Michigan Catholic Conference & Catholic Family Services v. Burwell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0121p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MICHIGAN CATHOLIC CONFERENCE and CATHOLIC ┐
FAMILY SERVICES D/B/A CATHOLIC CHARITIES │
DIOCESE OF KALAMAZOO (13-2723); THE CATHOLIC │
DIOCESE OF NASHVILLE, CATHOLIC CHARITIES OF │ Nos. 13-2723/6640
TENNESSEE, INC., CAMP MARYMOUNT, INC., MARY, │
QUEEN OF ANGELS, INC., ST. MARY VILLA, INC., >
│
DOMINICAN SISTERS OF ST. CECILIA │
CONGREGATION, and AQUINAS COLLEGE (13-6640), │
Plaintiffs-Appellants, │
│
│
v. │
│
SYLVIA MATTHEWS BURWELL, Secretary of the │
United States Department of Health and Human │
Services; THOMAS E. PEREZ, Secretary of the United │
States Department of Labor; JACOB J. LEW, │
Secretary of the United States Department of │
Treasury; UNITED STATES DEPARTMENT OF HEALTH │
AND HUMAN SERVICES; UNITED STATES │
│
DEPARTMENT OF LABOR; and UNITED STATES
│
DEPARTMENT OF THE TREASURY,
│
Defendants-Appellees. │
┘
Appeal from the United States District Court for the
Western District of Michigan at Grand Rapids;
No. 1:13-cv-01247—Gordon J. Quist, District Judge.
and
Appeal from the United States District Court for the
Middle District of Tennessee at Nashville;
No. 3:13-cv-01303—Todd J. Campbell, District Judge.
Argued: May 8, 2014
Decided and Filed: June 11, 2014
1
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 2
Before: MOORE and ROGERS, Circuit Judges; NIXON, District Judge.*
_________________
COUNSEL
ARGUED: Matthew A. Kairis, JONES DAY, Columbus, Ohio, for Appellants. Adam C. Jed,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON
BRIEF: Matthew A. Kairis, Melissa Dunlap Palmisciano, Neil Vakharia, JONES DAY,
Columbus, Ohio, for Appellants. Adam C. Jed, Mark B. Stern, Alisa B. Klein, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Charles E.
Davidow, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington, D.C.,
Daniel Mach, Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Washington, D.C., Ayesha N. Khan, AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE, Washington, D.C., B. Eric Restuccia, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Amici Curiae.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. The plaintiffs-appellants in this consolidated
appeal are non-profit entities affiliated with the Catholic Church who have religious objections to
certain preventive care standards under the Patient Protection and Affordable Care Act.
Specifically, the appellants object to the requirement that their employer-based health insurance
plans cover all Food and Drug Administration-approved contraception, sterilization methods, and
counseling. All of the appellants are eligible for either an exemption from the requirement or an
accommodation to the requirement, through which the entities will not pay for the contraceptive
products and services and the coverage will be independently administered by an insurance
issuer or third-party administrator. Nonetheless, in their complaints filed in the District Courts
for the Middle District of Tennessee and Western District of Michigan, the appellants alleged
that the contraceptive-coverage requirement violated the Religious Freedom Restoration Act; the
Free Speech, Free Exercise, and Establishment Clauses of the First Amendment; and the
Administrative Procedure Act. Both district courts denied the appellants’ motions for a
*
The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by
designation.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 3
preliminary injunction. We AFFIRM the denials of preliminary injunctions to all appellants on
all claims.
I. BACKGROUND
A. Factual Background
The appellants allege that they are Catholic entities that provide “spiritual, educational,
social, and financial services to members of their communities, Catholic and non-Catholic alike.”
MCC R. 1 (MCC Compl. at ¶ 1) (Page ID #2); CDN R. 1 (CDN Compl. at ¶ 2) (Page ID #2).1
All appellants currently provide health plans to their employees. Michigan Catholic
Conference (“MCC”) offers a self-insured group health plan that is “administered by separate
third party administrators, 2 Blue Cross Blue Shield of Michigan and Express Scripts.” MCC R.
1 (Compl. at ¶ 41) (Page ID #13). Catholic Charities of Kalamazoo is a “Covered Unit[]” whose
employees may participate in the plan that MCC offers its employees. MCC R. 1 (Compl. at
¶¶ 41, 50–51) (Page ID #13, 15). The remaining appellants—the Catholic Diocese of Nashville
(“CDN”);3 Catholic Charities of Tennessee, Inc. (“Catholic Charities of Tennessee”); Camp
Marymount, Inc. (“Camp Marymount”); Mary, Queen of Angels, Inc. (“MQA”); St. Mary Villa,
Inc. (“St. Mary Villa”); Aquinas College; and Dominican Sisters of St. Cecilia Congregation
(“St. Cecilia Congregation”)—offer fully-insured group health plans.4 CDN R. 1 (Compl. at
¶¶ 43, 61, 71, 79, 80, 107, 129) (Page ID #13, 17, 19, 20, 25, 30).
1
MCC R. refers to documents in Michigan Catholic Conference et al. v. Burwell et al., No. 13-2723, and
CDN R. refers to documents in Catholic Diocese of Nashville et al. v. Burwell et al., No. 13-6640.
2
“A self-insured plan is one in which benefits are paid from contributions supplied by the employer without
the assistance of outside insurance.” 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013). “An
employer is said to have a ‘self-insured’ plan if [the employer] bears the financial risk of paying claims.”
Government Br. at 7 n.1. Many companies that offer self-insured plans hire an insurance company or other outside
entity, referred to as a third-party administrator, “to administer their plans, performing functions such as developing
networks of providers, negotiating payment rates, and processing claims.” Id.
3
CDN offers its employees a choice including a preferred provider option (“PPO plan”) and a high-
deductible option. CDN R. 1 (Compl. at ¶ 43) (Page ID #13). The PPO plan meets the definition of a
“grandfathered plan” under the ACA; thus, at this time, that plan is exempt from the contraceptive-coverage
requirement. CDN R. 1 (Compl. at ¶ 46) (Page ID #13).
4
“An insured plan, also known as a fully insured plan, is one in which insurance is purchased from a
regulated insurance company.” 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013).
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 4
MCC, CDN, and St. Cecilia Congregation allege that they are eligible for the total exemption
from the contraceptive-coverage requirement for “religious employers,” meaning that their
health plans need not provide contraceptive coverage. MCC R. 1 (Compl. at ¶ 9) (Page ID #4);
CDN R. 1 (Compl. at ¶ 14) (Page ID #7). The remaining appellants allege that they are eligible
for the accommodation for certain religiously affiliated non-profits. MCC R. 1 (Compl. at ¶ 11)
(Page ID #5); CDN R. 1 (Compl. at ¶ 10) (Page ID #5).
Regulatory Background
The enactment of the Patient Protection and Affordable Care Act (“ACA”) in 2010
established new minimum standards requiring employer-based group health plans and health
insurance issuers to cover certain services without cost-sharing through a deductible or other
payment by the plan participant or beneficiary. 42 U.S.C. § 300gg-13. The term “group health
plan” is broadly defined to include both insured group health plans and self-insured group health
plans: “[t]he term ‘group health plan’ means an employee welfare benefit plan . . . to the extent
that the plan provides medical care (as defined in paragraph (2)) and including items and services
paid for as medical care) to employees or their dependents (as defined under the terms of the
plan) directly or through insurance, reimbursement, or otherwise.” 42 U.S.C. § 300gg-91(a)(1).
