RENDELL, Circuit Judge.
One of the many provisions of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), requires employer-provided health insurance plans to cover an array of preventative services, including FDA-approved contraceptives, at no cost to participating employees. Employees have the option of seeking out covered medical providers and using their services, in which case they are reimbursed, or they can choose not to use them. The particular provision that includes contraceptive coverage is commonly referred to as the "Contraceptive Mandate," and it includes a limited exemption for houses of worship and their integrated auxiliaries. See 45 C.F.R. § 147.131(a); 77 Fed. Reg. 8,725, 8,726 (Feb. 15, 2012). A wider set of religious non-profit and for-profit employers may receive an accommodation whereby they opt out of providing contraceptive coverage, with the Government then arranging for their employees to receive the coverage through third parties at no cost to, and with no participation of, the objecting employers. See 45 C.F.R. § 147.131(b)-(c); 78 Fed. Reg. 39,870, 39,874-39,875 (July 2, 2013); Zubik v. Burwell, 136 S.Ct. 1557, 1559 (2016).
Two years after we upheld this opt-out accommodation in Geneva College v. Secretary United States Department of Health and Human Services, 778 F.3d 422, 427 (3d Cir. 2015), vacated and remanded sub nom. Zubik, 136 S. Ct. at 1561, we now confront the house-of-worship exemption. This appeal presents two primary questions that again derive from the purported intersection of the Contraceptive Mandate and religion: (1) whether the Contraceptive Mandate must exempt a secular anti-abortion group with no religious affiliation, and (2) whether an employee's religious beliefs are substantially burdened by the law's requirement that his or her employer's insurance plan cover contraceptives. After careful review, but without any hesitation, we answer both questions in the negative.
Appellant Real Alternatives urges that, pursuant to the Equal Protection Clause of the Fifth Amendment, if a religious organization may be exempted from the Contraceptive Mandate, then non-religious entities with an identical stance on contraceptives must be exempted as well. Real Alternatives additionally challenges the Contraceptive Mandate and the criteria for the exemption as not only arbitrary and capricious under the Administrative Procedures Act but also contrary to federal law.
The other appellants, three employees of Real Alternatives, bring individual challenges to the Contraceptive Mandate. They argue that the Contraceptive Mandate violates the Church Amendment, 42 U.S.C. § 300a-7(d). They also argue that maintaining a health insurance plan that covers contraceptives through their employer violates their religious rights under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4 ("RFRA").
The District Court denied Appellants' motion for summary judgment in its entirety and granted the Government's cross-motion for summary judgment in its entirety. Because we agree with the District Court's rulings on all of the issues raised, we will affirm.
A. Statutory and Regulatory Framework
1. The Affordable Care Act and the Contraceptive Mandate
In 2010, Congress passed the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the "ACA"). The ACA requires non-grandfathered group health plans and insurance providers to cover four categories of preventative health services, without cost-sharing, as provided for in guidelines supported by the Health Resources and Services Administration ("HRSA"), an arm of the Department of Health and Human Services ("HHS").
HHS requested assistance from the Institute of Medicine ("IOM"), a non-profit division of the National Academy of Sciences, to develop guidelines on the specific preventative services for women to be covered under the ACA (none existed at the time the ACA was passed). The IOM recommended that HRSA endorse a list of services that included "[FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." Institute of Medicine, Clinical Preventative Services for Women: Closing the Gaps 10 (2011). Examples of FDA-approved contraceptive methods are diaphragms, oral contraceptives, intrauterine devices, and emergency contraceptives. Id. at 105-06. HRSA adopted the IOM's guidelines in full. Health Resources & Service Administration, Women's Preventative Service Guidelines, available at https://www.hrsa.gov/womensguidelines/ (last visited Jan. 27, 2017). In doing so, HRSA required every group health plan and health insurance plan to include coverage for these preventative care services to employees working at non-exempt employers (the "Contraceptive Mandate"). It did not require anything from the employee.
2. Exemption to the Contraceptive Mandate
At the same time as HRSA adopted IOM's recommended guidelines, an exemption from the Contraceptive Mandate for certain religious employers was proposed as an interim final regulation (the "Exemption"). 76 Fed. Reg. 46,621 (Aug. 3, 2011). Commenters to the proposed guidelines had suggested that requiring religious employers to sponsor group health plans that provide contraceptive services could impinge on those employers' religious freedom. Id. at 46,623. In light of those comments, HHS and the Departments of Labor and Treasury (collectively, the "Departments"), the agencies named in Real Alternatives's underlying lawsuit, authorized HRSA to exempt certain religious employers from the Contraceptive Mandate. The Departments specified that they sought "to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions" and that "[s]uch an accommodation would be consistent with the policies of States that require contraceptive services coverage, the majority of which simultaneously provide for a religious accommodation."
The Departments originally defined a religious employer as an employer that:
Id. The Departments also noted that HRSA's "discretion to establish an exemption applies only to group health plans sponsored by certain religious employers and group health insurance offered in connection with such plans," and thus "health insurance issuers in the individual health insurance market would not be covered under any such exemption." Id. at 46,623-24 (emphasis added). The Departments formally adopted the four-part definition for exempted employers in 2012. They also created a one-year safe harbor for non-exempted, non-profit organizations with religious objections, and announced that they would develop and propose changes to the regulation that "would 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. at 8,727.
The final rules regarding the Exemption went into effect in 2012. The Departments replaced the multifactor religious employer test with one definition, essentially the fourth prong of the previous test: "[A]n employer 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," which addresses churches and their integrated auxiliaries. 78 Fed. Reg. at 39,874. The Departments noted that this new definition "continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement." Id. The Departments also stated:
Id. The Departments added that their statement about a religious employer's likelihood to hire employees who share religious beliefs opposing contraceptives was made in response to commenters concerned that the Exemption would "undermine the [G]overnment's compelling interests in promoting public health and ensuring that women have equal access to health care. . . ." 80 Fed. Reg. 41,318, 41,325 (July 14, 2015); see also 78 Fed. Reg. at 39,887 ("Nor do the exemption for religious employers and the accommodations for eligible organizations undermine the [G]overnment's compelling interests.").
In 2015, the Departments stated that the Exemption was "provided against the backdrop of the longstanding governmental recognition of a particular sphere of autonomy for houses of worship, such as the special treatment given to those organizations in the [Internal Revenue] Code." 80 Fed. Reg. at 41,325. They continued:
B. Factual Background and Procedural History
1. Appellant Real Alternatives
Appellant Real Alternatives is a non-profit, non-religious, anti-abortion organization. It does not hold itself out as a religious entity, is not incorporated as such, and has not adopted any religious views or positions. Its primary purpose is to provide "life-affirming alternatives to abortion services," and it offers pregnancy and parenting support programs as well as abstinence education services to women and families throughout Pennsylvania, Michigan, and Indiana. J.A. 92-93.
Real Alternatives avers that its views on human life are based on science, reason, and non-religious philosophical principles. Id. at 93. In addition to opposing abortion, Real Alternatives opposes the use of all contraceptives because it considers these drugs to be "morally wrong." Id. at 94.
Real Alternatives administers its programs through networks of social service agencies, which Real Alternatives hires as subcontractors. It requires all of its subcontracting organizations to share its views and to agree not to provide or recommend contraceptives or abortion. It only hires employees who share the company's stance on contraceptives and abortion.
Since 2008, Real Alternatives has excluded contraceptive care from the health insurance plan it offers to its employees. Real Alternatives alleges that in 2014, because of the ACA, its insurer stopped omitting contraceptive care from coverage and, as a result, a new plan was offered to employees.
2. Appellants Real Alternatives Employees
Appellants Kevin I. Bagatta, Thomas A. Lang, and Clifford W. McKeown work for Real Alternatives (the "Real Alternatives Employees"). They are, respectively, the President, Vice President of Operations, and Vice President of Administration of Real Alternatives. They are the only full-time employees of Real Alternatives, and they aver that they share the company's beliefs concerning contraceptive drugs. Each employee receives health insurance coverage through Real Alternatives, as do their wives and total of seven minor children, three of whom are female.
The Real Alternatives Employees aver that the Contraceptive Mandate violates the Church Amendment. They also aver that the Contraceptive Mandate violates their religious rights under RFRA. Specifically, they allege that their "sincerely held religious beliefs prohibit them from using, supporting, or otherwise advocating the use of abortifacients, or participating in a health insurance plan that covers such items for themselves or their families." J.A. 123.
3. District Court Opinion
The District Court denied Real Alternatives's motion for summary judgment in its entirety and granted the Government's cross-motion for summary judgment in its entirety.
The District Court began by addressing Real Alternatives's equal protection claim, finding in the first instance that Real Alternatives is not similarly situated to religious employers with comparable objections to the Contraceptive Mandate because, notwithstanding those objections, they do not share the same bases for those positions—namely, religion versus a single secular position. As discussed infra, the District Court raised and distinguished two relevant federal cases, Center for Inquiry, Inc., v. Marion Circuit Court Clerk, 758 F.3d 869 (7th Cir. 2014), and March for Life v. Burwell, 128 F.Supp.3d 116 (D.D.C. 2015). The District Court also focused on the "vast history of legislative protections [that] exist to safeguard religious freedom," and contrasted "[m]oral philosophies," which it found "have been historically unable to enjoy the same privileged state." J.A. 35. The District Court continued that even if Real Alternatives were similarly situated to a house of worship, respecting religious autonomy plainly constitutes a legitimate purpose to allow the classification to stand under rational basis review. The District Court examined the Government's statements in the ACA regulations and found that it had sufficiently identified religious freedom as the purpose furthered by the Exemption. The District Court concluded its equal protection analysis by expressing concern that "[a]llowing adherence to a single moral belief . . . to be indistinguishable from religion or an entire moral creed . . . leads us down a slippery slope." Id. at 42-43. It reasoned that "finding a singular moral objection to law on par with a religious objection" could very well lead to a flood of similar objections. Id. at 44.
