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explaining that the inquiry is "whether the government actually 'puts' the religious adherent to the 'choice' of incurring a 'serious' penalty or 'engag[ing] in conduct that seriously violates [his] religious beliefs.'
Summary of this case from Sareini v. BurnettOpinion
Nos. 14–12696 14–12890 14–13239.
02-18-2016
ETERNAL WORD TELEVISION NETWORK, INC., Plaintiff–Appellant, State of Alabama, Plaintiff, SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Department of Health and Human Services, Secretary of the U.S. Department of Labor, U.S. Department of Labor, Secretary of the U.S. Department of the Treasury, U.S. Department of the Treasury, Defendants–Appellees. The Roman Catholic Archdiocese of Atlanta, an association of churches and schools, The Most Reverend Wilton D. Gregory, and his successors, Archbishop of the Roman Catholic Archdiocese of Atlanta, Catholic Charities of the Archdiocese of Atlanta, Inc., a Georgia non-profit corporation, The Roman Catholic Diocese of Savannah, an ecclesiastical territory, The Most Reverend John Hartmayer, and his successors, Bishop of the Roman Catholic Diocese of Savannah, et al., Plaintiffs–Appellees, Secretary, U.S. Department of Health and Human Services, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury, Secretary, U.S. Department of Labor, Secretary, U.S. Department of Treasury, Defendants–Appellants.
Lori Halstead Windham, Daniel Howard Blomberg, Eric C. Rassbach, Mark Rienzi, Diana Verm, The Becket Fund for Religious Liberty, Stuart Kyle Duncan, Duncan PLLC, Washington, DC, for Plaintiff–Appellant. Patrick Nemeroff, Bradley Philip Humphreys, Adam C. Jed, Alisa Beth Klein, Joshua Marc Salzman, U.S. Department of Justice, Washington, DC, for Defendants–Appellees.
Lori Halstead Windham, Daniel Howard Blomberg, Eric C. Rassbach, Mark Rienzi, Diana Verm, The Becket Fund for Religious Liberty, Stuart Kyle Duncan, Duncan PLLC, Washington, DC, for Plaintiff–Appellant.
Patrick Nemeroff, Bradley Philip Humphreys, Adam C. Jed, Alisa Beth Klein, Joshua Marc Salzman, U.S. Department of Justice, Washington, DC, for Defendants–Appellees.
Opinion
JILL PRYOR, Circuit Judge:
The plaintiffs in these consolidated appeals challenge the regulations implementing what is known as the “contraceptive mandate” of the Affordable Care Act (“ACA”)—the requirement that employers provide health insurance coverage for preventive care (including contraception) to women. Specifically, the plaintiffs argue that the regulations' accommodation for nonprofit organizations with a religious objection to providing contraceptive coverage violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq. They claim that the accommodation substantially burdens their religious exercise in violation of RFRA by forcing them to take actions that cause their health plan administrators to provide contraceptive coverage and to maintain a health plan that serves as a conduit for contraceptive coverage. We reject the plaintiffs' claims because we conclude that the regulations do not substantially burden their religious exercise and, alternatively, because (1) the government has compelling interests to justify the accommodation, and (2) the accommodation is the least restrictive means of furthering those interests.
Eternal Word Television Network (“EWTN”), the plaintiff in the first appeal, also raises several First Amendment challenges to the accommodation. Because the accommodation is a neutral, generally applicable law that does not discriminate based on religious denomination, we reject EWTN's challenges under the Establishment and Free Exercise Clauses. We also reject EWTN's challenge under the Free Speech Clause because, as discussed below, any speech restrictions that may flow from the accommodation are justified by a compelling governmental interest and are thus constitutional.
I. BACKGROUND
A. The Affordable Care Act and the Contraceptive Mandate
Enacted in 2010, the ACA requires group health insurance plans to provide a minimum floor of coverage without imposing cost sharing (such as deductibles, co- payments, or co-insurance) on plan participants and beneficiaries. 42 U.S.C. § 300gg–13(a). If an employer fails to provide such coverage in its group employee health plan, it is subject to penalties in the form of a tax of $100 per day per affected person. 26 U.S.C. § 4980D(b)(1). The Women's Health Amendment to the ACA added to the minimum coverage requirements a mandate that group health plans provide women with coverage for preventive care and screenings. 42 U.S.C. § 300gg–13(a)(4). The requirement was intended in part to “get[ ] rid of, or minimiz[e], high copays and high deductibles that are often overwhelming hurdles for women to access screening programs.” 155 Cong. Rec. S11987 (Nov. 30, 2009) (statement of Sen. Mikulski). The ACA tasked the Health Resources and Services Administration (“HRSA”), an agency of the Department of Health and Human Services (“HHS”), with promulgating comprehensive guidelines determining which preventive services and screenings would be required. 42 U.S.C. § 300gg–13(a)(4). HHS commissioned the Institute of Medicine (“IOM”) to assist with HRSA's development of the guidelines.
The IOM released a full report in 2011 detailing its study of various preventive services and its recommendations for coverage under the mandate. Inst. of Medicine, Clinical Preventive Services for Women: Closing the Gaps (2011) (“IOM Report”). The IOM Report discussed at length the positive public health outcomes associated with reducing unintended pregnancies and giving women more control over birth spacing. The United States has a much higher rate of unintended pregnancies—49 percent of pregnancies in 2001—than other developed countries. Id. at 102. Unintended pregnancies correlate with health problems both for women who experience such pregnancies and for children born as a result of them. Id. at 103. And because women may not realize immediately that they are pregnant, “their entry into prenatal care may be delayed[;] they may not be motivated to discontinue behaviors that present risks for the developing fetus; and they may experience depression, anxiety, or other conditions.” Id. Unintended pregnancies also frequently end in abortion. Id. at 102.
The IOM Report also noted the health consequences of pregnancies occurring too closely together in time. For infants, “[s]hort interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small for gestational age births.” Id. at 103. For women, both pregnancy spacing and the ability to avoid pregnancy may significantly affect their health because, among other reasons, some “women with certain chronic medical conditions (e.g., diabetes and obesity) may need to postpone pregnancy until appropriate weight loss or glycemic control has been achieved.” Id. Pregnancy is also contraindicated for some women with serious medical conditions, for example, pulmonary hypertension or Marfan syndrome. Id. at 103–04. The IOM Report also found that “greater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally.” Id. at 105.