Congressional hearings emphasized the importance of coverage without cost-sharing for
women’s specific healthcare needs because “women have different health needs than men, and
these needs often generate additional costs.” 155 Cong. Rec. 29049, 29070 (Dec. 2, 2009)
(statement of Sen. Feinstein). “Women of childbearing age spent 68 percent more in out-of-
pocket health care costs than men.” Id. Additionally, the legislative debates recognized that
medical costs disproportionately discourage women from seeking treatment: “[w]omen are more
likely than men to neglect care or treatment because of cost.” 155 Cong. Rec. S11985, S11987
(daily ed. Nov. 30. 2009) (statement of Sen. Mikulski). The enacted law thus required coverage
for, “with respect to women, such additional preventive care and screenings . . . as provided for
in comprehensive guidelines supported by the Health Resources and Services Administration.”
42 U.S.C. § 300gg-13(a)(4); see also Group Health Plans and Health Insurance Issuers Relating
to Coverage of Preventive Services under the Patient Protection and Affordable Care Act,
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77 Fed. Reg. 8725-01, 8725 (Feb. 15, 2012) (to be codified at 29 C.F.R. pt. 2590; 45 C.F.R. pt.
147).
For assistance in developing the guidelines for covered “preventive care and screenings,”
id., the Health Resources and Services Administration (“HRSA”) asked the Institute of Medicine
(“IOM”) to bring together a committee to “conduct a review of effective preventive services to
ensure women’s health and well-being.” IOM, Clinical Preventive Services for Women: Closing
the Gaps (“Closing the Gaps”) (2011), 1.5 “The Institute of Medicine was established in 1970
by the National Academy of Sciences to secure the services of eminent members of appropriate
professions in the examination of policy matters pertaining to the health of the public.” Id. at iv.
The members of the Committee on Preventive Services for Women (“Committee”) included
“specialists in disease prevention, women’s health issues, adolescent health issues, and evidence-
based guidelines.” Id. at 2. The Committee recommended preventive measures that “met the
following criteria:
● The condition to be prevented affects a broad population;
● The condition to be prevented has a large potential impact on health and
well-being; and
● The quality and strength of the evidence is supportive.
Id. at 8. The Committee made eight recommendations6 for preventive services for women,
including coverage for “the full range of Food and Drug Administration-approved contraceptive
methods, sterilization procedures, and patient education and counseling for women with
reproductive capacity.” Id. at 10; see also 77 Fed. Reg. at 8725. This recommendation was
based on the Committee’s concern about the high rate of unintended pregnancy in the United
States; forty-nine percent of pregnancies in 2001 “were unintended—defined as unwanted or
mistimed at the time of conception,” a rate much higher than comparable developed countries.
Closing the Gaps at 102. The rate of unintended pregnancy “is more likely among women who
are aged 18 to 24 years and unmarried, who have a low income, who are not high school
graduates, and who are members of a racial or ethnic minority group.” Id. The Committee
5
The report may be read online for free at: http://www.iom.edu/Reports/2011/Clinical-Preventive-
Services-for-Women-Closing-the-Gaps.aspx.
6
One of the sixteen members of the Committee, Anthony Lo Sasso, dissented from the report.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 6
concluded that contraceptive coverage would greatly decrease the risk of unwanted pregnancies,
adverse pregnancy outcomes, and other negative health consequences, and significantly reduce
women’s medical costs. Id. at 102–07. The regulations promulgated by the agencies
implementing the ACA required group health plans and insurance issuers offering group or
individual health insurance coverage to provide coverage without cost-sharing for preventive
care and screenings provided for in guidelines supported by the HRSA. See 26 C.F.R.
§ 54.9815-2713A (Tax); 29 C.F.R. § 2590.715-2713A (Labor); 45 C.F.R. § 147.131 (Health and
Human Services).7
The regulations provide for a religious-employer exemption from the contraceptive-
coverage requirement and an accommodation for certain non-profits that do not qualify for the
exemption but that object to contraceptive coverage on religious grounds. The government first
developed the religious-employer exemption, under which HRSA is authorized to “establish an
exemption . . . 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). A “religious employer”
is defined 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 26 U.S.C. §§ 6033(a)(3)(A)(i), (iii) (referring to “churches, their
integrated auxiliaries, and conventions or associations of churches” and “the exclusively
religious activities of any religious order.”).
Based on objections that the religious-employer exemption as borrowed from the Tax
Code was drawn too narrowly, the government developed a special accommodation for certain
non-profits. The accommodation was intended to “meet two goals—providing contraceptive
coverage without cost-sharing to individuals who want it and accommodating non-exempted,
non-profit organizations’ religious objections to covering contraceptive services.” 77 Fed. Reg.
7The Department of Treasury, Department of Labor, and Department of Health and Human Services
promulgated identical regulations regarding the framework. See 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2590.715-
2713A; 45 C.F.R. § 147.131. For the sake of simplicity, we cite only the Department of Labor regulations.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 7
at 8727. The final regulations permitted “eligible organization[s]” to obtain the accommodation
if the organization “satisfies all of the following requirements:
(1) The organization opposes providing coverage for some or all of any
contraceptive services required to be covered under § 147.130(a)(1)(iv) on
account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of
this section, and makes such self-certification available for examination
upon request[.]
45 C.F.R. § 147.131(b).
The process by which an organization obtains the exemption and the accommodation will
be discussed as relevant to the appellants’ claims.
B. Procedural History
MCC and Catholic Charities of Kalamazoo (together, “MCC plaintiffs”) filed suit in the
District Court for the Western District of Michigan on November 14, 2013. CDN, Catholic
Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, St. Cecilia Congregation, and
Aquinas College (together, “CDN plaintiffs”) filed suit in the District Court for the Middle
District of Tennessee on November 22, 2013. Both sets of plaintiffs alleged that the
contraceptive-coverage requirement violated the Religious Freedom Restoration Act; the Free
Exercise, Free Speech, and Establishment Clauses of the First Amendment, and the
Administrative Procedure Act. In November 2013, the plaintiffs moved for preliminary
injunctions in their respective district courts. The District Court for the Western District of
Michigan denied a preliminary injunction on all claims because the plaintiffs had not shown a
likelihood of success on the merits of their claims. Michigan Catholic Conference v. Sebelius
No. 1:13-CV-1247, 2013 WL 6838707, at *13 (W.D. Mich. Dec. 27, 2013). The District Court
for the Middle District of Tennessee held that the plaintiffs waived their claims under the
Administrative Procedure Act, and denied a preliminary injunction on all other claims because
the plaintiffs had not shown a likelihood of success on the merits of their claims. Catholic
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 8
Diocese of Nashville v. Sebelius, No. 3:13-01303, 2013 WL 6834375, at *4–10 (M.D. Tenn.
Dec. 26, 2013).
The appellants now appeal the denials of their motions for a preliminary injunction.
II. ANALYSIS
A. Standard of Review
As we recently stated in a unanimous en banc decision, there are:
four factors [the district court] must balance when considering a motion for
preliminary injunction: (1) whether the movant has a strong likelihood of success
on the merits; (2) whether the movant would suffer irreparable injury without the
injunction; (3) whether issuance of the injunction would cause substantial harm to
others; and (4) whether the public interest would be served by issuance of the
injunction. When a party seeks a preliminary injunction on the basis of a
potential constitutional violation, the likelihood of success on the merits often will
be the determinative factor. Whether the movant is likely to succeed on the
merits is a question of law we review de novo. We review for abuse of discretion,
however, the district court’s ultimate determination as to whether the four
preliminary injunction factors weigh in favor of granting or denying preliminary
injunctive relief. This standard is deferential, but the court may reverse the
district court if it improperly applied the governing law, used an erroneous legal
standard, or relied upon clearly erroneous findings of fact.
City of Pontiac Retired Emps. Ass’n v. Schimmel, No. 12-2087, 2014 WL 1758913, at *2 (6th
Cir. May 5, 2014) (en banc) (internal quotation marks and citations omitted). “The party seeking
a preliminary injunction bears a burden of justifying such relief, including showing irreparable
harm and likelihood of success.” McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012).
