Father Frank Pavone, Alveda King, and Janet Morana, employees
of Plaintiff Priests for Life, are also individually Plaintiffs in this
action. We refer to them, along with the organization, collectively
as “Priests for Life” or the “Priests for Life Plaintiffs.”
                               12

      First, the Roman Catholic Archbishop of Washington
(the “Archdiocese”), a corporation sole, is part of the Catholic
Church. It provides pastoral care and spiritual guidance to
nearly 600,000 Catholics.         It is undisputed that the
Archdiocese itself is a religious employer and thus is
categorically exempt from the requirement to include
coverage for contraceptive services for its employees in its
self-insured health plan. The Archdiocese operates a self-
insured health plan that is considered a “church plan.”
Church plans are exempt from the Employee Retirement
Income Security Act of 1974 (“ERISA”), which regulates
private, employer-sponsored benefit plans, including health
insurance plans. See 29 U.S.C. § 1002(33) (defining “church
plan”); id. at § 1003(b)(2) (exempting church plans from
ERISA); see generally id. § 1001 et seq. (governing employee
benefit plans). The ACA amended ERISA by establishing
new requirements for large group health plans and insurers,
but the church’s provision of benefits to its employees via its
church plan is exempt from ERISA, which distinguishes the
Archdiocese’s claims here from those of the other Plaintiffs.
The Archdiocese need not submit any written notice in order
to be exempt, and the employees of the Archdiocese are not
entitled to contraceptive coverage under the ACA. The
Archdiocese nonetheless participates as a Plaintiff in this case
in its role as the sponsor of the church plan that some of the
other Plaintiffs also use to provide insurance to their
employees—a role that the Archdiocese contends makes it
complicit in providing them with contraceptive coverage.

     The remaining Plaintiffs are all religious nonprofits. It is
undisputed that, under the government’s regulations, each is
eligible for the accommodation, but not the exemption
extended to houses of worship.
                              13

     Comprising the second of the four categories are the so-
called “church-plan Plaintiffs,” nonprofits affiliated with the
Archdiocese that provide educational, housing, and social
services to the community and arrange for health insurance
coverage for their employees through the Archdiocese’s self-
insured plan.4

     Plaintiff Thomas Aquinas College falls under a third
category. It also self-insures. It offers its employees health
insurance coverage through an organization called the RETA
trust, which oversees an ERISA-covered plan set up by the
Catholic bishops of California and run by a third-party
administrator (“TPA”). The parties agree that the College’s
plan is not exempt from ERISA as a church plan.

     In the fourth category are those Plaintiffs that provide
insurance coverage through group health insurance plans they
negotiate with private insurance companies.          Catholic
University of America offers its students and employees
health insurance through two separate group insurance plans
offered by AETNA and United Healthcare. Priests for Life, a
religious nonprofit that encourages clergy to emphasize the
value and inviolability of human life, also provides its
employees with health insurance through a group insurance
plan offered by United Healthcare.

     It is undisputed that Plaintiffs all sincerely believe that
life begins at conception and that contraception is contrary to
4
  The church-plan Plaintiffs are the Consortium of Catholic
Academies of the Archdiocese of Washington, Archbishop Carroll
High School, Inc., Don Bosco Cristo Rey High School of the
Archdiocese of Washington, Inc., Mary of Nazareth Roman
Catholic Elementary School, Inc., Catholic Charities of the
Archdiocese of Washington, Inc., Victory Housing, Inc., and the
Catholic Information Center, Inc.
                                 14

Catholic tenets.5 Priests for Life, for example, was founded
to spread the Gospel of Life, which “affirms and promotes the
culture of life and actively opposes and rejects the culture of
death.”      Pls.’ Br. 11.      Catholic doctrine prohibits
“impermissible cooperation with evil,” and thus opposes
providing access to “contraceptives, sterilization, and
abortion-inducing products,” which the Church views as
“immoral regardless of their cost.” Id. at 12. The specific
acts to which Plaintiffs object are “provid[ing], pay[ing] for,
and/or facilitat[ing] access to contraception,” any of which
they believe would violate the Catholic Church’s teachings.
Id. at 15.

     In the past, in accordance with their religious beliefs,
Plaintiffs have offered health care coverage to their
employees6 that excluded coverage for “abortion-inducing
products, contraception [except when used for non-
contraceptive purposes], sterilization, or related counseling.”
Id. at 16. They structured the coverage in a variety of ways,
including through self-insured health plans and group health
plans, which they directed to exclude all contraceptive
services. Plaintiffs object to the contraceptive coverage
requirement and the accommodation’s opt-out mechanism
because, they assert, the accommodation fails adequately to
dissociate them from the provision of contraceptive coverage
and, by making them complicit with evil, substantially
burdens their religious exercise in violation of RFRA. In

5
  For ease of reference, we refer to contraception, sterilization, and
related counseling services as “contraception” or “contraceptive
services.”
6
  Throughout this opinion we discuss Plaintiffs’ “employees.” We
use this term to refer to all individuals covered by Plaintiffs’
insurance plans, including employees, students, and other
beneficiaries, such as covered dependents.
                               15

particular, they contend that the regulations, by requiring the
plans or TPAs with which they contract to provide the
coverage, effectively require Plaintiffs to facilitate it.

                    C. Procedural History

     Plaintiffs brought two separate suits that proceeded on
parallel tracks in district court. The Priests for Life Plaintiffs
filed their complaint in August 2013 and promptly moved for
a preliminary injunction. They challenged the contraceptive
coverage requirement and the accommodation as an
unjustified substantial burden on their religious exercise in
violation of RFRA and raised a variety of constitutional
challenges under the Speech and Religion Clauses of the First
Amendment and the Equal Protection Clause of the Fifth
Amendment.

     The district court considered Plaintiffs’ request for a
preliminary injunction together with the merits, granted the
government’s motion to dismiss the complaint for failure to
state a claim, and denied as moot the parties’ cross-motions
for summary judgment.                Reasoning that “[t]he
accommodation specifically ensures that provision of
contraceptive services is entirely the activity of a third
party—namely the issuer—and Priests for Life plays no role
in that activity,” the court held that the Priests for Life
Plaintiffs failed to show a substantial burden on their religious
exercise. Priests for Life v. U.S. Dep’t of Health & Human
Servs., 7 F. Supp. 3d 88, 102 (D.D.C. 2013). The court also
rejected each of Priests for Life’s constitutional claims. Id. at
104-111.

    The remaining Plaintiffs—the Archdiocese, Thomas
Aquinas College, Catholic University of America, and the
church-plan Plaintiffs (referred to collectively as the “RCAW
                               16

Plaintiffs”)—filed their complaint and moved for a
preliminary injunction in September 2013, challenging the
accommodation under RFRA and the First Amendment. The
RCAW Plaintiffs further claimed that the government’s
implementation of the regulations violates the APA, including
by adopting an erroneous interpretation of the “religious
employer” categorical exemption that precludes the church-
plan Plaintiffs from qualifying for it. They also claimed in
supplemental briefing that the interim final rule was invalidly
promulgated without notice and comment.7 The RCAW case
was assigned to a different district judge who also
consolidated proceedings on the preliminary injunction and
the merits, but who granted in part and denied in part the
parties’ cross-motions for summary judgment.

     The court rejected Catholic University’s RFRA claim
and granted that of Thomas Aquinas College. Roman
Catholic Archbishop of Wash. v. Sebelius (RCAW), No. 13-
1441, 2013 WL 6729515, at *15-24 (D.D.C. Dec. 20, 2013).
The court held that the accommodation did not impose a
substantial burden on Catholic University’s religious exercise
because “the accommodation effectively severs an
organization that offers its employees or students an insured
group health plan from participation in the provision of the
contraceptive coverage.” Id. at *15. The court determined
that Thomas Aquinas College was entitled to summary
judgment on its RFRA claim, however, because, as the court
understood the regulations, “a series of duties and
obligations” constituting a substantial burden could fall on the
self-insured College if, after the College opted out, its current
TPA were to decline to serve as the plan administrator for


7
  The RCAW Plaintiffs abandoned on appeal their other APA
claims.
                                 17

purposes of the contraceptive coverage requirement.8 Id. at
*24. The court granted the government’s cross-motion for
summary judgment on the other constitutional and APA
claims.9

    All Plaintiffs appealed and sought injunctions pending
appeal, while the government cross-appealed the rulings in
favor of the RCAW Plaintiffs. We consolidated the appeals
and granted an injunction pending appeal.

                     II. Standard of Review

     Whether claims are decided on a motion to dismiss or for
summary judgment, we review the district courts’
determinations de novo. Rudder v. Williams, 666 F.3d 790,
794 (D.C. Cir. 2012); Potter v. District of Columbia, 558 F.3d
542, 547 (D.C. Cir. 2009). A motion to dismiss for failure to
state a claim should be granted if the complaint does not
8
   The court also granted summary judgment to both Thomas
Aquinas College and the church-plan Plaintiffs on their challenge
to the so-called “non-interference” regulation, which prevented a
self-insured organization from seeking to “influence” a TPA. The
court concluded that the regulation imposed an unconstitutional
content-based limitation that “directly burdens, chills, and inhibits”
Plaintiffs’ free speech. RCAW, 2013 WL 6729515, at *37-38. That
regulation has since been rescinded, 79 Fed. Reg. 51,092, 51,095
(Aug. 27, 2014), rendering that claim moot.
9
   The district court believed that, because the Archdiocese is
exempt from the contraceptive coverage requirement, it was “not
joined in” the RFRA claim, RCAW, 2013 WL 6729515, at *8, and
that the church-plan Plaintiffs lacked standing to bring such a
claim, id. at *24-27. The court also concluded that some Plaintiffs
lacked standing to raise some of the other claims alleged in the
complaint. See, e.g., id. at *43-44, 47. To the extent necessary to
establish this Court’s subject matter jurisdiction, we address
standing below.
                               18

contain “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

     Summary judgment is appropriate only if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986).

                         III. Standing

     The RCAW district court concluded that the church-plan
Plaintiffs lack standing to challenge the accommodation.
2013 WL 6729515, at *26. The government does not press
that issue on appeal, but we have an independent obligation to
confirm our jurisdiction. See Ams. for Safe Access v. DEA,
706 F.3d 438, 442 (D.C. Cir. 2013). “[I]n determining
whether plaintiffs have standing, we must assume that on the
merits they would be successful in their claims.” Muir v.
Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir.
2008) (internal alterations and quotation marks omitted).

     Plaintiffs contend that they are injured by the challenged
regulations because they are forced to choose among options,
each of which, they argue, would require them to violate their
sincerely held religious beliefs: They may either directly
provide contraceptive coverage to their employees, or pay
onerous penalties for failing to include contraceptive
coverage in their plans. The government has offered them a
third option in the form of the accommodation: exclude
contraceptive coverage from their plans. They object to that,
too, however, because if they exclude contraceptive coverage
                                19

from their plans, the regulations require someone else to
provide it in a way that they contend amounts to their
facilitation of the objected-to coverage. Plaintiffs further
claim that they are faced with those impossible choices as a
result of the ACA regulations, and that a ruling from this
Court invalidating those regulations would redress their
injury. As a general matter, the government does not contest
that Plaintiffs’ claimed injury is legally cognizable and
concrete.

     In successfully challenging the church-plan Plaintiffs’
standing in district court, the government argued that it lacks
authority to impose on those particular Plaintiffs the harm of
which they complain and that they thus cannot allege
sufficient injury to support standing. Specifically, the
government contended that it could not require a TPA—the
firm the Archdiocese hired to administer its plan and process
its claims—to provide contraceptive coverage to the church-
plan Plaintiffs’ employees.10 In those circumstances, the
government contended, a legal victory in this case would
change nothing.



10
   That is because church plans (such as the Archdiocese’s) are
exempt from ERISA, 29 U.S.C. § 1003(b)(2), and ERISA is the
only vehicle through which the government may enforce a TPA’s
obligation to provide contraception coverage under the
accommodation. See 29 C.F.R. § 2510.3-16(b). The government
claimed that, in light of its lack of a governmental enforcement
mechanism, the Archdiocese’s TPA could not be expected to
provide the requisite coverage to the church-plan Plaintiffs’
employees. As a result of that regulatory loophole, the district
court held that the church-plan Plaintiffs are not injured by either
the contraceptive coverage requirement or the requirement that they
complete the self-certification as a condition of opting out.
                                20

     Whether or not the obligation is enforceable, however, it
is undisputed that, if the church-plan Plaintiffs want a
religious accommodation, they are legally required to request
it through the opt-out process. Like all the other Plaintiffs,
the church-plan Plaintiffs allege that their religious beliefs
forbid them from availing themselves of the accommodation
because doing so would render them complicit in a scheme
aimed at providing contraceptive coverage. They thus
contend that the burden on their religious exercise is the same
as the burden on any Plaintiff whose TPA or insurer provides
coverage according to the regulations. Their burdens are
equally concrete, even though the asserted burden on the
other Plaintiffs is backed by a threat of enforcement against a
potentially recalcitrant TPA, whereas the church-plan
Plaintiffs’ asserted burden is not. Because the regulations
require the church-plan Plaintiffs to take an action that they
contend substantially burdens their religious exercise, they,
like the other Plaintiffs, have alleged a sufficiently concrete
injury.11 See In re Navy Chaplaincy, 697 F.3d 1171, 1176-77
(D.C. Cir. 2012) (holding that “policies and procedures” that
plaintiff claimed produced future injury on the basis of
religious belief were sufficient to confer standing).