Next, the District Court concluded that Real Alternatives's claim that the Contraceptive Mandate is arbitrary and capricious "fail[s] for the same reasons that [its] Fifth Amendment equal protection claim lacked merit." Id. at 49; see also id. at 48 (noting that "[t]he standard for determining whether an [APA] violation exists under the arbitrary and capricious standard is markedly similar to rational basis review"). The District Court also rejected Real Alternatives's argument that the Contraceptive Mandate violates federal law—namely, the ACA and the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009 (the "Weldon Amendment")—as well as the Real Alternatives Employees' claim that it violates the Church Amendment.
Finally, the District Court rejected the Real Alternatives Employees' RFRA claim. It found that the burden at issue—maintaining an insurance plan that includes coverage for preventative services—was not substantial enough based on the Supreme Court's approach in other RFRA cases. See J.A. 62 (first citing Bowen v. Roy, 476 U.S. 693, 703 (1986) (holding that the Government could condition public benefits on the religiously prohibited act of providing a social security number without trampling on the beneficiary's free exercise rights); then citing Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 449 (1988) (finding that building a road through sacred land did not violate the free exercise rights of those who believed in the land's religious significance)). The District Court concluded in the alternative that, even if the Contraceptive Mandate did impose a substantial burden, it would still satisfy RFRA because it was the least restrictive means of furthering the Government's compelling interest in a broadly applicable system of health care that advances public health and gender equality.
A. Standard of Review
We exercise plenary review over a district court's grant of summary judgment, applying the same standard that the district court should have applied.
B. Equal Protection Claim
Real Alternatives challenges the constitutionality of the Exemption's scope, arguing that it violates the organization's right to equal protection under the Fifth Amendment by exempting only religious employers and not other secular entities, such as itself, that oppose the requirements set forth in the Contraceptive Mandate. Real Alternatives urges that "[t]here is no rational purpose to impose the Mandate on those who do not want the items and will not use them," and contends that it is excluded from the Exemption "simply because [it] is a `non-religious ethical group' instead of a church." Appellants' Br. at 28 (final alteration in original). If churches receive a religious exemption, the argument goes, then so too must non-religious entities.
1. Legal Standard
To prevail on its equal protection claim, Real Alternatives must show that the Government has treated it differently from a similarly situated party and that the Government's explanation for the differing treatment does not satisfy the relevant level of scrutiny. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985). The parties agree, as they must, that rational basis review is the applicable standard. Thus, there must be "a rational relationship between the disparity of treatment and some legitimate governmental purpose." United States v. Pollard, 326 F.3d 397, 407 (3d Cir. 2003) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)). Rational basis review confers a "presumption of validity" on legislation, and "the plaintiff must negate every conceivable justification for the classification in order to prove that the classification is wholly irrational." Brian B. ex rel. Lois B. v. Pa. Dep't of Educ., 230 F.3d 582, 586 (3d Cir. 2000) (citing FCC v. Beach Commc'ns, 508 U.S. 307, 314-15 (1993)).
We must first determine whether Real Alternatives is similarly situated to a religious employer, such that the Exemption must be available to the group absent a legitimate rationale. There is no question it is not.
Real Alternatives leans on its company-mandated eschewal of contraceptives in an attempt to situate itself in lockstep with religious employers who can avail themselves of the Exemption, contending that it is in fact "more favorably" or "identically" situated to houses of worship because all of its employees by definition oppose contraceptive coverage. Appellants' Br. at 28, 30. In making this claim, Real Alternatives invokes Center for Inquiry, in which the Seventh Circuit struck down an Indiana statute that permitted religious officials to solemnize marriages but prohibited their counterparts from secular groups from doing the same. 758 F.3d at 875. There, the court reasoned that "[a]n accommodation cannot treat religions favorably when secular groups are identical with respect to the attribute selected for that accommodation." Id. at 872.
But Real Alternatives ignores key distinctions between that case and this one. Most notably, Real Alternatives disregards the stark contrast between itself and the appellant in Center for Inquiry, a humanist group that resembles a "religion in everything except belief in a deity." Id. at 871. Real Alternatives is a completely different type of entity, particularly because of its structure, aim, purpose, and function in its members' lives. Indeed, Real Alternatives's credo is limited to a one-sentence mission statement that says it "exists to provide life-affirming alternatives to abortion services throughout the nation." J.A. 92. In Center for Inquiry, the humanist organization explicitly argued that "its methods and values play the same role in its members' lives as religious methods and values play in the lives of adherents." 758 F.3d at 871 (emphasis added). Real Alternatives makes no such claim, as it is solely concerned with administering programs that reflect its moral opposition to contraceptives and abortion. Thus, Center for Inquiry does not help Real Alternatives demonstrate that it is similarly situated to a religious entity.
However, Real Alternatives does bear some resemblance to the plaintiffs in March for Life, the district court decision upon which it heavily relies. There, the District Court for the District of Columbia granted summary judgment to a non-profit, secular anti-abortion group on its equal protection challenge to the Contraceptive Mandate. We cannot accept the district court's reasoning in that case. Relying almost exclusively on Center for Inquiry, the district court found that the secular group at issue was "similarly situated with regard to the precise attribute selected for accommodation"—specifically, a shared view that abortion is wrong. March for Life, 128 F. Supp. 3d at 126 (emphasis omitted). But that court—and, by extension, Real Alternatives—ignored a crucial point: Unlike the corporation in Center for Inquiry, which involved a comprehensive belief system that happened not to be deity-centric, a secular anti-abortion group mirrors a single-issue interest group and not a religious organization that takes advantage of the Exemption. We agree with Judge Jones's observation regarding the disparities between the two groups: "In every other respect, they are different. Real Alternatives is an employer, a company, and not a belief system . . . and its single mission statement cannot guide believers comprehensively throughout life as a religion can." J.A. 42; cf. United States v. Seeger, 380 U.S. 163, 187 (1965) (accommodating a secular pacifist's objections to the draft because his beliefs "occup[y] the same place in his life as the belief in a traditional deity holds in the lives of" adherents to religion).
Real Alternatives is in no way like a religious denomination or one of its nontheistic counterparts—not in structure, not in aim, not in purpose, and not in function. We do not doubt that Real Alternatives's stance on contraceptives is grounded in sincerely-held moral values, but "religion is not generally confined to one question or one moral teaching; it has a broader scope." Malnak v. Yogi, 592 F.2d 197, 209 (3d Cir. 1979) (Adams, J., concurring). We have accordingly noted three "guideposts" courts ought to use when identifying a religion:
Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981). We thus agree with Amici Curiae that "Real Alternatives is functionally similar not to a church, but to the countless nonreligious 501(c)(3) nonprofit organizations that take morally informed positions on some discrete set of issues," such as the NAACP and the National Organization for Marriage.
Real Alternatives overemphasizes its shared opposition to contraceptive coverage while inexplicably dismissing the Government's repeated statements that the Exemption "was provided against the backdrop of the longstanding governmental recognition of a particular sphere of autonomy for houses of worship. . . ." 80 Fed. Reg. at 41,325. But framing the Exemption—or any religious exemption for that matter—so broadly as to encompass any employer who disagrees with any aspect of an underlying law lies in direct contradiction to the Supreme Court's refusal to broaden religion-based exemptions in similar contexts. See United States v. Lee, 455 U.S. 252, 260-61 (1982) (in a Social Security-related matter, rejecting a claim to extend a limited exemption because "[c]onfining the . . . exemption . . . provided for a narrow category which was readily identifiable," and noting that "every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs"). Permitting Real Alternatives to qualify for the Exemption would similarly run afoul of this country's vast history of legislative protections that single out and safeguard religious freedom but not moral philosophy. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) ("Where, as here, [G]overnment acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption comes packaged with benefits to secular entities.");
Finally, even if Real Alternatives were deemed similarly situated to a religion, the group's challenge would still fail because of the historic principle of respect for the autonomy of genuine religions. This principle provides the legitimate purpose for the preferential treatment of religious organizations. The Exemption "provide[s] for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions." 76 Fed. Reg. at 46,623. It "was provided against the backdrop of the longstanding governmental recognition of a particular sphere of autonomy for houses of worship," is "consistent with their special status under longstanding tradition in our society and under federal law, and is not a mere product of the likelihood that these institutions hire coreligionists." 80 Fed. Reg. at 41,325. Real Alternatives brazenly dismisses these statements as disingenuous.
It is beyond dispute that respecting church autonomy is a legitimate purpose—one that not only satisfies rational basis review but also is enshrined in the constitutional fabric of this country. Principles of noninterference trace back to "the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations," and recognizes their "independence from secular control or manipulation—in short, [their] power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694, 704, 706 (2012) (quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952)) (internal quotation marks omitted). Even when noninterference is not strictly required, the Government has discretion to grant certain religious accommodations subject to constitutional limitations.
We reiterate, however, that Real Alternatives cannot satisfy the first prong of a successful equal protection claim. Finding all single-issue non-profit organizations to be similarly situated to houses of worship based on their adherence to a shared position on one issue would expand religious exemptions beyond what is constitutionally required. That a legitimate purpose of the highest order— respect for religious autonomy—justifies the Exemption only underscores the inevitability of our conclusion. We therefore find that Real Alternatives's equal protection claim fails as a matter of law.
C. APA Claim
Real Alternatives asserts two claims under the APA: (1) the Contraceptive Mandate is arbitrary and capricious because it does not serve a rational governmental purpose as applied to Real Alternatives, an organization that employs only people who oppose contraceptive coverage; and (2) it violates the Constitution and federal law. Both claims lack merit.
