Case: 2:12-cv-00092-DDN Doc.

#: 139 Filed: 11/17/17 Page: 1 of 20 PageID #: 1693

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

SHARPE HOLDINGS, INC., et al., )

)
Plaintiffs, )
)
v. )
) No. 2:12-CV-92-DDN
UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
INC., et. al., )
)
Defendants. )

MEMORANDUM IN SUPPORT OF MOTION OF CNS INTERNATIONAL

MINISTRIES, INC. AND HEARTLAND CHRISTIAN COLLEGE FOR PERMANENT
INJUNCTION AND DECLARATORY RELIEF

I. PROCEDURAL BACKGROUND

On December 30, 2013, this Court granted the motion of CNS International Ministries,

Inc. (CNS) and Heartland Christian College (HCC) (collectively, Movants) for a preliminary

injunction. Doc. 84.

On February 27, 2014, the government appealed this Court’s preliminary injunction in

favor of Movants. By the time that appeal was argued, on December 10, 2014, the regulatory

accommodation for religious nonprofits like Movants had evolved into what was known as the

“augmented accommodation,” which went into effect on August 27, 2014, and provided that

self-insured religious organizations like Movants could comply with the requirements of the

Affordable Care Act’s contraceptive mandate (Mandate) by self-certifying their objections in one

of two ways. As succinctly explained by the Eighth Circuit:

The organization may self-certify by completing and submitting directly to its third-party
administrator (TPA) an EBSA Form 700—Certification (Form 700), certifying that it is a
religious nonprofit entity that has religious objections to providing coverage for some or all
of the contraceptives required by the mandate. 29 C.F.R. § 2590.715-2713A(a)-(b). The
organization may also self-certify by providing notice to HHS stating the organization’s
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 2 of 20 PageID #: 1694

name; the basis on which it qualifies for an accommodation; its religious objections to
providing coverage for some or all contraceptives, including the specific contraceptives to
which it objects; its insurance plan name and type; and its TPA’s name and contact
information (HHS Notice). See 79 [Link]. 51,092, 51,094-95 (Aug. 27, 2014); 80 [Link].
41, 318, 41,323 (July 14, 2015); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B).

Sharpe Holdings, Inc. v. HHS, 801 F.3d 927, 934 (8th Cir. 2015), cert. granted, judgment

vacated sub nom. HHS v. CNS Int’l Ministries, No. 15-775, 2016 WL 2842448 (U.S. May 16,

2016) (footnotes omitted). It was this “augmented accommodation” that remained the

government’s ultimate concession to religious nonprofits until the publication of new interim

final regulations (IFRs) a little over a month ago on October 6, 2017. 82 Fed. Reg. 47792

(published Oct. 13, 2017). It was also this “augmented accommodation” that was addressed by

the Eighth Circuit in Sharpe Holdings, in which it affirmed this Court’s preliminary injunction,

after finding that CNS and HCC were likely to succeed on their arguments under the Religious

Freedom Restoration Act (RFRA) that the accommodation substantially burdened their exercise

of religion and that the accommodation process in place at the time (the “augmented

accommodation”) was not the least restrictive means of furthering the government’s interests. Id.

at 945-46.

All the other circuit courts that heard the nonprofit Mandate/accommodation cases ruled

in favor of the government. On November 6, 2015, seven weeks after the Eighth Circuit had

created a circuit split, the Supreme Court granted certiorari in most of those other cases. In this

case, the government waited until December 15, 2015, to petition for certiorari, too late for this

case to be consolidated with the others, which were already well into a briefing schedule.

Following oral argument, on May 16, 2016, the Supreme Court vacated every other

circuit decision in the related cases, remanding for further proceedings. At the same time, it

granted certiorari in this case, vacating the Eighth Circuit’s decision as it had all the other circuit

2
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 3 of 20 PageID #: 1695

court decisions, and remanded for further proceedings. Doc. 128. While the Supreme Court

“expresse[d] no view on the merits of the case,” its decision was accompanied by a directive to

the parties to attempt to find an alternative solution to the obviously problematic “augmented

accommodation” of August 27, 2014, that was in place. Zubik v. Burwell, 136 S. Ct. 1557, 1560

(2016).

Accordingly, between May 2016 and October 2017, the Eighth Circuit had before it, once

again, the government’s appeal of this Court’s preliminary injunction of December 30, 2013.

Given the instructions to find an alternative, the appeal was effectively stayed, until October 6,

2017, when the government enacted its new IFR, allowing religious nonprofits like Movants to

simply elect not to provide contraceptive coverage they considered religiously abhorrent, an

exemption previously available only to churches and their auxiliaries. 82 Fed. Reg. 47792 (Oct.

13, 2017).

The government moved to dismiss its appeal of this Court’s preliminary injunction of

December 30, 2013. That motion was granted on October 13, 2017. The matter is now again

before this Court.

II. ARGUMENT

A. The government has conceded it was wrong on every substantive issue.

1. Before the Supreme Court, the government contradicted their two key
substantial burden arguments.

While this case was being litigated, the government was also fighting other religious

liberty claims brought against the Mandate. The government prevailed at the Tenth Circuit, Little

Sisters of the Poor v. Burwell, 794 F.3d 1151, 1183, 1192 (10th Cir. 2015), and in several other

3
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 4 of 20 PageID #: 1696

courts of appeals, convincing those courts that the “accommodation” did not substantially burden

religious employers’ religious exercise.1 Only the Eighth Circuit—the only court of appeals that

applied the substantial burden test set out by the Supreme Court in Burwell v. Hobby Lobby, 134

S. Ct. 2751 (2014)—found that the “accommodation” substantially burdened religious exercise.

Sharpe Holdings, 801 F.3d at 937-43.

But after the Supreme Court decided to take up some of these court of appeals decisions,2

the government’s legal argument collapsed. Most courts of appeals had held that the

“accommodation” did not substantially burden religious exercise because they accepted two

inaccurate representations the government made about its power to make the “accommodation”

work. These representations were erroneous from the outset, which is why the government

quietly abandoned them when the cases came before the Supreme Court.3

a. The government had to admit that the “accommodation”

necessarily hijacks objecting employers’ plans.

First, the government told lower courts that it had the power to force the TPA of a self-

insured ministry to deliver contraceptive services outside of and independent of an objecting

religious employer’s group health plan. Ex. A, Amicus at 3, 11-12. Similarly, the government

1
See, e.g., Eternal Word Television Network, Inc. v. Sec’y of U.S. Dep’t of Health & Human Servs., 818
F.3d 1122, 1141–42 (11th Cir. 2016) (reviewing courts of appeals decisions and holding that the
“accommodation” does not substantially burden religious exercise).
2
The Supreme Court granted certiorari to review decisions from the Third, Fifth, Tenth, and D.C. Circuits
that had held that the “accommodation” did not substantially burden religious exercise. See Zubik v.
Burwell, 136 S. Ct. 1557 (2016).
3
The government’s erroneous representations to the courts of appeals are thoroughly documented and
refuted in the amicus brief of the Catholic Benefits Association in support of the petitioners in the
Supreme Court Mandate cases. Ex. A, Brief for Catholic Benefits Ass’n as Amici Curiae Supporting
Petitioners at 12-15, 22-24, Zubik v. Burwell, 136 S. Ct. 1557 (2016) (No. 14-1418 et al.) (Amicus), also
available at [Link]
[Link].

