Prayers for injunctions go unanswered in appellate review of contraceptive accommodation

The Tenth Circuit held that the EBSA Form 700 accommodation allowing religious non-profit organizations to opt-out of the contraceptive mandate under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) did not violate the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb) or constitute a substantial burden on the religious exercise of several religious organizations. The court held that the accommodation was sufficient to relieve the organizations of the obligation to provide, pay for, or facilitate contraceptive coverage under the ACA. As a result, the court either reversed injunctions that were granted to the religious organizations or affirmed the denial of injunctions which would have allowed the organizations to avoid the accommodation process (The Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Burwell, July 14, 2015, Matheson, S.).


Under the ACA, employer-sponsored group health plans offered by employers with 50 or more employees must meet certain coverage requirements. As part of this obligation, those plans are required to cover all FDA-approved contraceptive methods without copayments or deductibles. Religious employers—employers with a religious purpose, who employ those who share their religious tenets, who primarily serve those who share their tenets, and who are non-profit organizations—are exempted from this requirement.


An accommodation is available to religious entities that do not qualify as religious employers but seek an exemption from the mandate. Those organizations can relieve themselves of the ACA contraceptive obligation by executing an EBSA Form 700, certifying that they are a nonprofit entity holding themselves out as a religious organization and that they opposed the provision of contraceptive services. The EBSA Form 700 serves as a notice to the third-party plan administrator (TPA) that the religious organization is self-certifying as exempt from the mandate. The second method requires religious organizations to simply notify HHS in writing and include the name of the organization, the nature of the objection, and certain plan information.


The mandate and accommodation separately affect insured plans, self-insured plans, and self-insured church plans. When a religious employer has a traditional insured plan, upon the submission of an EBSA Form 700 or notice to HHS, the issuer or insurer takes on the sole responsibility of providing contraceptive coverage. In this scenario, the issuer typically picks up the cost that would have been shouldered by the religious organization—a cost-neutral phenomenon because of improvements in women’s health and lower pregnancy rates. Self-insured plans, where the employer assumes the risk of providing insurance itself, trigger an obligation for the TPA to arrange for contraceptive coverage without cost sharing. This obligation for the TPA arises under the Employee Retirement Income Security Act (ERISA) (P.L. 93–406)—a law setting minimum standards for certain employer-sponsored benefit plans.

A self-insured church health plan is a plan established by a church or association of churches covering the church or association’s employees and that is not subject to regulation under ERISA unless it has elected to opt-in to ERISA’s provisions. Unless such a plan has made an election to opt-in to ERISA, the government lacks authority to compel self-insured church plans or their TPAs to provide contraceptive coverage.


Three distinct lawsuits challenging the accommodation arose from the objections of several religious organizations. The Little Sisters of the Poor Home for the Aged, Denver, Colorado and Little Sisters of the Poor, Baltimore (Little Sisters), an order of Catholic nuns, operate a self-insured church plan. Its TPA, Christian Brothers Services, is another Catholic organization. Little Sisters brought its own lawsuit alongside its TPA.

The next lawsuit was brought by Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and Mid-America Christian University—“Christ-centered institutions of higher learning.” Each of the universities is either self-insured or insured, with the exception of Mid-America Christian, which is a self-insured university on a church plan that is not subject to ERISA.

The final lawsuit was brought by Reaching Souls, a non-profit corporation founded by a Southern Baptist minister, and Truett-McConnell College, a private liberal arts college. Both of these organizations operate a self-insured church plan that is not subject to ERISA. That church plan is the GuideStone plan, offered by GuideStone Financial Resources. Each of the organizations objects to the provision of contraceptives required under the ACA as morally wrong and a violation of their religious views.

Procedural history

At the trial court level, Little Sisters was denied a preliminary injunction to avoid the accommodation, whereas the universities in the Southern Nazarene suit and Reaching Souls and Truett-McConnell College were all granted preliminary injunctions to halt their obligations under the accommodation. In Little Sisters, the district court determined that the accommodation scheme did not substantially burden Little Sisters or its TPA because it did not require Little Sisters to provide contraceptive coverage and the TPA could not be fined under ERISA enforcement authority due to the nature of the plan. In the Southern Nazarene suit, a separate district court took a different approach and concluded that the universities were likely to succeed on the merits of their claims, in part, because the government had not “articulated a compelling state interest or argued its approach was the least restrictive means of advancing that interest.” In the Reaching Souls case, the court similarly held for the religious organizations citing the “substantial pressure” the accommodation applied on the organizations to violate their beliefs.