Pursuant to its statutory authority, HRSA released binding guidelines, based on the IOM Report, that require coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” U.S. Dep't of Health & Human Servs., Health Res. & Servs. Admin., Women's Preventive Services Guidelines (“HRSA guidelines”), http://www.hrsa.gov/womensguidelines (last visited Feb. 12, 2016); see also 77 Fed.Reg. 8725, 8725–26 (Feb. 15, 2012) (quoting the language in the HRSA guidelines regarding coverage). Implementing regulations developed by the Department of Labor, the Department of the Treasury, and HHS (collectively, the “Departments”) reiterate the contraceptive mandate's requirement that health plans cover all services listed in the HRSA guidelines. 26 C.F.R. § 54.9815–2713(a)(1)(iv) (Treasury Regulation); 29 C.F.R. § 2590.715–2713(a)(1)(iv) (Labor Regulation); 45 C.F.R. § 147.130(a)(1)(iv) (HHS Regulation).
Mindful of religious freedom and the importance of respect for “the unique relationship between a house of worship and its employees in ministerial positions,” the Departments promulgated interim regulations that gave HRSA discretion to exempt from the contraceptive mandate certain group health plans established or maintained by religious employers. See 76 Fed.Reg. 46621, 46623 (Aug. 3, 2011). The Departments defined “religious employer” by incorporating the Internal Revenue Service's definition of a church or integrated auxiliary from 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). 45 C.F.R. § 147.130(a)(1)(iv)(B) (2011). The definition also required a religious employer to have a religious purpose and to both serve and employ primarily persons who share the religious tenets of the organization. Id. Exercising the discretion the regulations provided, HRSA amended its guidelines to exempt religious employers from the contraceptive mandate. The guidelines, issued on August 1, 2011, required compliance beginning on August 1, 2012. See id. § 147.130(b)(1).
The Departments finalized the implementing regulations in February 2012. See 77 Fed.Reg. 8725. At the same time, the Departments established a temporary safe harbor from the contraceptive mandate for nonprofit organizations with religious objections to providing contraceptive coverage. See Dep't of Health & Human Servs., Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Health Plans & Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing (Feb. 10, 2012). The safe harbor remained in effect for the 2012 plan year, ending on August 1, 2013. See id. at 2.
The Departments intended to use the safe harbor period to “expeditiously develop and propose changes to the final regulations implementing” the contraceptive mandate. 77 Fed.Reg. 16501, 16503 (Mar. 21, 2012). The changes to the regulations needed to “meet two goals—accommodating non-exempt, nonprofit religious organizations' religious objections to covering contraceptive services and assuring that participants and beneficiaries covered under such organizations' plans receive contraceptive coverage without cost sharing.” Id. In March 2012, the Departments began the rulemaking process and solicited comments on potential regulations that could achieve these two goals. Id. at 16501.
At the conclusion of the rulemaking process in July 2013, the Departments promulgated revised regulations that retained HRSA's authority to exempt religious employers. See 78 Fed.Reg. 39870 (July 2, 2013). The same day, HRSA released revised guidelines that tracked the Departments' changes to the religious employer exemption. The final regulations simplified the definition of a “religious employer,” making the term coextensive with the IRS's statutory definition and removing the additional qualifications regarding a religious employer's mission, programs, and employees. 45 C.F.R. § 147.131(a) (2013); see also 78 Fed.Reg. at 39873–74. Religious employers remained categorically exempt from the contraceptive mandate out of “respect [for] the religious interests of houses of worship and their integrated auxiliaries.” 78 Fed.Reg. at 39874. The Departments noted that the exemption did not undermine their goal of making contraceptive coverage available because religious employers and their integrated auxiliaries “are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” Id.
The revised regulations, which took effect on Aug. 1, 2013, added an accommodation for organizations that do not qualify as religious employers under the exemption. See 45 C.F.R. § 147.131(b) (2013). So long as an organization is a nonprofit entity holding itself out as a religious organization and has a religious objection to providing contraceptive coverage (we refer to such entities as “eligible organizations”), it may opt out of the contraceptive mandate. Id.
Eligible organizations can take advantage of the accommodation via one of two procedures. The first procedure requires the organization to complete Employee Benefits Security Administration Form 700 (“Form 700”). See EBSA Form 700–Certification (Aug. 2014), http://www.dol. gov/ebsa/preventiveserviceseligibleorganizationcertificationform.doc. To complete the two-page form, the eligible organization must provide its name and the name, title, and contact information of the individual signing the form on behalf of the organization. The person signing the form must certify that the organization “has a religious objection to providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.” Id.
The form's recipient depends on the type of health plan the eligible organization maintains. Employers can provide health benefits either through an insured health plan or a self-insured health plan. See Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals 6 (2008). If the eligible organization has an insured plan, it gives Form 700 to the insurance company that provides its health plan (“plan provider”); if the organization has a self-insured plan, it gives Form 700 to its third-party administrator (“TPA”). The plaintiffs in both cases before us provide health benefits to their employees through self-insured group health plans, and all employ TPAs to administer their plans.
Alternatively, an eligible organization may directly notify HHS of its religious objection to complying with the contraceptive mandate. This more recently developed method of taking advantage of the accommodation arose from the United States Supreme Court's order granting a preliminary injunction in Wheaton College v. Burwell, ––– U.S. ––––, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014). After the regulations concerning the exemption and accommodation procedures were finalized, the Supreme Court in Burwell v. Hobby Lobby Stores, ––– U.S. ––––, 134 S.Ct. 2751, 2759–60, 189 L.Ed.2d 675 (2014), extended the accommodation for nonprofit religious organizations to closely held for-profit corporations whose owners have religious objections to complying with the contraceptive mandate. Three days after the Hobby Lobby decision was issued, the Supreme Court in Wheaton College granted a request for a preliminary injunction pending appellate review to a plaintiff challenging the accommodation itself under RFRA, the same challenge the plaintiffs mount here. Wheaton Coll., 134 S.Ct. at 2807. The Supreme Court's order enjoined HHS from enforcing the accommodation procedure against the college, so long as the college “inform[ed] the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Id. The Supreme Court warned, however, that the injunction order “should not be construed as an expression of the Court's views on the merits.” Id.
In response to the order in Wheaton College, the Departments issued interim final regulations in August 2014 to allow an eligible organization to opt out by sending a letter to HHS, instead of giving Form 700 to its plan provider or TPA. 79 Fed.Reg. 51092, 51094–95 (Aug. 27, 2014); see Ctr. for Medicare & Medicaid Servs., Model Notice, https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Model-Notice-8-22-14.pdf (last visited Feb. 12, 2016). There is no prescribed format for the letter, but it must include:
the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on its sincerely held religious beliefs to coverage of some or all contraceptive services, as applicable (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type ...; and the name and contact information for any of the plan's third party administrators and health insurance issuers.
