                 Cite as: 573 U. S. ____ (2014)           1

                  SOTOMAYOR, J., dissenting
                   Order in Pending Case

SUPREME COURT OF THE UNITED STATES
                         _________________

                         No. 13A1284
                         _________________


     WHEATON COLLEGE v. SYLVIA BURWELL,

      SECRETARY OF HEALTH AND HUMAN

              SERVICES, ET AL. 

            ON APPLICATION FOR INJUNCTION
                         [July 3, 2014]

  The application for an injunction having been submitted
to JUSTICE KAGAN and by her referred to the Court, the
Court orders: If the applicant informs the Secretary of
Health and Human Services in writing that it is a non-
profit organization that holds itself out as religious and
has religious objections to providing coverage for contra-
ceptive services, the respondents are enjoined from enforc-
ing against the applicant the challenged provisions of the
Patient Protection and Affordable Care Act and related
regulations pending final disposition of appellate review.
To meet the condition for injunction pending appeal, the
applicant need not use the form prescribed by the Gov-
ernment, EBSA Form 700, and need not send copies to
health insurance issuers or third-party administrators.
  The Circuit Courts have divided on whether to enjoin
the requirement that religious nonprofit organizations use
EBSA Form 700. Such division is a traditional ground for
certiorari. See S. Ct. Rule 10(a).
  Nothing in this interim order affects the ability of the
applicant’s employees and students to obtain, without cost,
the full range of FDA approved contraceptives. The Gov-
ernment contends that the applicant’s health insurance
issuer and third-party administrator are required by
federal law to provide full contraceptive coverage regard-
less whether the applicant completes EBSA Form 700.
2             WHEATON COLLEGE v. BURWELL

                   SOTOMAYOR, J., dissenting

The applicant contends, by contrast, that the obligations of
its health insurance issuer and third-party administrator
are dependent on their receipt of notice that the applicant
objects to the contraceptive coverage requirement. But
the applicant has already notified the Government—
without using EBSA Form 700—that it meets the re-
quirements for exemption from the contraceptive coverage
requirement on religious grounds. Nothing in this order
precludes the Government from relying on this notice, to
the extent it considers it necessary, to facilitate the provi-
sion of full contraceptive coverage under the Act.
   In light of the foregoing, this order should not be con-
strued as an expression of the Court’s views on the merits.
   JUSTICE SCALIA concurs in the result.

   JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
and JUSTICE KAGAN join, dissenting.
   The Patient Protection and Affordable Care Act, 124
Stat. 119, through its implementing regulations, requires
employer group health insurance plans to cover contracep-
tive services without cost sharing. Recognizing that peo-
ple of religious faith may sincerely oppose the provision of
contraceptives, the Government has created certain excep-
tions to this requirement. Churches are categorically
exempt. Any religious nonprofit is also exempt, as long as
it signs a form certifying that it is a religious nonprofit
that objects to the provision of contraceptive services, and
provides a copy of that form to its insurance issuer or
third-party administrator. The form is simple. The front
asks the applicant to attest to the foregoing representa-
tions; the back notifies third-party administrators of their
regulatory obligations.
   The matter before us is an application for an emergency
injunction filed by Wheaton College, a nonprofit liberal
arts college in Illinois. There is no dispute that Wheaton
is entitled to the religious-nonprofit exemption from the
                  Cite as: 573 U. S. ____ (2014)            3