    The Archdiocese presents a distinct standing question
because it is completely exempt from the challenged
11
   Two of the church-plan Plaintiffs, Catholic Information Center
and Don Bosco, have fewer than 50 employees and therefore are
not subject to the ACA’s requirement that employers provide their
employees with health insurance. See 26 U.S.C. § 4980H(a),
(c)(2). We need not address whether that affects their standing,
however, because the presence of other Plaintiffs with standing is
sufficient to satisfy Article III. See, e.g., Rumsfeld v. Forum for
Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)
(“[T]he presence of one party with standing is sufficient to satisfy
Article III’s case-or-controversy requirement.”).
                                 21

regulation. It contends that it has a RFRA claim because it
sponsors the self-insured plan in which the church-plan
Plaintiffs participate.    It argues that, despite its own
exemption, it faces an impossible choice of either sponsoring
a plan that will provide the employees of the church-plan
Plaintiffs with access to contraceptive services, or no longer
extending its plan to those entities, leaving them exposed to
penalties if they do not contract with another provider that
will provide the coverage. The first option, in its view,
substantially burdens its sincerely held religious beliefs in
violation of RFRA, and the second option allows the
government to interfere with what it casts as its internal
operations, in violation of the Religion Clauses of the First
Amendment. Our holding that the church-plan Plaintiffs have
standing also supports the Archdiocese’s claim of redressable
injury adequate to support its standing to sue.12

                        IV. RFRA Claim

     The claim that lies at the heart of this case is Plaintiffs’
RFRA challenge to the accommodation. RFRA provides that
the federal government may not “substantially burden” a
person’s religious exercise, even if the burden results from a
rule that applies generally to religious and non-religious
persons alike, unless the burden “(1) is in furtherance of a
compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental
interest.” 42 U.S.C. § 2000bb-1. In other words, if the law’s
requirements do not amount to a substantial burden under
RFRA, that is the end of the matter. Where a law does

12
    Because the Archdiocese’s RFRA claim derives from its
sponsorship of a plan that also insures employees of the church-
plan Plaintiffs, the Archdiocese’s claim rises and falls with that of
the church-plan Plaintiffs and so is not separately analyzed below.
                               22

impose a substantial burden, Congress has instructed that “we
must return to ‘the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v.
Yoder, 406 U.S. 205 (1972).’” Kaemmerling v. Lappin, 553
F.3d 669, 677 (D.C. Cir. 2008) (quoting 42 U.S.C.
§ 2000bb(b)(1)).       Congress directly referenced and
incorporated the legal standards the Supreme Court used in its
pre-Smith line of cases in RFRA. Constitutional free exercise
cases that predate Smith accordingly remain instructive when
determining RFRA’s requirements. See id. at 678-80.

     We pause at the outset to make some general
observations about the contours of Plaintiffs’ claims. First,
Plaintiffs’ case is significantly different from the recent,
successful Supreme Court challenge brought by for-profit,
closely-held corporations in Burwell v. Hobby Lobby Stores,
Inc., 134 S. Ct. 2751 (2014). There, the Court concluded that,
in the absence of any accommodation, the contraceptive
coverage requirement imposed a substantial burden on the
religious exercise of for-profit corporations because those
plaintiffs were required either to provide health insurance
coverage that included contraceptive benefits in violation of
their religious beliefs, or to pay substantial fines. Id. at 2775-
76. A critical difference here is that the regulations already
give Plaintiffs the third choice that the for-profit corporate
plaintiffs in Hobby Lobby sought: They can avoid both
providing the contraceptive coverage and the penalties
associated with non-compliance by opting out of the
contraceptive coverage requirement altogether.

     Plaintiffs contend that, even with the choice to opt out,
the regulations leave them with the same “Hobson’s choice”
as the for-profit corporations in Hobby Lobby. In their view,
availing themselves of the accommodation requires them to
violate their sincerely held religious beliefs just as surely as
                                23

would providing contraceptive coverage to their employees.
But the opt out already available to Plaintiffs is precisely the
alternative the Supreme Court considered in Hobby Lobby
and assumed would not impinge on the for-profit
corporations’ religious beliefs even as it fully served the
government’s interest.13 Id. at 2782.

     This case also differs from Hobby Lobby in another
crucial respect: In holding that Hobby Lobby must be
accommodated, the Supreme Court repeatedly underscored
that the effect on women’s contraceptive coverage of
extending the accommodation to the complaining businesses
“would be precisely zero.” Id. at 2760; see also id. at 2781
n.37 (“Our decision in these cases need not result in any
detrimental effect on any third party.”); id. at 2782 (extending
accommodation to Hobby Lobby would “protect the asserted
needs of women as effectively” as not doing so). Justice
Kennedy in his concurrence emphasized the same point, that
extending the accommodation to for-profit corporations
“equally furthers the Government’s interest but does not

13
   Plaintiffs also have a fourth option under the ACA: ceasing to
offer health insurance as an employment benefit, and instead
paying the shared responsibility assessment and leaving the
employees to obtain subsidized health care coverage on a health
insurance exchange. See 26 U.S.C. § 4980H. That is permitted by
the Act and regulations and might well be less expensive to
employers than contributing to employee health benefits. Plaintiffs,
however, contend that declining to arrange health insurance
benefits for their employees also would injure them because it
would be inconsistent with their religious mission and would deny
them the recruitment and retention benefits of providing tax-
advantaged health care coverage to their employees. See Oral Arg.
Tr. at 19:5-15; see also Pls.’ R. Br. 21 n.9; see generally Hobby
Lobby, 134 S. Ct. at 2776-77 & n. 32. The government has not
pressed the point here.
                              24

impinge on the plaintiffs’ religious beliefs.” Id. at 2786. The
relief Plaintiffs seek here, in contrast, would hinder women’s
access to contraception.          It would either deny the
contraceptive coverage altogether or, at a minimum, make the
coverage no longer seamless from the beneficiaries’
perspective, instead requiring them to take additional steps to
obtain contraceptive coverage elsewhere.

     Second, Plaintiffs’ claim is extraordinary and potentially
far reaching: Plaintiffs argue that a religious accommodation,
designed to permit them to free themselves entirely from the
contraceptive coverage requirement, itself imposes a
substantial burden. As the Seventh Circuit put the point,
“[w]hat makes this case and others like it involving the
contraception exemption paradoxical and virtually
unprecedented is that the beneficiaries of the religious
exemption are claiming that the exemption process itself
imposes a substantial burden on their religious faiths.” Notre
Dame, 743 F.3d at 557. As the Notre Dame court noted, it is
analogous to a religious conscientious objector to a military
draft claiming that the act of identifying himself as such on
his Selective Service card constitutes a substantial burden
because that identification would then “trigger” the draft of a
fellow selective service registrant in his place and thereby
implicate the objector in facilitating war. Id. at 556.

     Religious objectors do not suffer substantial burdens
under RFRA where the only harm to them is that they
sincerely feel aggrieved by their inability to prevent what
other people would do to fulfill regulatory objectives after
they opt out. Cf. id. at 556. They have no RFRA right to be
free from the unease, or even anguish, of knowing that third
parties are legally privileged or obligated to act in ways their
religion abhors. See generally Lyng v. Nw. Indian Cemetery
Protective Ass’n, 485 U.S. 439, 449 (1988) (distinguishing
                              25

between right to avoid being “coerced . . . into violating their
religious beliefs” and the lack of right to pursue “spiritual
fulfillment according to their own religious beliefs”).
“Government simply could not operate if it were required to
satisfy every citizen’s religious needs and desires.” Id. at
453.

     We now turn to the substance of Plaintiffs’ RFRA
claims.     We first consider their contention that the
accommodation imposes a substantial burden on their
religious exercise that is cognizable under RFRA. We then
analyze the government’s claim that any such burden is
justified under RFRA because it could not be made any
lighter and still serve the government’s compelling interests.

           A. The Accommodation Does Not
    Substantially Burden Plaintiffs’ Religious Exercise

     In our cosmopolitan nation with its people of diverse
convictions, freedom of religious exercise is protected yet not
absolute. That is true under the heightened standard Congress
enacted in RFRA as well as the constitutional baseline set by
the Free Exercise Clause. The limitations that prove
determinative here are that only “substantial” burdens on
religious exercise require accommodation, and that an
adherent may not use a religious objection to dictate the
conduct of the government or of third parties. This Court
explained in Kaemmerling that “[a] substantial burden exists
when government action puts ‘substantial pressure on an
adherent to modify his behavior and to violate his beliefs.’”
553 F.3d at 678 (quoting Thomas v. Review Bd., 450 U.S.
707, 718 (1981)). A burden does not rise to the level of being
substantial when it places “[a]n inconsequential or de minimis
burden” on an adherent’s religious exercise. Id. (citing
Levitan v. Ashcroft, 281 F.3d 1313, 1320-21 (D.C. Cir.
                               26

2002)). An asserted burden is also not an actionable
substantial burden when it falls on a third party, not the
religious adherent. See, e.g., Bowen v. Roy, 476 U.S. 693,
699 (1986).

     Plaintiffs’ objection rests on their religious belief that
“they may not provide, pay for, and/or facilitate access to
contraception, sterilization, abortion, or related counseling in
a manner that violates the teachings of the Catholic Church.”
Pls.’ Br. 15. But the regulations do not compel them to do
any of those things. Instead, the accommodation provides
Plaintiffs a simple, one-step form for opting out and washing
their hands of any involvement in providing insurance
coverage for contraceptive services.

1.   The Court Must Evaluate Assertions of Substantial
     Burden

     The sincerity of Plaintiffs’ religious commitment is not at
issue in this litigation. Plaintiffs are correct that they—and
not this Court—determine what religious observance their
faith commands. There is no dispute about the sincerity of
Plaintiffs’ belief that providing, paying for, or facilitating
access to contraceptive services would be contrary to their
faith.

      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.
See Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011)
(stating that judicial inquiry into the substantiality of the
                              27

burden “prevent[s] RFRA claims from being reduced into
questions of fact, proven by the credibility of the claimant”);
Kaemmerling, 553 F.3d at 679 (“[a]ccepting as true the
factual allegations that Kaemmerling’s beliefs are sincere and
of a religious nature—but not the legal conclusion, cast as a
factual allegation, that his religious exercise is substantially
burdened”). “[A]lthough we acknowledge that the [plaintiffs]
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 [plaintiffs’] exercise of
religion.” Mich. Catholic Conf., 755 F.3d at 385; see also
Notre Dame, 743 F.3d at 558 (“Notre Dame may consider the
[self-certification] process a substantial burden, but
substantiality—like compelling governmental interest—is for
the court to decide.”).

     Our own decision in Kaemmerling requires that we
determine whether a burden asserted by Plaintiffs qualifies as
“substantial” under RFRA. In Kaemmerling, a federal
prisoner sought to enjoin the Bureau of Prisons under RFRA
from collecting a sample of his blood, claiming a religious
objection to “DNA sampling, collection and storage with no
clear limitations of use.” 553 F.3d at 678. We observed that
“Kaemmerling’s objection to ‘DNA sampling and
collection’” was not “an objection to the [Bureau] collecting
any bodily specimen that contains DNA material . . . , but
rather an objection to the government extracting DNA
information from the specimen.” Id. at 679. We did not
simply accept Kaemmerling’s characterization of his burden
as “substantial,” but instead independently evaluated the
nature of the claimed burden on his religious beliefs. See id.
at 678-79. The plaintiff failed to “allege facts sufficient to
state a substantial burden on his religious exercise because he
[could not] identify any ‘exercise’ which is the subject of the
                              28

burden to which he objects.” Id. at 679. The court
acknowledged that “the government’s activities with his fluid
or tissue sample after the [Bureau] takes it may offend
Kaemmerling’s religious beliefs,” but it rejected the
substantial burden contention because “Kaemmerling alleges
no religious observance that the DNA Act impedes, [n]or acts
in violation of his religious beliefs that it pressures him to
perform.” Id.

     In Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir.
2001), this Court similarly rejected the plaintiffs’ formulation
of the substantial-burden test as forbidding the government’s
general application of religiously neutral law where it would
impose any burden on religiously motivated conduct because
doing so would “read out of RFRA the condition that only
substantial burdens on the exercise of religion trigger the
compelling interest requirement.” As RFRA sponsor Senator
Orrin Hatch explained, the Act “does not require the
Government to justify every action that has some effect on
religious exercise. Only action that places a substantial
burden on the exercise of religion must meet the compelling
State interest . . . .” 139 Cong. Rec. 26,180 (1993) (statement
of Sen. Hatch).

     Under free exercise precedents that RFRA codified, the
Supreme Court distinguished between substantial burdens on
religious exercise, which are actionable, and burdens that are
not. Burdens that are only slight, negligible, or de minimis
are not substantial. And burdens that fall only on third parties
not before the court do not substantially burden plaintiffs.
See, e.g., Bowen, 476 U.S. at 699 (“The Free Exercise Clause
simply cannot be understood to require the Government to
conduct its own internal affairs in ways that comport with the
religious beliefs of particular citizens.”); Lyng, 485 U.S. at
447 (finding it undisputed that the government’s action “will
                              29

have severe adverse effects on the practice of [plaintiffs’]
religion,” but disagreeing that such burden was “heavy
enough” to subject that action to strict scrutiny).

      In Bowen, a Native American plaintiff brought a free
exercise challenge to a statute requiring the state to use his
daughter’s social security number to process welfare benefits
requests. 476 U.S. at 695-96. Roy, the father, believed that
the government’s use of the social security number of his
daughter, Little Bird of the Snow, would serve to “‘rob the
spirit’ of his daughter and prevent her from attaining greater
spiritual power.” Id. at 696. The Court rejected Roy’s claim
on the basis that, rather than complaining about a restriction
on his own conduct, Roy sought to “dictate the conduct of the
Government’s internal procedures.” Id. at 700. Roy’s claim
failed because, even though it seriously offended Roy’s
religious sensibilities, “[t]he Federal Government’s use of a
Social Security number for Little Bird of the Snow d[id] not
itself in any degree impair Roy’s freedom to believe, express,
and exercise his religion.” Id. at 700-01 (internal quotation
marks omitted).

     Building on the analysis in Bowen, the Supreme Court
refused to apply strict scrutiny to the government’s land use
decision in Lyng. 485 U.S. at 450. There, members of Indian
tribes claimed that the federal government violated their right
to free exercise by permitting timber harvesting and
construction on land they used for religious purposes. Id. at
441-42. The Court stated that its free exercise jurisprudence
“does not and cannot imply that incidental effects of
government programs, which may make it more difficult to
practice certain religions but which have no tendency to
coerce individuals into acting contrary to their religious
beliefs, require government to bring forward a compelling
justification for its otherwise lawful actions.” Id. at 450-51.
                                30

     According to Plaintiffs, this Court is bound to accept
their understanding of the obligations the regulations
impose—including their view of the existence and
substantiality of any burden on their own religious exercise—
because to do otherwise would be tantamount to questioning
the sincerity of their beliefs. Indeed, under Plaintiffs’ view,
we must accept a RFRA claimant’s understanding of what the
challenged law requires her to do (or to refrain from doing),
even if that subjective understanding is at odds with what the
law actually requires.14 Plaintiffs’ approach collapses the
distinction between sincerely held belief and substantial
burden. We must give effect to each term in the governing
statute, however, including the requirement that only
“substantial” burdens on religious exercise trigger strict

14
   Plaintiffs elaborated their position in their responses to a
hypothetical posed during oral argument. We posited a situation in
which an adherent, similar to the plaintiff in Thomas, objected to
working in a factory on the grounds that the tools he was
manufacturing were being used to support a war effort that his
sincere religious beliefs prohibited him from supporting. See
Thomas, 450 U.S. at 710 (after being transferred to a department
that “fabricated turrets for military tanks, . . . [Thomas] quit,
asserting that he could not work on weapons without violating the
principles of his religion”). Unlike the facts in Thomas, however,
in our hypothetical, the adherent was not manufacturing tools used
for war, but rather farm equipment that had no relationship
whatsoever to any military effort. Counsel for both the Priests for
Life Plaintiffs and the RCAW Plaintiffs conceded that, under their
view, if the religious objection was to war machinery, not farm
tools, a plaintiff who misperceived the facts underlying his
challenge would be entitled nonetheless to a determination that
requiring him to continue working in a farm tools factory imposed
a substantial burden on his religious observance merely because he
sincerely believed that it did. Oral Arg. Tr. at 9:3-11:16; 22:16-
23:24.
                               31

scrutiny. We cannot accept Plaintiffs’ proposal to prevent the
court from evaluating the substantiality of the asserted
burden. 