Hobby Lobby

The constitutionality of the contraceptive mandate was recently evaluated by the Supreme Court. Notably, however, the Tenth Circuit found that the Supreme Court’s decision in n Burwell v. Hobby Lobby Stores, Inc. (Hobby Lobby), where the court held that the mandate violated the RFRA with respect to corporations that were neither automatically exempt from the mandate as religious employers nor eligible for the accommodation, was not instructive, because, in the present case, the organizations challenged the process they must follow to get out of the contraceptive mandate, not the mandate itself. Accordingly, instead of analyzing the permissibility of the mandate itself, the court reviewed the burden that the accommodation process levied on the organizations. At the outset, the court noted the unusual nature of the plaintiffs’ claim, “which attacks the Government’s attempt to accommodate religious exercise by providing a means to opt-out of compliance with a generally applicable law.”


The Tenth Circuit held that the accommodation did not violate the RFRA because the accommodation lessened or eliminated the substantiality of the burden of the contraceptive mandate on the organization’s religious exercise. The court reasoned that because none of the religious organizations would have to provide, pay for, or facilitate contraceptive coverage, the organizations could also not be said to “trigger” or cause contraceptive coverage. The court rejected arguments that opting out made them complicit in the delivery scheme and, instead, reasoned that opting out relieves them from complicity. The court held that the minimal administrative requirements of the accommodation could not be deemed to be a substantial burden on religious exercise.


The court explained that not every burden on religious exercise is substantial for purposes of an RFRA analysis. The court explained that it was not the sincerity of the religious belief at issue in a burden analysis but, instead, the level of government coercion. Although the court acknowledged that paying a substantial fine or complying with the coverage mandate may have constituted a substantial burden, the court held that the religious objectors were offered a less stark choice through the accommodation process. Despite the limited causal role the accommodation asks the organizations to play, the court declined to see the administrative task of a form submission as anything akin to the actual provision of contraceptives. Instead, the court explained, the accommodation does the opposite of establishing a burden—it relieves one by requiring health insurance issuers and TPAs to take on the objectionable conduct.


The court considered the organizations triggering argument—that the accommodation triggered the objectionable provision of contraceptives—in light of the three different kinds of insurance plans. The court held that the triggering argument failed for the insured plans because the insurer was obligated by the ACA to provide contraceptive coverage regardless of the religious organizations behavior regarding the accommodation. Regarding self-insured plans, the court explained that, although the TPA is only obligated to provide contraceptive coverage under the ACA once the religious organization opts out of that coverage obligation, the accommodation cannot be construed as a trigger causing coverage because the coverage is required by federal law, not as a result of a religious organization’s behavior as part of the accommodation process. The court held that the shifting of responsibility to a non-objecting entity is a longstanding way of accommodating religious objection.

Self-insured church plans

As for self-insured church plans—those plans whose TPAs are not subject to ERISA’s requirements—the court acknowledged that although the government could require the religious organizations to register their objections through the accommodation process, there is no enforcement mechanism available to compel or penalize TPAs for not providing or arranging coverage. However, the court explained, as compared to other self-insured plans, this unique scenario only served to lessen the burden on the religious organizations— diminishing the meaningfulness of any triggering or causation argument.


The court also considered arguments that the accommodation made the religious organizations feel or appear complicit in the provision of contraceptive coverage. The Tenth Circuit found such arguments unconvincing and explained that the accommodation was expressly designed to eliminate complicity in the payment or provision of contraception. Additionally, the court determined that opting out sent an unambiguous message that the organizations opposed the coverage. The court pointed to the minimal burden on notifying HHS, which does not require any contact at all with the party who will eventually be responsible for the administration of contraceptive coverage.

First Amendment

Regarding the plaintiffs’ constitutional claims, the Tenth Circuit rejected arguments that the accommodation resulted in free-exercise, establishment, and speech violations. The court held that the neutral and generally applicable accommodation did not target particular groups or seek to impose any burdens and instead were designed to facilitate the free-exercise of religion. The court also rejected the establishment clause arguments on the grounds that the accommodation serves to “distinguish between entities based on neutral, objective organizational criteria and not by denominational preference or religiosity.” With regard to the free speech claims, the court explained that neither speech nor silence are compelled by the accommodation because any speech that could be said to be compelled is speech that the organizations agree with—speech in opposition of the contraceptive mandate. Additionally, the court noted that the organizations failed to identify objectionable speech they were required to make or speech they were precluded from engaging in.


Judge Baldock agreed with the majority regarding the insured organizations like Little Sisters, however, Judge Baldock dissented regarding the denial of the injunctions for the self-insured organizations. The dissent plainly disagreed with the majority, stating that “in reality, the accommodation scheme forces the self-insured plaintiffs to perform an act that causes their beneficiaries to receive religiously objected-to coverage.” The dissent focused on the distinction between insured and self-insured plans, noting that self-insured plans can be said to actually “cause” the beneficiaries to receive coverage by taking part in the accommodation. Judge Baldock found that such an “obvious causal connection” constituted compulsion and a substantial burden on religious exercise. Additionally, the dissent expressed the opinion that less-restrictive means of achieving the government’s contraceptive goals exist

The case is No. 13-1540.