45 C.F.R. § 147.131(c)(1)(ii).
The regulations became final, without substantial changes, in a set of new rules effective on September 14, 2015. 80 Fed.Reg. 41318 (July 14, 2015). Under the current rules, if an eligible organization directly notifies HHS of its intent to opt out of the contraceptive mandate, the government then alerts the organization's health plan provider or TPA that the organization has opted out and describes the plan provider's or TPA's resulting obligations. See 26 C.F.R. § 54.9815–2713A(b)(1)(ii)(B), (c)(1)(ii).
For insured plans, once an eligible organization avails itself of the accommodation, the plan provider must (1) “[e]xpressly exclude contraceptive coverage from the group health insurance coverage” and (2) “[p]rovide separate payments for any contraceptive services required to be covered” for the plan participants and beneficiaries. 45 C.F.R. § 147.131(c)(2)(i).
For self-insured plans, the regulations provide that when an eligible organization invokes the accommodation, its TPA is designated as the plan administrator under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(16), with respect to contraceptive services. Under the regulations, the TPA is designated as the plan administrator in one of two ways. If the eligible organization provides a copy of Form 700 to its TPA, then the regulations treat the form “as a designation of the [TPA] as the plan administrator” for ERISA purposes. 29 C.F.R. § 2510.3–16(b). If the eligible organization instead notifies HHS of its intent to opt out, then the Department of Labor notifies the TPA that it shall be the plan administrator with respect to contraceptive services for ERISA purposes. Id.
Upon receiving notification, the TPA has the option of terminating its contractual relationship with the eligible organization. See 26 C.F.R. § 54.9815–2713A(b)(2). If it remains as the TPA, then it must provide (or arrange for another insurer to provide) contraceptive benefits to participants and beneficiaries of the self-insured plan. Id.; 29 C.F.R. § 2510.3–16(c).
Significantly, plan providers and TPAs “may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.” 26 C.F.R. § 54.9815–2713A(c)(2)(i); 45 C.F.R. § 147.131(c)(2)(ii). Plan providers “must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 45 C.F.R. § 147.131(c)(2)(ii). A plan provider or TPA also must notify plan participants and beneficiaries (contemporaneously with the delivery of other plan materials, if possible) “that the eligible organization does not administer or fund contraceptive benefits,” but that the plan provider or TPA instead “provides separate payments for contraceptive services.” 26 C.F.R. § 54.9815–2713A(d); 45 C.F.R. § 147.131(d).
B. The Parties and Procedural History
This opinion addresses two cases: one brought by EWTN and one brought by two Catholic Dioceses and a group of related persons and entities. Below, we briefly discuss the plaintiffs and the procedural history of each case in turn.
1. Eternal Word Television Network
Plaintiff-appellant EWTN is a non-profit worldwide Catholic media network founded in 1981 by Mother Mary Angelica, a Catholic nun. EWTN, based in Irondale, Alabama, has approximately 350 employees. The network consists of 11 television feeds and two radio stations that reach 230 million homes in 144 countries and territories. Its programming includes daily Mass, Catholic devotions, coverage of Catholic Church events, documentaries, children's programs, educational series, and other television and radio shows that support EWTN's mission of “serv[ing] the orthodox belief and teaching of the Church as proclaimed by the Supreme Pontiff and his predecessors.” Compl. at 5, No. 1:13–cv–00521–CG–C, Doc. 1. EWTN has a self-insured group health plan to provide health insurance benefits to its employees. Blue Cross Blue Shield of Alabama serves as the TPA for the plan.
EWTN, together with the State of Alabama, filed a complaint challenging the contraceptive mandate and accompanying regulations under RFRA, the First Amendment, the Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The complaint alleged that “EWTN cannot facilitate access to health care insurance ... that covers artificial contraception, sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs.” Compl. at 7, No. 1:13–cv–00521–CG–C, Doc. 1. To EWTN, this means that its religious beliefs prevent it both from providing contraceptive coverage in its health plan and from using the accommodation. As a result, EWTN alleged, the contraceptive mandate “imposes government pressure and coercion on EWTN to change or violate its religious beliefs” because if it does not provide coverage or use the accommodation, it faces fines for non-compliance with the mandate. Id. at 27.
EWTN and Alabama moved for partial summary judgment on five of the 17 counts in the complaint, including: Count One, alleging a violation of RFRA based on the regulations' burden on religious exercise; Count Two, alleging a violation of the Free Exercise Clause based on the same burden; Count Three, alleging a violation of the Free Exercise Clause based on intentional discrimination among religious organizations; Count Five, alleging a violation of the Establishment Clause based on the selective imposition of a burden on some religious organizations; and Count Nine, alleging a violation of the Free Speech Clause based on compelled speech. Alabama joined in EWTN's motion and additionally moved for summary judgment on Count Seventeen, which sought a declaration that the contraceptive mandate does not preempt Alabama law.
The defendants-appellees—the Departments and their Secretaries—filed a motion to dismiss the complaint or, in the alternative, for summary judgment on all of the plaintiffs' claims. The district court denied EWTN's and Alabama's motions for summary judgment and granted the defendants' motion for summary judgment as to Counts One, Two, Five, and Nine. On a motion by the plaintiffs, the district court entered a final judgment on those four counts pursuant to Federal Rule of Civil Procedure 54(b) and stayed litigation of the remaining claims pending appeal.
EWTN timely appealed. On EWTN's motion, we issued an injunction pending appeal, preventing the defendants from enforcing the mandate or the accommodation against EWTN. Eternal Word Television Network, Inc. v. Sec'y, U.S. Dep't of Health & Human Servs., 756 F.3d 1339 (11th Cir.2014).
2. The Diocesan Plaintiffs, CENGI, and Catholic Charities
A group of Catholic entities—the Roman Catholic Archdiocese of Atlanta, the Archbishop of Atlanta, Christ the King Catholic School, Catholic Charities of the Archdiocese of Atlanta (“Catholic Charities”), the Roman Catholic Diocese of Savannah, and the Bishop of Savannah—filed a lawsuit against the Departments and their Secretaries. Both the Archdiocese of Atlanta and the Diocese of Savannah (collectively with the Bishop and Archbishop, “the Dioceses”) are associations of Catholic parishes and organizations, including Catholic schools. Catholic Charities is a nonprofit organization that provides social services, including immigration counseling, mental health counseling, marriage counseling, and pregnancy support services. The second amended complaint added as a plaintiff Catholic Education of North Georgia (“CENGI”) and removed Christ the King Catholic School. CENGI is a nonprofit organization that oversees five Catholic schools in the Atlanta area.
The Atlanta Archdiocese operates a self-insured health plan, which covers employees of the Archdiocese, Catholic Charities, and CENGI. The Savannah Diocese operates two self-insured health plans for its employees. Meritain Health serves as the TPA for all three plans.