2.   The Accommodation Frees Eligible Organizations
     from the Contraceptive Coverage Requirement

     A review of the regulatory accommodation shows that
the opt-out mechanism imposes a de minimis requirement on
any eligible organization: The organization must send a
single sheet of paper honestly communicating its eligibility
and sincere religious objection in order to be excused from
the contraceptive coverage requirement. Once an eligible
organization has taken the simple step of objecting, all action
taken to pay for or provide its employees with contraceptive
services is taken by a third party.

     Specifically, the regulations require that, to be eligible
for the accommodation, an organization must certify that it
has a sincere religious objection to arranging contraceptive
coverage.15     See 45 C.F.R. § 147.131(b); 29 C.F.R.
§ 2590.715-2713A(a). The organization opts out under the
regulations by affirming that it meets those eligibility criteria
via a “self-certification” form sent to its group health plan
issuer or TPA, or a letter to the Secretary of HHS (the
“alternative notice”). 45 C.F.R. § 147.131(c)(1); 29 C.F.R.
§ 2590.715-2713A(b)(1)(ii); see also 79 Fed. Reg. 51,092,

15
    The Supreme Court, in Hobby Lobby, 134 S. Ct. at 2782,
characterized the accommodation HHS designed for eligible
organizations as a less restrictive means of serving the
government’s interest in the contraceptive coverage requirement
that should be made available to the closely-held, for-profit
religious corporate plaintiffs in that case. The government
accordingly is extending the accommodation to such companies.
See 79 Fed. Reg. at 51,094.
                                 32

51,094-95 (Aug. 27, 2014). An alternative notice to HHS
must identify the forms of contraceptive services to which the
employer objects, and specify, among other things, the name
of the plan, the plan type, and the contact information for the
plan issuer or TPA.16 45 C.F.R. § 147.131(c)(1)(ii); 29
C.F.R. § 2590.715-2713A(b)(1)(ii)(B). Once an eligible
organization avails itself of the accommodation, that
organization has discharged its legal obligations under the
challenged regulations. See 45 C.F.R. § 147.131(c)(1), (e)(2);
29 C.F.R. § 2590.715-2713A(b)(1); 79 Fed. Reg. at 51,094-
95.

     The accommodation here works in the way such
mechanisms ordinarily do: the objector completes the written
equivalent of raising a hand in response to the government’s
query as to which religious organizations want to opt out.
Once the eligible organization expresses its desire to have no
involvement in the practice to which it objects, the
government ensures that a separation is effectuated and
arranges for other entities to step in and fill the gap as
required to serve the legislatively mandated regime.
Specifically, the regulations:

        require that the group health plan insurer expressly
         exclude contraceptive coverage from the eligible


16
   Initially, an eligible organization could only avail itself of the
accommodation by completing the self-certification form. The
Supreme Court issued an interim order in Wheaton College v.
Burwell, 134 S. Ct. 2806 (2014), however, permitting an eligible
organization to notify the Secretary of HHS in writing of its
objection instead of sending the self-certification directly to the
insurer or TPA. Id. at 2807. The Departments accordingly issued
interim final regulations to authorize opting out using that
alternative notice. 79 Fed. Reg. at 51,094-95.
                               33

         organization’s group health plan,17 45 C.F.R.
         § 147.131(c)(2)(i)(A);

        fully divorce the eligible organization from
         payments for contraceptive coverage, see 45
         C.F.R. § 147.131(c)(2); 29 C.F.R. § 2590.715-
         2713A(b)(2)(i);

        require that the insurer or TPA notify the
         beneficiaries in separate mailings that it will be
         providing separate contraceptive coverage, 45
         C.F.R. § 147.131(d); 29 C.F.R. § 2590.715-
         2713A(d);

        require that the insurer or TPA specify to the
         beneficiaries in those separate mailings that their
         employer is in no way “administer[ing] or
         fund[ing]” the contraceptive coverage. (The
         regulations include model language for such
         notice, suggesting that the insurer or TPA specify
         to employees that “your employer will not
         contract, arrange, pay, or refer for contraceptive
         coverage.”) 45 C.F.R. § 147.131(d); 29 C.F.R.
         § 2590.715-2713A(d); and

        demand separate mailings and accounting on the
         part of the insurer or TPA, keeping contraceptive
         coverage separate for all purposes from the
         eligible organization’s plan that exclude it, 45

17
   There is no analogous requirement for TPAs because it is the
self-insured employer that controls the scope of coverage provided
under its plan. Once it has opted out, a self-insured employer has
satisfied its legal obligation under the contraceptive-coverage
regulations. 29 C.F.R. § 2590.715-2713A(b)(1).
                              34

       C.F.R. § 147.131(c)(2)(ii),      (d);   29   C.F.R.
       § 2590.715-2713A(b)(2), (d).

    The regulations leave eligible organizations free to
express to their employees their opposition to contraceptive
coverage. In sum, both opt-out mechanisms let eligible
organizations extricate themselves fully from the burden of
providing contraceptive coverage to employees, pay nothing
toward such coverage, and have the providers tell the
employees that their employers play no role and in no way
should be seen to endorse the coverage.

     Plaintiffs’ opposition to the consequences of the ACA’s
Women’s Health Amendment, even with the accommodation,
amounts to an objection to the regulations’ requirement that
third parties provide to Plaintiffs’ beneficiaries products and
services that Plaintiffs believe are sinful. What Plaintiffs
object to here are “the government’s independent actions in
mandating contraceptive coverage, not to any action that the
government has required [Plaintiffs] themselves to take.”
Notre Dame, 743 F.3d at 559 (quoting Order at 3, Priests for
Life v. U.S. Dep’t of Health & Human Servs., No. 13-5368
(Dec. 31, 2013) (Tatel, J., statement) (hereinafter “Emergency
Injunctions Order”)). But RFRA does not grant Plaintiffs a
religious veto against plan providers’ compliance with those
regulations, nor the right to enlist the government to
effectuate such a religious veto against legally required
conduct of third parties. See, e.g., Lyng, 485 U.S. at 452;
Bowen, 476 U.S. at 699-700; Kaemmerling, 553 F.3d at 679;
see also Mich. Catholic Conf., 755 F.3d at 388-89; Notre
Dame, 743 F.3d at 552.

    Plaintiffs seek to distinguish Kaemmerling and Bowen on
the ground that, unlike the plaintiffs in those cases, they
object to what the regulations require of them. But the only
                                 35

action the regulations require of Plaintiffs—completion of the
self-certification or alternative notice—imposes a de minimis
administrative obligation.18 To the extent that their objection
is to the role of that action in the broader regulatory scheme—
a scheme that permits or requires independent coverage
providers to take actions to which Plaintiffs object—their
challenge is governed by Kaemmerling and Bowen. As in
Bowen, even though Plaintiffs’ “religious views may not
accept this distinction between individual and governmental
conduct,” the Constitution does “recognize such a
distinction.” 476 U.S. at 701 n.6. So, too, does RFRA. And
just as the plaintiffs in Bowen and Kaemmerling could not
successfully challenge what the government chose to do with
their social security numbers or DNA specimens,
respectively, Plaintiffs have no RFRA claim against the
government’s arrangements with others to provide coverage
to women left partially uninsured as a result of Plaintiffs’ opt
out. RFRA does not treat the government requiring third
parties to provide contraceptive coverage in the face of an
employer’s religious disapproval as tantamount to the
government requiring the employer itself to sponsor such
coverage. See Mich. Catholic Conf., 755 F.3d at 388-89;
Notre Dame, 743 F.3d at 554-55; id. at 559 (quoting
Emergency Injunctions Order at 3 (Tatel, J., statement)).

     Plaintiffs nonetheless insist that, even with the
accommodation, the regulations substantially burden their
religious exercise by continuing to require that they play a

18
   Plaintiffs object that characterizing the accommodation as simply
filling out a form ignores the meanings that Plaintiffs attach to the
form. But the meaning Plaintiffs attach to the form derives from
their contention that their completion of the form causes third
parties to take action. The error of that contention is discussed
more fully infra Section IV.A.2.a.
                               36

role in the facilitation of contraceptive use. In particular, they
contend that:        (1) “signing and submitting the self-
certification” or alternative notice “triggers” or
“impermissibly facilitates delivery of the objectionable
coverage” to the beneficiaries of their health plans; (2) the
regulations require “contracting with third parties authorized
or obligated to provide the mandated coverage;” and (3) the
regulations require “maintaining health plans that will serve
as conduits for the delivery of the mandated coverage.” Pls.’
Br. 12, 18; Pls.’ Supp’l Br. 1. Additionally, self-insured
Plaintiffs contend that their self-certification expressly and
impermissibly authorizes their TPAs to provide contraceptive
coverage.

     Each of those separate, but related, arguments fails for
fundamentally the same reason: Notwithstanding Plaintiffs’
contrary contentions, the regulations provide an opt-out
mechanism that shifts to third parties the obligation to provide
contraceptive coverage to which health insurance
beneficiaries are entitled, and that fastidiously relieves
Plaintiffs of any obligation to contract, arrange, pay, or refer
for access to contraception in any way that might constitute a
substantial burden on their religious exercise under RFRA.

    a. Plaintiffs’ Opt-Out Does Not Trigger
       Contraceptive Coverage

     Plaintiffs claim that the requirement that they submit the
self-certification to their plan issuers or TPAs, or submit the
alternative notice to the government, makes them “authorize”
or “trigger” the provision of the contraceptive coverage they
find religiously abhorrent. They characterize the self-
certification and alternative notice as “permission slips” for
their plan issuers and TPAs to provide contraceptive coverage
to Plaintiffs’ employees.          Pointing to the regulatory
                               37

requirements of an insurer or TPA after an eligible
organization has availed itself of the accommodation,
Plaintiffs argue that it is their own act of self-certifying or
completing the alternative notice that “confers . . . both the
authority and obligation” on the insurance companies and
TPAs to provide the objected-to coverage to Plaintiffs’
employees. Pls.’ Br. 9.

     Plaintiffs’ “permission slip” argument misstates how the
regulations operate. As the Sixth and Seventh Circuits have
also concluded, the insurers’ or TPAs’ obligation to provide
contraceptive coverage originates from the ACA and its
attendant regulations, not from Plaintiffs’ self-certification or
alternative notice. See Mich. Catholic Conf., 755 F.3d at 387;
Notre Dame, 743 F.3d at 554. The regulations require that “a
group health plan, or a health insurance issuer offering group
or individual health insurance coverage, must provide
coverage” for a variety of types of preventive care, including
the coverage to which Plaintiffs object.             45 C.F.R.
§ 147.130(a)(1). That obligation exists apart from any action
that Plaintiffs take. “‘Because Congress has imposed an
independent obligation on insurers to provide contraceptive
coverage to [an eligible organization’s] employees, those
employees will receive contraceptive coverage from their
insurers even if [objectors] self-certify—but not because
[objectors] self-certify.’” Notre Dame, 743 F.3d at 559
(quoting Emergency Injunctions Order at 3 (Tatel, J.,
statement)).

     Indeed, contrary to Plaintiffs’ characterization, what the
self-certification or alternative notice actually triggers is a
series of steps designed to ensure that eligible organizations
such as Plaintiffs do not contract, arrange, pay, or refer for
access to contraceptive services. The regulations fully relieve
Plaintiffs from the obligation to provide or pay for
                              38

contraceptive coverage, and instead obligate a third party to
provide that coverage separately.

     The illogic of Plaintiffs’ “trigger” argument is
highlighted by the conscientious objector scenario recounted
above. The implication of Plaintiffs’ position is that the
Selective Service could deny a religious conscientious
objector’s RFRA claim against calling up the next draftee
only if the government’s decision to do so survived strict
scrutiny. That strikes us as “a fantastic suggestion.” Notre
Dame, 743 F.3d at 556. There, as here, the feature that
defeats Plaintiffs’ argument is plain: It was the government’s
selective service draft quota, not the conscientious objector
exercising his accommodation right, that determined whether
a replacement would be called. So, too, it is the ACA that
requires that plan issuers and TPAs fill the resulting gaps, not
the opt-out notice. In neither case is the objecting party
substantially burdened by, and thus entitled to
accommodation from, the sequelae of opting out. Accurately
understood, the opt-out mechanism imposes on Plaintiffs only
the de minimis administrative burden associated with
completing the self-certification form or the alternative
notice. See id. As long as Plaintiffs complete either notice,
the regulations excuse them from any further involvement in
providing contraceptive coverage. As discussed above, the
beneficiaries receive contraceptive coverage not because
Plaintiffs have completed the self-certification or alternative
notice, but because the ACA imposes an independent
obligation on insurers and TPAs to provide this coverage.

    b. Plaintiffs’ Contracts with Providers Do Not
       Authorize or Facilitate Contraceptive Coverage

    Plaintiffs further contend that the regulations
substantially burden their religious exercise by requiring
                              39

contraceptive coverage to be provided for their employees
and students by the same entities with which Plaintiffs have
contracted to provide non-contraceptive health coverage.
Once Plaintiffs opt out of the contraceptive coverage
requirement, however, contraceptive services are not provided
to women because of Plaintiffs’ contracts with insurance
companies; they are provided because federal law requires
insurers and TPAs to provide insurance beneficiaries with
coverage for contraception. Plaintiffs’ contracts do not in any
way authorize or condone the insurers’ or TPAs’ provision of
the coverage. The separate interactions between non-
objecting insurance companies and beneficiaries do not
substantially burden Plaintiffs’ religious exercise, just as
third-party actions in other religious-exercise cases have been
held not to burden plaintiffs. See, e.g., Bowen, 476 U.S. at
699-700; Kaemmerling, 553 F.3d at 679; see also Notre
Dame, 743 F.3d at 552. We do not understand Plaintiffs to
contend that RFRA privileges them generally to require that
the extra-contractual rights and legal obligations of
individuals and entities with whom they contract conform to
Plaintiffs’ religious beliefs, nor could they.

    c. Plaintiffs’ Plans Are Not Conduits for
       Contraceptive Coverage

     Plaintiffs also argue that the regulations substantially
burden their religious exercise by permitting their insurance
plans to be used as conduits through which their employees
receive contraception. Plaintiffs identify a number of acts—
such as paying premiums and offering enrollment
paperwork—that they contend they must take that ensure that
the contraceptive “pipeline” remains open. None of those
acts, however, requires Plaintiffs to contract, arrange, pay, or
refer for access to contraception. Once Plaintiffs take
advantage of the accommodation, they are dissociated from
                              40

the provision of contraceptive services. The premiums and
enrollment paperwork support the provision of health care
coverage to which Plaintiffs have no objection—and nothing
more.