B. Religious Freedom Restoration Act
The appellants argue that the contraceptive-coverage requirement violates the Religious
Freedom Restoration Act (“RFRA”) because it imposes a substantial burden on their exercise of
religion by forcing them to provide, pay for, and/or facilitate access to insurance coverage for
contraception, and the contraceptive-coverage requirement is not the least restrictive means to
further a compelling government interest. Both district courts concluded that the contraceptive-
coverage requirement does not impose a substantial burden on the exercise of religion because
the plaintiffs were eligible for either the exemption or the accommodation from the requirement.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 9
To analyze properly the appellants’ claim under RFRA, we begin with the genesis of the
law. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court held that if a state law survived
constitutional challenge, it would be “because any incidental burden on the free exercise of
appellant’s religion may be justified by a ‘compelling state interest in the regulation of a subject
within the State’s constitutional power to regulate . . . .” Id. at 403 (quoting NAACP v. Button,
371 U.S. 415, 438 (1963)). The Supreme Court rejected the compelling-interest test in
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872(1990), stating that:
The government’s ability to enforce generally applicable prohibitions of socially
harmful conduct, like its ability to carry out other aspects of public policy, cannot
depend on measuring the effects of a governmental action on a religious
objector’s spiritual development. To make an individual’s obligation to obey
such a law contingent upon the law’s coincidence with his religious beliefs,
except where the State’s interest is compelling—permitting him, by virtue of his
beliefs, to become a law unto himself—contradicts both constitutional tradition
and common sense.
Id. at 884–85 (quotation marks and internal citations omitted). In “direct response” to
Employment Division v. Smith, Congress enacted RFRA. City of Boerne v. Flores, 521 U.S. 507,
512 (1997). RFRA’s stated purposes are:
(1) to restore 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) and to
guarantee its application in all cases where free exercise of religion is
substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is
substantially burdened by government.
42 U.S.C. § 2000bb(b). Under RFRA, the government may not “substantially burden a person’s
exercise of religion even if the burden results from a rule of general applicability” unless the
government demonstrates that application of the burden “(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” 8 42 U.S.C. §§ 2000bb-1(a), (b).
8
As a preliminary matter, we note two questions that have not been raised by the parties in this case and
that, because we conclude that the contraceptive-coverage requirement does not violate RFRA, we need not address.
First, whether the appellants, all of whom are non-profit corporations, are “persons” capable of the “exercise of
religion” within the meaning of RFRA. Second, whether RFRA applies to a later-enacted statute. RFRA contains
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 10
We follow a two-step process for analyzing RFRA claims:
First, the plaintiff must make out a prima facie case by establishing Article III
standing and showing that the law in question would (1) substantially burden (2) a
sincere (3) religious exercise. If the plaintiff makes out a prima facie case, it falls
to the government to demonstrate[ ] that application of the burden to the person
(1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest. The
government carries the burdens of both production and persuasion when it seeks
to justify a substantial burden on a sincere religious practice.
Autocam Corp. v. Sebelius, 730 F.3d 618, 625 (6th Cir. 2013) (internal quotation marks and
citations omitted). “Where the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by
religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to
violate his beliefs, a burden upon religion exists.” Thomas v. Review Bd. of Indiana Emp’t Sec.
Div., 450 U.S. 707, 717–18 (1981). But a government action does not constitute a substantial
burden on the exercise of religion even if “the challenged Government action would interfere
significantly with private persons’ ability to pursue spiritual fulfillment according to their own
religious beliefs” if the governmental action does not coerce the individuals to violate their
religious beliefs or deny them the “rights, benefits, and privileges enjoyed by other citizens.”
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988).
an express-reference requirement providing that “[f]ederal statutory law adopted after November 16, 1993 is subject
to this chapter unless such law explicitly excludes such application by reference to this chapter.” 42 U.S.C.
§ 2000bb-3(b). Essentially, RFRA purports to bind all later Congresses unless they specifically reject the
application of RFRA by the means specified by the earlier Congress that enacted RFRA. The Supreme Court has
questioned the binding effect of express-reference requirements. Marcello v. Bonds, 349 U.S. 302, 310 (1955)
(refusing “to require the Congress to employ magical passwords in order to effectuate an exemption from” a
previously enacted statute). In Dorsey v. United States, the Court treated a savings statute with an express-reference
requirement as:
in effect a less demanding interpretive requirement. That is because statutes enacted by one
Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt
the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier
statute but as modified. And Congress remains free to express any such intention either expressly
or by implication as it chooses.
--U.S.--, 132 S. Ct. 2321, 2331 (2012) (emphasis added) (citations omitted). See also Lockhart v. United States,
546 U.S. 142, 149–50 (2005) (Scalia, J., concurring) (identifying RFRA as a statute with an express-reference
requirement and remarking that “it does no favor to the Members of Congress, and to those who assist in drafting
their legislation, to keep secret the fact that such express-reference provisions are ineffective.”). Thus, Congress
may reject the application of RFRA to a later-enacted statute without explicitly stating that RFRA does not apply.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 11
The exercise of religion that appellants argue is burdened by the contraceptive-coverage
requirement is their “refus[al] to take certain actions in furtherance of a regulatory scheme to
provide their employees with coverage for abortion-inducing products, contraceptives,
sterilization, and related education and counseling.” Appellant Br. at 26–27. The government
does not dispute that the appellants’ desire not to participate in the provision of contraception is a
sincere religious belief.
The government does argue, however, that the contraceptive-coverage requirement does
not impose a substantial burden on the appellants’ exercise of religion. Because the appellants
all concede that they are eligible for either the exemption or the accommodation, they need not
actually participate in the contraceptive-coverage requirement. Government Br. at 18–19. The
appellants respond that the exemption and accommodation do not alleviate the burden of the
contraceptive-coverage requirement because the process to obtain the exemption or
accommodation forces the appellants “to play an integral role in the delivery of objectionable
products and services to their employees.” Appellant Br. at 27–29.
First, we must address the appellants’ argument that the court should defer to their
conclusion that the exemption and accommodation arrangement forces them to provide, pay for,
and/or facilitate access to contraceptive coverage. See Appellant Br. at 18–20 (describing the
district court’s conclusion that the contraceptive-coverage requirement imposes a burden on third
parties, not the appellants, as a “foray into the theology behind Catholic precepts on
contraception [that] was manifestly improper”) (internal quotation marks omitted); Appellant Br.
at 36 (“Whether the accommodation relieves Appellants of moral culpability for their actions
(i.e., allows them to opt out) or makes them complicit in a grave moral wrong is a question of
religious conscience for [Appellants] to decide.”) (internal quotation marks omitted). Put
another way, the appellants appear to ask the court to defer not only to their belief that requesting
the exemption or the accommodation makes them complicit in sin, but also to defer to their
understanding of how the regulatory measure actually works.
But as was recently explained, “there is nothing about RFRA or First Amendment
jurisprudence that requires the Court to accept plaintiffs’ characterization of the regulatory
scheme on its face.” Roman Catholic Archbishop of Washington v. Sebelius, --F. Supp. 2d--, No.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 12
13-1441, 2013 WL 6729515, at *14 (D.D.C. Dec. 20, 2013), injunction granted pending appeal,
No. 13-5371 (D.C. Cir. Dec. 31, 2013)). Although we are in no position to determine the moral
or theological consequences of appellants requesting the exemption or accommodation, we must
determine the legal consequences. Whether a government obligation substantially burdens the
exercise of religion is a question of law, not a “question[] of fact, proven by the credibility of the
claimant.” Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011)). We “accept[ ] as true the
factual allegations that [appellants’] beliefs are sincere and of a religious nature—but not the
legal conclusion, cast as a factual allegation, that [their] religious exercise is substantially
burdened.” Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C Cir. 2008). Thus, although we
acknowledge that the appellants believe that the regulatory framework makes them complicit in
the provision of contraception, we will independently determine what the regulatory provisions
require and whether they impose a substantial burden on appellants’ exercise of religion.