                   SOTOMAYOR, J., dissenting

contraceptive coverage requirement. Wheaton nonethe-
less asserts that the exemption itself impermissibly bur-
dens Wheaton’s free exercise of its religion in violation of
the Religious Freedom Restoration Act of 1993 (RFRA),
107 Stat. 1488, 42 U. S. C. §2000bb et seq., on the theory
that its filing of a self-certification form will make it com-
plicit in the provision of contraceptives by triggering the
obligation for someone else to provide the services to
which it objects. Wheaton has not stated a viable claim
under RFRA. Its claim ignores that the provision of con-
traceptive coverage is triggered not by its completion of
the self-certification form, but by federal law.
  Even assuming that the accommodation somehow bur-
dens Wheaton’s religious exercise, the accommodation is
permissible under RFRA because it is the least restrictive
means of furthering the Government’s compelling inter-
ests in public health and women’s well-being. Indeed, just
earlier this week in Burwell v. Hobby Lobby Stores, Inc.,
ante, at ___, the Court described the accommodation as “a
system that seeks to respect the religious liberty of reli-
gious nonprofit corporations while ensuring that the em-
ployees of these entities have precisely the same access to
all [Food and Drug Administration (FDA)]-approved con-
traceptives as employees of companies whose owners have
no religious objections to providing such coverage.” Ante,
at 3. And the Court concluded that the accommodation
“constitutes an alternative that achieves all of the Gov-
ernment’s aims while providing greater respect for reli-
gious liberty.” Ibid. Those who are bound by our decisions
usually believe they can take us at our word. Not so to-
day. After expressly relying on the availability of the
religious-nonprofit accommodation to hold that the contra-
ceptive coverage requirement violates RFRA as applied to
closely held for-profit corporations, the Court now, as the
dissent in Hobby Lobby feared it might, see ante, at 29–30
(GINSBURG, J., dissenting), retreats from that position.
4             WHEATON COLLEGE v. BURWELL

                   SOTOMAYOR, J., dissenting

That action evinces disregard for even the newest of this
Court’s precedents and undermines confidence in this
institution.
   Even if one accepts Wheaton’s view that the self-
certification procedure violates RFRA, that would not
justify the Court’s action today.       The Court grants
Wheaton a form of relief as rare as it is extreme: an inter-
locutory injunction under the All Writs Act, 28 U. S. C.
§1651, blocking the operation of a duly enacted law and
regulations, in a case in which the courts below have not
yet adjudicated the merits of the applicant’s claims and in
which those courts have declined requests for similar
injunctive relief. Injunctions of this nature are proper
only where “the legal rights at issue are indisputably
clear.” Turner Broadcasting System, Inc. v. FCC, 507
U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers)
(internal quotation marks omitted). Yet the Court today
orders this extraordinary relief even though no one could
credibly claim Wheaton’s right to relief is indisputably
clear.
   The sincerity of Wheaton’s deeply held religious beliefs
is beyond refute. But as a legal matter, Wheaton’s appli-
cation comes nowhere near the high bar necessary to
warrant an emergency injunction from this Court. For
that reason, I respectfully dissent.
                             I

                             A

   The Affordable Care Act requires certain employer
group health insurance plans to cover a number of preven-
tative-health services without cost sharing. These services
include “[a]ll Food and Drug Administration . . . approved
contraceptive methods, sterilization procedures, and pa-
tient education and counseling for all women with repro-
ductive capacity, as prescribed by a provider.” 77 Fed.
Reg. 8725 (2012) (brackets and internal quotation marks
                    Cite as: 573 U. S. ____ (2014)                   5

                      SOTOMAYOR, J., dissenting

omitted). As a practical matter, the provision ensures that
women have access to contraception at no cost beyond
their insurance premiums. Employers that do not comply
with the mandate are subject to civil penalties.
   Recognizing that some religions disapprove of contra-
ceptives, the Government has sought to implement the
mandate in a manner consistent with the freedom of
conscience. It has categorically exempted any group
health plan of a “religious employer,” as defined by refer-
ence to the Tax Code provision governing churches. See
45 CFR §147.131(a); http://hrsa.gov/womensguidelines (as
visited July 2, 2014, and available in Clerk of Court’s case
file). And it has extended a further accommodation to
religious nonprofits that do not satisfy the categorical
exemption. All agree that Wheaton qualifies as a religious
nonprofit.
   To invoke the accommodation and avoid civil penalties,
a religious nonprofit need only file a self-certification form
stating (1) that it “opposes providing coverage for some or
all of any contraceptive services required to be covered
under [the regulation] on account of religious objections,”
(2) that it “is organized and operates as a nonprofit en-
tity,” and (3) that it “holds itself out as a religious organiza-
tion.” §147.131(b). The form is reprinted in an appendix
to this opinion. Any organization that completes the form
and provides a copy to its insurance issuer or third-party
administrator1 need not “contract, arrange, pay, or refer
for contraceptive coverage” to which it objects. 78 Fed.
Reg. 39874 (2013); see 29 CFR §2590.715–2713A(b)(1) and
(c)(1). Instead, the insurance issuer or third-party admin-
——————
  1 Typically, an employer contracts to pay a health insurer to provide

coverage; the insurer both covers the cost of medical claims and man-
ages the process for administering those claims. Employers who
maintain self-insured plans cover the cost of claims for medical treat-
ment directly. Such employers often contract with third-party adminis-
trators to administer the claims process.
6               WHEATON COLLEGE v. BURWELL