The second amended complaint alleged that the contraceptive mandate and accompanying regulations violate RFRA, the First Amendment, the non-delegation doctrine, and the APA. The plaintiffs alleged that the regulations require them “to provide, pay for, and/or facilitate insurance coverage for abortion-inducing drugs, sterilization, and contraception, in violation of their religious beliefs.” Second Am. Compl. at 6, No. 1:12–cv–03489–WSD, Doc. 56. They alleged that the regulations further burden religious exercise “by driving a wedge between religious organizations, like the Atlanta Archdiocese, and their equally religious charitable arms, such as Plaintiffs Catholic Charities and CENGI.” Id. Because the charitable arms do not qualify as “religious employers,” the Dioceses alleged they must expel the charities' employees from their health plans if the Dioceses wish to take advantage of the religious exemption.
The Departments filed a motion to dismiss the second amended complaint or, alternatively, for summary judgment on all counts. The plaintiffs cross-moved for summary judgment as to seven of their eight counts, which alleged that the mandate and accompanying regulations: burden religious exercise in violation of RFRA (Count One); violate the Free Exercise Clause, based on the same burden (Count Two); compel speech in violation of the Free Speech Clause (Count Three); prohibit speech in violation of the Free Speech Clause (Count Four); favor certain religious groups and entangle the government in religion in violation of the Establishment Clause (Count Five); interfere with internal church governance in violation of both the Free Exercise and Establishment Clauses (Count Six); and involve an impermissible delegation of unchecked legislative authority to the Departments (Count Seven).
The district court granted summary judgment to Catholic Charities and CENGI on their RFRA claims, holding that the contraceptive mandate and accommodation substantially burden the organizations' religious exercise and are not the least restrictive means to accomplish a compelling governmental interest. The court enjoined the Departments from enforcing the mandate or the accommodation against Catholic Charities and CENGI. In addition, the court granted the plaintiffs' motion for summary judgment on their claim that the noninterference provision created a content-based speech restriction in violation of the First Amendment.
As to the Dioceses' RFRA claim, the court granted summary judgment to the Departments. The Dioceses had argued first that they might at some point have to pay more in premiums to help cover their plan providers' cost of contraceptive coverage, in violation of their religious beliefs, and second that the distinction between religious employers and organizations eligible for the accommodation would force the Dioceses to remove unaffiliated Catholic schools from their insurance plans. Rejecting both arguments, the district court ruled that the first argument was merely speculative (and the outcome on which the Dioceses speculated would, in any event, be prohibited by law) and the second argument failed to assert a legitimate religious exercise. The district court granted the Departments' summary judgment motion as to all of the plaintiffs' remaining claims based on the First Amendment, the non-delegation doctrine, and the APA.
Despite the split judgment, only the Departments appealed the district court's decision. Because revisions to the regulations have rendered the plaintiffs' compelled speech claim based on the non-interference provision moot, the appeal in this case concerns only the district court's grant of summary judgment to Catholic Charities and CENGI on their RFRA claim.
II. STANDARD OF REVIEW
“This court reviews the district court's disposition of cross-motions for summary judgment de novo, applying the same legal standards used by the district court, viewing the evidence and all factual inferences therefrom in the light most favorable to the non-movant, and resolving all reasonable doubts about the facts in favor of the non-moving party.” Am. Bankers Ins. Group v. United States, 408 F.3d 1328 (11th Cir.2005). Summary judgment is proper if the movant can show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Where the material facts are undisputed and all that remains are questions of law, summary judgment may be granted. See Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir.2011). III. DISCUSSION
A. RFRA Claims
1. Legal Background
a. RFRA
RFRA provides that the federal government “shall not substantially burden a person's exercise of religion” unless it demonstrates that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb–1(a)–(b). Congress passed RFRA in 1993 in response to the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which held that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (characterizing Smith ). In Smith, the Supreme Court reasoned that “[t]o make an individual's obligation to obey [a neutral and generally applicable] law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is ‘compelling [,]’ ... contradicts both constitutional tradition and common sense.” Smith, 494 U.S. at 885, 110 S.Ct. 1595 (internal quotation marks and citation omitted).
Congress stated that the purpose of RFRA was “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).” 42 U.S.C. § 2000bb(b)(1). Congress declared the strict scrutiny standard provided “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” Id. § 2000bb(a)(5). Indeed, RFRA “provide[s] even broader protection for religious liberty than was available under” Sherbert or Yoder because the government must also show that it used the least restrictive means to achieve its compelling interest. Hobby Lobby, 134 S.Ct. at 2761 n. 3.
b. Hobby Lobby
In Hobby Lobby, the Supreme Court held that enforcing the contraceptive mandate without an accommodation against closely held for-profit corporations that objected on religious grounds to providing contraceptive coverage violated RFRA. The corporations and their owners challenged the mandate as substantially burdening their religious exercise. Id. at 2764–66. The owners of the corporations sincerely believed that life begins at conception and that it is a sin to facilitate access to contraceptive drugs or devices that could destroy an embryo. Id. It was undisputed that the mandate required the plaintiffs to provide health insurance that covered methods of contraception that could result in the destruction of an embryo. Id. at 2775. The plaintiffs asserted that the mandate left them with only two options: (1) provide coverage for contraception in violation of their religious beliefs or (2) pay significant penalties. Given these choices, the Supreme Court held that the mandate “impose[d] a substantial burden.” Id. at 2779.
The government argued there was no substantial burden because the connection between what the mandate required the plaintiffs to do (provide health insurance that covered contraception) and the end that they found morally wrong (the destruction of an embryo) was too attenuated. Id. at 2777. The premise of the government's attenuation argument was that “providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four [contraceptive] methods at issue.” Id. In other words, the government asserted that the plaintiffs' belief—that providing insurance coverage for contraception facilitated the destruction of embryos—was unreasonable. The Supreme Court rejected this argument, which would have required the Court to determine the “circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Id. at 2778. The Supreme Court cautioned that “federal courts have no business addressing” such questions of religion and moral philosophy. Id. Instead, the Supreme Court deferred to the plaintiffs' religious belief that the coverage “is connected to the destruction of embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Id.