     Plaintiffs contend that their plans remain a conduit for
the provision of contraceptives because they are required to
pay premiums or fees to entities in charge of the plans that
provide contraceptive benefits. The regulations, however,
expressly prevent insurers and TPAs from directly or
indirectly charging Plaintiffs for the cost of contraceptive
coverage and obligate third parties to pay for the
contraceptive services. 45 C.F.R. § 147.131(c)(2)(ii); 29
C.F.R. § 2590.715-2713A(b)(2).           Therefore, although
Plaintiffs are required to pay premiums and fees to their group
health plan issuers or TPAs, those entities are legally
prohibited from using Plaintiffs’ payments to fund
contraceptive services.

      Plaintiffs further contend that their plans are used as
conduits because, they assert, they must provide their
beneficiaries with enrollment paperwork to enable them to
participate in a plan that provides coverage for contraceptives,
and they must send, or tell their beneficiaries where to send,
the enrollment paperwork. Under the regulations, however,
the employer has no such obligation. The insurer or TPA is
entirely responsible for any paperwork related to
contraceptive coverage. The insurer or TPA must provide
beneficiaries with notice of the availability of contraceptive
coverage, the notice must be separate from any materials
distributed in connection with the individual’s enrollment in
the employer’s plan, and the notice must make clear that the
employer is not playing any role in the contraceptive
coverage. 45 C.F.R. § 147.131(d); 29 C.F.R. § 2590.715-
2713A(d).
                                41

     Plaintiffs also argue that their plans serve as conduits
because they must identify their health plan beneficiaries to
their insurers or TPAs. No regulation related to the
accommodation imposes any such duty on Plaintiffs. See
Mich. Catholic Conf., 755 F.3d at 389. Plaintiffs will have
necessarily provided their plans or TPAs with the names of
employees enrolling in their health care plan so that those
individuals may be provided with health care coverage. To
the extent that Plaintiffs object to the actions the insurers or
TPAs will take after receiving those names, Plaintiffs are
objecting to an independent obligation imposed on a third
party by the government. As discussed above, RFRA does
not protect parties from obligations imposed on third parties
by outside sources. In short, none of the actions that
Plaintiffs identify is actually required of them under the
regulations, and none of those actions makes their plans
conduits for contraceptive coverage.19

     d. Regulations Specific to the Self-Insured Plaintiffs
        Do Not Create a Substantial Burden

    Finally, the self-insured Plaintiffs object to the regulatory
provisions that apply particularly to self-insured
organizations. They object that their self-certification forms
are what designate their TPAs as the plan administrators for
contraceptive benefits under section 3(16) of ERISA and also
19
   On a related note, Plaintiffs contend that they must refrain from
canceling their contract with a third party authorized to provide
coverage for contraceptive services and from attempting to
influence a third party’s decision to provide the coverage for
contraception. The government denied that the regulations would
require Plaintiffs to refrain from taking either of those actions.
Gov. Br. 33-34; Oral. Arg. Tr. at 46:15-48:1. In any event, as
discussed infra note 28, the regulations have been revised to
remove the provision that Plaintiffs alleged so constrained them.
                               42

serve as instruments under which the health plans are
operated. See 29 C.F.R. § 2510.3-16(b). They argue that the
regulations thus put them in the position of facilitating the
provision of contraceptives by authorizing the TPAs to take
actions they previously could not have taken.

     That argument miscasts the regulations, which do not
require the self-insured Plaintiffs to name their TPAs as
ERISA plan fiduciaries.          Plaintiffs submit forms to
communicate their decisions to opt out, not to authorize TPAs
to do anything on their behalf. The regulatory treatment of
the form as sufficient under ERISA does not change the
reality that the objected-to services are made available
because of the regulations, not because Plaintiffs complete a
self-certification. 29 C.F.R. § 2510.3-16(b); see Notre Dame,
743 F.3d at 554-55; 78 Fed. Reg. at 39,880.

     The self-insured Plaintiffs raise a parallel objection to the
alternative process established by the revised regulations.
Under the revised regulations, once the government receives
an alternative notice from an eligible organization, the
government sends the TPA a notification that will “designate
the relevant [TPA] as plan administrator under section 3(16)
of ERISA for those contraceptive benefits that the [TPA]
would otherwise manage.” 79 Fed. Reg. at 51,095; see also
29 C.F.R. § 2510.3-16(b). The regulations make the
government’s notification to the TPA “an instrument under
which the plan is operated.” 29 C.F.R. § 2510.3-16(b).

     The self-insured Plaintiffs contend that the revised
regulations thereby violate ERISA because the government
lacks authority to name a plan administrator or amend
Plaintiffs’ plan instruments. Plaintiffs do not contend,
however, that the government lacks authority to author a plan
instrument or designate a particular writing as a plan
                                  43

instrument, and it is this authority the regulations deploy.
Once the government receives the alternative notice, it directs
the TPA to cover contraceptive services and, treating its own
direction as the new plan instrument, the government names
the TPA as the plan administrator of contraceptive coverage.
ERISA expressly permits a plan instrument to name a plan
administrator.     29 U.S.C. § 1002(16)(A)(i) (defining
“administrator” as “the person specifically so designated by
the terms of the instrument under which the plan is
operated”).20 By naming the plan administrator in the plan
instrument, the government complies with ERISA. The
government’s approach does not, contrary to Plaintiffs’
contention, amend or alter Plaintiffs’ own plan instruments;
the government directs only the contraceptive coverage.

     The self-insured Plaintiffs also contend that they are
required to facilitate access to contraceptive coverage
because, if their existing TPAs decline to assume the
responsibility to provide contraceptive coverage, the
regulations obligate Plaintiffs to take affirmative steps to
identify and contract with new TPAs. The district court
granted summary judgment for Plaintiff Thomas Aquinas
College on this ground. RCAW, 2013 WL 6729515, at *24.
Upon de novo review, we reject Thomas Aquinas’s argument
as premature. Thomas Aquinas has not made any showing
that its TPA has any intention of refusing to provide
contraceptive coverage to its employees.21 Moreover, the

20
   ERISA also states that “in the case of a plan for which an
administrator is not designated and a plan sponsor cannot be
identified,” the administrator is “such other person as the Secretary
[of Labor] may by regulation prescribe.”                    29 U.S.C.
§ 1002(16)(A)(iii).
21
   See 29 C.F.R. § 2590.715-2713A(b)(2) (“If a [TPA] receives a
copy of the self-certification . . . and agrees to enter into or remain
                                 44

government has clarified that, if an eligible organization’s
existing TPA were to decline to assume responsibility for
providing contraceptive coverage, the regulations do not
require the eligible organization to identify and contract with
a new one. See 78 Fed. Reg. at 39,880-81. We believe that
clarification requires us to vacate the district court’s grant of
summary judgment for Thomas Aquinas.

                               * * *

      In sum, RFRA grants Plaintiffs a right to be free of any
unjustified substantial governmental burden on their religious
exercise. The regulatory requirement that they use a sheet of
paper to signal their wish to opt out is not a burden that any
precedent allows us to characterize as substantial. It is as a
result of the ACA, and not because of any actions Plaintiffs
must take, that Plaintiffs’ employees are entitled to
contraceptive coverage provided by third parties and that their
insurers or TPA must provide it; RFRA does not entitle
Plaintiffs to control their employees’ relationships with other
entities willing to provide health insurance coverage to which
the employees are legally entitled. A religious adherent’s
distaste for what the law requires of a third party is not, in
itself, a substantial burden; that is true even if the third party’s
conduct towards others offends the religious adherent’s
sincere religious sensibilities. The regulations go to great
lengths to separate Plaintiffs from the provision of
contraceptive coverage. Plaintiffs have failed to demonstrate
a substantial burden on their religious exercise that would



in a contractual relationship with the eligible organization or its
plan to provide administrative services for the plan, the [TPA] shall
provide or arrange payments for contraceptive services . . .”
(emphasis added)); 78 Fed. Reg. at 39,880.
                               45

subject the contraceptive coverage requirement to strict
judicial scrutiny.

     B. The Accommodation Survives Strict Scrutiny

     When the parties filed their initial briefs on appeal, the
government conceded that this Court’s decision in Gilardi v.
U.S. Department of Health & Human Services, 733 F.3d 1208
(D.C. Cir. 2013), vacated, 134 S. Ct. 2902 (2014), controlled
the compelling-interest inquiry here. Gov. Br. 44. In Gilardi,
we held at the preliminary injunction stage that, while a
closely-held, for-profit business corporation was not a
“person” whose religious exercise was protected by RFRA,
its individual owners had RFRA rights that were injured by
application of the contraceptive coverage requirement to their
firm.     733 F.3d at 1214-19.          Lack of a regulatory
accommodation applicable to such religious objectors
constituted a substantial burden, and the government failed to
establish a compelling interest that justified it. Id. at 1219-22.

     While this appeal was pending, the Supreme Court
vacated Gilardi in view of its decision in Hobby Lobby. 134
S. Ct. 2902 (2014). The Court also, in Wheaton College v.
Burwell, 134 S.Ct. 2806 (2014), preliminarily enjoined the
requirement that a party seeking to opt out use the self-
certification form as specified in the regulations. The plaintiff
in that case already had notified the government of its
eligibility and desire for exemption without using that form,
and the Court required HHS to accept that as adequate notice.
Because the Court’s decisions and a new Interim Final Rule
responding to the Wheaton College order (see 79 Fed. Reg. at
                                  46

51,092) unsettled the           governing   law,   we   requested
supplemental briefing.22

     We directed the parties to brief the implications for this
appeal of the intervening legal developments.              We
specifically requested briefing on the substantial-burden and
strict-scrutiny issues, and received such briefing from both
parties.

     Hobby Lobby’s analysis is instructive, even though the
substantial-burden and least-restrictive-means questions
posed by the lack of any accommodation available to the
plaintiffs in Hobby Lobby are very different from those
presented here, where the government has provided an
accommodation. As discussed above, we conclude that the
accommodation does not impose a substantial burden on
Plaintiffs in this case. See Mich. Catholic Conf., 755 F.3d at
390; Notre Dame, 743 F.3d at 554-559. To the extent that the
Supreme Court’s recent order in Wheaton College might be
read to signal a different conclusion, analysis of the strict
scrutiny question is also called for. The Hobby Lobby Court’s
discussion of the weightiness of the government’s interests is
in substantial tension with Gilardi’s approach to the strict
scrutiny analysis. We thus proceed in light of the intervening
decisions to analyze whether the accommodation is the least
restrictive means to serve a compelling governmental interest.

     The challenged regulations seek to ensure timely and
effective access to contraception for all women who want it
and for whom it is medically appropriate. The government
contends that the regulations are amply supported because
they arise at the intersection of overlapping governmental
interests, each of which is compelling: public health, and

22
     See supra notes 15 & 16.
                             47

women’s well-being. The government claims an interest in
independently assuring seamless contraceptive coverage,
regardless of whether the insured woman receives her other
health insurance coverage through her (or her family
member’s) employment at a religious nonprofit that objects to
providing it.

     The Supreme Court’s characterizations of the
government’s asserted compelling interest and the narrow
tailoring of the accommodation were dicta in Hobby Lobby.
The accommodation was not challenged there; it was only
adverted to as a potential remedy for the non-accommodated
plaintiffs in that case. As next discussed, however, the
Court’s characterizations are consistent with our conclusions
that (1) the contraceptive coverage requirement—and,
specifically, its guarantee for employees whose employers
partake of the accommodation—is supported by compelling
governmental interests, and (2) it imposes no unnecessary
constraints on Plaintiffs’ religious exercise.

1.   The Government Has Demonstrated Compelling
     Interests That Support Seamless Provision of
     Contraceptive Coverage

    In promulgating the challenged regulations, the
government asserted an interest in supporting women’s
unhindered, cost-free access to contraceptive services. See 78
Fed. Reg. at 39,887-88. The Supreme Court in Hobby Lobby
assumed, without deciding, that the governmental interest in
“guaranteeing cost-free access” to contraception was
“compelling.” Hobby Lobby, 134 S. Ct. at 2780. Five
members of the Court separately signed onto opinions that
appear to be more affirmative. Justice Kennedy, concurring,
found it “important to confirm” that the “premise of the
Court’s opinion is its assumption that the HHS regulation
                              48

here at issue furthers a legitimate and compelling interest in
the health of female employees.” Id. at 2786. He noted that
the government “makes the case” that the contraceptive
coverage requirement “serves the Government’s compelling
interest in providing insurance coverage that is necessary to
protect the health of female employees, coverage that is
significantly more costly than for a male employee.” Id. at
2785-86. Justice Ginsburg, writing for four dissenting
justices, recounted the government’s evidence establishing
the importance of contraception to a range of women’s health
needs, and concluded that contraceptive coverage under the
ACA “furthers compelling interests in public health and
women’s well being.” Id. at 2799-2800.

     There is no simple formula for identifying which
governmental interests rank as compelling, but certain
touchstones aid our analysis. Interests in public health,
safety, and welfare—and the viability of public programs that
guard those interests—may qualify as compelling, as may
legislative measures to protect and promote women’s well
being and remedy the extent to which health insurance has not
served women’s specific health needs as fully as those of
men.