4
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 5 of 20 PageID #: 1697

told the Tenth Circuit that religious employers “need not place contraceptive coverage into the

basket of goods and services that constitute their healthcare plans.” Ex. A, Amicus at 11. Based

on the government representation, the Tenth Circuit concluded that the “accommodation” was an

“opt out” that “shift[s] responsibility to non-objecting entities” and that “[o]pting out ensures

they will play no part in the provision of contraceptive coverage.” Little Sisters of the Poor

Home for the Aged v. Burwell, 794 F.3d 1151, 1183, 1192 (10th Cir. 2015); see also Ex. A,

Amicus at 12-15 (surveying similar decisions in other courts of appeals).

But in Fall 2015, the Government changed its position. After briefing 26 cases at the

courts of appeals and filing two of their four briefs opposing certiorari, the government made a

critical concession. It finally admitted that under the “accommodation, . . . the contraceptive

coverage provided by [a religious employer’s] TPA is, as an ERISA matter, part of the same

ERISA plan as the coverage provided by the employer.” Id. at 19-20 (emphasis added). This is

the same argument made by CNS and HCC in their Supplemental Brief before the Eighth

Circuit, filed Nov. 4, 2014, at 7-10, 14.

b. The government had to admit that the “accommodation”

forces religious employers to trigger the delivery of
contraceptive services.

Second, the government told lower courts that, despite the plain text of ERISA, the

Department of Labor has the “broad rulemaking authority” under ERISA to unilaterally turn a

TPA (that provides only outsourced services) into an ERISA-defined “plan administrator” with

the fiduciary duty to deliver contraceptive benefits to plan participants. Ex. A, Amicus at 4, 21-

22. The government told the Tenth Circuit that objecting employers “need only attest to their

religious beliefs and step aside.” Ex. A, Amicus at 21 (citing government’s Little Sisters brief at

16 (citations omitted)); see also id. at 20-22 (describing similar arguments made to other courts

of appeals). Based on the government’s erroneous representations, courts of appeals rejected

5
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 6 of 20 PageID #: 1698

religious employers’ claim that the accommodation’s self-certification form was a “permission

slip.” The courts of appeals claimed that a religious employer’s TPA had a legal duty to deliver

contraceptive services even before an employer invoked the “accommodation” and agreed that

the government could unilaterally designate an objecting religious employer’s TPA as a “plan

administrator” for contraceptive services. Id. at 22-24.

But later the government was forced to admit that “[i]n the self-insured context, the

‘accommodation’ regulations designate an objecting employer’s TPA as the entity legally

responsible for complying with the contraceptive-coverage requirement only after the

organization itself opts out.” Ex. A, Amicus at 28 (quoting government’s Priests for Life Br. in

Opp. at 21 n.11 (emphasis added)). As explained in the CBA’s amicus brief (note 3 supra), this

is necessarily the case because, under ERISA, only the plan sponsor has the authority to

designate its TPA as the party responsible for delivering contraceptive services through its plan.

Ex. A, Amicus at 24-28. However, Congress has determined that the Department of Labor may

overrule the plan sponsor’s designation only if the plan sponsor “cannot be found.” Id. at 25

(quoting 29 U.S.C. 1002(16)(A)(iii)).4

4
It is of interest that the government, in proceedings before the Supreme Court, abandoned the less
restrictive means argument it made before several courts of appeals, including the Eighth Circuit. Before
the Supreme Court, the government conceded that its regulatory scheme “could be modified” to eliminate
the self-certification requirement for religious employers with insured plans while still advancing the
government’s asserted interests. Resp’ts’ Supp. Br. at 14-15, Zubik v. Burwell, 136 S. Ct. 1557 (2016)
(No. 14-1418 et al.), available at [Link] As
the petitioners noted in their supplemental reply brief, such an admission that less restrictive alternatives
exist “alone suffices to defeat [the government’s] RFRA defense.” Pet’rs’ Supp. Reply Br. at 10, Zubik v.
Burwell, 136 S. Ct. 1557 (2016) (No. 14-1418 et al.), [Link]
content/uploads/2016/04/[Link].

6
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 7 of 20 PageID #: 1699

2. The government now admits the “accommodation” substantially

burdens religious exercise.

The IFR of October 6th announced the government’s conclusion that its refusal to extend

to religious nonprofits and closely held for-profits the same exemption it has given churches, but

rather limit them to the “accommodation,” has substantially burdened religious exercise. 82 Fed.

Reg. at 47800. The government “reevaluated” its position based on the arguments made by

various plaintiffs in legal challenges to the Mandate and on public comments received in

response to the government’s many rounds of rulemaking. Id. In light of this review, the

government has now concluded that CNS, HCC, this Court, and the Eighth Circuit were right all

along: under the Supreme Court’s Hobby Lobby framework, the “accommodation” substantially

burdens religious exercise because it forces objecting religious employers to violate their

sincerely held religious beliefs under pain of severe monetary penalties. Id.

3. The government now admits the Mandate does not advance a

compelling governmental interest.

The new IFR also announces the government’s conclusion that the “accommodation”

fails strict scrutiny. First, the government admits that its Mandate does not advance a compelling

governmental interest. 82 Fed. Reg. at 47800. The government explains at length why it has

reached this conclusion, listing eight reasons over seven pages in the Federal Register. Many of

these reasons echo the arguments that CNS and HCC have made against the Mandate. In

summary: (1) Congress did not choose to mandate contraceptive coverage under the ACA; (2)

Congress chose not to include the ACA’s preventive services requirement, on which the Mandate

is built, among the “particularly significant” sections that even grandfathered plans must cover;

(3) many religious objectors, including CNS and HCC, are willing to provide some, but not all,

contraceptives; (4) the “accommodation” effectively exempts self-insured religious groups with

church plans, even when they are not eligible for the Mandate’s “religious employer” exemption;

7
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 8 of 20 PageID #: 1700

(5) the government has not justified giving preferential treatment to churches over other religious

employers; (6) the government recognizes that its claim that churches are more likely than other

religious non-profits to hire like-minded employees has no basis in fact; (7) the government now

admits that its Mandate, which concerns health plans for full-time employees, is not “tailored to

the women most likely to experience unintended pregnancy, identified by the 2011 [Institute of

Medicine (IOM)] report as ‘women who are aged 18-24 and unmarried, who have a low income,

who are not high school graduates, and who are members of a racial or ethnic minority’”; and (8)

social science since the Mandate was created in 2011 still has not shown that the Mandate

addresses the only contraceptive gap the IOM identified, among low-income women. Id. at

47800-06.

4. The government now admits it has less restrictive means of advancing

its interests.

Even if the Mandate did address a compelling governmental interest, the government has

concluded that forcing religious employers to cooperate with the Mandate “was not the least

restrictive means” of advancing that interest. Id. at 47806. The government recognizes that “there

are multiple Federal, State, and local programs that provide subsidized contraceptives for low-

income women,” including Medicaid and HHS’s own Title X program. “The availability of such

programs to serve the most at-risk women (as defined in the IOM Report) diminishes the

Government’s interest in applying the Mandate to objecting employers.” Id. at 47803.

Since the Affordable Care Act was enacted in 2010, the means by which the government

has enforced its Mandate has been altered at least eight times. Each time, prior to amendment,

the government has insisted that it was already employing the least restrictive means of

furthering its compelling interests, with the eighth iteration being the augmented

accommodation. See Ex. B, Brief of CNS International Ministries, Inc. and Heartland Christian

8
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 9 of 20 PageID #: 1701

College as Amici Curiae in Support of Petitioners, Zubik v. Burwell, 136 S. Ct. 1557 (2016) (No.

14-1418 et al.) (Amicus). The government now admits that its eighth iteration—the augmented

accommodation in place since August 27, 2014—is not the least restrictive.