1. Legal Standard
A reviewing court may "hold unlawful and set aside agency action" that is "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "(B) contrary to constitutional right, power, privilege, or immunity." 5 U.S.C. § 706(2)(A)-(B).
We have held that the standard for determining whether an APA violation exists under the arbitrary and capricious standard is substantially similar to rational basis review:
Nazareth Hosp. v. Sec'y U.S. Dep't of Health & Human Servs., 747 F.3d 172, 179-80 (3d Cir. 2014) (alteration in original) (citations and internal quotation marks omitted) (emphasis added).
Because we find that Real Alternatives's equal protection claim fails, we need not reexamine its arbitrary and capricious claim, which is subject to the same standard of review. Id.
Real Alternatives argues that the Contraceptive Mandate also violates the APA because it infringes on two other federal laws: the ACA and the Weldon Amendment. The Real Alternatives Employees argue that the Contraceptive Mandate also violates the Church Amendment and, therefore, the APA. We disagree with these contentions and find no violations. We address each law in turn.
The ACA states that none of its provisions "shall be construed to require a qualified health plan to provide coverage of [abortion] services as part of its essential health benefits for any plan year." 42 U.S.C. § 18023(b)(1)(A)(i). Real Alternatives argues that the Contraceptive Mandate violates this provision by "requiring coverage of certain `FDA-approved contraceptives' which act as abortifacients, in that they cause the demise of human embryos after conception and before and/or after implantation in the uterus." Appellants' Br. at 57. Real Alternatives does not cite any statutory or regulatory definition of abortion that includes contraceptives.
However, longstanding FDA regulations treat pregnancy as "the period of time from implantation until delivery," 45 C.F.R. § 46.202(f), and categorize drugs that may prevent implantation as contraceptives rather than as abortifacients. 62 Fed. Reg. 8,610, 8,611 (Feb. 25, 1997) ("Emergency contraceptive pills are not effective if the woman is pregnant; they act by delaying or inhibiting ovulation, and/or altering tubal transport of sperm and/or ova (thereby inhibiting fertilization), and/or altering the endometrium (thereby inhibiting implantation)."). Further, we defer to the Government's definition because "this Court will normally accord particular deference to an agency interpretation of longstanding duration." Barnhart v. Walton, 535 U.S. 212, 220 (2002) (internal quotation marks omitted). Thus, we conclude that the Contraceptive Mandate does not require coverage for abortion services and that Real Alternatives's claim to the contrary fails.
b. Weldon Amendment
Real Alternatives raises a similar claim based on the Weldon Amendment, which requires that no funds provided by the ACA's underlying appropriations bill be made available to a federal agency or program that "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." Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011). This claim fails for the reasons stated in the preceding section.
c. Church Amendment
The final APA claim asserts a violation of the Church Amendment, which prohibits an individual from being required to "perform or assist in the performance of any part of a health service program or research activity funded . . . by the Secretary of [HHS] if his performance or assistance . . . would be contrary to his religious beliefs or moral convictions."
We now turn to the RFRA claim, which presents a question of first impression for this Court: whether employees, who oppose contraceptives on religious grounds but work for secular employers, experience a substantial burden on their religious exercise when the Government regulates group health care plans and health care insurance providers by requiring them to offer health insurance coverage that includes coverage for services the employees find incompatible with their religious beliefs. This claim is distinct from an employer's RFRA claim objecting to the mandated provision of contraceptive services that was found to be meritorious in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2775 (2014).
Under RFRA, the "Government may substantially burden a person's exercise of religion only if it demonstrates 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." 42 U.S.C. § 2000bb-1(b) (emphasis added). The "exercise of religion" constitutes "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A).
Congress enacted RFRA in 1993 in response to the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872 (1990), which overruled the earlier method of analyzing free exercise claims used in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). See Geneva, 778 F.3d at 430. The earlier decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling governmental interest. Id. Smith rejected this test because applying it whenever a person objected on religious grounds to the enforcement of a generally applicable law "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind. . . ." 494 U.S. at 888.
Courts look to pre-Smith free exercise jurisprudence when assessing RFRA claims. See Hobby Lobby, 134 S. Ct. at 2772. The Supreme Court has characterized RFRA as "adopt[ing] a statutory rule comparable to the constitutional rule rejected in Smith." Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006). RFRA may be applied to situations not previously addressed under pre-Smith jurisprudence. See Hobby Lobby, 134 S. Ct. at 2772 ("It is simply not possible to read these provisions as restricting the concept of the `exercise of religion' to those practices specifically addressed in our pre-Smith decisions.").
1. Legal Standard
Religious exercise is impermissibly burdened when government action compels individuals "to perform acts undeniably at odds with fundamental tenets of their religious beliefs." Yoder, 406 U.S. at 218 (emphasis added). Accordingly:
Thomas v. Review Bd., 450 U.S. 707, 717-18 (1981) (emphasis added). This Court has found "a substantial burden exists where: 1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available . . . versus abandoning one of the precepts of his religion in order to receive a benefit; OR 2) the [G]overnment puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs." Mack v. Warden Loretto FCI, 839 F.3d 286, 304 (3d Cir. 2016).
Important principles circumscribe the RFRA inquiry, and it is for the reviewing court to determine whether a burden is "substantial." We thus reiterate a self-evident principle that we set forth in Geneva: "While the Supreme Court reinforced in Hobby Lobby that we should defer to the reasonableness of the [RFRA claimant's] religious beliefs, this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on the [claimant's] religious exercise."
RFRA's legislative history underscores the requirement that the burden be substantial. The version of RFRA initially introduced in the House of Representatives provided only that "Government shall not burden a person's exercise of religion" unless the burden satisfied strict scrutiny. H.R. 1308, 103d Cong. § 3 (1993). It was only later in the enactment process that it was modified to include the word "substantially" immediately before "burden." 42 U.S.C. § 2000bb-1(a)-(b); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1176 (10th Cir. 2015) ("Congress added the word `substantially' before passage to clarify that only some burdens would violate the act. 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statements of Sen. Kennedy and Sen. Hatch). . . . If plaintiffs could assert and establish that a burden is `substantial' without any possibility of judicial scrutiny, the word `substantial' would become wholly devoid of independent meaning."), vacated and remanded sub nom. Zubik, 136 S. Ct. at 1561. This important change made it explicit that RFRA would provide relief only from "substantial" government burdens on religious exercise, not from all government burdens.
There is no substantial burden 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"—even if "the challenged Government action would interfere significantly with private persons' ability to pursue spiritual fulfillment according to their own religious beliefs." Lyng, 485 U.S. at 449. Nor can a party use RFRA to "require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." Bowen, 476 U.S. at 699. "Congress has required qualitative assessment of the merits of. . . RFRA claims." Geneva, 778 F.3d at 435. At the same time, we must be careful to conduct only a review into the substantiality of the religious burden and not to question the reasonableness of the religious belief itself. See Hobby Lobby, 134 S. Ct. at 2778 (RFRA does not permit courts to address "whether the religious belief asserted in a RFRA case is reasonable"). Courts are not to accept every allegation of substantial burden. To the contrary, RFRA's demand for judicial review has been recognized by the Supreme Court,
RFRA centers on the intersection between the specific conduct in which the objector is forced to engage and his or her religious exercise, and that is where we begin our analysis. The Real Alternatives Employees characterize their purchase of insurance as somehow enabling the provision of contraceptives, thereby substantially burdening their religious exercise. They allege that their "sincerely held religious beliefs prohibit them from [(1)] using, [(2)] supporting, or otherwise [(3)] advocating the use of abortifacients, or [(4)] participating in a health insurance plan that covers such items for themselves or their families." J.A. 123 (emphasis added). We address each enumerated allegation in turn, and we conclude that the Real Alternatives Employees have failed to demonstrate that the Contraceptive Mandate forces them to violate their religious beliefs.
The act complained of is the signing on to coverage followed by the request for reimbursement of services chosen. That basic scheme is the same for any individual whose employer provides him or her with insurance: The plan deems the employee eligible to be reimbursed for hundreds of different services, and that employee can take advantage of that eligibility as he or she sees fit. Should the employee opt to use a particular service, he or she fills out a form and asks to be paid back for costs incurred. In the end, the employee uses a covered service, or not; either way, there is no requirement to support or advocate for whatever service he or she, or others, selects. Checking off a box to be eligible for reimbursement of services—services of the employee's choosing—in no way indicates, let alone suggests, support or advocacy for that service. The disconnect between the use of any one service and the use of contraceptives is arguably even greater—and it calls into question the "substantiality" of the purported burden. After all, a substantial burden on the exercise of religion exists only where the Government "demands that [an individual] engage in conduct that seriously violates [his or her] religious beliefs," Hobby Lobby, 134 S. Ct. at 2775 (emphasis added), and such engagement, as discussed in the following sections, is clearly lacking here.
We are then left with the fourth proscribed conduct that is central to the RFRA claim: participation. As with their equal protection claim, the Real Alternatives Employees rely primarily on March for Life for key support, as the district court there reasoned that "participating in" a health insurance plan, by its very nature, effects a substantial change in behavior because "health insurance does not exist independently of the people who purchase it." 128 F. Supp. 3d at 129. There, the district court found that, "[g]iven the nature of health insurance, [employees] do play a role in the health care plans that provide contraceptive coverage." Id. While characterizing what employees do by subscribing to a plan as "playing a role," March for Life would have us position this fact pattern in lockstep with Hobby Lobby. But do employees really "play a role?" The Real Alternatives Employees, along with the Dissent, assume the affirmative, relying on March for Life's treatment of the concepts "buy into" and "participate in" as interchangeable. But they are not.