                      SOTOMAYOR, J., dissenting

istrator must provide contraceptive coverage for the organ-
ization’s employees and may not charge the organization
any premium or other fee related to those services. The
back of the self-certification form reminds third-party
administrators that receipt of the form constitutes notice
that they must comply with their regulatory obligations.
See Appendix, infra.
                              B
   Rather than availing itself of this simple accommoda-
tion, Wheaton filed suit, asserting that completing the
form and submitting it to its third-party administrator
would make it complicit in the provision of contraceptive
coverage, in violation of its religious beliefs. On that
basis, it sought a preliminary injunction, claiming that the
law and regulations at issue violate RFRA, which provides
that the Government may not “substantially burden a
person’s exercise of religion” unless the application of that
burden “is the least restrictive means of furthering [a]
compelling governmental interest.” 42 U. S. C. §§2000bb–
1(a) and (b).2
   The District Court denied a preliminary injunction on
the ground that the regulations exempting Wheaton from
the contraceptive coverage requirement do not substan-
tially burden its exercise of religion. App. to Emergency
Application for Injunction Pending Appellate Review 1–20.
Under Circuit precedent, the court reasoned, Wheaton’s
act of “filling out the form and sending it to the [third-
party administrator]” in no way “triggers” coverage of
contraception costs. Id., at 9 (internal quotation marks
omitted). The Seventh Circuit in turn denied Wheaton’s
motion for an injunction pending appeal. See Order in No.
14–2396 (CA7, June 30, 2014). In doing so, it relied on
——————
  2 Wheaton also raised claims under the First Amendment and the

Administrative Procedure Act. Because it does not press those claims
in this Court as a basis for injunctive relief, I do not discuss them.
                  Cite as: 573 U. S. ____ (2014)             7

                    SOTOMAYOR, J., dissenting

this Court’s pronouncement in Hobby Lobby “that the
accommodation provision (applicable in this case) ‘consti-
tutes an alternative that achieves all of the Government’s
aims while providing greater respect for religious liberty.’ ”
Ibid.
   Wheaton applied to JUSTICE KAGAN, in her capacity as
Circuit Justice for the Seventh Circuit, for an emergency
injunction against enforcement of the law and regulations
pending resolution of its legal challenge. She referred the
matter to the Conference, which entered a temporary
injunction and called for a response from the Government.
See ante, at ___. After receipt of the Government’s re-
sponse, the Court today enters an order granting injunc-
tive relief.
                               II

                                A

   I disagree strongly with what the Court has done.
Wheaton asks us to enjoin the enforcement of a duly en-
acted law and duly promulgated regulations before the
courts below have passed on the merits of its legal chal-
lenge. Relief of this nature is extraordinary and reserved
for the rarest of cases. With good reason. The only source
of authority for this Court to issue an injunction pending
review in the lower courts is the All Writs Act, which
provides that this Court “may issue all writs necessary or
appropriate in aid of [its] . . . jurisdictio[n] and agreeable
to the usages and principles of law.” 28 U. S. C. §1651(a).
This grant of equitable power is a failsafe, “to be used
‘sparingly and only in the most critical and exigent cir-
cumstances.’ ”      Ohio Citizens for Responsible Energy,
Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (SCALIA, J., in
chambers).
   Under our precedents, “[a]n injunction is appropriate
only if (1) it is necessary or appropriate in aid of our juris-
diction, and (2) the legal rights at issue are indisputably
8                WHEATON COLLEGE v. BURWELL