5. The government now admits the “accommodation” violates RFRA.

The government has now concluded that forcing religious employers like CNS and HCC

to choose between the “accommodation” and the Mandate’s crippling fines is unlawful under

RFRA. “Because we have concluded that requiring such compliance through the Mandate or

accommodation has constituted a substantial burden on the religious exercise of many such

entities or individuals, and because we conclude requiring such compliance did not serve a

compelling interest and was not the least restrictive means of serving a compelling interest, we

now believe that requiring such compliance led to the violation of RFRA in many instances.” Id.

at 47806.

B. In light of the above, the government’s new IFR expands the exemption from
the Mandate to include “all bona fide religious objectors.”

Having concluded that the Mandate fails every prong of the RFRA test, the government

decided in its IFR that the “religious employer” exemption to the Mandate, which previously was

generally restricted to churches and their integrated auxiliaries, should be expanded to include

“all bona fide religious objectors.” Id. at 47806; see also id. at 47835, 45 C.F.R. 147.132 (interim

final HHS regulation expanding religious exemption to the Mandate).

This expansion of the accommodation to outright exemptions is not a novel idea. It is

undeniably implicit in Hobby Lobby, where Justice Kennedy noted that the “most

straightforward way” of providing the four contraceptives at issue could easily be implemented

by using the “established framework” of ACA health insurance exchanges. See Hobby Lobby,

9
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 10 of 20 PageID #: 1702

134 S. Ct. at 2786 (Kennedy, J., concurring). Such a means of delivering contraceptives assumes

outright exemptions for bona fide religious objectors.

C. After almost four years, the government now admits that CNS and HCC, this
Court, and the Eighth Circuit were right all along.

In the Second Amended Complaint, Movants’ prayer included requests that this Court

“[d]eclare that the Mandate and Defendants’ enforcement of the Mandate against [Movants]

violate [RFRA],” and “[i]ssue an order prohibiting Defendants from enforcing the Mandate

against [Movants] insofar as it requires them to provide, fund or participate in the provision of

abortions or abortifacients, including Plan B, ella and copper IUDs, or related education and

counseling . . . .” Doc. 58-1, p. 35 (emphasis added). In their motion for a preliminary injunction,

Movants requested this Court to prohibit:

Defendants, their agents, officers and employees from applying and enforcing against these
Plaintiffs, their employee health plan(s), or their insurer(s) the statutes and regulations that
require these Plaintiffs, their insurer or third party administrator to provide employees
insurance coverage for “[a]ll Food and Drug Administration approved contraceptive
methods, sterilization procedures, and patient education and counseling for all women with
reproductive capacity,” pursuant to 77 Fed. Reg. 8725, 78 Fed. Reg. 39870, or 45 C.F.R. §
147.131, as well as any penalties, fines, assessments, or enforcement actions for non-
compliance, including but not limited to those found in 26 U.S.C. §§ 4980D and 4980H, and
29 U.S.C. § 1132, to the extent these regulations require coverage of services that these
Plaintiffs believe to be abortifacients.

Doc. 62, p. 1 (emphasis added). On December 30, 2013, this Court granted the requested

injunctive relief in the form of a preliminary injunction. Doc. 84. It was that decision that the

government appealed in early 2014.

Although the government vigorously defended its Mandate before this Court in 2013, and

has been fighting since then to defend its Mandate in various appellate courts and the Supreme

Court, the government now admits that CNS and HCC, this Court, and the Eighth Circuit were

right all along. In the October 6, 2017 IFR, the government announced its conclusion that

10
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 11 of 20 PageID #: 1703

coercing religious employers like Movants into participating in the “accommodation,” even as

augmented on August 27, 2014, is unlawful under RFRA:

We have concluded that requiring certain objecting entities or individuals to choose between
the Mandate, the accommodation, or penalties for noncompliance imposes a substantial
burden on religious exercise under RFRA. We believe that the Court’s analysis in Hobby
Lobby extends, for the purposes of analyzing a substantial burden, to the burdens that an
entity faces when it religiously opposes participating in the accommodation process or the
straightforward Mandate, and is subject to penalties or disadvantages that apply in this
context if it chooses neither. As the Eighth Circuit stated in Sharpe Holdings, “[i]n light of
[nonprofit religious organizations’] sincerely held religious beliefs, we conclude that
compelling their participation in the accommodation process by threat of severe monetary
penalty is a substantial burden on their exercise of religion. . . . That they themselves do not
have to arrange or pay for objectionable contraceptive coverage is not determinative of
whether the required or forbidden act is or is not religiously offensive”. (801 F.3d at 942.)

82 Fed. Reg. at 47800. The government completed its analysis of RFRA as follows:

Because we have concluded that requiring such compliance through the Mandate or
accommodation has constituted a substantial burden on the religious exercise of many such
entities or individuals, and because we conclude requiring such compliance did not serve a
compelling interest and was not the least restrictive means of serving a compelling interest,
we now believe that requiring such compliance led to the violation of RFRA in many
instances.

Id. at 47806.

Consistent with these conclusions of law, the government promptly dismissed its appeal

to the Eighth Circuit, in which it had sought to overturn this Court’s preliminary injunction.

III. THIS CASE IS NOT MOOT, AND CNS AND HCC NEED RELIEF.

The government no longer challenges the Movants on the merits of their case. Instead,

the government is prepared to argue that the case is moot because of the new interim final

regulations that provide an exemption to Movants from the contraceptive mandate.

But “voluntary cessation of a challenged practice does not moot a case unless

‘subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur.’” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.

11
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 12 of 20 PageID #: 1704

Ct. 2012, 2019 n.1 (2017) (citing Friends of the Earth, Inc. v. Laidlaw Environmental Services

(TOC), Inc., 528 U.S. 167, 189 (2000)); see also City of Mesquite v. Aladdin's Castle, Inc., 455

U.S. 283, 289 (1982) (“The test for mootness is stringent. Mere voluntary cessation of allegedly

illegal conduct does not moot a case.”). Just days before the oral argument in Trinity Lutheran,

Governor Greitens announced that he had directed the Missouri Department of Natural

Resources to begin allowing religious organizations to compete for and receive Department

grants on the same terms as secular organizations. This was precisely the relief sought by Trinity

Lutheran Church. Yet the Court flatly held that the Governor’s “announcement does not moot

this case.” Id.

Given the vicissitudes of political change, and their effect on the Mandate, nothing is

“absolutely clear” about the durability of the government’s interim final rule, and the

government “faces a heavy burden of showing that ‘the challenged conduct cannot reasonably be

expected to start up again.’ ” Friends of the Earth, 528 U.S. at 189, quoting United States v.

Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968). See also Charleston Hous. Auth.

v. U.S. Dep’t of Ag., 419 F.3d 729, 740 (8th Cir.2005) (“The possibility of this recurrence is not

so remote or speculative that our jurisdiction is lacking.”).

For starters, the new IFR is subject to the Administrative Procedure Act’s notice and

comment requirements. 5 U.S.C. 553(c); see also 81 Fed. Reg. at 47792 (“Written comments on

these interim final rules are invited and must be received by December 5, 2017.”). The new

exemption is subject to change because the “opportunity to comment must be a meaningful

opportunity,” which means the government must “remain sufficiently open-minded” about what

the new interim regulation’s critics will say. Rural Cellular Ass’n v. F.C.C., 588 F.3d 1095, 1101

(D.C. Cir. 2009). The government recently stated that its “solicitation of post-promulgation

12
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 13 of 20 PageID #: 1705

comments ‘suggests that the [government has] been open-minded’ with the result that ‘real

‘public reconsideration of the issued rule’ [is taking] place.’ . . . The [government’s] solicitation

of both pre-and post-promulgation comments shows that [its] ‘mind remains open.’ ”

Commonwealth of Penn. v. Trump, 2:17-cv-04540-WB (E.D. Pa.) (Doc. 15 at 26-27).