The Court then considered whether the mandate survived strict scrutiny. The majority assumed that the mandate furthered a compelling governmental interest but held that it was not the least restrictive means of doing so. Id. at 2779–80. The Court pointed to the accommodation, which at the time applied only to nonprofit organizations with religious objections, as a less restrictive alternative. The Court explained that after an organization opts out, the plan provider (for insured plans) or TPA (for self-insured plans) must exclude contraceptive coverage from the group health plan and provide separate payments for contraceptive coverage without imposing cost sharing requirements on the organization, plan, or plan participants or beneficiaries. Id. at 2782. Although the Court declined to answer whether the accommodation complied with RFRA, it lauded the accommodation as “seek[ing] to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” Id. at 2759. The Court further recognized that “[t]he effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.” Id. at 2760.
c. Wheaton College
After Hobby Lobby, the Court considered the accommodation itself in the context of an injunction sought under RFRA in Wheaton College. The Court enjoined the government from enforcing the mandate but required the plaintiff to inform HHS in writing that it had religious objections to providing coverage for contraceptive services. 134 S.Ct. at 2807. The Court explained that the government could “rely[ ] on this notice ... to facilitate the provision of full contraceptive coverage.” Id. The practical effect of the Wheaton College decision was twofold: the plaintiff received an accommodation, and HHS could rely on the notification to provide contraceptive coverage to the participants and beneficiaries of the plaintiff's plan.
d. Other RFRA Challenges to the Accommodation
After Hobby Lobby and Wheaton College, federal courts around the country considered RFRA challenges to the accommodation. Applying these two Supreme Court decisions, seven of the eight circuits to review these cases held that the accommodation does not violate RFRA. See Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir.2015); Catholic Health Care Sys. v. Burwell, 796 F.3d 207 (2d Cir.2015); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir.), cert. granted sub nom., S. Nazarene Univ. v. Burwell, ––– U.S. ––––, 136 S.Ct. 445, 193 L.Ed.2d 346, and cert. granted, ––– U.S. ––––, 136 S.Ct. 446, 193 L.Ed.2d 346 (2015); E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir.), cert. granted, ––– U.S. ––––, 136 S.Ct. 444, 193 L.Ed.2d 345 (2015); Univ. of Notre Dame v. Burwell (“Notre Dame II ”), 786 F.3d 606 (7th Cir.2015); Geneva Coll. v. Sec'y U.S. Dep't of Health & Human Servs., 778 F.3d 422 (3d Cir.), cert. granted sub nom., Zubik v. Burwell, ––– U.S. ––––, 136 S.Ct. 444, 193 L.Ed.2d 345, and cert. granted, ––– U.S. ––––, 136 S.Ct. 445, 193 L.Ed.2d 346 (2015); Priests for Life v. U.S. Dep't of Health & Human Servs. (“Priests for Life I ”), 772 F.3d 229 (D.C.Cir.2014), reh'g en banc denied, (“ Priests for Life II ”), 808 F.3d 1 (D.C.Cir.2015), cert. granted sub nom., Roman Catholic Archbishop of Wash. v. Burwell, ––– U.S. ––––, 136 S.Ct. 444, 193 L.Ed.2d 345 (2015), and cert. granted, ––– U.S. ––––, 136 S.Ct. 446, 193 L.Ed.2d 345 (2015). These circuits concluded that the accommodation does not substantially burden religious exercise. The Eighth Circuit disagreed, holding that the accommodation substantially burdens religious exercise and cannot survive strict scrutiny. Sharpe Holdings, Inc. v. U.S. Dep't of Health & Human Servs., 801 F.3d 927 (8th Cir.2015), petition for cert. filed, 84 U.S.L.W. 3350 (U.S. Dec. 15, 2015) (No. 15–775). Recently, the Supreme Court granted certiorari in several of these cases.
The seven circuits that upheld the accommodation recognized that the RFRA claim in Hobby Lobby was fundamentally different from challenges to the accommodation itself. In Hobby Lobby, the plaintiffs challenged the mandate—that is, the requirement that they provide contraceptive coverage—when their only options were to provide the coverage or pay significant penalties. But in the accommodation cases, the plaintiffs have challenged the regulatory scheme that allows them to opt out of the mandate without penalty. Put another way, the plaintiffs in the accommodation cases “do not challenge the general obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with that obligation.” Little Sisters of the Poor, 794 F.3d at 1160. Because they assert that “the exemption process itself imposes a substantial burden on their religious faiths,” their challenges are somewhat “paradoxical and virtually unprecedented.” Priests for Life I, 772 F.3d at 246 (internal quotation marks omitted).
The circuits upholding the accommodation recognized that the question of whether there is a substantial burden involves an objective inquiry. After interpreting the ACA and its regulations, they held that the act of opting out does not trigger contraceptive coverage. See, e.g., Notre Dame II, 786 F.3d at 614 (explaining that “[i]t is federal law, rather than the religious organization's signing and mailing the form, that requires ... third-party administrators of self-insured health plans[ ] to cover contraceptive services”). Although the eligible organizations asserted that the act of opting out makes them complicit in providing coverage, these courts explained that this objection could not constitute a substantial burden because individuals “have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.” Priests for Life I, 772 F.3d at 246.
In Sharpe Holdings, the Eighth Circuit reached the opposite conclusion, holding that the accommodation substantially burdened religious exercise, and enjoined the government from enforcing the accommodation. Relying on Hobby Lobby, the Eighth Circuit held that it was bound to accept the plaintiffs' “assertion that self-certification under the accommodation process—using either Form 700 or HHS Notice—would violate their sincerely held religious beliefs.” Sharpe Holdings, 801 F.3d at 941. Because the plaintiffs faced a substantial penalty if they failed to seek an accommodation or provide contraceptive coverage, the Eighth Circuit concluded there was a substantial burden. Id. at 942.
The Eighth Circuit then applied strict scrutiny. The court assumed that the government had a compelling interest but held that the government had failed to carry its burden to show that it lacked other means to achieve its interest without imposing a substantial burden on religion. Id. at 943. The Eighth Circuit concluded that less restrictive alternatives included the government: (1) requiring less information from eligible organizations seeking an accommodation; (2) assuming the cost of providing contraceptives through subsidies, reimbursements, tax credits, or tax deductions to employees; (3) paying for distribution of contraceptives at community health centers, public clinics, and hospitals; or (4) making contraceptive coverage available through the healthcare exchanges. Id. at 944–45. Given these alternatives, the Eighth Circuit concluded that the accommodation failed to survive strict scrutiny.
2. RFRA Analysis
With this legal landscape in mind, we now consider the plaintiffs' RFRA challenge. We hold that their challenge fails because (1) the accommodation does not substantially burden their religious exercise, and (2) in the alternative, even if there is a substantial burden, the accommodation survives strict scrutiny.
a. The Plaintiffs Allege a Sincere Religious Belief.