                       SOTOMAYOR, J., dissenting

clear.” Turner Broadcasting System, 507 U. S., at 1303
(brackets, internal quotation marks, and citations omit-
ted).3 To understand how high a bar that second prong is,
consider that this Court has previously pointed to differ-
ences of opinion among lower courts as proof positive that
the standard has not been met. See Lux v. Rodrigues, 561
U. S. 1306, 1308 (2010) (ROBERTS, C. J., in chambers)
(observing that “the courts of appeals appear to be reach-
ing divergent results” respecting the applicant’s claim, and
that, “[a]ccordingly, . . . it cannot be said that his right to
relief is ‘indisputably clear’ ”). Neutral application of this
principle would compel the denial of Wheaton’s application
without any need to examine the merits, for two Courts of
Appeals that have addressed similar claims have rejected
them. See Notre Dame v. Sebelius, 743 F. 3d 547 (CA7
2014); Michigan Catholic Conference and Catholic Family
Services v. Burwell, ___ F. 3d ___, 2014 WL 2596753 (CA6,
June 11, 2014).4 Remarkably, the Court uses division
——————
    3 Indeed,some of my colleagues who act to grant relief in this case
have themselves emphasized the exceedingly high burden that an
applicant must surmount to obtain an interlocutory injunction under
the All Writs Act. See Lux v. Rodrigues, 561 U. S. 1306, 1307 (2010)
(ROBERTS, C. J., in chambers) (an applicant must demonstrate that “the
legal rights at issue are indisputably clear” in order to obtain such
injunctive relief) (internal quotation marks omitted); Respect Maine
PAC v. McKee, 562 U. S. ___, ___ (2010) (unlike a stay of a lower court’s
order, a request for an injunction against the enforcement of a law
“ ‘does not simply suspend judicial alteration of the status quo but
grants judicial intervention that has been withheld by lower courts’ ”)
(quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S.
1312, 1313 (1986) (SCALIA, J., in chambers)).
   4 To be sure, two other Courts of Appeals have recently granted tem-

porary injunctions similar to the one Wheaton seeks here. See Order in
Eternal Word Television Network, Inc. v. Secretary, U. S. Dept. of
Health and Human Services, No. 14–12696–CC (CA11, June 30, 2014)
(granting injunction pending appeal); Order in Diocese of Cheyenne v.
Burwell, No. 14–8040 (CA10, June 30, 2014) (same). Although denying
the injunction in this case would produce a different outcome, the
Government could of course move to vacate those injunctions were we
                    Cite as: 573 U. S. ____ (2014)                 9

                     SOTOMAYOR, J., dissenting

among the Circuits as a justification for the issuance of its
order, noting that “division is a traditional ground for
certiorari.” Supra, at 1. But a petition for writ of certio-
rari is not before us. Rather, given the posture of this appli-
cation—for an emergency injunction under the All Writs
Act—division of authority is reason not to grant relief.
                               B
   Wheaton’s RFRA claim plainly does not satisfy our
demanding standard for the extraordinary relief it seeks.
   For one thing, the merits of this case are not before this
Court for full review; adjudication of the merits is still
pending in the District Court. So nothing necessitates
intervention in order to “ ‘aid . . . our jurisdiction,’ ” Turner
Broadcasting System, 507 U. S., at 1301 (alterations omit-
ted), over any eventual certiorari petition from a decision
rendered below. If the Government is allowed to enforce
the law, either Wheaton will file the self-certification form,
or it will not. Either way, there will remain a live contro-
versy that this Court could adjudicate after the case is
decided on the merits below. And either way, if Wheaton
is correct in its challenge to the law, its rights will be
vindicated and it will obtain the relief it seeks.
   As to the merits, Wheaton’s claim is likely to fail under
any standard, let alone the standard that its entitlement
to relief be “ ‘indisputably clear,’ ” ibid. Wheaton asserts
that filing the self-certification form might ultimately
result in the provision of contraceptive services to its
employees, thereby burdening its religious exercise. And
it points out that if it does not file the form, it will face
civil penalties. But it is difficult to understand how these
arguments make out a viable RFRA claim.
   RFRA requires Wheaton to show that the accommoda-

—————— 

to deny this one. Moreover, while uniformity certainly is important,

uniform error is not. 