The government has further confirmed the “interim” nature of the new rule. “Finally, the

Rules are effective only until final rules are issued. . . . The Rules, by definition, are temporary

regulations. By seeking comments, the Agencies have given interested parties, including

Pennsylvania, two full months to review the Rules before the Agencies issue final regulations.”

Id. at 27.

At least nine lawsuits have already been filed against the government’s new IFR.5 These

lawsuits argue that the government’s IFR is unconstitutional and seek injunctions prohibiting the

government from enforcing the expanded religious exemption.6

More broadly, the Mandate has proven to be a moving target over the past six years, one

the government can change—with no prior notice—in response to political pressures, elections,

and court decisions. See 81 Fed. Reg. at 47794-99 (providing overview of the numerous changes

to the Mandate); see also Ex. B, Amicus (same). These changes are not made by Congress, but

by agency whim.

5
See, e.g., Press Release, National Women’s Law Center, Lawsuit Filed Against Trump Administration
for Rules Denying Women Birth Control Coverage (Oct. 31, 2017), [Link]
releases/lawsuit-filed-against-trump-administration-for-rules-denying-women-birth-control-coverage/
(“The NWLC/AU lawsuit is the latest in a series of lawsuits filed against the interim final rules in courts
across the country.”). One of these cases is Commonwealth of Penn. v. Trump, 2:17-cv-04540-WB (E.D.
Pa.), cited in the main text above.
6
See, e.g., Press Release, American Civil Liberties Union, ACLU Filing Lawsuit Challenging Trump
Administration Contraceptive Coverage Rule (Oct. 6, 2017), [Link]
lawsuit-challenging-trump-administration-contraceptive-coverage-rule (linking copy of ACLU’s
complaint against IFR).

13
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 14 of 20 PageID #: 1706

CNS and HCC are entitled to the relief requested because there is no longer any doubt

that they have succeeded on the merits of their RFRA claim given the Court’s analysis in its

preliminary injunction order, the analysis of the Eighth Circuit in upholding it, the government’s

concessions while the accommodation cases were before the Supreme Court, the government’s

decision to voluntarily dismiss its appeal from this Court’s preliminary injunction, and the legal

admissions announced in its recent IFR.

CNS and HCC need relief that will permanently bar the government—now and under a

future administration—from assessing tax penalties against them for refusing to comply with the

Mandate’s requirements. They need to be able to plan for the future unburdened by a cloud of

uncertainty as to whether the IRS will come after them for following their conscience while this

Court’s preliminary injunctive relief was in effect.

The protection provided by the recent IFR does not deprive this Court of authority to

grant CNS and HCC the relief they seek. After the Supreme Court ruled that it was illegal for the

government to enforce its Mandate against closely held corporations, Hobby Lobby, 134 S. Ct. at

2784, for-profit corporations challenging the Mandate still were successful in securing

permanent injunctions in the lower courts. For example, this Court entered a permanent

injunction in favor of the for-profit plaintiffs in this case, and did so several months after Hobby

Lobby was decided. Doc. 102. Hercules Industries, Inc. returned to the District of Colorado,

which agreed to convert its preliminary injunction into a permanent injunction to protect

Hercules from the Mandate. Newland v. Burwell, 83 F. Supp. 3d 1122, 1125 (D. Colo. 2015).

That court relied on FTC v. Accusearch Inc., where the Tenth Circuit held that a “court’s power

to grant injunctive relief survives the discontinuance of the illegal conduct.” 570 F.3d 1187, 1201

(10th Cir. 2009) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)). In

14
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 15 of 20 PageID #: 1707

deciding whether to grant injunctive relief, a court may consider “all the circumstances,”

including the “bona fides of the [defendant’s] expressed intent to comply, the effectiveness of the

discontinuance and, in some cases, the character of the past violations.” Accusearch, 570 F.3d at

1201. A district court’s discretion in this context is “necessarily broad and a strong showing of

abuse must be made to reverse it.” Id. (quoting W.T. Grant Co., 345 U.S. at 633) (internal

quotation marks omitted). Here, in light of the erratic history of the Mandate and the necessarily

temporary nature of the IFR, circumstances favor entry of declaratory relief and a permanent

injunction. Even a pledge by the government not to enforce the Mandate or change the IFR

would not suffice because, in the First Amendment context, RFRA’s protection against unlawful

burdens on religious exercise “does not leave [regulated parties] . . . at the mercy of noblesse

oblige.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 255 (2012) (alteration and omission

in original) (quoting United States v. Stevens, 559 U.S. 460, 480 (2010)) (internal quotation

marks omitted).

IV. THE REQUIREMENTS FOR A PERMANENT INJUNCTION ARE SATISFIED.

The standard for granting a permanent injunction is essentially the same as for a

preliminary injunction, except that to obtain a permanent injunction the movant must attain

actual success on the merits. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531,

546 n.12 (1987); Bank One, Utah v. Guttau, 190 F.3d 844, 847 (8th Cir. 1999). Accordingly,

applying the Dataphase principles to a request for a permanent injunction, a district court must

take into account the threat of irreparable harm to the movant, the balance between this harm and

the harm to the other party if the injunction is granted, movant’s success on the merits, and the

public interest. See Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th

Cir.1981) (en banc).

15
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 16 of 20 PageID #: 1708

It cannot be questioned that CNS and HCC have succeeded on the merits. It is well-

settled that a “loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.”7 Elrod v. Burns, 427 U.S. 347, 373 (1976)

(plurality). So when CNS and HCC succeeded on the merits, they also established irreparable

harm as the result of the deprivation of rights. See Marcus v. Iowa Pub. Television, 97 F.3d

1137, 1140-41 (8th Cir. 1996); Kirkeby v. Furness, 52 F.3d 772, 775 (8th Cir.

1995). Likewise, the determination of where the public interest lies depends on success on

the merits of the First Amendment challenge because “it is always in the public interest to

protect constitutional rights.” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.

1998) (quotation omitted). Finally, any balancing of the equities weighs in favor of CNS and

HCC, since their religious freedom rights under RFRA eclipse any asserted interest of the

government, which admits it has other less-restrictive means of achieving its interests, which

it also admits are not compelling. As the Supreme Court pointed out in Hobby Lobby, the

fines imposed on employers who do not provide contraceptive coverage to their employees

are $100 per day per affected individual. 134 S. Ct. at 2762. Such ruinous fines will be

imposed if the new IFR is withdrawn or overruled, and that is one reason that CNS and HCC

ask this Court for permanent injunctive relief. It is important to CNS and HCC that they not

7
While this case has been decided under RFRA, the injuries are the same as if they were First Amendment injuries,
since RFRA was enacted to vindicate First Amendment religious freedom rights that had been compromised by
Employment Division v. Smith, 497 U.S. 872 (1990). Holt v. Hobbs, 135 S. Ct. 853, 859-60 (2015); see Tyndale
House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 129 (D.D.C. 2012), appeal dismissed, 2013 WL 2395168
(D.C. Cir. May 3, 2013) (referring to the quote from Elrod v. Burns, “[b]y extension, the same is true of rights
afforded under the RFRA, which covers the same types of rights as those protected under the Free Exercise Clause
of the First Amendment”) (citation omitted); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1146 (10th Cir.
2013) (“[O]ur case law analogizes RFRA to a constitutional right.”).

16
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 17 of 20 PageID #: 1709

face such fines in the future, whether such fines are imposed for their failures to comply with

the Mandate in the past or in the future. At $100 per day per affected individual, a single

employee with three dependents could be the cause for a $400 per day fine, which over five

years would be $584,000. CNS has more than 50 employees, so its exposure to fines totals

millions of dollars.