A threshold question we must ask is whether the plaintiffs' religious beliefs on which their RFRA claims are based are sincere. See Hobby Lobby, 134 S.Ct. at 2774 n. 28 (“To qualify for RFRA's protection, an asserted belief must be ‘sincere’....”). It is well established that we defer to a plaintiff's statement of its own belief, so long as the plaintiff actually holds that belief. See id. at 2779 (“[I]t is not for [courts] to say that [the plaintiffs'] religious beliefs are mistaken or insubstantial.”); Davila v. Gladden, 777 F.3d 1198, 1204 (11th Cir.) (“[W]e look only to see whether the claimant ... actually holds the beliefs he claims to hold.” (internal quotation marks omitted)), cert. denied sub nom., Davila v. Haynes, ––– U.S. ––––, 136 S.Ct. 78, 193 L.Ed.2d 32 (2015).
Each plaintiff states that its religious beliefs prevent it from paying for, providing, or facilitating the distribution of contraceptives. Each plaintiff also asserts that it cannot be complicit in the provision of contraception. The government does not contest the sincerity of these religious beliefs, nor is there any indication whatsoever in the record that the stated beliefs are insincere. We thus conclude that the plaintiffs' religious beliefs at issue are sincere.
b. The Accommodation Does Not Substantially Burden the Plaintiffs' Religious Exercise.
We now consider whether, accepting the plaintiffs' sincere religious beliefs, the accommodation substantially burdens their religious exercise. The plaintiffs assert that the act of notifying HHS or their TPAs of their religious objection will either trigger contraceptive coverage or make them complicit in a system that provides such coverage. Due to the significance they attach to opting out, the plaintiffs contend that the accommodation itself imposes a substantial burden because it puts them to the choice of violating their sincerely held religious beliefs or paying a substantial penalty. We accept the plaintiffs' sincere belief that triggering coverage or being complicit in coverage violates their religious beliefs and that the accommodation puts them to a choice between honoring their religious beliefs and facing significant penalties. We nonetheless conclude that the accommodation imposes no substantial burden.
(i) The Substantial Burden Analysis Involves an Objective Inquiry.
“[A] ‘substantial burden’ must place more than an inconvenience on religious exercise.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.2004). A law is substantially burdensome when it places “significant pressure” on an adherent to act contrary to her religious beliefs, meaning that it “directly coerces the religious adherent to conform ... her behavior.” Id. Thus, the government imposes a substantial burden when it places “pressure that tends to force adherents to forego religious precepts.” Id.
This inquiry involves both subjective and objective dimensions. Hobby Lobby made clear that there is a subjective aspect to this inquiry: courts must accept a religious adherent's assertion that his religious beliefs require him to take or abstain from taking a specified action. See 134 S.Ct. at 2779. But the substantial burden analysis does not end there. We agree with our seven sister circuits that the question of substantial burden also presents “a question of law for courts to decide.” Priests for Life I, 772 F.3d at 247.
The objective inquiry requires courts to consider whether the government actually “puts” the religious adherent to the “choice” of incurring a “serious” penalty or “engag[ing] in conduct that seriously violates [his] religious beliefs.” Holt v. Hobbs, ––– U.S. ––––, 135 S.Ct. 853, 862, 190 L.Ed.2d 747 (2015) (second alteration in original and internal quotation marks omitted). Put another way, courts must determine what the challenged law actually requires of the plaintiff. For example, in Holt, a Muslim inmate asserted that prison grooming policy substantially burdened his religious exercise because it prohibited him from growing a beard, which his religion required. The Supreme Court explained that because the “grooming policy requires petitioner to shave his beard,” the policy “put[ ]” him to the choice of violating his religious beliefs or facing serious disciplinary action. Id. In Holt, as in many RFRA cases, this inquiry was straightforward because there was no dispute about what the government's policy objectively required of the religious adherent. But when there is a dispute about what a law or governmental policy objectively requires, it is for the courts to construe the law or policy.
The plaintiffs here contend that under Hobby Lobby no such objective inquiry is required. In their view, a religious adherent's mere assertion that she is being compelled to violate her sincerely held religious belief means that the government has put her to such a choice, regardless of what the law objectively requires. We disagree. In Hobby Lobby, the plaintiffs challenged the contraceptive mandate. It was undisputed that the mandate gave the plaintiffs just two options: provide contraceptive coverage or pay a substantial penalty. Although the Supreme Court engaged in no objective analysis about what the mandate required, such analysis was unnecessary because the parties agreed that the government, through the mandate, put the plaintiffs to the choice of providing contraceptive coverage or paying a hefty fine. See Hobby Lobby, 134 S.Ct. at 2777–79; see also Priests for Life II, 808 F.3d at 2 (Pillard, J.) (concurring in denial of reh'g en banc) (“The parties in Hobby Lobby did not dispute what the law required, nor its practical effects....”).
Here, the parties agree that the plaintiffs have at least three options: provide contraceptive coverage, pay a penalty, or use the accommodation to opt out of providing contraceptive coverage. But they disagree about whether opting out puts the plaintiffs to the choice of violating their religious beliefs or paying a substantial fine. The plaintiffs contend that because an eligible organization's TPA only becomes obligated to provide coverage when the organization opts out, by opting out they will be triggering coverage. The government argues to the contrary that plan participants and beneficiaries are entitled to contraceptive coverage under the ACA regardless of any opt out. We conclude that it is for the courts to determine objectively what the regulations require and whether the government has, in fact, put plaintiffs to the choice of violating their religious beliefs by seeking the accommodation or incurring a substantial penalty.
We reject a framework that takes away from courts the responsibility to decide what action the government requires and leaves that answer entirely to the religious adherent. Such a framework improperly substitutes religious belief for legal analysis regarding the operation of federal law. Indeed, the plaintiffs have identified nothing in RFRA or case law that allows a religious adherent to dictate to the courts what the law requires. The plain language of RFRA simply does not support reducing the role of federal courts to “rubber stamps” that automatically recognize a substantial burden whenever a religious adherent asserts there is one. Catholic Health Care Sys., 796 F.3d at 218. If Congress had intended strict scrutiny to be triggered in all circumstances by a religious adherent's claim that there is a burden, it would have said so. Instead, it required that the federal government “substantially burden” the adherent's religious exercise.
Our dissenting colleague concedes that the question of substantial burden involves an objective inquiry but asserts that the inquiry should be limited to whether the government has imposed a substantial penalty. See Dissent at 1179–80. This analysis would require courts to defer to a religious adherent's sincere belief that the government is forcing her to choose between her religious belief and paying a substantial fine, even when the religious adherent is objectively wrong about how the law operates and what action the government requires her to take. The dissent's view is flawed because any burden (even an objectively insubstantial one) becomes a substantial burden if the penalty is heavy enough.