     The government’s asserted compelling interest here, writ
large, is in a sustainable system of taxes and subsidies under
the ACA to advance public health. That interest is as strong
as those asserted in cases such as United States v. Lee, 455
U.S. 252, 258 (1982), and Hernandez v. Comm’r of Internal
Revenue, 490 U.S. 680, 699-700 (1989), recognizing
governmental interests in broad participation in public tax and
benefits systems as sufficiently compelling to outweigh
countervailing claims that they unjustifiably burdened
religious exercise.
                              49

     In Lee, the Supreme Court held that the government’s
interest in a nationwide social security system was
sufficiently weighty to require that an Amish employer pay
unemployment and social security taxes, even though the
Court acknowledged that doing so would burden the Amish
employer’s religious beliefs. 455 U.S. at 258. The Court
observed that the social security system “serves the public
interest by providing a comprehensive insurance system with
a variety of benefits available to all participants, with costs
shared by employers and employees.” Id. The system would
not have been viable unless broad participation was required,
and the Court held that the governmental interest “in assuring
mandatory and continuous participation in and contribution to
the social security system” sufficed to justify the
acknowledged burden on the employer’s religious exercise.
Id. at 258-59.

     So, too, in Hernandez, the Court rejected a claim that
denial of certain tax deductions violated the plaintiffs’
religious exercise because “even a substantial burden [on the
exercise of religion] would be justified by the broad public
interest in maintaining a sound tax system.” 490 U.S. at 699-
700 (internal quotation marks omitted). The government
concluded that the success of the ACA’s effort to expand
access to health care, improve outcomes, and control costs
similarly depends on widespread use of preventive care,
which the Act encourages by requiring that particular
preventive measures be provided free of cost. See 78 Fed.
Reg. at 39,872.

    The Supreme Court’s recognition of compelling
governmental interests in the physical health and safety of the
public, albeit in factually very different contexts, further
supports the gravity of the government’s interest in the
contraceptive coverage requirement. See, e.g., Prince v.
                              50

Massachusetts, 321 U.S. 158, 165-67 (1944); Jacobson v.
Massachusetts, 197 U.S. 11, 25 (1905). The Court in Prince
sustained child labor laws against a free exercise challenge
based on the government’s paramount interest in protecting
the health and welfare of children. 321 U.S. at 165-71. In
Jacobson, a mandatory, mass vaccination program withstood
a constitutional liberty challenge because it served the
government’s interest in “the public health and the public
safety.” 197 U.S. at 25-26. Those cases support the strength
of health interests behind the contraceptive coverage
regulations, which include interests in avoiding health risks to
women and children from unplanned pregnancies. Indeed,
these    very     same     interests—pediatric     care     and
immunizations—are protected by companion provisions to
the Women’s Health Amendment in the ACA. See 42 U.S.C.
§ 300gg-13(a)(2), (3). Under Plaintiffs’ argument, and
contrary to Prince and Jacobson, those interests could fall to
the same type of religious challenge as is leveled here by
organizations that sincerely object to the types of care they
cover.

     The Supreme Court has recognized the interest in
eliminating discrimination against women as sufficiently
compelling to justify incursions on rights to expressive
association. See Bd. of Dirs. of Rotary Int’l v. Rotary Club of
Duarte, 481 U.S. 537, 549 (1987); see also Roberts v. U.S.
Jaycees, 468 U.S. 609, 625-26 (1984) (recognizing
compelling interest in creating “rights of public access” to
private goods and services in order to promote women’s equal
enjoyment of leadership skills, business contacts, and
employment promotions). Those cases lend gravitas to the
government’s interest in the contraceptive coverage
requirement as an effort to eradicate lingering effects of sex
discrimination. See generally Nev. Dep’t of Human Res. v.
Hibbs, 538 U.S. 721 (2003).
                              51

     The Supreme Court majority in Hobby Lobby
characterized the government’s interests in “promoting public
health and gender equality” as “broadly framed” and noted
that RFRA “contemplates a more focused inquiry.” 134 S.
Ct. at 2779 (internal quotation marks omitted).            The
government has pathmarked the more focused inquiry by
explaining how those larger interests inform and are
specifically implicated in its decision to support women’s
unhindered access to contraceptive coverage. We do not take
the government to suggest that its interests in “public health”
and “gender equality” necessarily render compelling every
subsidiary governmental action that advances them. Each of
those interests, however, specifically undergirds the
government’s decision here to provide seamless coverage of
contraceptive services for women who want them and whose
doctors prescribe them.

     As we explain below, compelling interests converge to
support the government’s decision, reflected in the challenged
regulations, to provide cost-free contraceptive coverage and
to remove administrative and logistical obstacles to accessing
contraceptive care. Those compelling governmental interests
suffice to support requiring eligible organizations to ask for
an accommodation if they want to take advantage of one, so
that the government can protect its interests by ensuring that
the resulting coverage gaps are filled.

    a. Improving Public Health Through Contraceptive
       Coverage 

     The ACA is an ambitious effort to reform the health care
system in the United States. It is designed to expand access
to comprehensive insurance coverage as a means of
controlling spiraling health care costs while improving health.
See Cong. Budget Office, Key Issues in Analyzing Major
                             52

Health Insurance Proposals 1 (2008) (“CBO Report”); see
also Remarks by the President at the Annual Conference of
the American Medical Association (June 15, 2009),
http://www.whitehouse.gov/the-press-office/remarks-
president-annual-conference-american-medical-association.
The United States in recent years spent far more on health
care than did many other developed nations. At the same
time, the quality of care Americans received was lower and
our population was no healthier than people in countries that
spent less. CBO Report at 1.

     Congress understood that improved health at affordable
cost cannot be attained without increased reliance on
preventive care. Most people underestimate the importance
of prevention and are easily hindered from undertaking
preventive steps because the costs and effort of preventive
health care are immediate while benefits typically are
uncertain and deferred. Many adverse health conditions and
an enormous amount of costly care can be avoided if people
better understand risky behavior, plan more carefully, and
take measures to reduce their risks, exposures, and errors.
Inst. of Med., Clinical Preventive Services for Women:
Closing the Gaps 16-17 (2011) (“IOM Report”).23 Providing
preventive care—including patient education, screenings,
preventive medications and devices, and early treatment—can
be less costly than treating advanced diseases and conditions.
See id.; Chronic Diseases and Health Promotion, Centers for
Disease            Control           and          Prevention,
http://www.cdc.gov/chronicdisease/overview/ (last visited
Nov. 5, 2014); see also CBO Report at 136-38. Yet, before
enactment of the ACA, only a small portion of health care

23
   As noted above, the government directed the HRSA, in
consultation with IOM, to develop guidelines for women’s
preventive care services. This report was part of that effort.
                              53

spending went to prevention. See Centers for Disease Control
and Prevention, The Power of Prevention (2009), available at
http://www.cdc.gov/chronicdisease/pdf/2009-power-of-
prevention.pdf.

     Congress and the Executive Branch determined that
serving the government’s compelling public health interests
depends on overcoming the human behavioral tendencies of
denial and delay documented in the legislative and regulatory
record. People tend to eschew preventive care when they
have to pay for it, make even minor efforts to learn about and
enroll in new programs, keep multiple appointments, or
follow new routines. Because “[i]ndividuals are more likely
to use preventive services if they do not have to satisfy cost-
sharing requirements,” 78 Fed. Reg. at 39,872, the ACA
requires group or individual health plans to include coverage
for a variety of preventive health services without cost
sharing. 42 U.S.C. § 300gg-13(a). “Studies have . . . shown
that even moderate copayments for preventive services” can
“deter patients from receiving those services.” IOM Report at
19.

     The government further determined that the imperative
of providing broad access to preventive care applies with full
force to women’s health. Congress was informed during
debates on the ACA that “too many women are delaying or
skipping preventive care because of the costs of copays and
limited access. In fact, more than half of women delay or
avoid preventive care because of its costs.” 155 Cong. Rec.
28,843 (2009) (statement of Sen. Gillibrand); see also 155
Cong. Rec. 28,842-43 (2009) (statement of Sen. Mikulski).
In light of this reality, Senator Mikulski proposed the
Women’s Health Amendment, which expanded the list of
preventive health services the ACA required that insurers
cover without cost sharing to include preventive health care
                              54

and screenings for women. 155 Cong. Rec. 28,800-02 (2009)
(codified at 42 U.S.C. § 300gg-13(a)(4)). Congress in the
ACA directed the HRSA to develop the list of covered
preventive services. The HRSA commissioned the IOM to
identify preventive health services with strong scientific
evidence of health benefits. The IOM’s report recommended
preventive services it deemed necessary for women’s health
and well-being.      HRSA accepted IOM’s findings and
recommendations, and the Departments relied on them when
crafting both the exemption and the accommodation.

     The HRSA and IOM concluded that, given women’s
reproductive health needs, preventive health services for
women should include contraceptive coverage. IOM Report
at 109-10; see also 77 Fed. Reg. at 8,725. The government
recognized that the cost of reproductive health care, including
contraceptives, is significant, and it falls disproportionately
on women. 78 Fed. Reg. at 39,873, 39,887. The vast
majority of women who have sex with men use
contraceptives at least some of the time. See IOM Report at
103. Most contraceptives used by women, and the forms that
are most effective and fully reversible, are available only with
a prescription and in some cases must be administered by a
medical professional. See id. at 105; Kimberly Daniels, et al.,
Contraceptive Methods Women Have Ever Used: United
States, 1982-2010, 62 Nat’l Health Stat. Rep. 1 (2013),
available at http://www.cdc.gov/nchs/data/nhsr/nhsr062.pdf
(hereinafter “Daniels”).      Those forms—including birth
control pills, injectable methods, contraceptive patches, and
intrauterine devices (“IUD”)—have been used at one time or
another by 88 percent of women who have had sexual
intercourse. Daniels at 1.

    The Institute of Medicine observed that high costs
regularly cause women to forego contraception completely or
                             55

to choose less effective methods: “Even small increments in
cost sharing have been shown to reduce the use of preventive
services . . . . The elimination of cost sharing for
contraception therefore could greatly increase its use,
including the use of the more effective and longer-acting
methods, especially among poor and low-income women
most at risk for unintended pregnancy.” IOM Report at 109;
see also 78 Fed. Reg. at 39,873. Prescription methods of
contraception have lower failure rates than non-prescription
methods such as condoms, IOM Report at 105, but can be
quite expensive. The cost of an IUD, one of the most
convenient and effective forms of reversible contraception, is
nearly a month’s full-time pay for workers earning the
minimum wage, and its cost makes it less likely that women
will use it. Hobby Lobby, 134 S. Ct. at 2800 (Ginsburg, J.,
dissenting).

     Thus the government decided to require contraceptive
coverage without cost sharing because appropriate and
consistent use of contraceptives furthers women and
children’s health in a variety of ways. Enabling couples to
control the timing and spacing of pregnancies improves
women’s health outcomes.           Short intervals between
pregnancies increase maternal mortality and pregnancy-
related complications. IOM Report at 103-04. Even a normal
and healthy pregnancy is a demanding physical process for a
woman. Pregnancy increases risks of health complications,
such as anemia, gestational diabetes, hypertension,
hyperemesis gravidarum, and even death. See generally 78
Fed. Reg. at 39,872, 39,887 (stressing the importance of
covering preventive care to respond to women’s unique health
needs); Pregnancy Complications, Centers for Disease
Control                    and                    Prevention,
http://www.cdc.gov/reproductivehealth/maternalinfanthealth/
pregcomplications.htm (last visited Nov. 5, 2014); Pregnancy
                             56

Related Deaths, Centers for Disease Control and Prevention,
http://www.cdc.gov/reproductivehealth/MaternalInfantHealth/
Pregnancy-relatedMortality.htm (last visited Nov. 5, 2014).

     A core reason the government sought under the ACA to
expand access to contraception is that use of contraceptives
reduces unintended pregnancies. According to the Institute of
Medicine, in 2001, “49 percent of all pregnancies in the
United States were unintended.” IOM Report at 102. There
is “an 85 percent chance of an unintended pregnancy within
12 months among couples using no method of contraception.”
Id. at 105. Unintended pregnancies elevate health risks for
women and children and impose other costs on society.
Women whose pregnancies are unintended are more likely to
experience depression, anxiety, or domestic violence during
those pregnancies. IOM Report at 103; see also Korte v.
Sebelius, 735 F.3d 654, 725 (7th Cir. 2013) (Rovner, J.,
dissenting). “In 2001, 42 percent of U.S. unintended
pregnancies ended in abortion.” IOM Report at 102.
Reducing the frequency of unintended pregnancies would
reduce the frequency of abortions. 78 Fed. Reg. at 39,872;
see also IOM Report at 105.           Supporting access to
contraception empowers women to avoid the physical
burdens and risks of pregnancy unless and until they decide to
undertake them.

     The government further relied on the ways that
contraceptive use can promote and improve women’s health
apart from their procreative health needs.           Women
contraindicated for pregnancy, such as those with certain
heart conditions, hypertension, diabetes, Marfan Syndrome,
or lupus, face health hazards from pregnancy that can be life
threatening. See 78 Fed. Reg. at 39,872; IOM Report at 103-
04; Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J.,
concurring), id. at 2799 (Ginsburg, J., dissenting). Women
                              57

with those conditions have especially critical needs to time
their pregnancies appropriately, such as by waiting until their
conditions are under control. Doctors also recommend that
women taking certain medications that pose risk to maternal
and fetal health avoid getting pregnant.           Hormones
manufactured and sold as contraception are also used to treat,
manage, or prevent other diseases, such as “certain cancers,
menstrual disorders, and pelvic pain.” Hobby Lobby, 134 S.
Ct. at 2799 (Ginsburg, J., dissenting); see also 78 Fed. Reg.
39,872; IOM Report at 107.

     The Institute of Medicine reported that, for similar
reasons, contraceptive use also promotes the health of infants
and children. Children who are born as the result of
unintended pregnancy suffer increased health risks on
average, including preterm birth and low birth weight and
associated complications. IOM Report at 103. Women who
do not immediately know they are pregnant, or are ambivalent
about bearing children, are more likely to delay prenatal care
or engage in behaviors that pose pregnancy related risks. 78
Fed. Reg. at 39,872; IOM Report at 103. Short intervals
between pregnancies also can have serious health
consequences for infants, such as low birth weight,
prematurity, and small-for-gestational age. 78 Fed. Reg. at
38,872; IOM Report at 103. Women in hazardous jobs or
precarious or dangerous living situations may need to delay
pregnancy in order to reduce the health risks for a child.
Permitting women to control the timing and spacing of their
pregnancies improves the health and welfare of women,
children, and infants.
                              58

    b. Assuring Women Equal Benefit of Preventive Care
       By Requiring Coverage of Their Distinctive Health
       Needs

     The government also relied on evidence that advancing
women’s well being by meeting their health needs as fully as
those of men was a compelling reason for a contraceptive
coverage requirement. In enacting and implementing the
ACA, the government sought to provide coverage that offers
equal benefit for men and women. 78 Fed. Reg. at 39,887.
Before the ACA, insurance coverage for a female employee
was “significantly more costly than for a male employee.”
Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J., concurring).
Women paid more for the same health insurance coverage
available to men and “in general women of childbearing age
spen[t] 68 percent more in out-of-pocket health care costs
than men.” 155 Cong. Rec. 28,843 (2009) (statement of Sen.
Gillibrand); see 78 Fed. Reg. at 39,887.