V. THE REQUIREMENTS FOR DECLARATORY RELIEF ARE SATISFIED.

The Declaratory Judgment Act provides that, “[i]n a case of actual controversy within its

jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations

of any interested party seeking such declaration, whether or not further relief is or could be

sought.” 28 U.S.C. 2201(a). The Supreme Court requires “that the dispute be ‘definite and

concrete, touching the legal relations of parties having adverse legal interests’; and that it be ‘real

and substantial’ and ‘admi[t] of specific relief through a decree of a conclusive character, as

distinguished from an opinion advising what the law would be upon a hypothetical state of

facts.’ ” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (citing Aetna Life Ins.

Co. v. Haworth, 300 U.S. 227, 240-41 (1937)). In Maryland Casualty Co. v. Pacific Coal & Oil

Co., 312 U.S. 270, 273 (1941), the Court summarized as follows: “Basically, the question in each

case is whether the facts alleged, under all the circumstances, show that there is a substantial

controversy, between parties having adverse legal interests, of sufficient immediacy and reality

to warrant the issuance of a declaratory judgment.”

Declaratory relief “does not share injunctive relief’s requirement of irreparable harm”

and may be issued in order to “clarify the relations between the parties and eliminate the legal

uncertainties that gave rise to this litigation.” Levin v. Harleston, 966 F.2d 85, 90 (2d Cir. 1992);

see also 13C Wright, Miller & Cooper, Federal Prac. & Proc. Juris. § 3533.5 (3d ed.).

17
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 18 of 20 PageID #: 1710

The threat to Movants of the ruinous fines, $100 per day per affected individual, as

noted in the section above, is a serious one. The only thing that separates Movants from those

fines is the interim final rule, which is subject to: (1) change following a comment period8

(the Mandate having changed often in the past in reaction to pressure from the public,

elections, and the courts); (2) legal attack against the new IFR in a growing number of

lawsuits—currently at least nine, as noted above; and (3) changing political winds not unlike

those the country has undergone recently. Movants do not have to wait until these legitimate

threats materialize before pursuing a declaratory judgment. MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118, 134 (2007) (holding that if threat of liability is present, plaintiff is not required to

actually be exposed to liability before bringing suit under the Declaratory Judgment Act). And

again, voluntary cessation through the interim final rule cannot deprive this Court of jurisdiction

unless it is absolutely clear that the Mandate and accommodation, or aspects of them, will never

recur. Trinity Lutheran, 137 S. Ct. 2012, 2019 n.1 (2017).

CONCLUSION

For the foregoing reasons, Movants CNS International Ministries, Inc. and Heartland

Christian College respectfully request:

(1) that the Court enter an injunction in favor of CNS International Ministries, Inc. (CNS)

and Heartland Christian College (HCC):

(a) enjoining the defendants, their employees, agents and successors in office

from enforcing against CNS and HCC, their health plan, or their health

8
An agency must “consider and respond to significant comments received during the period for public
comment.” Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015). The government has
confirmed that its “mind remains open” while considering comments from the public regarding the new
IFR. Commonwealth of Penn. v. Trump, 2:17-cv-04540-WB (E.D. Pa.) (Doc. 15 at 27).

18
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 19 of 20 PageID #: 1711

insurance issuers or third-party administrators in connection with their health

plan: (i) the statutes and regulations requiring contraceptive coverage to the

extent such coverage requires the provision of products or services CNS and

HCC believe to be abortifacients, or related counseling; (ii) the

accommodation as last amended by regulation dated August 27, 2014, or (iii)

any attendant penalties, fines or assessments for noncompliance with the

aforementioned statutes and regulations from December 30, 2013 until

termination of this injunction; and

(b) requiring the defendants, their employees, agents and successors in office to

provide CNS and HCC with an exemption from compliance with (i) the

statutory and regulatory requirements of the contraceptive mandate, to the

extent such coverage requires the provision of products or services CNS and

HCC believe to be abortifacients, or related counseling; (ii) the

accommodation as last amended by regulation dated August 27, 2014, and

(iii) any requirements to pay any attendant penalties, fines or assessments for

noncompliance with the aforementioned statutes and regulations from

December 30, 2013, until termination of this injunction;

(2) that the Court enter a declaratory judgment declaring that the contraceptive mandate

in the Affordable Care Act and implementing regulations and the accommodation as

augmented on August 27, 2014, violate the rights of CNS and HCC pursuant to the

Religious Freedom Restoration Act, and that CNS and HCC are not subject to any

fines, already accrued or imposed in the future, for their non-compliance with such

laws;

19
Case: 2:12-cv-00092-DDN Doc. #: 139 Filed: 11/17/17 Page: 20 of 20 PageID #: 1712

(3) Award CNS and HCC the costs of this action, reasonable attorney fees, expert

fees and expenses pursuant to 42 U.S.C. 1988, and as otherwise provided by

law; and

(4) Grant such other and further relief as the Court shall deem proper and just.

Respectfully submitted,

OTTSEN, LEGGAT & BELZ, L.C.

/s/ Timothy Belz_____________________

Timothy Belz #MO-31808
J. Matthew Belz #MO-61088
112 South Hanley, Suite 200
St. Louis, MO 63105-3418
Phone: (314) 726-2800
Facsimile: (314) 863-3821
tbelz@[Link]
jmbelz@[Link]

Attorneys for Plaintiffs

CNS International Ministries, Inc. and
Heartland Christian College

CERTIFICATE OF SERVICE

I hereby certify that on November 17, 2017, I caused a true and correct copy of

this filing to be served on counsel by means of the Court’s ECF system.

/s/Timothy Belz ________________

20
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 1 of 49 PageID #: 1

Nos. 14-1418, 14-1453, 14-1505,

15-35, 15-105, 15-119 & 15-191

IN THE
Supreme Court of the United States
________
DAVID A. ZUBIK, ET AL., Petitioners,
v.
SYLVIA BURWELL, ET AL., Respondents
________
[Additional Captions Listed on Inside of Cover]
________
On Writs of Certiorari to the
United States Court of Appeals for
the Third, Fifth, Tenth, and D.C. Circuits
________
Brief of The Catholic Benefits Association and
The Catholic Insurance Company, as amici
curiae in support of Petitioners

L. MARTIN NUSSBAUM
Counsel of Record
ERIC N. KNIFFIN
IAN S. SPEIR
Lewis Roca Rothgerber Christie LLP
90 S. Cascade Ave.
Suite 1100
Colorado Springs, CO 80903
mnussbaum@[Link]
(719) 386-3000
Counsel for Amici Curiae

Exhibit A
2005689146_4
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 2 of 49 PageID #: 1

ii

LITTLE SISTERS OF THE POOR HOME FOR THE AGED,

DENVER, COLORADO, ET AL., Petitioners,
v.
SYLVIA BURWELL, ET AL., Respondents
________
EAST TEXAS BAPTIST UNIVERSITY, ET AL., Petitioners,
v.
SYLVIA BURWELL, ET AL., Respondents
________
SOUTHERN NAZARENE UNIVERSITY, ET AL., Petitioners,
v.
SYLVIA BURWELL, ET AL., Respondents
________
PRIESTS FOR LIFE, ET AL., Petitioners,
v.
SYLVIA BURWELL, ET AL., Respondents
________
ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,
ET AL., Petitioners,
v.
SYLVIA BURWELL, ET AL., Respondents
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 3 of 49 PageID #: 1