1. Appellants Eligible for the Exemption
MCC, CDN, and St. Cecilia Congregation allege that they are eligible for the religious-
employer exemption from the contraceptive-coverage requirement. MCC R. 1 (Compl. at ¶ 9)
(Page ID #4); CDN R. 1 (Compl. at ¶ 14) (Page ID #7). The government agrees that these three
appellants are “exempt from the contraceptive coverage requirement under 45 C.F.R.
§ 147.131(a).” Government Br. at 9–10, 18; see also Government Br. at 13. The appellants do
not object to any specific act that they must engage in to obtain the exemption. Indeed, the
government states that these “[p]laintiffs are . . . already exempt from the requirement to provide
contraceptive coverage.” Government Br. at 13. Because both parties agree that MCC, CDN,
and St. Cecilia Congregation are eligible for the exemption and because the appellants do not
identify any particular action that they must take to obtain the exemption that burdens their
exercise of religion, appellants have not demonstrated a strong likelihood of success on the
merits of this claim.
2. Appellants Eligible for the Accommodation
The contraceptive-coverage framework does not impose a burden on the exercise of
religion by those remaining appellants who are eligible for the accommodation. If an entity has
an insured group health insurance plan, all that the entity must do to obtain the accommodation is
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 13
“furnish[] a copy of the self-certification . . . to each issuer that would otherwise provide such
coverage in connection with the group health plan.”9 29 C.F.R. § 2590.715-2713A(c)(1). If an
entity has a self-insured plan, such as Catholic Charities of Kalamazoo, all that the entity must do
to obtain the accommodation is “[c]ontract with one or more third party administrators”10 and
“provide[] each third party administrator that will process claims for any contraceptive services11
. . . with a copy of the self-certification.” 29 C.F.R. § 2590.715-2713A(b)(1)(i), (ii). That is the
entirety of the conduct that the objecting organization must engage in to obtain the
accommodation.
The appellants are not required to “provide” contraceptive coverage. They are not
required physically to distribute contraception to their employees upon request, and the eligible
organization’s health plan does not host the coverage. Upon receipt of the self-certification
form, the insurance issuer “must—(A) Expressly exclude contraceptive coverage from the group
health insurance coverage provided in connection with the group health plan.” 29 C.F.R.
§ 2590.715-2713A(c)(2)(i)(A). In the self-insured context, the self-certification form declares to
the third-party administrator that “[t]he eligible organization will not act as the plan
administrator or claims administrator with respect to claims for contraceptive services.”
29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A). Instead, the third-party administrator “shall be
responsible for . . . compliance with” the preventive care and screenings provided for in the
HRSA guidelines. 29 C.F.R. § 2510.3-16(b), (b)(1) (referencing obligations in 42 U.S.C.
§ 300gg-13 and 29 C.F.R. § 2590.715-2713A(b)(1)(ii)). Thus, although the insurance issuer or
third-party administrator will provide contraceptive coverage, the appellants will not.
9
Nothing in the record indicates that any of the insurance issuers with which the appellants contract has
refused to provide contraceptive coverage upon receipt of a self-certification form.
10
Catholic Charities of Kalamazoo, the only appellant alleging that it is eligible for the accommodation and
has a self-insured plan, already contracts with a third-party administrator. This appellant participates in the MCC
Plan, “which consists of self-funded medical and prescription benefits administered by separate third party
administrators, Blue Cross Blue Shield of Michigan and Express Scripts, respectively.” MCC R. 1 (Compl. at ¶¶ 41,
50) (Page ID #13, 15).
11
Nothing in the record indicates that Catholic Charities of Kalamazoo’s third-party administrator has
refused to provide contraceptive coverage upon receipt of a self-certification form.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 14
The appellants are not required to “pay for” contraceptive coverage. When an insurance
issuer receives the self-certification form, it “must . . . Provide separate payments for any
contraceptive services.” 29 C.F.R. § 2590.715-2713A(c)(2)(i)(B). The eligible organization’s
money will not fund the contraceptive coverage: “[t]he issuer must segregate premium revenue
collected from the eligible organization from the monies used to provide payments for
contraceptive services.” 29 C.F.R. § 2590.715-2713A(c)(2)(ii). When a third-party
administrator receives the self-certification form, it must “provide or arrange payments for
contraceptive services” either by providing the payments itself or arranging for an issuer or
another entity to provide the payments. 29 C.F.R. § 2590.715-2713A(b)(2)(i), (ii). In either
situation, whoever is providing the payments may not “impose[] a premium, fee, or other charge,
or any portion thereof, directly or indirectly, on the eligible organization, the group health plan,
or plan participants or beneficiaries.” 29 C.F.R. § 2590.715-2713A(b)(2)(i), (ii); (c)(2)(ii). The
accommodated entity does not even need to be the one to tell the employees about the
contraceptive coverage. The regulations require the insurance issuer or third-party administrator
to provide written notice to plan participants and beneficiaries “specify[ing] that the eligible
organization does not administer or fund contraceptive benefits, but that the third party
administrator or issuer, as applicable, provides separate payments for contraceptive services.”
29 C.F.R. § 2590.715-2713A(d). Thus, although the insurance issuer or third-party administrator
will pay for contraceptive coverage, the appellants will not.
Moreover, the appellants are not required to “facilitate access to” contraceptive coverage.
The crux of the appellants’ “facilitation” argument is that providing the self-certification form to
the insurance issuer or third-party administrator “triggers” the provision of the contraceptive
coverage to their employees. Appellant Br. at 9, 27–31. This argument rests on two assumptions
that are, perhaps, two sides of the same coin: first, that the insurance issuer and third-party
administrator could not provide the coverage until they receive a self-certification form and
second, that the insurance issuer and third-party administrator then provide the coverage because
they received the self-certification form.
Submitting the self-certification form to the insurance issuer or third-party administrator
does not “trigger” contraceptive coverage; it is federal law that requires the insurance issuer or
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 15
the third-party administrator to provide this coverage. The ACA requires “[a] group health
plan12 and a health insurance issuer offering group or individual health insurance coverage” to
“provide coverage for . . . with respect to women, such additional preventive care and screenings
. . . as provided for in comprehensive guidelines supported by the Health Resources and Services
Administration.” 42 U.S.C. §§ 300gg-13(a), (a)(4). Thus, under the ACA, the appellants’ health
plans and insurance issuers must provide contraceptive coverage without cost-sharing, whether
or not the appellants decide to self-certify. “Federal law, not the religious organization’s signing
and mailing the form, requires health-care insurers, along with third-party administrators of self-
insured health plans, to cover contraceptive services.” Univ. of Notre Dame, 743 F.3d at 554.
“Because Congress has imposed an independent obligation on insurers to provide contraceptive
coverage to Appellants’ employees, those employees will receive contraceptive coverage from
their insurers even if Appellants self-certify—but not because Appellants self-certify.” Roman
Catholic Archbishop of Washington v. Sebelius, No. 13-5371; Priests for Life v. U.S. Dep’t of
Health and Human Servs., No. 13-5368 (D.C. Cir. Dec. 31, 2013) (Tatel, J., dissenting from
injunction pending appeal). The obligation to cover contraception will not be triggered by the
act of self-certification—it already was triggered by the enactment of the ACA.