We acknowledge that in Hobby Lobby the Supreme Court cautioned courts against dictating to religious adherents “the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” 134 S.Ct. at 2778. In some cases, a court's objective analysis interpreting a statute or regulation may contradict a religious adherent's sincerely held belief about what that law requires. But such questions about what a law means are not the type of “difficult and important question of religion and moral philosophy” for which courts must defer to religious adherents. Id.; see Notre Dame II, 786 F.3d at 623 (Hamilton, J., concurring) (explaining that the interpretation of the regulations that give rise to the accommodation “is an issue not of moral philosophy but of federal law”).
Deciding how the law functions is not the only objective part of the substantial burden inquiry. The Supreme Court's free exercise cases (prior to Smith) distinguished between substantial burdens on religious exercise, which are protected, and de minimis burdens, which are not. For example, a religious adherent may not “require the Government to conduct its own internal affairs in ways that comport” with the person's religious beliefs, even if the government action interferes with that person's religious exercise. Bowen v. Roy, 476 U.S. 693, 699–700, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986); see Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 451, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (recognizing that government's decision to log and build roads would “have severe adverse effects” on practice of Native American religion but concluding this burden was not “heavy enough” to trigger strict scrutiny under the Free Exercise Clause).
In Bowen, Native American parents challenged federal statutes requiring them to provide their daughter's social security number to state welfare agencies as a condition of seeking benefits on the ground that it impinged upon their free exercise of religion. They sought an accommodation to keep the government from using her social security number in administering benefits, which they believed would rob their daughter of her spirit. 476 U.S. at 695–96, 106 S.Ct. 2147.
Even recognizing that the parents had a sincere belief that by using her social security number the government would be stealing their daughter's spirit, the Supreme Court rejected their claim, holding that the government's “use of a Social Security number ... does not itself in any degree impair [the parents'] freedom to believe, express, and exerc[ise their] religion.' ” Id. at 700, 106 S.Ct. 2147 (internal quotation marks omitted). The Court rejected the parents' attempt to use the Free Exercise Clause to “demand that the Government join in their chosen religious practices.” Id. at 699–700, 106 S.Ct. 2147. The Court explained that “[t]he Free Exercise Clause affords an individual protection from certain forms of governmental compulsion,” yet does not extend so far to “afford an individual a right to dictate the conduct of the Government's internal procedures.” Id. at 700, 106 S.Ct. 2147. The Court acknowledged that the parents' “religious views may not accept” the line that the Court drew “between individual and governmental conduct,” but it drew a line nonetheless. Id. at 701 n. 6, 106 S.Ct. 2147. Likewise, under RFRA courts must determine whether the burden on a religious adherent is, in fact, substantial.
c. The Accommodation Survives Strict Scrutiny.
Even assuming that the accommodation imposes a substantial burden on plaintiffs' religious exercise, RFRA allows the government to impose such a burden when it demonstrates that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb–1(b). Because the government has carried its burden of showing that the accommodation is the least restrictive means of furthering its compelling interests, we hold in the alternative that the accommodation survives strict scrutiny under RFRA.
(i) Compelling Interests Justify the Accommodation.
(a) The Government's Interests in Reducing the Rate of Unintended Pregnancies Are Compelling.
(b) The Mandate and Accommodation Further These Compelling Interests.
The mandate and accommodation achieve the government's goals by making contraceptives affordable and otherwise accessible to women. As explained above, federal law generally guarantees women contraceptive coverage without cost sharing. See 42 U.S.C. § 300gg–13(a)(4); 77 Fed.Reg. at 8725 (discussing HRSA guidelines). Importantly, under the mandate and accommodation, women covered by group health insurance plans generally are required to take no additional action to obtain this contraceptive coverage. This is because the coverage is delivered “through the existing employer-based system of health coverage.” 78 Fed.Reg. at 39888. Thus, under the mandate, women need not complete extra paperwork or sign up for an additional program because the contraceptive coverage is delivered with the health insurance they already have through their employers.
(c) The Exceptions to the Mandate and Accommodation Do Not Undermine the Government's Compelling Interest.
The plaintiffs argue that the government's interests in providing broad contraceptive coverage cannot be compelling because the ACA provides exemptions from the mandate for other types of employers—namely, those (1) with grandfathered health plans, (2) with fewer than 50 employees, and (3) that qualify as “religious employers.” We disagree.
First, the existence of grandfathered plans does not undermine the government's compelling interest in providing contraceptive coverage because grandfathered plans are only a short-lived, transitional measure intended to ease the burden of compliance with the ACA's sweeping reforms. 78 Fed.Reg. at 39887 n. 49 (“[T]he Affordable Care Act's grandfathering provision is only transitional in effect, and it is expected that a majority of plans will lose their grandfathered status by the end of 2013.”). To be grandfathered, a plan must continue to provide virtually the same benefits for the same percentage cost sharing as the plan had in effect on March 23, 2010. 45 C.F.R. § 147.140(g)(1)(ii). It becomes difficult to comply with these requirements over time. See, e.g., Second Am. Compl. at 23–24, No. 1:12–cv–03489, Doc. 56 (describing the Atlanta Archdiocese's inability to afford to maintain its grandfathered plan past January 1, 2014).
(ii) The Mandate and Accommodation Are the Least Restrictive Means of Furthering the Government's Compelling Interests.
As a final step, we must determine whether the mandate and accommodation are “the least restrictive means of furthering” the government's compelling interests. 42 U.S.C. § 2000bb–1(b). This test is “exceptionally demanding.” Hobby Lobby, 134 S.Ct. at 2780. The government must show “that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the [plaintiffs].” Id. When a less restrictive alternative serves the government's compelling interest “equally well,” the government must use that alternative. Id. at 2782; see id. at 2786 (Kennedy, J. concurring) (considering whether alternative “equally furthers the Government's interest”).
In determining whether potential alternatives to the mandate and accommodation equally further the government's interests, we must consider both the cost to the government and the burden the alternatives impose on the affected women. See id. at 2760 (majority opinion) (“[W]e certainly do not hold or suggest that RFRA demands accommodation of a for-profit corporation's religious beliefs no matter the impact that accommodation may have on thousands of women employed by Hobby Lobby. The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.” (emphasis added) (alteration, footnote, citation, and internal quotation marks omitted)); id. at 2760 (clarifying that the Court did not hold that “corporations have free rein to take steps that impose disadvantages on others or that require the general public to pick up the tab” (alteration and internal quotation marks omitted)). Because there are no less restrictive means available that serve the government's interests equally well, we hold that the mandate and accommodation survive strict scrutiny under RFRA.
Although the plaintiffs and the dissent suggest several potential less restrictive alternatives to the mandate and accommodation, their proposals fail to achieve the government's interests as effectively. Indeed, their proposals impose burdens on women that would make contraceptives less accessible than they currently are. Because these proposals cannot be expected to reduce the rate of unintended pregnancies and thereby improve the health of women and children as effectively as the mandate and accommodation, they do not qualify as less restrictive alternatives under RFRA.