10            WHEATON COLLEGE v. BURWELL

                   SOTOMAYOR, J., dissenting

tion process “substantially burden[s] [its] exercise of reli-
gion.” §2000bb–1(a). “Congress no doubt meant the modi-
fier ‘substantially’ to carry weight.” Hobby Lobby, 573
U. S., at ___ (GINSBURG, J., dissenting) (slip op., at 20).
Wheaton, for religious reasons, categorically opposes the
provision of contraceptive services. The Government has
given it a simple means to opt out of the contraceptive
coverage mandate—and thus avoid any civil penalties for
failing to provide contraceptive services—and a simple
means to tell its third-party administrator of its claimed
exemption.
   Yet Wheaton maintains that taking these steps to avail
itself of the accommodation would substantially burden its
religious exercise. Wheaton is “religiously opposed to
emergency contraceptives because they may act by killing
a human embryo.” Emergency Application for Injunction
Pending Appellate Review 11. And it “believes that au-
thorizing its [third-party administrator] to provide these
drugs in [its] place makes it complicit in grave moral evil.”
Ibid. Wheaton is mistaken—not as a matter of religious
faith, in which it is undoubtedly sincere, but as a matter of
law: Not every sincerely felt “burden” is a “substantial”
one, and it is for courts, not litigants, to identify which
are. See Hobby Lobby, 573 U. S., at ___ (GINSBURG, J.,
dissenting) (slip op., at 21–22). Any provision of contra-
ceptive coverage by Wheaton’s third-party administrator
would not result from any action by Wheaton; rather, in
every meaningful sense, it would result from the relevant
law and regulations. The law and regulations require, in
essence, that some entity provide contraceptive coverage.
A religious nonprofit’s choice not to be that entity may
leave someone else obligated to provide coverage instead—
but the obligation is created by the contraceptive coverage
mandate imposed by law, not by the religious nonprofit’s
                     Cite as: 573 U. S. ____ (2014)                  11

                      SOTOMAYOR, J., dissenting

choice to opt out of it.5
   Let me be absolutely clear: I do not doubt that Wheaton
genuinely believes that signing the self-certification form
is contrary to its religious beliefs. But thinking one’s
religious beliefs are substantially burdened—no matter
how sincere or genuine that belief may be—does not make
it so.
   An analogy used by the Seventh Circuit may help to
explain why Wheaton’s complicity theory cannot be legally
sound:
     “Suppose it is wartime, there is a draft, and a Quaker
     is called up. Many Quakers are pacifists, and their
     pacifism is a tenet of their religion. Suppose the
     Quaker who’s been called up tells the selective service
     system that he’s a conscientious objector. The selec-
     tive service officer to whom he makes this pitch ac-
     cepts the sincerity of his refusal to bear arms and ex-
     cuses him. But as the Quaker leaves the selective
     service office, he’s told: ‘you know this means we’ll
     have to draft someone in place of you’—and the Quaker
     replies indignantly that if the government does
     that, it will be violating his religious beliefs. Because
     his religion teaches that no one should bear arms,
     drafting another person in his place would make him
     responsible for the military activities of his replace-
     ment, and by doing so would substantially burden his
     own sincere religious beliefs. Would this mean that
     by exempting him the government had forced him to
——————
  5 Wheaton  notes that the back of the self-certification form provides
third-party administrators with notice of their regulatory obligations.
See Emergency Application for Injunction Pending Appellate Review 8;
see also Appendix, infra. That notice is merely an instruction to third-
party administrators; it is not a part of any of the representations
required on the front of the form. No statement to which Wheaton
must assent in any way reflects agreement with or endorsement of the
notice.
12            WHEATON COLLEGE v. BURWELL

                   SOTOMAYOR, J., dissenting

     ‘trigger’ the drafting of a replacement who was not a
     conscientious objector, and that the Religious Free-
     dom Restoration Act would require a draft exemption
     for both the Quaker and his non‐Quaker replace-
     ment?” Notre Dame, 743 F. 3d, at 556.
   Here, similarly, the filing of the self-certification form
merely indicates to the third-party administrator that a
religious nonprofit has chosen to invoke the religious
accommodation. If a religious nonprofit chooses not to pay
for contraceptive services, it is true that someone else may
have a legal obligation to pay for them, just as someone
may have to go to war in place of the conscientious objec-
tor. But the obligation to provide contraceptive services,
like the obligation to serve in the Armed Forces, arises not
from the filing of the form but from the underlying law
and regulations.
   It may be that what troubles Wheaton is that it must
participate in any process the end result of which might be
the provision of contraceptives to its employees. But that
is far from a substantial burden on its free exercise of
religion.
   Even if one were to conclude that Wheaton meets the
substantial burden requirement, the Government has
shown that application of the burden is “the least restric-
tive means” to further a “compelling governmental inter-
est,” §2000bb–1(b)(2). The contraceptive coverage re-
quirement plainly furthers compelling interests in public
health and women’s well-being. See Hobby Lobby, ante, at
2 (KENNEDY, J. concurring). And it is the “least restrictive
means” of furthering those interests. Indeed, as justifica-
tion for its decision in Hobby Lobby—issued just this
week—the very Members of the Court that now vote to
grant injunctive relief concluded that the accommodation
“constitutes an alternative that achieves all of the Gov-
ernment’s aims while providing greater respect for reli-
                 Cite as: 573 U. S. ____ (2014)           13