     The government recognized that women pay more for the
same health benefits in part because services more important
or specific to women have not been adequately covered by
health insurance. See 155 Cong. Rec. 28,843 (2009)
(statement of Sen. Gillibrand). Contraception is a key
element of preventive care for many women, yet the methods
that are most reliable and are under a woman’s control require
prescriptions and are disproportionately more expensive than
non-prescription forms of contraception. See IOM Report at
105, 108. Condoms, which are inexpensive and widely
available over the counter, require men’s cooperation and are
substantially less effective in pregnancy prevention than
prescription methods. See id. at 105. When Congress added
the Women’s Health Amendment to the ACA, which requires
group health plans to include preventive health care services
for women without cost sharing, it did so precisely to end “the
                                59

punitive practices of the private insurance companies in their
gender discrimination.” 155 Cong. Rec. 28,842 (daily ed.
Dec. 1, 2009) (statement of Sen. Mikulski). The government
concluded that a preventive care package that failed to cover
contraception would not give women access, equal to that
enjoyed by men, to the full range of health care services
recommended for their specific needs. See 78 Fed. Reg. at
39,887.

     For most women, whether and under what circumstances
to bear a child is the most important economic decision of
their lives. An unintended pregnancy is virtually certain to
impose substantial, unplanned-for expenses and time
demands on any family, and those demands fall
disproportionately on women. As the Supreme Court has
recognized “[t]he ability of women to participate equally in
the economic and social life of the Nation has been facilitated
by their ability to control their reproductive lives.” Planned
Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 856 (1992);
78 Fed. Reg. at 39,873 (“[A]ccess to contraception improves
the social and economic status of women.”). Congress noted
when enacting the Pregnancy Discrimination Act, Pub. L. No.
95-555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000e et seq.),
and Family and Medical Leave Act, Pub. L. No. 103-3, 107
Stat. 6 (codified at 29 U.S.C. § 2601 et seq.), a woman’s
ability to get pregnant has led to pervasive discrimination in
the workplace.24


24
  See Hibbs, 538 U.S. at 736 (“‘Historically, denial or curtailment
of women’s employment opportunities has been traceable directly
to the pervasive presumption that women are mothers first, and
workers second. This prevailing ideology about women’s roles has
in turn justified discrimination against women when they are
mothers or mothers-to-be.’” (quoting The Parental and Medical
                                60

     The government has amply substantiated its compelling
interests in the accommodation.          The government has
overlapping and mutually reinforcing compelling interests in
promoting public health and gender equality.               The
contraceptive coverage requirement specifically advances
those interests. It was adopted to promote women’s equal
access to health care appropriate to their needs, which in turn
serves women’s health, the health of children, and women’s
equal enjoyment of their right to personal autonomy without
unwanted pregnancy. We hold that the accommodation is
supported by the government’s compelling interest in
providing women full and equal benefits of preventive health
coverage, including contraception and other health services of
particular relevance to women.

2.   The Regulations Use the Least Restrictive
     Means to Ensure Contraceptive Coverage
     While Accommodating Religious Exercise

     In addition to calling on us to inquire whether the
challenged contraceptive coverage requirement serves a
compelling interest, RFRA demands that we guard against
unnecessary impositions on religious exercise by carefully
examining the particular way the government has gone about
serving that interest.    The Departments designed the
challenged accommodation for eligible organizations fully
cognizant of RFRA’s mandate. See 78 Fed. Reg. at 39,886-


Leave Act of 1986: Joint Hearing before the Subcommittee on
Labor–Management Relations and the Subcommittee on Labor
Standards of the House Committee on Education and Labor, 99th
Cong., 2d Sess., 100 (1986)); see also S. Rep. No. 95-331, at 3
(1977) (“A failure to address discrimination based on pregnancy, in
fringe benefits or in any other employment practice, would prevent
the elimination of sex discrimination in employment.”).
                              61

88. As already described, the accommodation excuses
eligible organizations from the contraceptive coverage
requirement, severs them from any involvement in the
separate contraceptive coverage to which the employees are
entitled, and specifies that employees must be notified that the
objecting organizations have no involvement in providing
their contraceptive coverage.

       Adverting to this accommodation in Hobby Lobby, the
Supreme Court stressed that it alleviates the burden on the
plaintiffs of having to provide contraceptive coverage and
“serves HHS’s stated interests equally well.” Hobby Lobby,
134 S. Ct. at 2782. The Court described the accommodation
as “an alternative that achieves all of the Government’s aims
while providing greater respect for religious liberty.” Id. at
2759; see id. at 2786 (Kennedy, J., concurring) (the
“accommodation equally furthers the Government’s interest
but does not impinge on the plaintiff’s religious beliefs”). In
fact, the Court explained that the effect of the accommodation
on women “would be precisely zero.” Id. at 2760.

     In determining whether the government has used the
least restrictive means, the Supreme Court has instructed that
we focus on the context of the religious objectors, and
consider whether and how the government’s compelling
interest is harmed by “‘granting specific exemptions to
particular religious claimants.’” Hobby Lobby, 134 S. Ct. at
2779 (quoting Gonzales v. O Centro Espírita Beneficiente
Uniao Do Vegetal, 546 U.S. 418, 431 (2006)). We must
“look to the marginal interest in enforcing” the regulation to
which the plaintiffs object. Id. (citing O Centro, 546 U.S. at
431).

    The government’s compelling interests in the
contraceptive coverage requirement are met with the least
                             62

imposition on religious exercise by allowing eligible
organizations to opt out, but requiring them to identify
themselves when they do. Only if the eligible organizations
communicate that they are dropping contraceptive coverage
from the health insurance they have arranged for their
employees will the government be able to ensure that the
resultant gaps in employees’ coverage are otherwise filled.
The government contends that its interests would be impaired
if eligible organizations were entitled to exempt themselves
from the contraceptive coverage requirement without
notifying either HHS, or their insurers or TPAs.

     The government has an interest in the uniformity of the
health care system the ACA put in place, under which all
eligible citizens receive the same minimum level of coverage.
Like the Social Security system at issue in Lee, the ACA
“serves the public interest by providing a comprehensive
insurance system with a variety of benefits available to all
participants.” 455 U.S. at 258. Contraceptive coverage must
be effective if it is to serve the government’s compelling
interests, and the Departments were justified in concluding
that, to be effective, the coverage must be provided to all
women who want it, on the same terms as other preventive
care. Providing contraceptive services seamlessly together
with other health services, without cost sharing or additional
administrative or logistical burdens and within a system
familiar to women, is necessary to serve the government’s
interest in effective access. Imposing even minor added steps
would dissuade women from obtaining contraceptives and
defeat the compelling interests in enhancing access to such
coverage. See 78 Fed. Reg. at 39,888.

    The evidence shows that contraceptive use is highly
vulnerable to even seemingly minor obstacles. Plaintiffs
suggest that the government could offer tax deductions or
                              63

credits for the purchase of contraceptive services, expand
eligibility for existing federal programs that provide free
contraception, allow women to submit receipts to the federal
government for reimbursement, or provide incentives for
pharmaceutical companies to provide contraceptives free of
charge to women. Pls.’ R. Br. 22. Those alternatives would
substantially impair the government’s interest. Plaintiffs’
proposed alternatives each would add steps—requiring
women to identify different providers or reimbursement
sources, enroll in additional and unfamiliar programs, pay out
of pocket and wait for reimbursement, or file for tax credits
(assuming their income made them eligible)—or pose other
financial, logistical, informational, and administrative
burdens. See 78 Fed. Reg. at 39,888. Even assuming that any
alternative program had or would develop the capacity to deal
with an enormous additional constituency, it would not serve
the government’s compelling interest with anywhere near the
efficacy of the challenged accommodation and would instead
deter women from accessing contraception. See id.

     Plaintiffs also dispute the government’s compelling
interest in applying the contraceptive coverage requirement to
them on the ground that there is “no evidence” showing that
Plaintiffs’ employees lack access to or want contraception.
Pls.’ Supp’l Br. 16-17. The data upon which the government
relies support its conclusion that women generally benefit
from access to contraceptive coverage, and are unlikely to use
such coverage when it is costly or complicated to obtain. See
78 Fed. Reg. at 39,887-88. There is no reason to believe that
the health needs of Plaintiffs’ employees or spouses and other
covered beneficiaries in their families are materially different
from those of other women. Religious nonprofits like the
Plaintiff organizations employ millions of Americans—
including individuals who do not share their beliefs. As the
government recognized, “[e]mployers that do not primarily
                              64

employ employees who share the religious tenets of the
organization are more likely to employ individuals who have
no religious objection to the use of contraceptive services and
therefore are more likely to use contraceptives.” 77 Fed. Reg.
at 8,728. The evidence justifying the contraceptive coverage
requirement equally supports its application to Plaintiffs.

     Accommodating religious entities need not come at the
cost of the compelling interests the government program
serves. When the interests of religious adherents collide with
an individual’s access to a government program supported by
a compelling interest, RFRA calls on the government to
reconcile the competing interests. In so doing, however,
RFRA does not permit religious exercise to “unduly restrict
other persons, such as employees, in protecting their own
interests, interests the law deems compelling.” Hobby Lobby,
134 S. Ct. at 2786-87 (Kennedy, J., concurring); see also id.
at 2781 n.37 (“It is certainly true that in applying RFRA
‘courts must take adequate account of the burdens a requested
accommodation may impose on nonbeneficiaries.’”). The opt
out offered to religious adherents allows the government to
further its compelling interests with the least restriction on
religious exercise.       Under the accommodation, eligible
organizations are relieved of the obligation to include
contraceptive coverage in their health care plans, but “women
would still be entitled to all FDA-approved contraceptives
without cost sharing.” Id. at 2760. Allowing eligible
organizations to exempt themselves completely from the
contraceptive coverage requirement, without so much as
notifying their plan or HHS that they have done so, would
undermine the government’s interest in the breadth of the
scheme established in the ACA.

     The government’s interest in a comprehensive, broadly
available system is not undercut by the other exemptions in
                               65

the ACA, such as the exemptions for religious employers,
small employers, and grandfathered plans. The government
can have an interest in the uniform application of a law, even
if that law allows some exceptions. See, e.g., Lee, 455 U.S. at
261. In any event, the exemptions to the ACA are limited and
the rationales that support them do not extend to exempting
Plaintiffs. Currently, only religious employers’ plans and
grandfathered health plans (employer health plans that existed
prior to March 23, 2010, and that have not made particular
changes after that date) are not required to include coverage
for preventive services. 42 U.S.C. § 18011(a), (e). Religious
employers are exempt from the contraceptive coverage
provision because the government reasonably assumed that if
the church opposed contraception, the church’s employees
would, too. See 77 Fed. Reg. at 8,728. The exception for
grandfathered plans sought to limit disruption by enabling
individuals temporarily to maintain their health care coverage
as it existed prior to enactment of the ACA. That exception is
a transitional measure and will be eliminated as employers
make changes to their health care plans. See 45 C.F.R. §
147.140(g) (a health plan ceases to be a grandfathered plan
when it eliminates benefits, increases cost-sharing
requirements, or changes its employer-contribution terms).
According to HHS estimates, 66 percent of small-employer
plans and 45 percent of large-employer plans were expected
to lose their grandfathered status by the end of 2013.25 75


25
  According to a 2013 study conducted by Kaiser Health News, the
grandfathering is already quickly phasing down. Thirty-six percent
of individuals who receive health care coverage through their
employer in 2013 were enrolled in a grandfathered health plan, as
compared to 48 percent in 2012 and 56 percent in 2011. Employer
Health Benefits: 2013 Annual Survey, Kaiser Family Foundation
and Health Research & Educational Trust, at 221, available at
                               66

Fed. Reg. 34,538, 34,552 (June 17, 2010). The exemption for
small employers (those with fewer than 50 employees) is not
an exemption from the contraceptive coverage requirement,
but from the requirement to provide any health insurance to
their employees. 26 U.S.C. § 4980H(c)(2). Employees who
do not get insurance through their jobs because they work for
exempt small employers are eligible to purchase it through
the exchanges, where all listed plans are required to cover
contraceptive services without cost sharing. None of the three
exemptions is analogous to what the Plaintiffs here seek.

                             * * *

     The accommodation is the least restrictive method of
ensuring that women continue to receive contraceptive
coverage in a seamless manner while simultaneously
relieving the eligible organizations of any obligation to
provide such coverage. Because the government has used the
least restrictive means possible to further its compelling
interest, RFRA does not excuse Plaintiffs from their duty
under the ACA either to provide the required contraceptive
coverage or avail themselves of the offered accommodation to
opt out of that requirement. The accommodation meets the
twin aims of respecting religious freedom and ensuring that
women continue to receive contraceptive coverage without
administrative, financial, or logistical burdens.       The
regulations thus respond appropriately to RFRA’s explicit
demand for “sensible balances between religious liberty and
competing prior governmental interests.”         42 U.S.C.
§ 2000bb(a)(5).




http://kaiserhealthnews.files.wordpress.com/2013/11/8465-
employer-health-benefits-20131.pdf.
                               67

                  V. Constitutional Claims

     Plaintiffs raise several constitutional challenges to the
regulations. We address each in turn, concluding that the
regulations do not violate any of the constitutional provisions
identified by Plaintiffs.

                A. Free Exercise of Religion

     Plaintiffs claim that the contraceptive coverage
requirement violates the Free Exercise Clause of the First
Amendment because it categorically exempts houses of
worship from the contraceptive coverage requirement and
temporarily relieves grandfathered plans from the requirement
to cover any preventive services without cost sharing, while
not similarly exempting Plaintiffs. The Free Exercise Clause
embodies a “fundamental nonpersecution principle.” Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 523 (1993). But it “does not relieve an individual of the
obligation to comply with a valid and neutral law of general
applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or
proscribes).” Smith, 494 U.S. at 879 (internal quotation
marks omitted). A Free Exercise Clause challenge, in
contrast to a claim under RFRA, receives strict scrutiny only
if the challenged law is either not neutral or not generally
applicable. See Lukumi Babalu, 508 U.S. at 531. We have
held that the regulations comply with RFRA; they readily
satisfy the less stringent free exercise standard.