iii

QUESTIONS PRESENTED

Did the Courts of Appeals err when they accepted

the government’s representation that, under the
accommodation, the Departments of HHS, Labor,
and Treasury have the regulatory authority to create
“new contracts” with third party administrators that
require them to provide CASC services
“independent” of their contracts with objecting non-
exempt ministries?
Did the Courts of Appeals err when they accepted
the government’s representation that Congress
delegated to the Department of Labor the authority
to unilaterally turn a third party administrator into
a “plan administrator” with the fiduciary duty to
deliver CASC benefits?
If the answer to either of these questions is no, is
the accommodation truly an “opt out” or an
“exemption process,” as the government has
represented and the Courts of Appeals have
accepted?
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 4 of 49 PageID #: 1

iv

TABLE OF CONTENTS

Page
TABLE OF CONTENTS............................................iv
TABLE OF AUTHORITIES .................................... vii
INTERESTS OF AMICI CURIAE .............................1
SUMMARY OF ARGUMENT ....................................3
ARGUMENT ...............................................................9
I. The accommodation burdens employers’
religious exercise by hijacking their
health plans for the delivery of morally
objectionable CASC services......................... 11
A. The government misinformed the
lower courts that it can force a TPA
to provide CASC services outside of
a ministry’s group health plan...............11
B. The Courts of Appeals uncritically
accepted the government’s
argument, erroneously concluding
that the accommodation does not
hijack ministries’ health plans. .............12
C. Contrary to the government’s
account, the accommodation can
work only by commandeering
ministries’ existing health plans. ..........16
D. The government has now
abandoned its argument, admitting
that the accommodation piggybacks
on an objecting ministry’s plan
infrastructure. ........................................19
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 5 of 49 PageID #: 1

II. The accommodation burdens employers’

religious exercise by requiring the
employer to submit a form or notice that
triggers the delivery of morally
objectionable CASC services by the
employer’s TPA. ............................................ 20
A. The government wrongly told lower
courts that it can unilaterally
require a TPA to provide CASC
services to participants in a
ministry’s group health plan..................20
B. The Courts of Appeals uncritically
accepted the government’s
argument, erroneously concluding
that the accommodation does not
force ministries to trigger the
delivery of CASC services to plan
participants.............................................22
C. Contrary to the government’s
representation, only employers (not
the government) can execute plan
instruments and bestow on TPAs
the legal responsibility to deliver
CASC services.........................................24
D. The government now admits that it
is the employer’s act that triggers
CASC coverage. ......................................28
III. The First Amendment precludes the
courts from second-guessing the
ministries’ moral judgment. ......................... 29
CONCLUSION..........................................................30
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 6 of 49 PageID #: 1

vi

APPENDICES

APPENDIX A: EBSA Form 700 ............................1a

APPENDIX B: EBSA Form 700 (Aug. 2014) ........5a

e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 7 of 49 PageID #: 1

vii

TABLE OF AUTHORITIES

Page
CASES

Burwell v. Hobby Lobby Stores, Inc.,

134 [Link]. 2751 (2014) ................................. 9, 28, 30
Catholic Health Care Sys. v. Burwell,
796 F.3d 207 (2d Cir. 2015).................................. 13
Cigna Corp. v. Amara
131 S. Ct. 1866 (2011) .......................................... 25
Curtiss-Wright Corp. v. Schoonejongen,
514 U.S. 73 (1995) ................................................ 25
E. Tex. Baptist Univ. v. Burwell,
793 F.3d 449 (5th Cir. 2015) .......................... 15, 23
Geneva College v. Sec’y, U.S. Dep’t
of Health & Human Servs.,
778 F.3d 422 (3d Cir. 2015)................ 13, 15, 23, 24
Gonzales v. O Centro Espirita
Beneficente Uniao Do Vegetal,
546 U.S. 418 (2006) .............................................. 10
Grace Schs. v. Burwell,
801 F.3d 788 (7th Cir. 2015) ................................ 15
Mich. Catholic Conf. v. Burwell,
807 F.3d 738 (6th Cir. 2015) .......................... 13, 15
Overby v. Nat’l Ass’n of Letter Carriers,
595 F.3d 1290 (D.C. Cir. 2010)............................. 25
Pierce v. Soc’y of Sisters,
268 U.S. 510 (1925) ................................................ 9
Priests For Life v. U.S. Dep’t
of Health & Human Servs.,
772 F.3d 229 (D.C. Cir. 2014)................... 13, 15, 23
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 8 of 49 PageID #: 1

viii

Thomas v. Rev. Bd. of Ind. Emp’t Sec. Div.,

450 U.S. 707 (1981) .................................... 9, 29, 30
Univ. of Notre Dame v. Burwell,
786 F.3d 606 (7th Cir. 2015) .................... 13, 14, 23
Univ. of Notre Dame v. Sebelius,
743 F.3d 547 (7th Cir. 2014) .................... 13, 23, 24
Univ. of Notre Dame v. Sebelius,
135 S. Ct. 1528 (2015) .......................................... 13
US Airways, Inc. v. McCutchen,
133 S. Ct. 1537 (2013) .......................................... 25
Wheaton College v. Burwell,
134 S. Ct. 2806 (2014) .................................... 21, 24
Wheaton College v. Burwell,
791 F.3d 792 (7th Cir. 2015) .......... 8, 13, 14, 20, 22

STATUTES

26 U.S.C. § 4980D ............................................... 17, 19

26 U.S.C. § 5000........................................................ 17
29 U.S.C. § 1002.......................... 17, 21, 24, 25, 26, 27
29 U.S.C. § 1102(a)(1) ........................................... 8, 25
29 U.S.C. § 402.......................................................... 25
42 U.S.C. § 300gg-13................................................. 16
42 U.S.C. § 300gg-91................................................. 17

RULES AND REGULATIONS

26 C.F.R. § 54.9815-2713A ................................. 17, 18

26 C.F.R. § 54.9815-2713T ....................................... 16
29 C.F.R. § 2510.3-16................................................ 26
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 9 of 49 PageID #: 1

ix

29 C.F.R. § 2590.715-2713........................................ 16
45 C.F.R. § 147.130 ................................................... 16
78 Fed. Reg. 39,870 (July 2, 2013) ........................... 20
80 Fed. Reg. 41,318 (July 14, 2015) ................... 20, 22

OTHER AUTHORITIES

Catholic Benefits Association, The Mechanics

and Effects of the Accommodation,
[Link]
cbn/en/resources/effects-of-accommodations-
[Link] ............................................................. 1
DOL, Report of the Working Group on Orphan
Plans (Nov. 8, 2002),
[Link]
0802_report.html .................................................. 26
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 10 of 49 PageID #: 1

1
INTERESTS OF AMICI CURIAE1
Amici are The Catholic Benefits Association
(“CBA”) and its wholly-owned subsidiary, The
Catholic Insurance Company (“CIC”). The CBA
is an Oklahoma non-profit limited cooperative
association committed to assisting its Catholic
employer members in providing health coverage to
their employees consistent with Catholic values. The
CBA provides such assistance through its website,
training webinars, legal and practical advice for
member employers, and litigation services protecting
members’ legal and conscience rights. One example
of such services is the CBA’s white paper, “The
Mechanics and Effects of the Accommodation,”
published on its website.2 The CBA’s member-
employers include over 700 Catholic dioceses,
schools, colleges, social services agencies, hospitals,
senior housing, and closely held for profit employers.
One of the conditions of membership is that the
member affirm that its health care coverage complies
with Catholic values.
The CIC provides stop-loss insurance and
arranges for provider networks and third party
administration for CBA members with self-funded
plans.
Because of the CBA’s and the CIC’s daily
interactions with health care insurers, benefits

1 The parties’ counsel were timely notified of and consented to

the filing of this brief. Neither a party nor its counsel authored
this brief in whole or in part. No person or entity other than
amici curiae or their counsel made a monetary contribution to
the preparation and submission of this brief.
2 [Link]
[Link].
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 11 of 49 PageID #: 1