Previously, the Supreme Court and a member of this Court suggested that a less restrictive alternative would be to allow eligible organizations to notify HHS of their opt out, instead of having to provide Form 700 to their plan providers or TPAs. See Wheaton Coll., 134 S.Ct. at 2807; Eternal Word Television Network, 756 F.3d at 1349 (William Pryor, J., concurring) (“The United States, for example, could require the Network to provide a written notification of its religious objection to the Department of Health and Human Services, instead of requiring the Network to submit Form 700—an instrument under which the health insurance plan is operated—to the third-party administrator.”). The Departments have responded to and addressed this concern by revising the accommodation procedures to allow eligible organizations notify HHS directly of their desire to opt out of the contraceptive mandate. 79 Fed.Reg. at 51094–95. With that potential alternative incorporated into the regulatory scheme, we turn to the alternatives proposed by the plaintiffs and the dissent.
(a) The Plaintiffs' Proposals
(b) The Dissent's Proposal
B. EWTN'S Free Exercise Claims
Plaintiff-appellant EWTN additionally claims that the contraceptive mandate violates the Free Exercise Clause of the First Amendment. The Supreme Court's Smith decision continues to apply to Free Exercise claims outside of the RFRA context; thus, neutral and generally applicable laws need not be justified by any compelling interest even if those laws incidentally burden religious exercise. Smith, 494 U.S. at 885, 110 S.Ct. 1595. A law is neutral unless “the object of a law is to infringe upon or restrict practices because of their religious motivation.” Lukumi Babalu Aye, 508 U.S. at 533, 113 S.Ct. 2217. And a law is generally applicable if it does not “in a selective manner impose burdens only on conduct motivated by religious belief.” Id. at 543, 113 S.Ct. 2217. “A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Id. at 531–32, 113 S.Ct. 2217. But if a law indeed is neutral and generally applicable, “then rational basis scrutiny should be applied, requiring that the plaintiff show that there is not a legitimate government interest or that the law is not rationally related to protect that interest.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1255 n. 21 (11th Cir.2012).
Congress included the contraceptive mandate in the ACA to improve women's health and public health generally. There is no evidence whatsoever that the mandate was enacted in an attempt to restrict religious exercise. To the contrary, in implementing the contraceptive mandate the Departments have attempted to accommodate religious interests by granting exceptions for religious employers and those organizations with religious objections to providing contraceptive coverage. EWTN nonetheless argues that the mandate is non-neutral because the exemption and accommodation “discriminate[ ] among religious objectors, creating a three-tiered system.” EWTN Appellant Br. at 54. But the regulations do not discriminate between religious denominations or infringe upon or restrict conduct because of its religious motivation. Rather, the procedures distinguish among organizations on the basis of their tax status. Thus EWTN has failed to show that the mandate is non-neutral.
EWTN also argues that the mandate is not generally applicable because the ACA carves out small employers and grandfathered plans. For the same reasons we rejected this argument as it pertains to the plaintiffs' RFRA claim, we reject it here. Just as these exceptions do not undermine the government's compelling interests justifying the contraceptive mandate, they do not prevent the mandate from being generally applicable as defined by Lukumi Babalu Aye. The exceptions for small businesses and grandfathered plans apply equally to religious employers and non-religious employers. The exceptions in no way “impose burdens only on conduct motivated by religious belief.” Lukumi Babalu Aye, 508 U.S. at 543, 113 S.Ct. 2217.
Because the contraceptive mandate is neutral and generally applicable, to invalidate it the plaintiff must show that is it not rationally related to a legitimate government interest. See GeorgiaCarry.Org, 687 F.3d at 1255 n. 21. EWTN cannot make such a showing. We have already concluded that the government has a compelling (and therefore legitimate) interest in ensuring women have access to contraceptives without cost sharing. See supra Part III.A.2.c.(i). The mandate is clearly rationally related to that interest and thus passes muster under the Free Exercise Clause.
C. EWTN'S Establishment Clause Claim
EWTN next argues that the contraceptive mandate violates the Establishment Clause by discriminating among religious organizations. Specifically, EWTN objects to the way the exemption and accommodation distinguish between houses of worship and other types of religious organizations. As an initial matter, 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, 144–145, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987); see also Wallace v. Jaffree, 472 U.S. 38, 83, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring) (“It is disingenuous to look for a purely secular purpose when the manifest objective of a statute is to facilitate the free exercise of religion by lifting a government-imposed burden. Instead, the Court should simply acknowledge that the religious purpose of such a statute is legitimated by the Free Exercise Clause.”).
Like its claim based on the Free Exercise Clause, EWTN's Establishment Clause claim fails because the accommodation does not distinguish among religious groups on the basis of denomination, but rather on non-denominational attributes of an objecting organization. The accommodation relies on tax status, which is a permissible way to distinguish between organizations for the purpose of drafting a religious exemption. “[R]eligious employers, defined as in the cited regulation, have long enjoyed advantages (notably tax advantages) over other entities, without these advantages being thought to violate the establishment clause.” Geneva Coll., 778 F.3d at 443 (alteration in original and internal quotation marks omitted); see also Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 666, 672–73, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (upholding a tax exemption on social welfare services that churches performed and emphasizing that “[t]he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.”). We therefore reject EWTN's Establishment Clause challenge.
D. EWTN'S Free Speech Claim
IV. CONCLUSION
We hold that the accommodation for the contraceptive mandate does not violate RFRA because it does not substantially burden the plaintiffs' religious exercise and because the government's regulatory scheme is the least restrictive means of furthering its compelling interests. The regulations also do not violate the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment. With regard to EWTN, we affirm the district court's grant of summary judgment to the government. With regard to CENGI and Catholic Charities, we vacate the district court's grant of summary judgment on the plaintiffs' RFRA claim and remand to the district court with instructions to grant the government's summary judgment motion.
* * *
The question of whether the mandate and accommodation violate RFRA is currently before the Supreme Court in Zubik v. Burwell, Nos. 14–1376 and 14–1377, and other consolidated cases. The Supreme Court will hold oral argument in these cases on March 23, 2016. Because the Supreme Court will soon render a decision addressing this issue, we believe it is appropriate to stay enforcement of the mandate and accommodation against the plaintiffs until the Supreme Court issues a decision. Accordingly, the Secretary of Health and Human Services is enjoined from enforcing against EWTN, Catholic Charities, and CENGI the substantive requirements set forth in 42 U.S.C. § 300gg–13(a)(4) and from assessing fines or taking other enforcement action against EWTN, Catholic Charities, or CENGI for non-compliance. The parties are directed to file a notice with this Court once the Supreme Court has issued its decision in Zubik.