     “Neutrality and general applicability are interrelated,”
but distinct. Id. A law is not neutral if it facially “refers to a
religious practice without a secular meaning discernable from
the language or context,” or if “the object of a law is to
infringe upon or restrict practices because of their religious
                              68

motivation.” Id. at 533. A law is not generally applicable if,
“in a selective manner,” it “impose[s] burdens only on
conduct motivated by religious belief.” Id. at 543.

     Plaintiffs do not contend that the challenged
contraceptive coverage requirement is religiously non-neutral
on its face, nor that it was enacted for an anti-religious
purpose, but that the exemptions provided to houses of
worship and grandfathered plans render the contraceptive
coverage requirement non-neutral and not generally
applicable. Those exemptions, however, do not impugn the
contraceptive coverage requirement’s neutrality and
generality: it is both, in the relevant sense of not selectively
targeting religious conduct, whether facially or intentionally,
and broadly applying across religious and nonreligious groups
alike. See Mich. Catholic Conf., 755 F.3d at 394; RCAW,
2013 WL 6729515, at *27-31; Priests for Life, 7 F. Supp. 3d
at 105-07.

      The contraceptive coverage requirement is a religiously
neutral part of a national effort to expand health coverage and
make it more efficient and effective. The ACA’s limited or
temporary exemptions do not amount to the kind of pattern of
exemptions from a facially neutral law that demonstrate that
the law was motivated by a discriminatory purpose. See
supra Section IV.B.2. The Florida prohibition on animal
killing invalidated in Lukumi Babalu, by contrast, responded
to the opening of a Santeria church, which practiced religious
animal-sacrifice rituals. 508 U.S. at 524. The ordinance
elaborated a putatively general prohibition on animal killings
with specific disapproval of killing for “sacrifice” as part of
“any type of ritual,” while exempting as “necessary” killings
for sport hunting, slaughtering animals to eat them,
eradication of pests, and euthanasia—killings that were “no
more necessary or humane” than the forbidden Santeria
                                 69

sacrifices. Id. at 536-37. That exemption for so many non-
religious types of animal killing helped to make clear that
“suppression of the central element of the Santeria worship
service was the object of the ordinances.” Id. at 534. The
exemptions in the ACA do not single out any religion and are
wholly consistent with the law’s neutral purpose. Indeed, the
existence of an exemption for religious employers
substantially undermines contentions that government is
hostile toward such employers’ religion.26

     The contraceptive coverage requirement also does not
target religious organizations, but applies across the board.
The exemptions do not render the law so under-inclusive as to
belie the government’s interest in protecting public health and
promoting women’s well-being or to suggest that disfavoring
Catholic or other pro-life employers was its objective. See
RCAW, 2013 WL 6729515, at *30. For example, the
Supreme Court has held that, despite statutory exemptions for
self-employed Amish employers, the social security system
was “uniformly applicable to all.” United States v. Lee, 455
U.S. 252, 260-61 (1982); see also id. at 262 (Stevens, J.,
concurring in the judgment) (describing the challenged law as
“a valid tax law that is entirely neutral in its general
application”). As the Sixth Circuit recently explained:
“General applicability does not mean absolute universality.”

26
   See, e.g., RCAW, 2013 WL 6729515, at *28 (availability of the
religious employer exemption “cuts against the conclusion that the
contraceptive mandate was specifically designed to oppress those
of the Catholic faith as plaintiffs suggest”); Catholic Diocese of
Nashville v. Sebelius, No. 3:13-01303, 2013 WL 6834375, at *6
(M.D. Tenn. Dec. 26, 2013) (noting that exemption for religious
employers and accommodation for eligible organizations
“evidences an intent, not to burden Plaintiffs’ religious beliefs, but
to recognize and respect them”).
                               70

Mich. Catholic Conf., 755 F.3d at 394 (internal quotation
marks omitted).

     Plaintiffs contend that the ACA’s exemptions make it
under-inclusive in a way that suggests that the government
believes that “secular motivations [for providing an
exemption] are more important than religious motivations,”
Pls.’ Br. 50 (internal quotation marks omitted), evidencing
that the government “devalues religious reasons,” Pls.’ R. Br.
25 (internal quotation marks omitted). But, for the same
reasons the exemptions do not undermine the government’s
interest in a uniform system, see supra Section IV.B.2, the
exemptions do not demonstrate the government’s hostility
toward religious concerns.

     Because the contraceptive coverage requirement is a
neutral law of general applicability, Plaintiffs’ free exercise
claim fails.

                 B. Expressive Association

     The Priests for Life Plaintiffs argue that the contraceptive
coverage requirement violates their First Amendment rights
to expressive association, which protects the “right to
associate for the purpose of speaking.” See Rumsfeld v.
Forum for Academic & Institutional Rights, Inc. (FAIR), 547
U.S. 47, 68 (2006). The regulations infringe that right, the
Priests for Life Plaintiffs contend, by requiring them to
promote the government’s immoral objective of expanding
access to contraceptives, which undermines the organization’s
“very reason for its existence.” Pls.’ Br. 51. The Priests for
Life Plaintiffs base their expressive association claim, like
their RFRA claim, on a misreading of what the regulations
require of them, suggesting that the regulations require them
                               71

to disclose the identities of their employees and plan
beneficiaries. See, e.g., Pls.’ Br. 52-53. They do not.

     A law may violate the First Amendment right to
expressive association where it directly interferes with an
expressive association’s membership decisions or where it
indirectly affects the group’s composition by making
membership less attractive. FAIR, 547 U.S. at 69. In FAIR,
the Supreme Court held that a law requiring law schools
receiving federal funds to give military recruiters access to
the schools’ facilities equal to the access it afforded other
recruiting employers did not violate the objecting schools’
rights to associate. Id. at 69-70. The law schools’ non-
discrimination policies prohibited discrimination based on
sexual orientation, and, because the United States Military
refused at that time to hire any openly gay or lesbian
applicants, the law schools were strongly opposed to hosting
military recruiters and actively facilitating their access to the
schools’ students. The Court rejected that claim, holding that
the military recruiters’ presence on campus “does not violate
a law school’s right to associate, regardless of how repugnant
the law school considers the recruiter’s message.” Id. at 70.
The Court acknowledged that the plaintiffs there had to
“‘associate’ with military recruiters in the sense that they
interact with them,” but held that, because the recruiters were
as an institutional matter outsiders who would “come onto
campus for the limited purpose of trying to hire students,”
they did not impinge on the schools’ expressive association.
Id. at 69.

    The same is true here: the Priests for Life Plaintiffs
object to interacting with coverage providers that must make
contraceptive coverage available, but such interaction does
not make those providers part of the organization’s expressive
association or otherwise impair its ability to express its
                               72

message. Just as the students and faculty in FAIR remained
“free to associate to voice their disapproval of” the military’s
policy against gays or lesbians serving openly in the military,
id. at 69-70, Priests for Life’s members and employees
remain free to associate with each other to promote their
religious views on contraception and other matters, and to
voice their disapproval of health-care products and services
that they believe to be immoral. “Nothing in the[] final
regulations prohibits an eligible organization from expressing
its opposition to the use of contraceptives.” 78 Fed. Reg. at
39,880 n.41. Accordingly, the Priests for Life Plaintiffs’
expressive association claim fails.

                    C. Compelled Speech

    It is “a basic First Amendment principle that freedom of
speech prohibits the government from telling people what
they must say.” Agency for Int’l Dev. v. Alliance for Open
Soc’y Int’l, Inc., 133 S. Ct. 2321, 2327 (2013) (internal
quotation marks omitted); see Knox v. Serv. Emps. Int’l
Union, Local 1000, 132 S. Ct. 2277, 2282 (2012) (“The
government may not . . . compel the endorsement of ideas that
it approves.”).     Plaintiffs contend that the regulations
impermissibly compel their speech in three ways.

     First, Plaintiffs claim that the regulations require them to
authorize and facilitate health care coverage for counseling
that encourages and promotes contraception, in violation of
their right against compelled speech. Plaintiffs appear to
contend that the regulations commandeer them to echo or
facilitate the words of medical professionals who might
communicate to insured women the availability and potential
appropriateness of various contraceptive methods. But the
regulations do not require Plaintiffs to communicate any pro-
contraceptive-coverage message, nor to authorize or facilitate
                               73

counseling in favor of contraception. See supra Section
IV.A.2; Mich. Catholic Conf., 755 F.3d at 391. They leave
Plaintiffs free to voice their opposition to contraception.

     Plaintiffs’ reliance on Arizona Free Enterprise Club’s
Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011), is
misplaced. Arizona Free Enterprise Club concerned a state
campaign finance law under which candidates for state office
who accepted public funding could receive additional state
funds in the event that privately financed candidates and
independent expenditure groups exceeded spending limits.
See id. at 2813. Under Arizona’s law, the volume of political
expenditures by or in support of a privately financed
candidate triggered funding to his or her opponent. See id. at
2818-19. Plaintiffs’ completion of the self-certification form
has no similar triggering role, and there is no interest or effect
here to level competing voices, which was a significant aspect
of the constitutional infirmity of Arizona’s campaign finance
law. See id. at 2825. Furthermore, contrary to Plaintiffs’
argument, nothing in Arizona Free Enterprise Club suggests
that the prohibition on compelling a party to “help
disseminate hostile views” the party opposes, id. at 2821 n.8
(internal quotation marks omitted), applies to laws that
require a party to engage in non-expressive behavior, such as
the provision of health insurance.

     Second, Plaintiffs argue that completing the self-
certification form requires them to express a particular view,
namely, that they oppose providing their plan participants
with coverage for contraceptive services, and that it deprives
them of the freedom to speak on this issue on their own
                                74

terms.27 The self-certification form and alternative notice are
the methods through which Plaintiffs can opt out of the
requirement to provide their employees with health insurance
coverage for contraceptive services. The filing of the form,
though it may include “elements of speech,” is “a far cry from
the compelled speech” that the Supreme Court previously has
found to be unconstitutional. FAIR, 547 U.S. at 61-62 (citing
W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), and
Wooley v. Maynard, 430 U.S. 705, 717 (1977)). Just as the
compelled speech that the law schools identified in FAIR was
“plainly incidental to the Solomon Amendment’s regulation
of conduct,” id. at 62, any speech required by the self-
certification or alternative notice is similarly incidental to the
accommodation’s regulation of conduct. Compelling an
organization to send a form to a third party to claim eligibility
for an exemption “is simply not the same as forcing a student
to pledge allegiance, or forcing a Jehovah’s Witness to
display the motto ‘Live Free or Die,’ and it trivializes the
freedom protected in Barnette and Wooley to suggest that it
is.” Id. Requiring Plaintiffs to give notice that they wish to
opt out of the contraceptive coverage requirement no more
compels their speech in violation of the First Amendment
than does demanding that a conscientious objector self-
identify as such.

     The regulations do nothing to deprive Plaintiffs of “the
freedom to speak on the issue of abortion and contraception
on their own terms, at a time and place of their own
choosing.” Pls.’ Br. at 55. Completing the self-certification
form does not limit what Plaintiffs may say about
contraception—or any other topic—nor does it limit where,

27
    Plaintiffs’ briefing contends only that their speech is
impermissibly compelled by the self-certification form, and does
not address their compelled speech claim to the alternative notice.
                              75

when, or how they may say it. See Mich. Catholic Conf., 755
F.3d at 392. Indeed, unlike the law schools in FAIR that had
to host military recruiters and thus might have mistakenly
been viewed as endorsing the military’s discriminatory
recruitment approach, the opt out here is designed to ensure
that Plaintiffs do not have to express, in words or symbolic
backing, any support for contraception. Cf. FAIR, 547 U.S. at
64-65 (government is limited in its “ability to force one
speaker to host or accommodate another speaker’s message”
where accommodating that message interferes with the
plaintiff’s desired message).

     Finally, Plaintiffs object to the regulations because they
require that Plaintiffs’ plan participants receive notice of the
availability of payments for contraceptive services. Thus,
according to Plaintiffs, the regulations coerce them to provide
access to their plan participants and either create the
appearance that Plaintiffs agree with the notification or call
on them to respond to the notice to inform participants of
Plaintiffs’ objections to contraception.

     But the regulations actually require quite the contrary:
the plan issuer or TPA must send a message explicitly
distancing the employer from the offered contraceptive
coverage, and do so in a completely separate mailing from
any communication regarding the employer-sponsored plan.
45 C.F.R. § 147.131(d) (insured group health plans); 29
C.F.R. § 2590.715-2713A(d) (self-insured plans).         The
regulations, therefore, take care to inform plan participants
that the coverage for contraceptives is not paid for,
                                  76

administered by, or connected to Plaintiffs. That is a long
way from unconstitutionally compelling Plaintiffs to speak.28

                 D. Establishment of Religion

     Plaintiffs advance two Establishment Clause claims.
They first contend that the regulations impermissibly
discriminate between types of religious institutions by making
a general distinction, familiar in tax law, between churches
and other houses of worship (which are automatically
exempt), and nonprofit organizations that may have a
religious character or affiliation, such as universities and
hospitals (which may use the accommodation to opt out). 26
U.S.C. § 6033(a)(3)(A)(i), (iii) (exempting “churches, their
integrated auxiliaries, and conventions or associations of
churches,” and “the exclusively religious activities of any
28
    The RCAW Plaintiffs challenged the regulations’ “non-
interference” provision as an unconstitutional speech restriction,
but as that provision has been rescinded, their challenge is moot.
The provision originally barred self-insured employers from
“directly or indirectly, seek[ing] to influence the [TPA’s] decision”
to provide or arrange separate payments for contraceptive services.
79 Fed. Reg. at 51,095. The government interpreted that bar as
applicable only to the use of bribery, threats, or coercion to
dissuade or hinder a TPA from fulfilling its legal obligation to
provide contraceptive coverage. Id. The government has now
rescinded the non-interference provision in its entirety. Id.
Plaintiffs maintain that they still challenge the non-interference
provision “to the extent the Government contends it continues to be
unlawful to ‘say to the[ir] TPA, if you don’t stop making the
payments for contraceptives, we’re going to fire you.’” Pls.’
Supp’l Br. 27 n.12 (internal brackets omitted). As the government
asserted at oral argument, however, even when the non-interference
provision was in effect, Plaintiffs were free to fire their insurers or
TPAs as they wished. Oral. Arg. Tr. at 46:15-48:1.
                              77

religious order” from an annual return filing requirement).
Second, they contend that the regulations entail excessive
entanglement between the government and religious
institutions. Specifically, to the extent that the regulations
seek to be more nuanced and context specific, looking at
specific attributes of each organization in an effort accurately
to distinguish among them, Plaintiffs contend the government
impermissibly interferes with internal church governance.