The appellants allege that providing, paying for, and/or facilitating access to
contraceptive coverage burdens their exercise of religion. As discussed supra, the exemption
and accommodation framework does not require them to do any of these things. The framework
does not permit them to prevent their insurance issuer or third-party administrator from
providing contraceptive coverage to their employees pursuant to independent obligations under
federal law. However, the inability to “restrain the behavior of a third party that conflicts with
the [appellants’] religious beliefs,” Michigan Catholic Conference, 2013 WL 6838707, at *7,
does not impose a burden on the appellants’ exercise of religion. “[W]hile a religious institution
has broad immunity from being required to engage in acts that violate the tenets of its faith, it has
12
Group health plan is broadly defined and includes both insured group health plans and self-insured group
health plans: “[t]he term ‘group health plan’ means an employee welfare benefit plan . . . to the extent that the plan
provides medical care (as defined in paragraph (2)) and including items and services paid for as medical care) to
employees or their dependents (as defined under the terms of the plan) directly or through insurance, reimbursement,
or otherwise.” 42 U.S.C. § 300gg-91(a)(1).
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 16
no right to prevent other institutions, whether the government or a health insurance company,
from engaging in acts that merely offend the institution.” Univ. of Notre Dame, 743 F.3d at 552.
The government’s imposition of an independent obligation on a third party does not
impose a substantial burden on the appellants’ exercise of religion. In Bowen v. Roy, a pre-Smith
Free Exercise case, the Supreme Court rejected a Free Exercise claim against the government’s
use of a Native American child’s Social Security number. The father of the child “believe[d] the
use of the number may harm his daughter’s spirit.” 476 U.S. 693, 699 (1986). The Court
concluded that the Free Exercise Clause did not allow an individual to force the Government to
conform its conduct to the individual’s religious beliefs. “Never to our knowledge has the Court
interpreted the First Amendment to require the Government itself to behave in ways that the
individual believes will further his or her spiritual development or that of his or her family.” Id.The family “may not demand that the Government join in their chosen religious practices . . . .
As a result, Roy may no more prevail on his religious objection to the Government’s use of a
Social Security number for his daughter than he could on a sincere religious objection to the size
or color of the Government’s filing cabinets.” Id. at 700. Just as the government’s use of the
child’s Social Security number “does not itself in any degree impair [the family’s] ‘freedom to
believe, express, and exercise[e]’ [their] religion,” id., the Government’s instruction to insurance
issuers and third-party administrators to provide contraceptive coverage does not force the
appellants to provide, pay for, and/or facilitate access to the coverage.
Similarly, in Kaemmerling v. Lappin the D.C. Circuit rejected a RFRA claim because the
challenged government action did not require anything of the challenger. A prisoner expressed
religious objections to the government collecting and analyzing his DNA profile pursuant to the
DNA Act. 553 F.3d 669, 678–79 (D.C. Cir. 2008). The court held that the prisoner “cannot
identify any ‘exercise’ which is the subject of the burden to which he objects” because the
governmental process of extracting DNA “involves no action or forbearance on [the prisoner’s]
part, nor does it otherwise interfere with any religious act in which he engages.” Id. at 679.
Here, the only thing that the exemption and accommodation framework requires of the appellants
is conduct in which they already engage. They will continue to sponsor health plans, contract
with insurance issuers or third-party administrators, and declare their opposition to providing
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 17
contraceptive coverage to their insurance issuer and third-party administrator. Michigan
Catholic Conference, 2013 WL 6838707, at *7. The only difference in conduct is on the part of
the insurance issuer or third-party administrator; appellants “are not required to ‘modify [their]
behavior.’ Rather, it is the TPA [or insurance issuer] that is required to modify its behavior and
take action by providing contraceptive services—without the assistance of” the appellant. Id.Employees and beneficiaries will receive contraceptive coverage, but that coverage will be
“despite plaintiffs’ religious objections, not because of them.” Government Br. at 26. Again, the
insurance issuers and third-party administrators are not parties to this suit and have not expressed
any opposition to complying with the contraceptive-coverage requirement. The fact that the
regulations require the insurance issuers and third-party administrators to modify their behavior
does not demonstrate a substantial burden on the appellants.
In addition to the objection to the self-certification form, the appellants raise various
procedural objections to the accommodation framework, none of which is meritorious. The
appellants object to having to offer enrollment paperwork to allow employees to enroll in the
plan overseen by the third party and to sending health-plan enrollment paperwork to the third
party. Appellant Br. at 29. The regulations do not require either of these acts; the regulations
specifically provide that the third-party administrator or insurance issuer (not the accommodated
eligible organization) notifies plan participants and beneficiaries of the availability of payments
for contraceptive services. See 29 C.F.R. §§ 2590.715-2713A(d). The appellants object to
having to “[i]dentify for a third party which of their employees will participate in the plan.”
Appellant Br. at 29. Again, this is not required by the regulations. Moreover, because these
appellants already contract with insurance issuers and third-party administrators, the insurance
issuers and third-party administrators presumably already have lists of plan participants and
beneficiaries. Finally, the appellants object to having to “[r]efrain from canceling their insurance
arrangement with a third party authorized to provide the objectionable products and services.”
Appellant Br. at 29. Once again, the regulations do not prohibit the appellants from canceling an
insurance arrangement, and the appellants have not expressed any actual intent to do so.
Because these objections do not go to actual requirements of the contraceptive-coverage
framework, they clearly do not demonstrate a substantial burden on appellants’ exercise of
religion.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 18
The appellants argue that the exemption and accommodation mechanism pressures them
to modify their behavior and violate their religious beliefs because previously they informed
their insurance issuer or third-party administrator of their opposition to contraception and those
entities did not cover contraception, but now they will inform their insurance issuer or third-party
administrator of their opposition and those entities will cover contraception. But that is an
objection to the later independent action of a third party, not to an obligation imposed on the
appellants by the government. It is not the act of self-certification that causes the insurance
issuer and the third-party administrator to cover contraception, it is the law of the United States
that does that. Self-certification allows the eligible organization to tell the insurance issuer and
third-party administrator “‘we’re excused from the new federal obligation relating to
contraception,’ and in turn, the government tells those insurance companies, ‘but you’re not.’”
Univ. of Notre Dame, 743 F.3d at 557. Perhaps the appellants would like to retain the authority
to prevent their insurance issuer or third-party administrator from providing contraceptive
coverage to appellants’ employees, but “RFRA is not a mechanism to advance a generalized
objection to a governmental policy choice, even if it is one sincerely based upon religion.”
Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *2.
Because these appellants may obtain the accommodation from the contraceptive-
coverage requirement without providing, paying for, and/or facilitating access to contraception,
the contraceptive-coverage requirement does not impose a substantial burden on these
appellants’ exercise of religion. Therefore, these appellants have not demonstrated a strong
likelihood of success on the merits of their RFRA claim.
C. First Amendment
1. Free Speech Clause
“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., --U.S.--, 133 S. Ct. 2321, 2327 (2013) (internal quotation marks omitted). “The
government may not prohibit the dissemination of ideas that it disfavors, nor compel the
endorsement of ideas that it approves.” Knox v. Serv. Emps. Int’l Union, Local 1000, --U.S.--,
132 S. Ct. 2277, 2288 (2012). The appellants argue that the contraceptive-coverage requirement
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 19
violates the Free Speech Clause of the First Amendment by forcing them to provide, pay for,
and/or facilitate access to contraception counseling; forcing them to speak against their beliefs by
filling out the self-certification form; and imposing a “gag order” by prohibiting them from
interfering with or seeking to influence a third-party administrator’s decision to cover
contraception. We conclude that the contraceptive coverage requirement does not violate the
Free Speech Clause of the First Amendment, and will address each of the subclaims in turn.
a. Contraceptive counseling
First, the appellants argue that the contraceptive-coverage requirement unconstitutionally
compels speech by forcing them to provide, pay for, and/or facilitate access to counseling about
contraception, and that this obligation violates their religious opposition “to providing any
support for ‘counseling’ that encourages, promotes, or facilitates such practices.” Appellant Br.
at 57–58. The guidelines recommended coverage without cost-sharing for “the full range of
Food and Drug Administration-approved contraceptive methods, sterilization procedures, and
patient education and counseling for women with reproductive capacity.” Closing the Gaps at
10; see also 77 Fed. Reg. at 8725. Presumably, this counseling would include discussion of the
range of contraceptive options, how the various products work, and what may be a good fit for
the counseled individual’s health profile and lifestyle.