Subscribing to an insurance plan involves no real "participation," just as there is no active "participation" when subscribing to a magazine or joining AARP or enrolling in a credit card that has membership benefits. These are all packages that involve a one-time enrollment, followed by essentially passive eligibility for certain services that the member opts in or out of. By declaring that an insurance plan does not exist without participants, the district court in March for Life somehow equates the plan with the employees as if they actively engage in a way that—were it factual—might be objectionable. Let us be clear: There is no "participation" in the real sense of the word. The employee pays for coverage and thereby avails him or herself of the ability to be reimbursed for services. But payment for the ability to have coverage does not give an employee an active "role" in the underlying plan. The insurance company offers a package of health benefits, including certain benefits mandated by the Government. The plan does not assure the availability of specific services. Those services are for the employee to seek out and use—or not. And the employee, by merely subscribing to that plan in the first instance, is even less directly related to whatever specific services he or she, or anyone else, might or might not use later on.
This attenuation is fatal to the RFRA claim. Cases finding a substantial burden under RFRA have consistently done so where, unlike here, there is a burden that interfered with the claimants' exercise and religion is directly implicated by federal action. See Hobby Lobby, 134 S. Ct. at 2751 (provision required employer-plaintiffs to provide contraceptive coverage in any group plan that they provided to their employees); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 527-28 (1993) (ordinance prohibited plaintiffs from sacrificing animals); Lee, 455 U.S. at 254 (statute required plaintiffs to pay Social Security taxes); Thomas, 450 U.S. at 712 (law denied plaintiff unemployment benefits); Sherbert, 374 U.S. at 399-400 (same); Yoder, 406 U.S. at 207 (law required plaintiffs to send their children to school); see also Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752, 761 (7th Cir. 2003), (holding, in the context of RLUIPA, that "a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable"), reh'g en banc denied; cf. Fernandez v. Mukasey, 520 F.3d 965, 966 (9th Cir. 2008) (per curiam) ("Petitioners have failed to establish that the [statutory provision at issue] places a substantial burden on their religious exercise under RFRA. . . . [T]he connection between [the statutory requirement and their religious exercise] is too attenuated to create a substantial burden on petitioners' religious exercise.") (footnote omitted).
These cases underscore that the connection between the conduct and the religious belief matters,
The Real Alternatives Employees ultimately fail to grasp that one size does not fit all: The fact that the Government may require insurers to offer coverage for expenditures for certain services that some might find objectionable on religious grounds cannot form the basis of requiring the Government to adjust its programs on behalf of all employees. The categories of services that could offend religious beliefs is wide-ranging and, as discussed infra, denying reimbursement for such services to all on the basis of the religious objections of some would be neither desirable nor administrable. It is certainly not mandated under RFRA, which has long protected against substantial, usually direct, burdens on the individual bringing the claim, not those utterly disconnected from the claimants themselves.
In fact, the only behavior that the Contraceptive Mandate governs is the behavior of a third party, the insurer. And as Amici Curiae rightly note, RFRA does not afford the Real Alternatives Employees a "religious veto over governmental action that affects them only incidentally and does not coerce them to violate their faith." Amici Curiae Br. at 24. This principle, that a RFRA claimant show that a penalty or benefit be more than incidental in order to amount to a substantial injury, is well-rooted in RFRA jurisprudence. In Lyng, the Supreme Court rejected the RFRA claimants' free exercise claim because the injury only amounted to an incidental effect. 485 U.S. at 453. The Court held that the indirect burden cases "cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require [G]overnment to bring forward a compelling justification for its otherwise lawful actions." Id. at 450-51. As discussed at length supra, in passing RFRA, Congress bolstered Lyng's reading of the Free Exercise Clause with RFRA's text
RFRA precedent further instructs that the Real Alternatives Employees' requested remedy, lifting a penalty imposed on a third party—the insurer—would run afoul of this Court's and others' findings that individuals cannot use RFRA to compel the Government to structure its relations with a third party in a certain way. "The Supreme Court has consistently rejected the argument that an independent obligation on a third party can impose a substantial burden on the exercise of religion in violation of RFRA. . . ." Geneva, 778 F.3d at 440-41 (outlining cases); see also Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985) (recognizing as "a fundamental principle of the Religious Clauses" that "[t]he First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities") (omission in original) (internal quotation marks omitted); E. Texas Baptist Univ. v. Burwell, 793 F.3d 449, 459 (5th Cir. 2015) ("RFRA confers no right to challenge the independent conduct of third parties. . . ."), vacated and remanded sub nom. Zubik, 136 S. Ct. at 1561; Priests for Life, 772 F.3d at 246 ("[N]o 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."); Ave Maria Found. v. Sebelius, 991 F. Supp. 2d. 957, 965-66 (E.D. Mich. 2014) ("[A] great number of religious objections based on third-party actions are dismissed simply because the plaintiff is not pressured to act in any way.") (citing cases).
Before we end our discussion of the "substantial burden" inquiry under RFRA, we note that while the Dissent would downplay the workability concerns exposed by the District Court regarding the ramifications of finding a substantial burden here, we believe they are real. As one Seventh Circuit Court of Appeals jurist observed, "contraceptive care is by no means the sole form of health care that implicates religious concerns." J.A. 66 (citing Grote v. Sebelius, 708 F.3d 850, 866 (7th Cir. 2013) (Rovner, J., dissenting)). Medical treatments that some might view as objectionable are as varied as they are numerous. Examples that are by no means exhaustive include artificial insemination and other reproductive technologies; genetic screening and counseling; preventative and remedial treatment for sexually transmitted diseases; sex reassignment; vaccination; organ transplant from deceased donors; blood transfusions; euthanasia or physician-assisted suicide; and so on. See id. (noting that "in some religions, virtually all conventional medical treatments are objectionable"). By extension, "[a] finding that coverage for one set of objectionable services constitutes a substantial burden would imply that coverage for all such services imposes a substantial burden"—an implication that would "render the health care system totally unworkable." Id.; see also Navajo Nation, 535 F.3d at 1072 ("[G]overnment simply could not operate if it were required to satisfy every citizen's religious needs and desires.").
The Dissent parrots March for Life's dismissal of these workability concerns, pointing to the incentives of insurance companies as safeguards against "a world in which the [G]overnment would require third-party insurance companies to provide coverage in every possible form requested by an individual on religious grounds."
Our inquiry today urges an examination of the claimed substantial nature of an alleged burden. This approach contrasts sharply with that of the district court in March for Life, which assumed—without any analysis whatsoever—the "substantial" nature of the so-called burden of "participating" in an insurance plan. Id. at 129-30. Yet we arguably need not even address the issue of whether the employee's choice is coercive when the so-called burden of signing up for coverage that might enable themselves or others to be reimbursed for various services is clearly not substantial. No matter how sincerely held their beliefs may be, we cannot accept at face value that subscribing to the plan imposes a "substantial burden." Surely the word "substantial" is a matter of subjectivity, not as to genuineness of belief but as to the nature and extent to which religious exercise is hampered or restrained by the conduct in question. It is, after all, an imperative safeguard, else religious beliefs would invariably trump government action.
In characterizing the facts in an inaccurate manner, sidestepping the statutory text, legislative history, and controlling case law entirely, the Real Alternatives Employees urge us to put an active gloss on what is essentially a passive commercial monetary decision: enrolling in a plan so as to be reimbursed for services of which one later chooses to avail him or herself. Viewing the situation for what it is compels us to conclude that whatever burden there might be, it is certainly not substantial.
Because we conclude that the Real Alternatives Employees have not—and cannot—show that the Contraceptive Mandate imposes a substantial burden on their religious beliefs, we need not reach the question of whether the Contraceptive Mandate is the least restrictive means of furthering a compelling governmental interest.
For the foregoing reasons, we will affirm the District Court's order denying Appellants' motion for summary judgment in its entirety and granting the Government's cross-motion for summary judgment in its entirety.
JORDAN, Circuit Judge, concurring in part in the judgment and dissenting in part.
Not so long ago, the idea of making nuns sign government documents they believe would involve them in grievous sins relating to life and death, or forcing devout Mennonites to pay for health insurance coverage for drugs and devices they view as abortifacients, would probably have been unthinkable in this country. Then came the Patient Protection and Affordable Care Act, known variously as Obamacare, or the Affordable Care Act, or the ACA. It has trailed in its wake a number of highly contentious lawsuits but none more intensely fought than the ones in which the government has sought to sweep aside the religious objections of individuals and organizations opposed to the portion of the ACA called the "Contraceptive Mandate." That feature of the statute, which requires non-grandfathered group health care plans to include coverage for certain controversial contraceptive items, was at the center of the aforementioned disputes involving the nuns and the Mennonites. See Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1168 (10th Cir.), vacated and remanded sub nom. Zubik v. Burwell, 136 S.Ct. 1557 (2016). And it is here for a return engagement in this case.
Having been beaten back in earlier efforts to force the Contraceptive Mandate on the populace, the government has changed its tune a bit — it has come up with a new rationale for its erratically aggressive enforcement of that feature of the ACA — but the song it sings is essentially the same: individuals whose faith prompts sincere opposition to paying for or facilitating the purchase of contraceptives cannot be heard to object; the only thing legitimately at issue is the regulation of insurance markets. According to the government, the Mandate has nothing to do with deep questions about the beginning of life, or the boundaries of moral culpability, or about faith and one's obligations to God. Religious beliefs are not being burdened in any meaningful sense, so people should just stop complaining. That is the line pressed by the United States Department of Justice, and it is the line accepted by my colleagues in the Majority, but I reject it.