                   SOTOMAYOR, J., dissenting

gious liberty.” Ante, at 3 (majority opinion); see also ante,
at 4 (“The effect of the [Dept. of Health and Human Ser-
vices (HHS)]-created accommodation on the women em-
ployed by Hobby Lobby and the other companies involved
in these cases would be precisely zero. Under that ac-
commodation, these women would still be entitled to all
FDA-approved contraceptives without cost sharing”); ante,
at 44 (“At a minimum . . . [the accommodation] does not
impinge on the plaintiffs’ religious belief that providing
insurance coverage for the contraceptives at issue here
violates their religion, and it serves HHS’s stated interests
equally well”); see also ante, at 4 (KENNEDY, J., concur-
ring) (“[I]t is the Court’s understanding that an accommo-
dation may be made to the employers without imposition
of a whole new program or burden on the Government. As
the Court makes clear, this is not a case where it can be
established that it is difficult to accommodate the govern-
ment’s interest, and in fact the mechanism for doing so is
already in place”). Today’s grant of injunctive relief sim-
ply does not square with the Court’s reasoning in Hobby
Lobby.
   It should by now be clear just how far the Court has
strayed in granting Wheaton an interlocutory injunction
against the enforcement of the law and regulations before
the courts below have adjudicated Wheaton’s RFRA claim.
To warrant an injunction under the All Writs Act, the
Court must have more than a bare desire to suspend the
existing state of affairs; Wheaton’s entitlement to relief
must be indisputably clear. While Wheaton’s religious
conviction is undoubtedly entitled to respect, it does not
come close to affording a basis for relief under the law.
                          C
  The Court’s approach imposes an unwarranted and
unprecedented burden on the Government’s ability to
administer an important regulatory scheme. The Execu-
14            WHEATON COLLEGE v. BURWELL

                   SOTOMAYOR, J., dissenting

tive is tasked with enforcing Congress’ mandate that
preventative care be available to citizens at no cost beyond
that of insurance. In providing the accommodation for
which Wheaton is eligible, the Government has done a
salutary thing: exempt religious organizations from a
requirement that might otherwise burden them. Wheaton
objects, however, to the minimally burdensome paperwork
necessary for the Government to administer this ac-
commodation. If the Government cannot require or-
ganizations to attest to their views by way of a simple
self-certification form and notify their third-party admin-
istrators of their claimed exemption, how can it ever iden-
tify the organizations eligible for the accommodation and
perform the administrative tasks necessary to make the
accommodation work? The self-certification form is the
least intrusive way for the Government to administer the
accommodation. All that a religious organization must do
is attest to the views that it holds and notify its third-
party administrator that it is exempt. The Government
rightly accepts that attestation at face value; it does not
question whether an organization’s views are sincere. It is
not at all clear to me how the Government could adminis-
ter the religious nonprofit accommodation if Wheaton
were to prevail.
   The Court has different ideas, however. Stepping into
the shoes of HHS, the Court sets out to craft a new admin-
istrative regime. Its order grants injunctive relief so long
as Wheaton “informs the Secretary of Health and Human
Services in writing that it is a non-profit organization that
holds itself out as religious and has religious objections to
providing coverage for contraceptive services.” Supra, at
1. And it goes further—“[t]o meet the condition for injunc-
tion pending appeal,” the Court continues, Wheaton “need
not use the [self-certification] form prescribed by the
Government . . . and need not send copies to health insur-
ance issuers or third-party administrators.” Ibid. This
                      Cite as: 573 U. S. ____ (2014)                       15