The regulations certainly do not require the accommodated entity to “provide” this
counseling. The accommodated entity need not discuss or acknowledge the existence of the
counseling coverage; the regulations require the insurance issuer or third-party administrator to
inform plan participants and beneficiaries that separate payments are available for counseling
and other contraceptive services. See 29 C.F.R. §§ 2590.715-2713A(d). The regulations make
no attempt to stop the appellants’ practice of “counsel[ing] men and women against” using
contraception. Appellant Br. at 57, 58. See Rumsfeld v. Forum for Academic and Institutional
Rights, Inc. (“FAIR”), 547 U.S. 47, 65 (2006) (upholding a statute against a free-exercise
challenge; the statute required law schools to give military recruiters equal access to other
recruiters as a condition on receipt of certain federal funds, but “[n]othing about recruiting
suggests that law schools agree with any speech by recruiters, and nothing in the Solomon
Amendment restricts what the law schools may say about the military’s policies.”). Thus, in no
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 20
way do the regulations compel the appellants’ speech by forcing them to provide contraceptive
counseling.
The regulations also do not compel the appellants’ speech by forcing them to pay for
contraceptive counseling. As discussed supra, the regulations specifically prohibit an insurance
issuer or third-party administrator from passing on the cost of complying with the contraceptive-
coverage requirement, which includes the cost of contraceptive counseling. See 29 C.F.R.
§ 2590.715-2713A(b)(2), (c)(2).
Finally, the requirements do not force the appellants to facilitate access to contraceptive
counseling. It is not clear what speech, exactly, the appellants believe is compelled by the
facilitation of such coverage; in any event, as discussed supra, it is federal law, not the
appellants’ actions, that requires their insurance issuer or third-party administrator to provide
insurance coverage for contraceptive counseling. The contraceptive coverage is provided
through a government regulation of the insurance issuer and third-party administrator, not
through the appellants’ health insurance plan. See 29 C.F.R. § 2590.715-2713A(c)(2)(i)(A)
(upon receipt of the self-certification form, the insurance issuer “must—(A) Expressly exclude
contraceptive coverage from the group health insurance coverage provided in connection with
the group health plan”); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A) (the self-certification form
declares to the third-party administrator that “[t]he eligible organization will not act as the plan
administrator or claims administrator with respect to claims for contraceptive services”). Thus,
the framework does not require appellants to “host or accommodate another speaker’s message”
through their insurance plan. FAIR, 547 U.S. at 63; cf. Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Group of Boston, Inc., 515 U.S. 557, 566 (1995) (requiring a parade organizer to allow
a group whose message it opposes to participate in the parade is unconstitutional forced
accommodation of speech); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U.S. 1,
20–21 (1986) (plurality opinion) (forcing a utility company to include a third-party
organization’s newsletter with the utility bill is unconstitutional forced accommodation of
speech).
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 21
The contraceptive counseling provision does not violate the Free Speech Clause of the
First Amendment. Thus, appellants have not demonstrated a strong likelihood of success on the
merits of this claim.
b. Self-certification Form
Second, the appellants argue that the requirement that they complete the self-certification
form in order to obtain the accommodation “compels Appellants to engage in speech that triggers
provision of the objectionable products and services, and [ ] deprives Appellants 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, outside of the confines of the Government’s regulatory scheme.” Appellant
Br. at 58. As discussed supra, the self-certification form does not trigger the provision of
contraceptive coverage, but instead it triggers the entities’ disassociation from what they deem to
be the objectionable coverage. Thus, this framework is nothing like the unconstitutional state
campaign finance law in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, where
the state provided matching funds for publicly financed candidates when a privately financed
candidate or independent expenditure group spent over a certain amount on the election, thus
making the privately financed candidate’s political expenditures a trigger of funding to his or her
adversary. --U.S.--, 131 S. Ct. 2806, 2818 (2011). The self-certification form does not have a
similar triggering function. Additionally, the self-certification form does not deprive appellants
of the freedom to speak out about abortion and contraception on their own terms. The form
requires the appellants to assert their opposition to contraception in order to opt out of a
generally applicable government program. Successful compelled-speech cases are those when
“an individual is obliged personally to express a message he disagrees with, imposed by the
government.” Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005). Even assuming that
the government is compelling this speech, it is not speech that the appellants disagree with and
so cannot be the basis of a First Amendment claim. Thus, the self-certification requirement does
not compel speech in violation of the First Amendment, and so the appellants have not
demonstrated a strong likelihood of success on the merits of this claim.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 22
c. “Gag Order”
Finally, the appellants argue that the accommodation framework imposes an
unconstitutional “gag order” by prohibiting eligible organizations with self-insured group plans
from interfering with, or seeking to influence, a third-party administrator’s decision to provide
contraceptive coverage. Specifically, the regulation provides:
The eligible organization must not, directly or indirectly, seek to interfere with a
third party administrator’s arrangements to provide or arrange separate payments
for contraceptive services for participants or beneficiaries, and must not, directly
or indirectly, seek to influence the third party administrator’s decision to make
any such arrangements.
29 C.F.R. § 2590.715-2713A(b)(iii). A footnote in the commentary to the regulations states that
“[n]othing in these final regulations prohibits an eligible organization from expressing its
opposition to the use of contraceptives.” Coverage of Certain Preventive Services Under the
Affordable Care Act, 78 Fed. Reg. 39870, 39880 n.41 (July 2, 2013) (to be codified at 29 C.F.R.
§ 2510, 2590; 45 C.F.R. § 147, 156). The regulations thus draw a line between impermissible
efforts to interfere with or influence a third-party administrator’s provision of contraceptive
coverage and permissible expressions of opposition to contraceptives.
The appellants have presented their objections to this regulation at a very high level of
generality and fail to identify what protected speech this regulation chills.13 It is not clear what
the appellants want to do or say that they believe this regulation prohibits. Do the appellants feel
chilled from having a calm discussion with their third-party administrator about Catholic
doctrine, discouraging third-party administrators from entering into or maintaining contractual
relationships with religiously affiliated organizations, encouraging the insurance issuer to violate
federal law and refuse to provide contraceptive coverage, or something else altogether? We do
13
Only the MCC plaintiffs raised this claim in their complaint, where they allege that contraceptive-
coverage requirement “impos[es] a gag order that prohibits Plaintiffs from speaking out in any way that might
‘influence,’ ‘directly or indirectly,’ the decision of a third party administrator to provide or procure contraceptive
products and services to Plaintiffs’ employees.” MCC R. 1 (Compl. at ¶ 188) (Page ID #44–45). In their motion for
a preliminary injunction in the district court, they repeated this general argument and asserted that “[p]laintiffs
believe that contraception is immoral, and by expressing that conviction they routinely seek to ‘influence’ or
persuade their fellow citizens of that view.” MCC R. 15 (Prelim. Inj. Memo at 38) (Page ID #639). In their brief to
this court, the appellants make a brief, general argument that they “believe that contraception is contrary to their
faith, and speak and act accordingly. The Government has no authority to outlaw such expression.” Appellant Br.
at 55.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 23
not know. Not all speech is protected by the First Amendment; for example, “an employer is
free to communicate to his employees any of his general views about unionism” but may not
make “a ‘threat of reprisal or force or promise of benefit.” N.L.R.B. v. Gissel Packing Co.,
395 U.S. 575, 618 (1969). Given the failure to “[tell] us what [they] want[] to say but fear[] to
say” and the fact that “the government hasn’t clearly embraced an interpretation of the regulation
that would give rise to the [First Amendment] concerns,” Univ. of Notre Dame, 743 F.3d at 561,
the appellants have not demonstrated a strong likelihood of success on the merits of this claim.