Even if this case could properly be characterized as nothing more than an examination of insurance markets, though, I could not agree with my friends in the Majority on the central point of the dispute. They believe that citizens who buy health insurance are ciphers, that they do not have any "`participation' in the real sense of the word" when it comes to the coverage they sign up and pay for, and therefore the answer to the question "do employees really `play a role'" in the market for health care services is, according to my colleagues, a resounding no. (Maj. Op. at 45.) I disagree. After the federal government gave itself a vastly greater role in the health insurance market, there has no doubt been less room for decision making by individual purchasers. But that does not mean that people were not meaningfully participating in the market before. There were plans available that employers were free to sponsor, and employees were free to seek, that did not require payment for contraceptive coverage. And there are still, as this record demonstrates, insurers who are ready, willing, and able to provide such plans again, if the government did not forbid it. So, while it is true that individual choice has been drastically reduced by the federal government, that subtraction of freedom cannot be a reason to say that government coercion of payment for unwanted contraceptive products — indeed, to some people, morally abhorrent products — is no burden on individuals. The circularity of the government's and the Majority's reasoning is stark.
I do not disagree with every aspect of my colleagues' decision. The portion of the judgment that deals with the Equal Protection and Administrative Procedures Act claims of Real Alternatives, Inc. is sound.
Having reached that conclusion, I confront the question that the Majority avoids: whether the Contraceptive Mandate is narrowly tailored to support a compelling government interest. The answer is no. Time and again courts have rejected the regulation because it is not the least restrictive means of achieving its objective. There are several other options the government could have chosen to enforce its regulation without impinging on the rights of religiously devout individuals. For that reason, I respectfully dissent.
The Individual Plaintiffs are full-time employees of Real Alternatives,
In addition to dedicating their professional lives to preventing abortion, the Individual Plaintiffs hold religious beliefs that honor life from conception. It is undisputed that all three men are devout in their respective religious faiths — Bagatta and Lang are Catholics, and McKeown is an Evangelical Christian. Among their sincerely held convictions, "[e]ach of the employees and their families believe that all human lives have full human dignity from the moment of conception/fertilization." (JA 99.) That is the baseline, undisputed factual background upon which we are obligated to proceed. The Individual Plaintiffs' belief that life begins at conception entails the further belief "that they are prohibited from using, supporting, or otherwise advocating abortifacient drugs and devices, including IUD and any hormonal birth control method. . . ." (JA 99.)
The Contraceptive Mandate, promulgated under the ACA, requires non-grandfathered group health care plans to include coverage for the full range of FDA-approved contraceptive methods, which encompasses diaphragms, oral contraceptives, intrauterine devices, and drugs such as "Plan B" and "Ella."
The Individual Plaintiffs currently elect to obtain their health insurance through their employer, Real Alternatives. Before the Mandate went into effect, Real Alternatives bought an insurance plan for its employees that did not contain contraceptive coverage. Because of the Contraceptive Mandate, that plan is no longer available. If the Individual Plaintiffs decide to decline coverage through their employer, the government requires them to obtain it in the open market, either independently or through "insurance exchanges," which are organizations created pursuant to the ACA to facilitate the purchase of health insurance. All the plans available on the open market — again because of the Contraceptive Mandate — contain coverage for the contraceptives.
Enforcement of the Contraceptive Mandate, however, is far from uniform. The government has granted a great many exceptions. See Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dep't of Health & Human Servs., 724 F.3d 377, 413 (3d Cir. 2013) (Jordan, J., dissenting), rev'd and remanded sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014) ("By its own choice, the government has exempted an enormous number of employers from the Mandate, including `religious employers' who appear to share the same religious objection as Conestoga and the Hahns, leaving tens of millions of employees and their families untouched by it."). As the District Court observed, this scheme of sporadic application has spawned "dozens of lawsuits . . . challeng[ing] both the Contraceptive Mandate and the dimensions of its exemptions." (JA 11.) This is just the latest episode.
RFRA was enacted "to provide very broad protection for religious liberty." Hobby Lobby, 134 S. Ct. at 2760. It was passed in the wake of the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which upended decades of precedent by "virtually eliminat[ing] the requirement that the government justify burdens on religious exercise." Conestoga Wood, 724 F.3d at 407 (Jordan, J., dissenting) (quoting 42 U.S.C. § 2000bb(a)(4)). RFRA was supported by an "extraordinary ecumenical coalition in the Congress[,]" id., and has been hailed as "the most important congressional action with respect to religion since the First Congress proposed the First Amendment." Id. (quoting Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 243 (1994)).
Most importantly for present purposes, RFRA restored in religious liberty cases "the judicial standard of review known as `strict scrutiny,' which is `the most demanding test known to constitutional law.'" Id. at 408 (quoting City of Boerne v. Flores, 521 U.S. 507, 534 (1997)). According to RFRA, the government is generally forbidden to "substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." 42 U.S.C. § 2000bb-1(a). If the government does substantially burden an individual's exercise of religion, then that individual is entitled to an exemption from the government action, unless the government can show that the "application of the burden to the person— (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(b). No one disputes that the strict scrutiny required by RFRA applies to the Contraceptive Mandate, if the Mandate substantially burdens religious belief and practice.
B. Substantial Burden
The Majority says that the Individual Plaintiffs have not demonstrated a substantial burden on their religious beliefs, but my colleagues reach that conclusion by a route that amounts to questioning the validity of those beliefs — an indulgence that we are forbidden. The Supreme Court has made it clear that, when applying RFRA and analyzing a burden on religion, our role is confined. "[F]ederal courts have no business addressing . . . whether the religious belief asserted in a RFRA case is reasonable. . . ." Hobby Lobby, 134 S. Ct. at 2778 (internal quotations omitted); cf. Smith, 494 U.S. at 887 ("Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim."); Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 715 (1981) (recognizing that "it is not for us to say that the line [a religious observer] drew was an unreasonable one" and that courts cannot "dissect religious beliefs"). Instead of weighing the reasonableness of deeply-held religious convictions (and inevitably passing judgment on their value), we have a "narrow function." Hobby Lobby, 134 S. Ct. at 2779. We ask only "whether the line drawn [by the adherent] reflects an honest conviction." Id. (citation omitted).
Once we have determined that an adherent has an honest conviction, we ask if the government regulation imposes a substantial burden on adherence to that conviction. In this instance, we must decide "whether the [Contraceptive] [M]andate imposes a substantial burden on the ability of the objecting parties to [live] in accordance with their religious beliefs[.]" Hobby Lobby, 134 S. Ct. at 2778. A "substantial burden" exists where: (1) "a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other [persons] versus abandoning one of the precepts of his religion in order to receive a benefit"; or (2) "the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs." Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007).
The Individual Plaintiffs attest in their Verified Complaint that paying for insurance coverage for contraception violates their religious beliefs.
The Supreme Court has long since declared that a Hobson's choice like the one forced upon the Individual Plaintiffs is indeed a substantial burden on the exercise of religion. See Thomas, 450 U.S. at 716 ("More tha[n] 30 years ago, the Court held that a person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program."). And that principle remains in full force today. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012, 2021-22 (2017) (finding a burden on religion under the Free Exercise clause where a state statute required a church to choose between "participat[ing] in an otherwise available benefit program or remain[ing] a religious institution"). It reflects an understanding that predates RFRA but rings throughout the statute. See Sherbert v. Verner, 374 U.S. 398, 404 (1963) (finding a burden on a plaintiff where a state unemployment law "force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand"); Wisconsin v. Yoder, 406 U.S. 205, 218 (1972) (finding a substantial burden where a "Wisconsin [compulsory education] law affirmatively compel[led] [the plaintiffs] under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs"). The avoidance of such dilemmas is a key purpose of RFRA. See 42 U.S.C. § 2000bb(b) (stating that a purpose of RFRA is "to provide a claim or defense to persons whose religious exercise is substantially burdened by [the] government").
Hobby Lobby considered in depth whether the Contraceptive Mandate imposed a substantial burden on religiously devout persons who were being forced to make a choice very like the one at issue here.
Two other courts have considered the precise question before us today: whether the Mandate imposes a substantial burden on the exercise of religious beliefs when individuals are required to purchase insurance coverage through their employer or on the open market, and all available plans (because of government action) are required to contain coverage at odds with those individuals' faith. Both courts held that the Contraceptive Mandate does, in that context, impose a substantial burden on the exercise of religion. In March for Life v. Burwell, 128 F.Supp.3d 116, 130 (D.D.C. 2015), the court said "[e]mployee plaintiffs are . . . caught between the proverbial rock and a hard place: they can either buy into and participate in a health insurance plan that includes the coverage they find objectionable and thereby violate their religious beliefs, or they can forgo health insurance altogether and thereby subject themselves to penalties for violating the ACA's individual mandate." Similarly, in Wieland v. United States Department of Health & Human Services, 196 F.Supp.3d 1010, 1017 (E.D. Mo. 2016), the court observed that the Mandate's "ultimate impact is that Plaintiffs must either maintain a health insurance plan that includes contraceptive coverage, in violation of their sincerely-held religious beliefs, or they can forgo healthcare altogether, which will result in the imposition of significant penalties (not to mention the potentially crippling costs of uninsured health care)."
The Majority here, though, sees things differently. It claims that the Contraceptive Mandate cannot possibly impose a substantial burden on anyone, relying on six general arguments to bolster that conclusion. Those reasons, however, look like nothing more than a rejection of where the Individual Plaintiffs' consciences have led them to draw the line against being complicit in what their religions tell them is wrong. It is the legitimacy of their conscientious religious objections that my colleagues call into question, contrary to the explicit direction of the Supreme Court. See Hobby Lobby, 134 S.Ct. at 2778 (refusing to delve into "difficult and important question[s] of religion and moral philosophy").