                        SOTOMAYOR, J., dissenting

Court has no business rewriting administrative regula-
tions. Yet, without pause, the Court essentially does just
that.6
   It is unclear why the Court goes to the lengths it does to
rewrite HHS’s regulations. Presumably the Court intends
to leave to the agency the task of forwarding whatever
notification it receives to the respective insurer or third-
party administrator. But the Court does not even require
the religious nonprofit to identify its third-party adminis-
trator, and it neglects to explain how HHS is to identify
that entity. Of course, HHS is aware of Wheaton’s third-
party administrator in this case. But what about other
cases? Does the Court intend for HHS to rely on the filing
of lawsuits by every entity claiming an exemption, such
that the identity of the third-party administrator will
emerge in the pleadings or in discovery? Is HHS to under-
take the daunting—if not impossible—task of creating a
database that tracks every employer’s insurer or third-

——————
   6 This case is crucially unlike Little Sisters of the Poor v. Sebelius, 571

U. S. ___ (2014). There, the Court issued a comparable order “based on
all the circumstances of the case”—in particular, the fact that the
applicants’ third-party administrator was a “church plan” that had no
legal obligation or intention to provide contraceptive coverage. See
Little Sisters of the Poor v. Sebelius, 2013 WL 6839900, *10–*11, *13 (D
Colo., Dec. 27, 2013). As a consequence, whatever the merits of that
unusual order, it did not affect any individual’s access to contraceptive
coverage. Not so here. Wheaton’s third-party administrator bears the
legal obligation to provide contraceptive coverage only upon receipt of a
valid self-certification. See 26 CFR §54.9815–2713A(b)(2) (2013); 29
CFR §2510.3–16(b) (2013). Today’s injunction thus risks depriving
hundreds of Wheaton’s employees and students of their legal entitle-
ment to contraceptive coverage. In addition, because Wheaton is
materially indistinguishable from other nonprofits that object to the
Government’s accommodation, the issuance of an injunction in this case
will presumably entitle hundreds or thousands of other objectors to the
same remedy. The Court has no reason to think that the administra-
tive scheme it foists on the Government today is workable or effective
on a national scale.
16            WHEATON COLLEGE v. BURWELL

                   SOTOMAYOR, J., dissenting

party administrator nationwide? And, putting that aside,
why wouldn’t Wheaton’s claim be exactly the same under
the Court’s newly-fashioned system? Either way, the end
result will be that a third-party administrator will provide
contraceptive coverage. Surely the Court and Wheaton
are not just objecting to the use of one stamp instead of
two in order to avail itself of the accommodation.
   The Court’s actions in this case create unnecessary costs
and layers of bureaucracy, and they ignore a simple truth:
The Government must be allowed to handle the basic
tasks of public administration in a manner that comports
with common sense. It is not the business of this Court to
ensnare itself in the Government’s ministerial handling of
its affairs in the manner it does here.
                         *    *     *
   I have deep respect for religious faith, for the important
and selfless work performed by religious organizations,
and for the values of pluralism protected by RFRA and the
Free Exercise Clause. But the Court’s grant of an injunc-
tion in this case allows Wheaton’s beliefs about the effects
of its actions to trump the democratic interest in allowing
the Government to enforce the law. In granting an injunc-
tion concerning this religious nonprofit accommodation,
the availability of which served as the premise for the
Court’s decision in Hobby Lobby, the Court cannot possibly
be applying our longstanding requirement that a party’s
entitlement to relief be indisputably clear.
   Our jurisprudence has over the years drawn a careful
boundary between majoritarian democracy and the right
of every American to practice his or her religion freely.
We should not use the extraordinary vehicle of an injunc-
tion under the All Writs Act to work so fundamental a
shift in that boundary. Because Wheaton cannot justify
the relief it seeks, I would deny its application for an
injunction, and I respectfully dissent from the Court’s
refusal to do so.
                     Cite as: 573 U. S. ____ (2014)                  17

           Appendix to opinion of SJ., dissenting dissenting
                      SOTOMAYOR, OTOMAYOR, J.,



                            APPENDIX7




——————
  7 Source: United States Dept. of Labor, online at http://www.dol.gov/

ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf (as
visited July 2, 2014, and available in Clerk of Court’s case file).
18        WHEATON COLLEGE v. BURWELL

     Appendix to opinion of SJ., dissenting dissenting
                SOTOMAYOR, OTOMAYOR, J.,