2. Free Exercise Clause
The Free Exercise Clause is not violated by neutral laws of general applicability, “even if
the law has the incidental effect of burdening a particular religious practice.” Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah (“Church of the L.B.A.”), 508 U.S. 520, 531 (1993).
A law that is not neutral and of general applicability still does not violate the Free Exercise
Clause if the law is “justified by a compelling governmental interest” and “narrowly tailored to
advance that interest.” Id. at 531–32. The appellants argue that the contraceptive-coverage
requirement is not a neutral law of general applicability because they say it was targeted at
Catholic entities and has many exemptions. Appellant Br. at 53–54. On the contrary, the
contraceptive-coverage requirement is a neutral law of general applicability and does not violate
the Free Exercise Clause.
A law is not neutral “if the object of a law is to infringe upon or restrict practices because
of their religious motivation.” Church of the L.B.A., 508 U.S. at 533. “A law lacks facial
neutrality if it refers to a religious practice without a secular meaning discernible from the
language or context.” Id. However, “[f]acial neutrality is not determinative . . . ‘The Court must
survey meticulously the circumstances of governmental categories to eliminate, as it were,
religious gerrymanders.’” Id. at 534 (quoting Walz v. Tax Comm’n of New York City, 397 U.S.
664, 696 (1970) (Harlan, J., concurring)). The contraceptive-coverage requirement is a neutral
law. Neither the text nor the history of the statute and regulations promulgated pursuant to the
statute demonstrate that the requirement was targeted at a particular religious practice. There is
no evidence that Congress and the executive branch agencies “had as their object the suppression
of religion.” Id. at 542. The record does not “disclose[] animosity” towards the Catholic
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 24
practice of refusing to support access to contraception, the framework does not “by [its] own
terms target this religious exercise,” the program was not “gerrymandered with care to proscribe”
the Catholic exercise of religion with respect to contraception but not secular opposition to
contraception; and the arrangement does not “suppress much more religious conduct than is
necessary in order to achieve the legitimate ends asserted in their defense.” Id. at 542. The
appellants argue that the Government was aware of the refusal of Catholic employers to provide
contraceptive coverage and enacted the requirement to force Catholic employers to violate their
religious beliefs. Appellant Br. at 54. This argument is unpersuasive; the fact that the
Government has required a religiously affiliated entity to do something that it does not want to
on the basis of religion does not, ipso facto, mean that the law was targeted at religious practice.
Accordingly, the framework is neutral.
A law is not of general applicability if it “in a selective manner impose[s] burdens only
on conduct motivated by religious belief,” Church of the L.B.A., 508 U.S. at 543. The appellants
argue that the requirement is not generally applicable because grandfathered plans, small
businesses, and religious employers that obtain an exemption need not comply with the
contraceptive-coverage requirement. This argument misunderstands the meaning of general
applicability under our Free Exercise jurisprudence. “General applicability does not mean
absolute universality.” See Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008). A law need
not apply to every person or business in America to be generally applicable. A law is generally
applicable if it does not make distinctions based on religion. To determine this, we consider
whether the “legislature decide[d] that the governmental interests it seeks to advance are worthy
of being pursued only against conduct with a religious motivation.” Church of the L.B.A.,
508 U.S. at 542–43. The requirement at issue here does not pursue the governmental interest in
contraceptive coverage only against entities with a religiously motivated objection to providing
such coverage; that interest is pursued uniformly against all businesses that are not grandfathered
and have more than fifty employees. This includes entities that have no objection to the
requirement, entities that object for non-religious reasons such as general opposition to
government dictating healthcare requirements, and entities that object to the requirement for
religious reasons. See, e.g., Stormans, Inc. v. Selecky, 586 F.3d 1109, 1134 (9th Cir. 2009)
(holding a rule was generally applicable because “pharmacists who do not have a religious
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 25
objection to Plan B must comply with the rules to the same extent—no more and no less—than
pharmacies and pharmacists who may have a religious objection to Plan B”). In fact, the
availability of the exemption and the accommodation means that the law imposes a lesser burden
on those who object for religious reasons because they do not have to pay for the coverage.
Accordingly, the program is generally applicable.
Because the law requiring contraceptive coverage is neutral and generally applicable, it
does not violate the Free Exercise Clause even if it incidentally burdens the exercise of religion.
Thus, the appellants have not demonstrated a strong likelihood of success on the merits of this
claim.
3. Establishment Clause
“Congress shall make no law respecting an establishment of religion.” U.S. Const.
amend. I. However, “[the Supreme] Court has long recognized that the government may (and
sometimes must) accommodate religious practices and that it may do so without violating the
Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144–
45 (1987). The appellants argue that allowing some entities with a religious mission to obtain
the exemption and others to obtain only the accommodation violates the Establishment Clause
because the distinction “favors some types of religious organizations and denominations over
others” and creates an excessive entanglement between government and religion. Appellant Br.
at 59. Because the law’s distinction does not favor a certain denomination and does not cause
excessive entanglement between government and religion, the framework does not violate the
Establishment Clause.
“The clearest command of the Establishment Clause is that one religious denomination
cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).
“[N]o State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’” Id.
at 246 (quoting Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947)). For a claim such as this based
on the allegedly disparate treatment of religions, “the constitutional value at issue is ‘neutrality.’”
Gillette v. United States, 401 U.S. 437, 450 (1971). The line that the exemption and
accommodation framework draws between eligibility for the exemption and for the
accommodation is based on organizational form and purpose, not religious denomination. Such
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a distinction does not violate the Establishment Clause. “[R]eligious employers, defined as in
the cited regulation, have long enjoyed advantages (notably tax advantages) over other entities,
26 U.S.C. §§ 6033(a)(3)(A)(i), (iii), without these advantages being thought to violate the
establishment clause.” Univ. of Notre Dame, 743 F.3d at 560 (citing Walz, 397 U.S. at 672–73).
The appellants’ reliance on the Tenth Circuit’s decision in Colorado Christian University v.
Weaver, 534 F.3d 1245 (10th Cir. 2008), is misplaced. There, the Tenth Circuit held that a state
law permitting scholarship funding for students attending religious schools only if the school was
not “pervasively” sectarian violated the Establishment Clause. Id. at 1258–60. The law did not
make distinctions based on organizational form, as here; the Colorado law violated the
Establishment Clause because it discriminated based on the nature of religious belief and
practice at the university. Accordingly, that case provides no support for the appellants’
argument. The fact that all of the appellants are affiliated with the Catholic Church and some are
eligible for the exemption while others are eligible for the accommodation demonstrates that the
framework does not discriminate based on denomination. Because the exemption and
accommodation arrangement distinguishes between entities based on organizational form, not
denomination, it does not express an unconstitutional state preference on the basis of religion.
Further, the provisions do not excessively entangle government and religion. 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). The referenced sections of the Internal
Revenue Code provide exceptions from certain tax-return filing requirements for “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). The IRS
considers numerous factors to determine if an entity is eligible for the exceptions in
§ 6033(a)(3)(A)(i), (iii). See Am. Guidance Found., Inc. v. United States, 490 F. Supp. 304, 306
(D.D.C. 1980). The appellants argue that “these factors favor some religious groups over others
. . . on the basis of intrusive judgments regarding beliefs, practices, and organizational
structures.” Appellant Br. at 63–64. However, the government argues that the “qualification for
the religious employer exemption does not require the government to make any determination,
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whether as a result of the application of the non-exhaustive, non-binding list or otherwise.”
Government Br. at 54–55. Plaintiffs have not shown how this is not correct.
Because the exemption and accommodation provisions do not prefer a denomination or
excessively entangle government in religious practice, they do not violate the Establishment
Clause. Thus, the appellants have not demonstrated a strong likelihood of success on the merits
of this claim.