1. The Precedential Effect of Geneva College
First, the Majority relies on the now-vacated decision of our court in Geneva College v. Secretary, United States Department of Health & Human Services, 778 F.3d 422 (3d Cir. 2015), vacated and remanded sub nom. Zubik v. Burwell, 136 S.Ct. 1557 (2016), to emphasize that courts can, and should, assess the substantiality of a claimant's asserted burden. In that case, a panel considered the religious exemption to the Mandate and determined that requiring non-profit religious employers to register their objection to the Contraceptive Mandate by filling out a form was not a substantial burden under RFRA. See id. at 442 ("Because we find that the self-certification procedure does not cause or trigger the provision of contraceptive coverage, appellees are unable to show that their religious exercise is burdened."). That opinion was deprived of any precedential effect by the Supreme Court's decision in Zubik v. Burwell, 136 S. Ct at 1561. Nevertheless, the Majority contends that Geneva is persuasive and was not vacated because it was incorrect. (Maj. Op. at 37 n.18.) I have my doubts about Geneva's reasoning,
But even if Geneva were binding or persuasive precedent, it does not lead to the result the Majority reaches in this case. There are significant factual differences between the burdens alleged in Geneva and those at issue here. Notably, the panel in Geneva reasoned that the claimed burden — the requirement to fill out and file a form — was actually a means to register and affirm the employer's objection to providing contraceptive coverage. See Geneva, 778 F.3d at 438-39 ("If anything, because the appellees specifically state on the self-certification form that they object on religious grounds to providing such coverage, it is a declaration that they will not be complicit in providing coverage."). According to Geneva, filling out the form was, in effect, the organization's chance to "wash its hands of any involvement in contraceptive coverage[,]" leaving it to "the insurer and the third party administrator [to] tak[e] up the slack under compulsion of federal law." Id. at 441 (internal quotation omitted).
2. Using, Supporting, or Advocating the Use of Contraceptives
The Majority next turns to the words of the Individual Plaintiffs' Complaint, where they object to "using, supporting, or otherwise advocating, the use of abortifacients, or participating in a health insurance plan that covers such items for themselves or their families." (Verified Compl. ¶ 158.)
As my colleagues see it, because the Individual Plaintiffs can elect not to use the covered contraceptives, they are not burdened by having to pay for the coverage. The message is "get over it." And that seems to me to be only a "thinly-veiled attack" on sincerely-held religious beliefs. March for Life, 128 F. Supp. 3d at 129. When the Individual Plaintiffs say in their Verified Complaint that it is at odds with their religious beliefs to purchase a plan which uses their money to offer products and services they believe to be morally abhorrent, I think we are supposed to believe them.
And we should, because their concern that their money will be used to support contraceptives is perfectly logical. It is the Majority's characterization of how the insurance market functions that is confused. It overlooks two essential truths: money is fungible and insurance is based on the pooling of risk. Cf. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2585 (2012) (The requirement that everyone must purchase health insurance "forces into the insurance risk pool more healthy individuals, whose premiums on average will be higher than their health care expenses. This allows insurers to subsidize the costs of covering the unhealthy individuals the [ACA] reforms require them to accept."). In the government's own words, the system "works through `risk pooling in the group market' which `results in sharing . . . costs . . . across an entire plan or employee group.'" (Responding Br. at 23-24 (quoting 75 Fed. Reg. at 41,730).) Thus even when the Individual Plaintiffs elect not to use contraceptive coverage, they still pay for and thus support it. See id. at 24 (noting that the plans "cover a wide array of services . . . [and insurers] set rates based on standardized policies [that] ensure that medical costs are spread across the entire pool of plan beneficiaries"). It is peculiar, then, for the Majority to claim that purchasing an insurance plan that includes contraception "does not assure the availability of specific services." (Maj. Op. at 45.) While an individual must seek out and use a particular service, the point of health insurance is in fact to help facilitate and support access to each service for everyone in the risk pool.
Taken to its logical conclusion, my colleagues' position means that the Contraceptive Mandate could only be a "substantial burden" on the exercise of religion if the government forced religious objectors not only to buy plans with contraceptive coverage, but also to buy the covered contraceptives. That idea was rejected by the Supreme Court in Hobby Lobby, when it determined that providing coverage to employees, who may or may not elect to use the contraceptive coverage, was a substantial burden on the exercise of religion.
3. Participating in a Plan Containing Contraceptives
The Majority next focuses its attention on the Individual Plaintiffs' claim that participating in a health insurance plan containing coverage for contraceptives is a substantial burden on their free exercise. In doing so, my colleagues reduce the Individual Plaintiffs to non-entities in the calculus of harm. The Majority's argument is that the Individual Plaintiffs do not meaningfully "participate" in the acquisition of their health insurance coverage, so the market regulation forcing all but exempt plans to carry contraceptive coverage cannot be a substantial burden on them. There is, however, no sound legal or logical foundation for that position.
To begin, the Majority claims that there is no "active `participation'" by an individual in subscribing to an insurance plan. (Maj. Op. at 45.) Their argument is that the concepts of "buy into" and "participate in" are not "interchangeable[,]" therefore when individuals purchase an insurance plan, they do not participate in it. (Id.) This is a semantic distinction without difference. And even assuming that the "active" participation requirement had a basis in our case law (which it does not), being an insurance plan participant should fit the bill. "[H]ealth insurance does not exist independently of the people who purchase it," March for Life, 128 F. Supp. 3d at 129, and the purchasers are not designated by the insurers as "plan participants" for nothing. As already explained, the Individual Plaintiffs are not simply paying for the services they elect to use; they are participants in a plan that pools risk and provides comprehensive coverage. They are paying for all services, even those they individually decline to use, thus their participation in the plan directly subsidizes the use of contraceptives. That is hardly "remote facilitation." (Maj. Op. at 48) (citation omitted). What's more, the Majority completely ignores that "participation" in the insurance market is compelled — and enforced with a significant monetary penalty.
The Majority also makes a nearly identical argument using a slightly different term — directness. But, deploying a synonym does not improve the argument that the Individual Plaintiffs can be ignored as playing no "active `role'" in their health plans. (Maj. Op. at 45.) Even if the Individual Plaintiffs' burden or participation could rightly be characterized as "indirect" in some way, nothing requires a burden to be "direct" to be cognizable under RFRA. See Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 450 (1988) ("It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment.").
My colleagues also draw a number of analogies in an effort to demonstrate why this case does not involve a substantial burden. None ring true. They hypothesize someone alleging a substantial burden when subscribing to a magazine, or joining an organization, or acquiring a credit card. According to the Majority, "there is no active `participation'" in any of these scenarios because "[t]hese are all packages that involve a one-time enrollment, followed by essentially passive eligibility for certain services that the member opts in or out of." (Maj. Op. at 45.) My colleagues again completely ignore that purchasing health insurance in the era of the ACA is far from voluntary — it is compelled and enforced with a monetary fine. Their examples are therefore meaningless. Of course subscribing to a magazine would be a substantial burden under RFRA if it were abhorrent to the subscriber's religious beliefs and were forced upon him by the government.
The credit card and banking analogy fares no better. My colleagues say that, as in the insurance market, "accountholders [at a bank] have no say in lending decisions (what rates to charge, which borrowers to lend to) and no direct control over the bank." (Maj. Op. at 46 n.25.) Accordingly, if we were to "[a]ssume that the individual's bank account is mandated by the Government under a privatized Social Security regime" and "an accountholder had a religious objection to the bank's practices" such as "lending money at interest[,]" that accountholder could not "successfully vindicate his or her religious beliefs through RFRA." (Id.) I disagree. In that hypothetical, it would undoubtedly impose a substantial burden on religion to force such believers to put their money into an interest bearing account contrary to their religious beliefs.
In the end, the Majority's claim that the Individual Employees do not meaningfully participate in their health care plans cannot be saved by the hypotheticals on which they rely. Each ignores that the government has coerced the Individual Plaintiffs to purchase health insurance with provisions deeply offensive to their sincerely held religious beliefs. The hypotheticals thus serve only to underscore the weakness of the Majority's argument.
4. "Incidental" Effects and Lyng
To bolster its arguments regarding "direct" and "active" participation, the Majority tries to link this case and Geneva to Lyng v. Northwest Indian Cemetery Protective Association. In that case the Supreme Court concluded that the government's building of a road on public land used for religious purposes by Native Americans was not a violation of their right to Free Exercise. 485 U.S. at 447-53. My colleagues also make passing reference (Maj. Op. at 40) to Bowen v. Roy, 476 U.S. 693, 699-700 (1986), a Supreme Court case relied upon in Lyng which held that requiring the use of social security numbers to participate in federal food stamp and aid programs was not a significant burden on religious beliefs. See Bowen, 476 U.S. at 699-700.
Bowen and Lyng are distinguishable. Both cases recognized the difference between challenges to "certain forms of governmental compulsion" and policies that amounted to the "Government's internal procedures." Bowen, 476 U.S. at 700. In Bowen, because the assignment of a social security number did not require the religious objectors to do anything, the Court found that the law fell into the latter category. Id. (recognizing that religious protections under the Free Exercise clause extend to "what the government cannot do to the individual, not in terms of what the individual can extract from the government") (quotation omitted). And in Lyng, the same was true: the claimants sought to stop government action that affected their religious practice (i.e. building a road through their lands), but did not compel their own behavior. Lyng, 485 U.S. at 449 ("In both cases, the challenged Government action would interfere significantly with private persons' ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government's action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens."). By contrast, the ACA forces the Individual Plaintiffs to engage in certain behavior — purchasing health insurance — and enforces that compulsion with the threat of a significant fine.