2
consultants, third party administrators, and many
types of Catholic employers, they have developed
substantial familiarity with the Affordable Care Act;
its mandate that employer plans must include
coverage for contraceptives, abortion-inducing drugs
and devices, sterilization, and related counseling
(“CASC Mandate”); the religious employer
exemption; the so-called accommodation; the ruinous
fines for violation of the Mandate; and ERISA and
other federal laws.
The CBA’s bylaws require it to have “an Ethics
Committee comprised of the Catholic bishops serving
on [its] board plus any additional number of Catholic
bishops as appointed by the committee.” This
committee has exclusive authority to determine that
the CBA’s and the CIC’s benefits, products, and
services conform to Catholic values and doctrine.
The committee’s members, from inception to today,
are the Catholic archbishops of Baltimore, Oklahoma
City, Philadelphia, and Seattle.
On September 12, 2014, shortly after the
government adopted its “augmented
accommodation,” the CBA Ethics Committee
unanimously approved this resolution:
That the use of contraceptives, abortion-
inducing drugs and devices, sterilization, and
counseling in support of such options (“CASC
services”) is contrary to Catholic values. A
Catholic employer, therefore, cannot,
consistent with Catholic values, comply with
the government’s CASC mandate, with the
accommodation provided to “eligible
employers,” or with the “augmented
accommodation”––unless such an employer
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 12 of 49 PageID #: 1

3
has exhausted all alternatives that do not
effect a greater evil and unless such an
employer has taken reasonable steps to avoid
giving scandal.
SUMMARY OF ARGUMENT
One hundred forty plaintiffs, representing well
more than a thousand religious ministries, have filed
fifty-six cases pleading with the federal courts to
relieve them of the substantial burden that the
government’s CASC Mandate places on their
religious exercise. Never in American history have
so many religious entities filed suit to protect their
rights of conscience. Yet, according to the
government and the circuits that have sided with it,
these ministries are battling a phantom: the religious
burden about which they complain and for which
they have risked ruinous fines simply does not exist.
The Courts of Appeals ruled as they did because
they uncritically accepted two inaccurate
representations the government made about its
power to make the accommodation work. These
representations were erroneous from the outset—
which is why the government quietly abandoned
them upon these cases’ final approach into this
Court. In its briefing here, the government now
cedes the very ground on which it invited the lower
courts to rest their holdings.
First, the government told lower courts that it
had the power to force a third party administrator
(“TPA”) of a self-insured ministry to deliver CASC
services outside of and independent of the ministry’s
group health plan. In its briefs to five different
circuits, the government insisted that under the
accommodation, religious ministries “need not place
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 13 of 49 PageID #: 1

4
contraceptive coverage into the basket of goods and
services that constitute their healthcare plans.” E.g.,
Gov’t Br. at 25, Priests for Life v. U.S. Dep’t of Health
& Human Servs., Nos. 13-5368, 13-5371, 14-5021,
772 F.3d 229 (D.C. Cir. 2014) (quotation omitted).3
The Courts of Appeals bought this argument,
concluding that ministry plaintiffs were mistaken to
think the accommodation “hijacks” their health plans
and uses them as conduits to deliver CASC services.
Second, the government urged that it had
authority under ERISA to unilaterally turn a TPA
(that provides only administrative services) into a
“plan administrator” with the fiduciary duty to
deliver CASC benefits to plan participants. The
Courts of Appeals were again persuaded, concluding
that ministry plaintiffs were mistaken to think the
accommodation forces them to bestow this
responsibility on TPAs and thereby “trigger” their
employees’ access to CASC services.
These representations were critical to
government’s victories. They were also rhetorically
convenient, allowing the government to paint the
accommodation as an “opt out,” even an “exemption
process,” Gov’t Br. at 33, E. Tex. Baptist Univ. v.
Burwell, Nos. 14-10241, 14-10661, 14-20112, 14-
40212, 793 F.3d 449 (5th Cir. 2015),4 and to fervently
attack ministries’ religious objections as an
“extraordinarily broad” effort to block third parties
from receiving the “federal protections or benefits to
which they are entitled,” Gov’t Br. at 32, 28 n.7,

3Available at [Link]
2016/01/Priests-for-Life-D.C.-Cir.-[Link].
4 Available at [Link]
2014/09/[Link].
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 14 of 49 PageID #: 1

5
Little Sisters of the Poor v. Burwell, No. 13-1540, 794
F.3d 1151 (10th Cir. 2015).5
The trouble is, the government was wrong. And it
was this Court’s impending scrutiny that flushed out
the errors.
In its briefing to this Court, the government has
now made crucial concessions that not only
contradict its representations to the Courts of
Appeals but also fatally undermine those courts’
decisions. First, the government has surrendered
the pretense that the accommodation creates
obligations for a TPA independent of the plan. It
now concedes that CASC coverage provided by a TPA
“is, as an ERISA matter, part of the same ERISA
plan as the coverage provided by the employer.” Gov’t
Br. in Opp. at 19, E. Tex. Baptist Univ. v. Burwell,
No. 15-35 (emphasis added). Second, the
government now retreats from its argument that the
TPA has an obligation to provide CASC services
before the self-insured ministry invokes the
accommodation, admitting that the TPA becomes
“legally responsible for complying with the
contraceptive-coverage requirement only after the
organization itself opts out.” Gov’t Br. in Opp. at 21
n.11, Priests for Life v. Dep’t of Health & Human
Servs., Nos. 14-1453, 14-1505 (emphasis added).
The government makes these concessions because
it must. Its earlier representations to the lower
courts were error. The government should now take
the further step and end its profoundly misleading
portrayal of the accommodation as an “opt out” or

5 Available at [Link]
2014/10/LSP_DOJ-[Link].
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 15 of 49 PageID #: 1

6
“exemption.” As federal law makes clear, if a self-
insured ministry’s TPA is legally bound to deliver
CASC services to plan participants, it is only because
the ministry remains inextricably tied to the delivery
of those services to the ministry’s employees through
ministry’s plan.
The reason lies in both the Affordable Care Act
(“ACA”) and ERISA. The ACA imposes its mandate
on an employer’s “group health plan.” Under federal
law, employee benefits plans, including group health
plans, belong to the employer. It is the employer’s
plan, established and maintained for the benefit of
the employer’s employees. ERISA sets forth what a
plan is, how it is established, and how it is
operated. Critically, ERISA makes clear that it is
only the employer who can establish a plan, define
its basic terms, and subsequently amend it. Church
plans that are exempt from ERISA operate no
differently.
The ACA’s statutory mandate, coupled with
HRSA’s guidelines, requires each petitioner’s “group
health plan” to cover CASC services. The
government persistently argued in the courts below
that the accommodation removes this obligation from
an objecting ministry and places it on a third party,
the ministry’s TPA. That is not so. The
accommodation does not operate that way, and it
cannot operate that way. Under the ACA, the only
way employees have access to CASC benefits is
through their employer’s plan. Although the
accommodation may shift to a third party the duty to
pay for these benefits, the fundamental obligation to
provide the benefits remains on the employer, and
more precisely, on the employer’s plan. Employees
have access to CASC benefits only because they are
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 16 of 49 PageID #: 1