     The regulations draw a long-recognized and permissible
distinction between houses of worship and religious
nonprofits. The Seventh Circuit, in rejecting a similar
challenge to the contraceptive coverage regulations, noted
that “religious employers, defined as in the cited regulation,
have long enjoyed advantages (notably tax advantages) over
other entities, without these advantages being thought to
violate the establishment clause.” Notre Dame, 743 F.3d at
560 (internal citation omitted). The churches gained the
categorical exemption on the assumption that the relatively
small numbers of employees who are employed by a church
will, if their church’s mission opposes contraception, be
ministers or clerics likely to share that view, or at least have
knowingly joined a pervasively sectarian institution that
expects them to. 77 Fed. Reg. at 8,728. The categorical
exemption was not extended to the broader group of religious
nonprofits, however, because religiously affiliated hospitals,
universities and social service agencies employ a wide range
of people of diverse faiths and are thus “more likely to
employ individuals who have no religious objection to the use
of contraceptive services and therefore are more likely to use
contraceptives.” Id. Limiting the exemption, but making the
opt out available, limits the burdens that flow from
organizations “subject[ing] their employees to the religious
views of the employer.” Id.
                                78

     Plaintiffs equate the familiar regulatory distinction
between houses of worship and religiously affiliated
organizations, based on organizational form and purpose,
with constitutionally impermissible distinctions based on
denomination. They quote Larson v. Valente, 456 U.S. 228,
231-32, 246 n.23 (1982) and Colorado Christian University v.
Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008), for the notion
that the Establishment Clause forbids distinguishing between
“types of institutions” as surely as between “sects or
denominations.” Pls.’ Br. 57-58 (internal quotation marks
omitted). Both of the cases Plaintiffs rely on, however, were
concerned with lines drawn based on denomination, rather
than organizational form or purpose.29 In Larson, the
Supreme Court invalidated a state law that imposed special
registration requirements on churches that received a majority
of their donations from non-members because it facially
discriminated against religious denominations that were
newer or chose to rely on public solicitation rather than
financial support from members. 456 U.S. at 246-48. The
distinction invalidated in Colorado Christian authorized
public scholarships for students at Methodist and Roman
Catholic universities while refusing them to students
attending non-denominational evangelical Protestant or
Buddhist universities. See 534 F.3d at 1258. The Colorado
Christian court contrasted that denominational discrimination
with the permissible exclusion “of all devotional theology
majors equally.” Id. at 1256 (citing Locke v. Davey, 540 U.S.
712, 715-16 (2004)). This Court in University of Great Falls
v. NLRB, 278 F.3d 1335, 1343 (D.C. Cir. 2002), similarly

29
  Indeed, the Plaintiffs’ argument would call into question the tax
advantages that have long been available to houses of worship, but
not other types of religious organizations. Those tax advantages
have not been thought to violate the Establishment Clause. See
Notre Dame, 743 F.3d at 560.
                               79

invalidated a regulatory line that effectively asked whether
certain schools were “sufficiently religious” to be exempt
from NLRB jurisdiction, administration of which line had
drawn the government into questioning whether the university
“was legitimately ‘Catholic.’” Id. University of Great Falls
favors a test relying on more objective factors about the
institution’s structure and activities. Id. The regulations at
issue here draw distinctions based on organizational form and
purpose, and not religious belief or denomination, in keeping
with Larson, Colorado Christian, and University of Great
Falls. See also Mich. Catholic Conf., 755 F.3d at 395; Notre
Dame, 743 F.3d at 560.

     Additionally, Plaintiffs assert that the regulations violate
the Establishment Clause because they believe they call on
the government impermissibly to “‘troll[] through a person’s
or institution’s religious beliefs.’” Pls.’ Br. 60 (quoting
Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality
opinion)). The regulations define a “religious employer” as
“an organization that is organized and operates as a nonprofit
entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of
the Internal Revenue Code of 1986, as amended.” 45 C.F.R.
§ 147.131(a); see also 78 Fed. Reg. at 8,461 (stating that the
exemption is restricted primarily to “churches, synagogues,
mosques, and other houses of worship, and religious orders”).
The IRS has developed a non-exhaustive, non-binding list of
fourteen factors to consider when determining whether an
entity is in fact a religious employer. See Am. Guidance
Found., Inc. v. United States, 490 F. Supp. 304, 306 n.2
(D.D.C. 1980); Found. of Human Understanding v. United
States, 88 Fed. Cl. 203, 220 (2009).

     Plaintiffs contend that, in order to determine whether an
entity is in fact a religious employer, the government asks
intrusive questions about its religious beliefs in violation of
                              80

the Establishment Clause. They complain that the IRS factors
“favor some types of religious groups over others” and that
“they do so on the basis of intrusive judgments regarding
beliefs, practices, and organizational structures.” Pls.’ Br. at
61. It is undisputed in this case that the Archdiocese is a
religious employer, and no other Plaintiff contends that it was
improperly denied religious-employer treatment. As a result,
Plaintiffs do not challenge a determination that has been made
using those factors, nor can they argue that the factors were
impermissibly applied to them. Therefore, we agree with the
district court that this challenge is not ripe for review.
RCAW, 2013 WL 6729515 at *43-44.

              E. Internal Church Governance

     Relying on Hosanna-Tabor Evangelical Lutheran
Church & School v. EEOC, 132 S. Ct. 694 (2012), the RCAW
Plaintiffs allege that the regulations violate the Religion
Clauses of the First Amendment by impermissibly interfering
with matters of internal church governance. They claim that
the regulations “artificially split[]” the Catholic Church in
two—into the Archdiocese (an exempt religious employer)
and its related nonprofit organizations—and prevent the
Archdiocese from “ensur[ing] that these organizations offer
health plans consistent with Catholic beliefs.” Pls.’ Br. at 63-
64.    Neither Hosanna-Tabor, nor any other precedent
interpreting either of the Constitution’s Religion Clauses,
supports this novel claim.

     The ACA’s regulations do not address religious
governance at all. The regulations’ separate treatment of
functions that Plaintiffs might prefer to group together does
not interfere with how the Plaintiffs govern themselves
internally. Plaintiffs invoke Hosanna-Tabor, but that case
does not stand for Plaintiffs’ proposition that the First
                               81

Amendment precludes application of a law simply because it
may affect different types of religious institution differently.

     In Hosanna-Tabor, the Supreme Court recognized a
“ministerial exception, grounded in the First Amendment, that
precludes application of [Title VII and other employment
discrimination laws] to claims concerning the employment
relationship between a religious institution and its ministers.”
132 S. Ct. at 705 (internal quotation marks omitted); see id. at
710. The Court expressly limited its holding to “an
employment discrimination suit brought on behalf of a
minister, challenging her church’s decision to fire her.” Id.
The language from Hosanna-Tabor that plaintiffs invoke,
used there in the context of disapproving judicial review of
ministers’ discrimination claims because it would interfere
“with an internal church decision that affects the faith and
mission of the church itself,” id. at 707, does not apply here.
Unlike in that case, nothing about the regulation challenged
here would “depriv[e] the church of control over the selection
of those who [would] personify its beliefs”—the Church’s
own ministers. Id. at 706. The Court’s reasoning in
Hosanna-Tabor does not extend beyond ecclesiastical
employment matters to regulations that may affect a church’s
decision about its health care plan. Accordingly, the church-
governance claim must fail.

                     F. Equal Protection

      The Priests for Life Plaintiffs argue that the regulations
violate equal protection as guaranteed by the Fifth
Amendment, by discriminating on the basis of religion and
impinging on their fundamental rights. This claim is largely
duplicative of Plaintiffs’ Establishment Clause challenge and
fails for similar reasons. The Priests for Life Plaintiffs cite no
case in support of their contention that alleged discrimination
                               82

between types of religious organizations within a
denomination gives rise to an equal protection claim.
Additionally, as the district court observed, the Priests for
Life Plaintiffs’ fundamental rights claim is identical to their
other First Amendment claims. Priests for Life, 7 F. Supp. 3d
at 110. Because we have rejected those claims, we apply
rational basis scrutiny to the regulations. See Locke v. Davey,
540 U.S. 712, 720 n.3 (2004) (applying rational-basis scrutiny
to an Equal Protection Clause claim alleging discrimination
based on religion where the plaintiffs’ Free Exercise Clause
challenge failed). Because, as discussed supra Section IV.B,
the regulations survive strict scrutiny, they necessarily survive
this more limited form of review.

             VI. Administrative Procedure Act

     The RCAW Plaintiffs contend that the government
violated the Administrative Procedure Act by erroneously
interpreting the exemption to apply on an employer-by-
employer basis, rather than a plan-by-plan basis. The
regulations state that the HRSA “may establish an exemption
from [the regulations] 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.” 45 C.F.R. § 147.131(a).
With respect to “multiple employer plans”—plans established
or maintained by an exempt religious employer as well as
non-exempt organizations—the Departments concluded that
“the availability of the exemption or an accommodation [will]
be determined on an employer-by-employer basis.” 78 Fed.
Reg. at 39,886. This means that “each employer [is] required
to independently meet the definition of religious employer or
                              83

eligible organization in order to avail itself of the exemption
or an accommodation.” Id.

     An agency’s interpretation of its own regulation is
entitled to substantial deference. Auer v. Robbins, 519 U.S.
452, 461 (1997). The RCAW Plaintiffs contend that such
deference is not appropriate here, however, for two reasons.
First, they argue that, contrary to the government’s
contention, the regulation unambiguously states that the
exemption applies on a plan-by-plan basis. See Christensen
v. Harris Cnty., 529 U.S. 576, 588 (2000) (“Auer deference is
warranted only when the language of the regulation is
ambiguous.”). The regulation, however, is silent as to
whether the exemption will apply on an employer-by-
employer basis or a plan-by-plan basis. It uses the phrase
“group health plan,” because the contraceptive-coverage
requirement applies to group health plans (as opposed to
employers), not because the regulatory unit for purposes of
the exemption is the plan rather than the employer. Because
the regulation does not speak to that issue, we reject the
RCAW Plaintiffs’ claim that the Departments’ interpretation is
not entitled to deference.

     Second, the RCAW Plaintiffs assert that deference to the
Departments’ interpretation is not warranted because it
conflicts with a prior interpretation put forth by the
government. See Christopher v. SmithKline Beecham Corp.,
132 S. Ct. 2156, 2166 (2012) (“[D]eference is likewise
unwarranted when there is reason to suspect that the agency’s
interpretation ‘does not reflect the agency’s fair and
considered judgment on the matter in question.’ This might
occur when the agency’s interpretation conflicts with a prior
interpretation . . . .” (internal citations omitted)). But the
Departments have not changed their position. When they
issued the Notice of Proposed Rulemaking regarding
                              84

“Coverage of Certain Preventive Services Under the
Affordable Care Act,” the Departments made clear that they
intended the exemption to apply on an employer-by-employer
basis. See 78 Fed. Reg. at 8,467. (“The Departments propose
to make the accommodation or the religious employer
exemption available on an employer-by-employer basis. That
is, each employer would have to independently meet the
definition of eligible organization or religious employer in
order to take advantage of the accommodation or the religious
employer exemption with respect to its employees and their
covered dependents.”). The language on which the RCAW
Plaintiffs rely to demonstrate that the Departments have
changed their position does not support their argument. See
77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012). All they point
to is a hypothetical that specifies that an exempt religious
school is categorically exempt from the contraceptive
coverage requirement, whether it establishes and maintains its
own plan or offers its employees coverage through a plan
established by the exempt religious diocese with which it is
affiliated. See id. Thus, contrary to the RCAW Plaintiffs’
contention, the Departments’ interpretation that the
exemption applies on an employer-by-employer basis does
not conflict with its earlier interpretation of the regulation,
and is entitled to Auer deference.

     Finally, in their supplemental brief, Plaintiffs contend
that the government lacked the “good cause” required to
promulgate the interim final rule without notice and
comment.       See    5 U.S.C. § 553(b)(3)(B)      (authorizing
promulgation of interim final rules without notice and
comment when the agency finds on the record “that notice
and public procedure thereon are impracticable, unnecessary,
or contrary to the public interest.”). Several reasons support
HHS’s decision not to engage in notice and comment here.
First, the agency made a good cause finding in the rule it
                               85

issued. See 79 Fed. Reg. at 51,095-96. Second, the
regulations the interim final rule modifies were recently
enacted pursuant to notice and comment rulemaking, and
presented virtually identical issues; moreover, HHS will
expose its interim rule to notice and comment before its
permanent implementation. See 5 U.S.C. § 553(b)(3)(B)
(good cause exists when “notice and public procedure . . . are
. . . unnecessary”). Third, the modifications made in the
interim final regulations are minor, meant only to “augment
current regulations in light of the Supreme Court’s interim
order in connection with an application for an injunction in
Wheaton College.” 79 Fed. Reg. at 51,092; see also Tenn.
Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir.
1992) (“We have . . . indicated that the less expansive the
interim rule, the less the need for public comment.”). The
government reasonably interpreted the Supreme Court’s order
in Wheaton College as obligating it to take action to further
alleviate any burden on the religious liberty of objecting
religious organizations. See 79 Fed. Reg. at 51,095-96; see
also Am. Fed’n of Gov’t Emp., AFL-CIO v. Block, 655 F.2d
1153, 1155-57 (D.C. Cir. 1981) (validating promulgation of
interim rule without notice and comment because, inter alia,
it would comply with a court order). As the agency
explained, delay in implementation of the rule would interfere
with the prompt availability of contraceptive coverage and
delay the implementation of the alternative opt-out for
religious objectors. See 5 U.S.C. § 553(b)(3)(B) (good cause
exists when “notice and public procedure . . . are . . . contrary
to the public interest”).

                             * * *

    In sum, we reject all of Plaintiffs’ challenges to the
regulations. Accordingly, we affirm the district court’s
opinion in Priests for Life in its entirety. As to the RCAW
                           86

decision, we vacate the district court’s grant of summary
judgment for Thomas Aquinas and its holding as to the
unconstitutionality of the non-interference provision, and
affirm the remainder of the decision.

                                               So ordered.