My colleagues, however, fixate on the Supreme Court's observation in Lyng that an incidental effect of a government program with "no tendency to coerce individuals into acting contrary to their religious beliefs" is not violative of the First Amendment. (Maj. Op. at 49 n.29.) (quoting Lyng, 485 U.S. at 450-51). Of course, I do not disagree with that limitation. But the Majority is fighting a losing battle with common sense when it argues that imposing financial penalties on individuals who fail to take action that violates their religion has "no tendency to coerce." The Mandate coerces the Individual Plaintiffs into violating their beliefs by forcing them to purchase a health care plan at odds with their religious convictions. See Verified Complaint at ¶ 46 (JA 99-100) ("[T]he Real Alternatives employees and their families object, on the basis of their sincerely held . . . religious beliefs, to participating in, and/or paying a portion of the premium for, a health insurance plan which provides coverage for objectionable items for themselves and their family members."). Thus, the Individual Plaintiffs here are not challenging the way the government "conduct[s] its own internal affairs," (Maj. Op. at 40 (quoting Bowen, 476 U.S. at 699)); they are challenging what a government regulation requires them to do.
The Majority also dresses up the "incidental" point in different language and says that RFRA bars claims arising out of burdens on third parties. The faulty logic is that, because the Contraceptive Mandate only regulates the insurer and not the Individual Plaintiffs, it cannot be a substantial burden under RFRA. See (Maj. Op. at 55 ("The Supreme Court has consistently rejected the argument that an independent obligation on a third party can impose a substantial burden on the exercise of religion in violation of RFRA." (quoting Geneva, 778 F.3d at 440-41))). But the Individual Plaintiffs do not object to insurance companies offering plans with contraceptive coverage, making the cases the Majority relies on about third parties irrelevant. The Individual Plaintiffs are only asking the government to allow them to purchase a plan that does not include the offending coverage — a request that, according to this record, would not impose any harm or burden on any third parties. There evidently are insurers prepared to fill that market demand, just as there were before the ACA told all insurers that they had to eliminate that choice.
5. Opening the Floodgates
The Majority also relies on a floodgates argument to hold that the Individual Plaintiffs have not experienced a substantial burden on their free exercise of religion. My colleagues worry that allowing the Individual Plaintiffs to maintain a RFRA claim would open the way to myriad challenges to the ACA, because "the categories of services that could offend religious beliefs [are] wide-ranging." (Maj. Op. at 52.) Thus, "denying . . . such services to all on the basis of the religious objections of some would be neither desirable nor administrable." Id.
Of course, that fails to address the burden issue at all. It is merely an assertion that, regardless of the burden on religious belief, it could be difficult for the government to do what it wants if any accommodation for religious believers must be made. Sadly, this argument is "the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions." Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436 (2006). It is also the reasoning of the dissent in Hobby Lobby, which worried that allowing a RFRA challenge to one part of the ACA "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." 134 S. Ct. at 2785 (quoting Smith, 494 U.S. at 888-89). But the Majority in Hobby Lobby rightly rejected that hyperbolic concern, recognizing that the judiciary is bound to apply the balancing test set forth by RFRA to adjudicate such claims. See id. ("But Congress, in enacting RFRA, took the position that `the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.'" (quoting 42 U.S.C. § 2000bb(a)(5))). The command "to enforce RFRA as written[,]" id., requires us to avoid imagining a speculative "parade of horribles" as a counterweight to the real burden on real people. March for Life, 128 F. Supp. 3d at 132; see also Gonzales, 546 U.S. at 434 ("RFRA, however, plainly contemplates that courts would recognize exceptions—that is how the law works." (citing 42 U.S.C. § 2000bb-1(c))).
Nevertheless, because the Majority has cited concern for the insurance markets as a reason to walk away from RFRA, it bears emphasis that there is a simple answer to that concern.
6. "Substantial" Burden
My colleagues repeatedly highlight that government action must substantially burden religion in order to be cognizable under RFRA, citing Geneva and legislative history as proof that the weight of the burden is "the very essence of a RFRA claim[.]" (Maj. Op. at 42.) They say that, even if there is a burden on the Individual Plaintiffs, it is not enough to be considered "substantial." That is the comfortable rationale. "No matter how sincerely held [the Individual Plaintiffs'] beliefs may be, we cannot accept at face value that subscribing to the plan imposes a `substantial burden.'" (Id. at 59.) In articulating that conclusion, my colleagues recognize that their characterization is "a matter of subjectivity," as indeed it is. Id. at 48.
They are, of course, correct that the plain language of RFRA forbids the government from "substantially burden[ing]" a claimant's exercise of religion. 42 U.S.C. § 2000bb-1(a); Cf. Paek v. Attorney Gen. of the U.S., 793 F.3d 330, 334 (3d Cir. 2015) ("[W]e do not resort to legislative history to cloud a statutory text that is clear." (quoting Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994))). But as I have already endeavored to show, the compelled action here is indeed a substantial burden. It seems to me that the disagreement we have in this case is not fundamentally about the burden; it is about the underlying belief.
The Majority claims that I have made the misstep of "conflat[ing]" the duty to analyze whether a burden is substantial with our obligation to accept the validity of a claimant's religious belief. (Maj. Op. at 43 n.24.) But, I have addressed the two questions distinctly, see supra at 12 ("Once we have determined that an adherent has an honest conviction, we ask if the government regulation imposes a substantial burden on adherence to that conviction."), knowing that caution is needed because an evaluation of the substantiality of a burden can easily cross into the forbidden territory of opining on the merits of a claimant's beliefs. See Hobby Lobby, 134 S. Ct. at 2777-78 (recognizing that focusing on the closeness of "connection between what the objecting parties must do . . . and the end they find to be morally wrong" in reality "dodges the question that RFRA presents . . . and instead addresses a very different question that the federal courts have no business addressing").
It is the Majority's approach that runs afoul of binding precedent,
I sincerely wish that this were not the Majority's analytical approach. In a powerful dissent from the denial of en banc review in the Little Sisters of the Poor case, Judge Harris Hartz of the Tenth Circuit pointed out how fraught with ill-consequences it can be.
I agree with Judge Hartz and decline to question the Individual Plaintiffs' religious beliefs under the guise of adjudicating "substantial burden." I respect their convictions and conclude that the Contraceptive Mandate — which forces them, under threat of monetary penalty, to sign up for and participate in a system that violates their devoutly held beliefs about human life — is a substantial burden on their exercise of religion.
C. Strict Scrutiny
Because the Individual Plaintiffs are "substantially burdened" by the Contraceptive Mandate, I turn to the "strict scrutiny" questions the Majority does not address: whether the government action is "in furtherance of a compelling government interest" and is the "least restrictive means" of achieving that interest. See 42 U.S.C. § 2000bb-1(b). That standard is "exceptionally demanding," Hobby Lobby, 134 S. Ct. at 2780, and the government's arguments are inadequate. Along with many others who have considered the matter, I do not believe that the Contraceptive Mandate can survive strict scrutiny.
1. Access to Contraception
In Hobby Lobby, the majority opinion assumed without deciding that one interest proffered by the government was compelling: "ensuring that all women have access to all FDA-approved contraceptives without cost sharing." 134 S. Ct. at 2779. If that is a given, the question becomes whether the Mandate is the least restrictive means of furthering that compelling government interest. The test is sometimes framed as an inquiry into whether the means is "precisely tailored" to meet the compelling interest. Id. at 2783; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993) (recognizing in the Free Exercise context that a burden on religion "must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest"). The Hobby Lobby Court concluded that there were several other options available to the government to meet that interest, the most straightforward of which would be for "the government to assume the cost of providing the contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections." 134 S. Ct. at 2780. Here, the government could surely do the same thing, defraying the cost of contraceptive coverage to the extent necessary to make up for the absence of people in the insurance pool who decline the coverage.
In Hobby Lobby, the Supreme Court observed that the government had "already established an accommodation for nonprofit organizations with religious objections[,]" id. at 2782, and the very existence of that accommodation proved that less restrictive means could be used to reach the government's ends. See id. (considering that the accommodation would "not impinge on the plaintiffs' religious belief . . . and it serves HHS's stated interests equally well"). The same is true here. The government briefly argues that an accommodation cannot be possible for individual buyers of insurance, saying that exemptions to the Mandate "apply only to employers . . . not individuals." See (Gov. Br. at 29 (quoting District Court Opinion, JA 76)). But the government does not justify why employers deserve an accommodation and individuals do not. Indeed, the argument is quite an about-face from the position the government took in Hobby Lobby and Conestoga Wood, when it contended loudly that only individuals could have religious scruples and the companies who employed them could not. Hobby Lobby, 134 S. Ct. at 2774 ("HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere `beliefs' of a corporation."); Conestoga Wood, 724 F.3d at 403 (Jordan, J., dissenting) (noting the irony in the idea "religious belief takes shape within the minds and hearts of individuals" while denying religious liberty to "an entity that is nothing more than the common vision of five individuals from one family who are of one heart and mind about their religious belief"). The Individual Plaintiffs have proposed a number of ways the government could satisfy its interest in providing contraceptive coverage.
Parties to the Zubik litigation also suggested ways that access to contraceptives could be provided without trampling on religious beliefs. See Zubik v. Burwell, Supp. Reply Brief For Petitioners, 2016 WL 1593773 at *1 (filed April 20, 2016) ("The government concedes . . . that its existing regulatory scheme `could be modified' to eliminate the self-certification requirement for petitioners with insured plans without sacrificing its professed objective of `ensuring that the affected women receive contraceptive coverage seamlessly.'") (quoting Respondent's Supp. Br. at 14-15). The Petitioners in Zubik outlined a solution in which "the insurance company [could be made to] make available to plan beneficiaries a separate plan providing the excluded contraceptive coverage" and separately "contact beneficiaries to inform them of that plan and how to enroll." See Zubik, Supp. Br. for Petitioners, 2016 WL 1445914 at *4 (filed April 12, 2016). The distinct plans would be akin to dental or vision insurance that are "truly" independent of general health insurance and have a separate enrollment process, insurance card, and payment source. Id. at *1. That same option could be provided to individuals purchasing health care on the open market.