D. Administrative Procedure Act
Finally, the MCC appellants14 argue that the contraceptive-coverage requirement violates
the Administrative Procedure Act (APA) because the requirement violates the Weldon
Amendment and thus is “not in accordance with law,” and because the IOM guidelines
recommending that contraception be included as preventive care were not subject to notice-and-
comment rulemaking requirements. We conclude that the appellants have not demonstrated a
strong likelihood of success on the merits of the Weldon Amendment claim, and we decline to
reach the notice-and-comment claim.
1. Weldon Amendment
The MCC appellants argue that the contraceptive-coverage requirement violates the
Weldon Amendment and therefore is “not in accordance with law,” as required by the APA. The
APA provides that a “reviewing court shall . . . (2) hold unlawful and set aside agency action,
findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Weldon Amendment is a
rider to an appropriations bill that denies funding to federal agencies or programs “if such
agency, program, or government subjects any institutional or individual health care entity to
discrimination on the basis that the health care entity does not provide, pay for, provide coverage
of, or refer for abortions.”15 Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div.
14
Although the CDN plaintiffs included an APA claim in their complaint, that claim was not raised in the
motion for a preliminary injunction, and so the district court correctly treated the claim as waived for purposes of the
preliminary injunction. Catholic Diocese of Nashville, 2013 WL 6834375, at *10 n.13.
15
It is not clear that any of the MCC appellants who properly raised this claim is an “institutional or
individual health care entity” within the meaning of the Weldon Amendment. The Weldon Amendment defines
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F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The district court held that the contraceptive-
coverage requirement does not violate the Weldon Amendment because the FDA-approved
emergency contraceptives are not defined as abortion-inducing products under federal law. The
appellants argue that this analysis is in error because the court should defer to the plan provider’s
definition of “abortion” and the appellants believe that the “morning-after pill (Plan B) and
Ulipristal (HRP 2000 or [e]lla)” are “abortion-inducing products.” Appellant Br. at 65.
The appellants are correct that the Weldon Amendment does not define abortion. The
appellants argue that the absence of a statutory definition means that the court should defer to
their independent interpretation of “abortion.” That is not how statutory interpretation works.
Rather, the federal courts will utilize traditional methods of statutory interpretation to determine
whether “abortion” in the Weldon Amendment includes FDA-approved emergency
contraceptives.
The government notes that the FDA-approved labels for
Plan B and ella describe these products as emergency contraceptives and do
not mention abortion. See FDA-approved label for Plan B, available at
http://www.accessdata.fda.gov/drugsatfda_docs/label/2009/021045s015lbl.pdf; FDA-approved
label for ella http://www.accessdata.fda.gov/drugsatfda_docs/label/2012/022474s002lbl.pdf.
The appellants do not identify any statutory or regulatory definition of abortion that includes
“[h]ealth care entity” as “an individual physician or other health care professional, a hospital, a provider-sponsored
organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility,
organization, or plan.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(2).
The appellants allege that the Michigan Catholic Conference Second Amended and Restated Group Health Benefit
Plan for Employees (“MCC Benefit Plan”) is a health plan. MCC R. 1 (MCC Compl. at ¶ 16) (Page ID #7).
However, it is not clear that the MCC Benefit Plan is an actual plaintiff in this case. The complaint is captioned
“MICHIGAN CATHOLIC CONFERENCE in its own name and on behalf of the MICHIGAN CATHOLIC
CONFERENCE SECOND AMENDED AND RESTATED GROUP HEALTH BENEFIT PLAN FOR
EMPLOYEES . . . .” MCC R. 1 (MCC Compl. at 1) (Page ID #1). Although the complaint describes MCC and
Catholic Charities as “plaintiff[s],” it does not describe the MCC Benefit Plan as a plaintiff. See id. at ¶¶ 16, 17
(Page ID #7). However, because we affirm the denial of the preliminary injunction on this claim, we need not
decide this issue at this time.
We also question the appellants’ assumption that MCC is discriminated against for refusing to provide
contraceptive coverage. MCC concedes that it is eligible for the religious-employer exemption. MCC R. 1 (Compl.
at ¶ 9) (Page ID #4). Consequently, its health insurance plan need not cover contraception or emergency
contraception. Thus, it is not clear how MCC is discriminated against for refusing to provide contraceptive
coverage. See Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *46 (holding that the
contraceptive-coverage requirement is consistent with the Weldon Amendment for entities that are eligible for the
exemption or the accommodation).
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 29
emergency contraceptives. Because the burden is on the appellants to demonstrate a strong
likelihood of success on the merits, and the appellants have neither asserted nor argued nor
presented evidence that the federal government classifies these drugs as abortifacients, they have
not shown a strong likelihood of success on the merits of their claim.
2. Notice and Comment
The appellants argue that the government violated the APA because it did not subject the
IOM recommendation that preventive services include contraceptive coverage to notice and
comment rulemaking pursuant to 5 U.S.C. § 553(b). Appellant Br. 66–68. This claim was not
properly raised in or decided by the district court, so we decline to address it for the first time on
appeal.
As discussed supra, the CDN plaintiffs did not raise any APA claims in their motion for a
preliminary injunction. The MCC plaintiffs’ only reference to a notice-and-comment claim is a
single sentence in the introduction section of their memorandum in support of the motion for a
preliminary injunction: “Finally, the Mandate violates the Administrative Procedure Act
(‘APA’) because Defendants failed to conduct notice-and-comment rulemaking, and it
contravenes the clear terms of the Weldon Amendment.” MCC R. 15 (Prelim. Inj. Memo. at 3)
(Page ID #604). In the argument section of the memorandum the MCC plaintiffs discussed the
Weldon Amendment issue, but did not return to the notice-and-comment issue. See id. at 44–45
(Page ID #645–46). The district court did not address the notice-and-comment argument in its
decision. See Michigan Catholic Conference, 2013 WL 6838707, at *13.
We generally do not consider issues raised for the first time on appeal. In re Cannon,
277 F.3d 838, 848 (6th Cir. 2002). “Factors guiding the determination of whether to consider an
issue for the first time on appeal include:
1) whether the issue newly raised on appeal is a question of law, or whether it
requires or necessitates a determination of facts; 2) whether the proper resolution
of the new issue is clear and beyond doubt; 3) whether failure to take up the issue
for the first time on appeal will result in a miscarriage of justice or a denial of
substantial justice; and 4) the parties’ right under our judicial system to have the
issues in their suit considered by both a district judge and an appellate court.
Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al. Page 30
Id. (internal quotation marks omitted). Accordingly, we decline to exercise our discretion to
address this claim.
E. Other Factors for Injunctive Relief
We conclude that the appellants have not demonstrated a strong likelihood of success on
the merits of any of their properly raised claims. The other three factors that we consider in
evaluating a request for a preliminary injunction are: (2) whether the movant would suffer
irreparable injury without the injunction; (3) whether issuance of the injunction would cause
substantial harm to others; and (4) whether the public interest would be served by issuance of the
injunction. City of Pontiac Retired Emps. Ass’n, 2014 WL 1758913, at *2. When the alleged
injury is to a First Amendment freedom, as here, the strong likelihood of success on the merits
factor merges with the irreparable injury factor. “To the extent that [appellant] can establish a
likelihood of success on the merits of its First Amendment claim, it also has established the
possibility of irreparable harm as a result of the deprivation of the claimed free speech rights.”
Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). Conversely, if appellant
“does not have a likelihood of success on the merits . . . his argument that he is irreparably
harmed by the deprivation of his First Amendment right also fails.” McNeilly, 684 F.3d at 615.
Because the appellants do not demonstrate a strong likelihood of success on the merits of their
claims, they also do not demonstrate that they will suffer irreparable injury without the
injunction.
The district courts did not abuse their discretion by denying preliminary injunctions.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district courts’ denial of preliminary
injunctions. We lift the stay temporarily issued by this court pending resolution of this appeal.