The wisdom of those options may be debated, but not their existence, so the government's decision to simply refuse to engage in the discussion is telling. It appears that the government "has open to it [several] less drastic way[s] of satisfying its legitimate interest" and has made "no showing that any of the [Individual Plaintiffs'] alternative ideas would be unworkable." See Conestoga Wood, 724 F.3d at 414-15 (Jordan, J., dissenting) (citations omitted). Thus, the government's position cannot withstand strict scrutiny.
2. A Uniform Health Care System
Evidently recognizing that it cannot win if its interest is described as providing contraceptive coverage, the government actually abandons that position and declares it to be "irrelevant," (Responding Br. at 27), which is remarkable given how intensely it insisted that that interest was compelling before. Nevermind. It has a new set of interests now. In its words, "a compelling interest in the provision of health care and the functioning of the insurance market . . . [and] a corresponding `interest in the uniformity of the health care system the ACA puts in place, under which all eligible citizens receive the same minimum level of coverage'" are the only rationales we should consider. (Responding Br. at 25 (quoting Priests for Life v. U.S. Department of Health & Human Services, 772 F.3d 229, 265 (D.C.Cir. 2014)).)
These sweeping claims fly in the face of the Supreme Court's command in Hobby Lobby that compelling government interests must be precisely defined. The Court there rejected the government's attempt to assert interests that were "couched in very broad terms, such as promoting `public health' and `gender equality.'" Hobby Lobby, 134 S. Ct. at 2779. Instead, it said, judges are "to loo[k] beyond broadly formulated interests and to scrutinize[e] the asserted harm of granting specific exemptions to particular religious claimants—in other words, to look to the marginal interest in enforcing the Contraceptive Mandate in these cases." Id. (alterations in original) (quotations omitted). A generalized interest in health care and insurance is too abstract to be compelling in a legal sense when addressing the Individual Plaintiffs' request for relief.
No more compelling is the government's claimed interest in uniformity of the Mandate's application. That claim cannot be given credence because millions of people have already been excepted. "The Mandate is a classic . . . example of . . . arbitrary underinclusiveness." Conestoga Wood, 724 F.3d at 414-15 (Jordan, J., dissenting). As the Supreme Court observed, "[a]ll told, the Contraceptive Mandate presently does not apply to tens of millions of people." Hobby Lobby, 134 S. Ct. at 2764 (internal quotation and citation omitted). "A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited." Conestoga Wood, 724 F.3d at 413 (Jordan, J., dissenting) (quoting Church of Lukumi Babalu, 508 U.S. at 547).
Charitably assuming that the government's interest is better understood as a functioning and comprehensive insurance market, the Mandate is again not the least restrictive means of achieving that interest. The government points to United States v. Lee, 455 U.S. at 257-258, to say a universal system can be the least restrictive means to achieve a compelling interest. True enough. But in Lee, the Supreme Court was considering taxation to provide a "comprehensive national social security system." Id. at 258. As Judge Leon pointed out in March for Life, there is a "critical distinction" between that scheme and the ACA:
March for Life, 128 F. Supp. 3d at 131-32.
Understood from that perspective, there is an obvious solution to further the government's interest: refrain from penalizing insurers who offer plans in accordance with the Individual Plaintiffs' beliefs. Id. at 132 ("The government need not require an insurer offer such a plan at plaintiffs' request in order to avoid burdening plaintiffs' religious exercise."). Because insurance companies would offer such plans as a result of market forces, doing so would not undermine the government's interest in a "sustainable and functioning market." Id. And that remedy would also necessarily be limited in scope; it would not "enable [insurance companies] to refuse to provide [contraceptive] coverage to others who do not share those religious objections." Id. Because the government has failed to demonstrate why allowing such a system (not unlike the one that allowed wider choice before the ACA) would be unworkable, it has not satisfied strict scrutiny.
To the Majority, this is all much ado about nothing: the burden of signing forms and paying money in support of drugs, devices, and procedures that affect the well springs of human life is so slight it cannot be called substantial, so the Individual Plaintiffs should simply sign and pay and stop complaining. What my colleagues fail to appreciate is that coercing financial support for something deeply objectionable is a real and substantial burden, and a forced signature alone can be problematic. In matters of conscience, the signing of one's name is more than a scrawl on paper. Robert Bolt gave these compelling words to Sir (and Saint) Thomas More in the play "A Man for All Seasons": "When a man takes an oath, . . . he's holding his own self in his hands. Like water. And if he opens his fingers then — he needn't hope to find himself again."
The Individual Plaintiffs do not want to lose themselves. They have demonstrated the seriousness of the burdens forced upon them by the Contraceptive Mandate. Under RFRA, it thus became incumbent on the government to show that its actions are narrowly tailored to achieve a compelling purpose. In my estimation, the government has failed to meet that exacting standard. I thus respectfully dissent and concur only in the judgment as to Real Alternatives, not in the judgment against the Individual Plaintiffs.
The Dissent further aims to supplement its mistaken view of "substantial burden" by couching it in the context of the recent Supreme Court case Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012 (June 26, 2017), pointing to that decision as demonstrative of the idea that "laws that coerce religious claimants to disavow their religion in order to receive a government benefit are inconsistent with our constitutional traditions." Dissent Op. at 34. But Trinity Lutheran has no real bearing on the specific question before us today. As our dissenting colleague implicitly recognizes, Trinity Lutheran is not a RFRA case. It dealt with a church's constitutional challenge to a state program that automatically denied grants to any applicant owned or controlled by a religious entity. 137 S. Ct. at 2017. "[T]he [state program's] policy put Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution." Id. at 2021-22. The question before the Supreme Court addressed only the treatment of an institution based on its religious status, not the effect of a federal program on individual religious beliefs. Signaling its intent to confine its holding to the particular facts and issue before it, the opinion noted: "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Id. at 2024 n.3.
The Majority takes issue with whether the products and services covered by the Contraceptive Mandate include abortifacients. See (Maj. Op. at 31-32). While we may be bound to accept the Department of Health and Human Services' definition of "abortifacients" for purposes of APA review, see Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding — not without controversy — that courts must defer to an agency's interpretation of its own ambiguous regulation so long as it is not "plainly erroneous or inconsistent with the regulation" (citation omitted)), that is not true when we are considering the burden imposed on the Individual Plaintiffs' exercise of their religious beliefs. The Individual Plaintiffs are persuaded that life begins at conception and that, by definition, a drug or device that prevents implantation of a fertilized ovum is an abortifacient. In other litigation, the government has admitted that some items covered by the Contraceptive Mandate can indeed prevent implantation. Brief of Respondent United States in Opposition to Cert., Conestoga Wood Specialties Corp. v. Sebelius, 2013 WL 5740267 at *10 n.5 (filed October 21, 2013) ("Plan B, an emergency contraceptive, is a pill that works mainly by stopping the release of an egg from the ovary but may also work by preventing fertilization of an egg or by preventing attachment (implantation) to the womb (uterus). . . . Ella, another emergency contraceptive, is a pill that works mainly by stopping or delaying the ovaries from releasing an egg but may also work by changing the lining of the womb (uterus) that may prevent attachment (implantation)." (quotations and citation omitted)).
Geneva's holding was vacated after the Supreme Court received supplemental briefing indicating that the government and non-profit religious employers could potentially reach a compromise position that did not infringe on the rights of the latter. See Zubik, 136 S. Ct at 1560 ("Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans `receive full and equal coverage, including contraceptive coverage.'" (citation omitted)). Thus, the Supreme Court did not in any way endorse the conclusion that the college did not face a substantial burden under RFRA. See id. ("[T]he Court does not decide whether petitioners' religious exercise has been substantially burdened. . . .")
Also, according to my colleagues, the March for Life opinion that they spend so much time belittling actually supports them on the significance of "direct vs. indirect" burdens. But in the quotation the Majority borrows, the March for Life opinion simply acknowledged the fact that the Contraceptive Mandate regulated insurers in the first instance. See March for Life, 128 F. Supp. 3d at 129 (noting that individuals are not "the direct objects" of the Contraceptive Mandate). That does not mean that purchasers are unaffected. In reality, the labels "direct" and "indirect" are too malleable to be of any real use in this context. By regulating the types of plans insurance companies can offer, and then forcing individuals to purchase those plans, the government is, in a very real sense, directly acting on individuals. Moreover, the Majority has ignored the rest of the discussion in March for Life, which lays out why the Mandate is a substantial burden. See id. ("While it is true that an asserted burden is also not an actionable substantial burden when it falls on a third party, not the religious adherent . . . health insurance does not exist independently of the people who purchase it." (internal citations and quotations omitted)).
The seatbelt analogy the Majority offers is passing strange but must, I suppose, have an answer. First, automobile regulations recognize safety concerns for the public generally — who knows who will ride in a vehicle; it could be any number of people, and protecting them has been deemed wise, so the government did not wait for market forces to work. That safety concern is unlike anything related to the Contraceptive Mandate and the insurance market. Strangers do not get in and out of your policy as they can get in and out of your car. Moreover, if one were to imagine an anti-seatbelt religious sect (a thought exercise which seems to demean the religious concerns actually at issue in this case), there is no warrant for fearing that, if the government permitted members of that sect to buy a car without seatbelts or to remove the belts after buying the car, the U.S. automobile industry would cease to function.
That holding is not binding on us and, in any event, is an assertion rather than a reasoned conclusion. The scope of the exceptions here is far more significant than the "narrow category" exempted from Social Security in United States v. Lee, 455 U.S. 252, 261 (1982). See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1143 (10th Cir. 2013), aff'd sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014) ("[T]he interest here cannot be compelling because the contraceptive-coverage requirement presently does not apply to tens of millions of people."). I am persuaded that the number of "congressional exemptions" to the Mandate demonstrate that the ACA does "not preclude exceptions altogether" and "RFRA makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress." Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 421, 434 (2006).