7
participants in the plan, and they cease to have
access when they cease to be participants (such as
when employment ends). Furthermore, TPAs
become obligated to pay for CASC benefits under the
accommodation only because they have preexisting
contractual or fiduciary obligations to the plan.
The plan, then, is central to the ACA’s mandate
scheme. The employer establishes a group health
plan, the ACA and the government’s regulations
require the plan to cover CASC services, and the
accommodation does nothing to alter that
requirement. Even if an employer invokes the
accommodation, employees will receive CASC
benefits because they participate in the plan, and
third parties must pay for those benefits because of
their relationship to the plan.
Herein lies the root of the religious objection.
Catholic and evangelical Protestant employers
oppose the statutory mandate and the regulatory
accommodation on grounds of moral complicity. In
their view, the government has co-opted their
plans—something they established and maintain for
the good of employees—into vehicles for the delivery
of items they find morally evil.
The accommodation, far from relieving employers
of this complicity, actually worsens it by requiring an
employer to affirmatively act to effect the delivery of
CASC services. The original accommodation
requires an employer to execute EBSA Form
700. Buried in the final sentence of the form are
these words: “This form . . . is an instrument under
which the plan is operated.” After the August 2014
“augmentation” of the accommodation, employers are
now told that either “[t]his form or a notice to the
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 17 of 49 PageID #: 1

8
Secretary [of HHS] is an instrument under which the
plan is operated.” See infra, Appendices at 3a, 7a.
The concept of a “plan instrument” originates in
ERISA. ERISA requires all plans to be “established
and maintained pursuant to a written
instrument.” 29 U.S.C. § 1102(a)(1). That
instrument must specify the formal procedures for
amending the plan and the person with authority to
make these amendments.
Under ERISA, only the employer or its designee
can execute the plan instruments necessary to
establish or amend a plan. The government cannot
do this for an employer. So for the accommodation to
comply with current federal law, the government had
to find some way to make the employer amend its
own plan to cover CASC services. That is the
hidden purpose and actual legal effect of the
notice requirement. By requiring an objecting
ministry to provide Form 700 to its TPA or a notice
to HHS, the government compels the ministry to
execute an ERISA plan instrument and affirmatively
amend its own health plan to include CASC
coverage. This is not an opt-out process. It is a
forced-in process. The legal complexities allow the
government to maintain the regulatory masquerade.
Not only was the government never forthright
with the Courts of Appeals about how the law works,
those courts simply ignored the law. Take, for
example, Judge Posner, author of three appellate
decisions on the accommodation. In Wheaton College
v. Burwell, 791 F.3d 792, 800 (7th Cir. 2015), he
invented a new concept and christened it a
“governmental plan instrument,” suggesting that
when an employer invokes the accommodation,
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 18 of 49 PageID #: 1

9
“[w]hat had been [the employer’s] plan, so far as
emergency contraception was concerned, the
Affordable Care Act ma[kes] the government’s
plan.” Even the government has not gone that
far. Nothing in the ACA or ERISA authorizes the
government to do what Judge Posner has suggested.
Creative it is. The law it is not.
Because the CASC Mandate operates on the
employer’s plan, religious ministries are inextricably
linked to the delivery of CASC services to their
employees, even under the accommodation. And
because their faith teaches that their health plans
cannot be made the vehicles for delivering such
services, the Mandate imposes a substantial burden
on their religious exercise. The Courts of Appeals
fundamentally erred by misunderstanding this; by
ignoring the ACA’s plan-centric mandate scheme;
and by finding that “the line [the ministries] drew
was an unreasonable one.” See Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751, 2778 (2014)
(quoting Thomas v. Review Bd. of Ind. Employment
Sec. Div., 450 U.S. 707, 715 (1981)) (internal
quotation marks omitted).
ARGUMENT
The courts below accepted the government’s
misleading account of how the accommodation works
with respect to self-insured ministry employers.6

6 Amici’s analysis here focuses exclusively on the burden the

CASC Mandate imposes on employers like East Texas Baptist
University with self-funded plans. To the extent that the
Mandate also falls on “health insurance issuer[s],” it burdens
the religious exercise of employers who buy group insurance by
depriving these employers of any option that excludes CASC
services. See, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 19 of 49 PageID #: 1

10
First, the government insisted that it could require
TPAs to provide CASC coverage independent of the
group health plans created and sponsored by
objecting ministries. Second, the government
claimed that, without involving the employer, it
could turn an ordinary TPA into a “plan
administrator” with fiduciary responsibility to
deliver CASC services. Both assertions are wrong, as
even the government now admits. Under federal
law, the TPA provides CASC coverage as an
inseparable part of the employer’s existing plan, and
it is the employer (not the government) who must
bestow this responsibility on the TPA.
As objecting ministries have consistently and
correctly maintained, the accommodation does two
things: it hijacks their health plans, turning them
into conduits for the delivery of morally objectionable
services, and it forces ministries to trigger the
delivery of CASC services to plan participants.
Indeed, given the legal framework in which the
accommodation operates, this is the only way the
accommodation can work.
The government’s appellate victories below were
built on the central myth, zealously advanced in the
government’s briefing, that the accommodation
works independently of a ministry employer and its
group health plan. The government’s recent
concessions before this Court expose the fallacy of

(law foreclosing option of private school education violates

fundamental right of parents); Gonzales v. O Centro Espirita
Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) (federal
statute that prohibits importation of drink used by religious
group violates Religious Freedom Restoration Act).
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 20 of 49 PageID #: 1

11
that idea, and an accurate understanding of federal
law confirms it.
I. The accommodation burdens employers’
religious exercise by hijacking their health
plans for the delivery of morally
objectionable CASC services.
A. The government misinformed the lower
courts that it can force a TPA to provide
CASC services outside of a ministry’s
group health plan.
Although the accommodation was not squarely
before this Court in Hobby Lobby, the government
touched on the accommodation in its brief, claiming
that “[i]f an organization invokes an accommodation,
the women who participate in its plan will generally
have access to contraceptive coverage . . . through an
alternative mechanism established by the regulations,
under which the organization does not contract,
arrange, pay, or refer for contraceptive coverage.”
Gov’t Br. at 7, Burwell v. Hobby Lobby Stores, Inc.,
Nos. 13-354, 13-356, 134 S. Ct. 2751 (2014)
(emphasis added).7
In briefing before the Courts of Appeals, the
government developed its narrative about how this
“alternative mechanism” works. It told three of the
four circuits represented in these consolidated cases
that under the accommodation, religious ministries
“need not place contraceptive coverage into the
basket of goods and services that constitute their
healthcare plans.” Gov’t Priests for Life Br. at 25,
supra note 3; Gov’t Little Sisters Br. at 23, supra note

7 Available at [Link]
2014/01/[Link].
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 21 of 49 PageID #: 1

12
5; Gov’t Br. at 21, Geneva College v. Sec’y U.S. Dep’t
of Health & Human Servs., Nos. 13-3536, 14-1374,
14-1376, 14-1377, 778 F.3d 422 (3d Cir. 2015)
(quotation omitted).8
By the time the government filed its brief in the
Fifth Circuit, it had reworked its arguments, relying
heavily on the first CASC Mandate opinions from the
Seventh and Sixth Circuits, which had blithely
accepted the government’s claim that the
accommodation was an “opt out” that left ministries
“effectively exempt” because the government creates
an “independent obligation” to provide CASC
services. Gov’t ETBU Br. at 33-34, 22, supra note 4.
B. The Courts of Appeals uncritically
accepted the government’s argument,
erroneously concluding that the
accommodation does not hijack
ministries’ health plans.
The government’s arguments below suggested
that, after a self-insured employer submits the form
or notice, the TPA is required to deliver CASC
services outside of the employer’s group health plan.

8 The government’s Geneva College brief is available at

[Link]
College-3rd-Cir.-[Link]. The government made
the same representation to the Sixth and Seventh Circuits,
whose decisions are not among these consolidated cases. See
Gov’t Br. at 26-27, Mich. Catholic Conference v. Burwell, Nos.
13-2723, 13-6640, 807 F.3d 738 (6th Cir. 2015), available at
[Link]
Michigan-Catholic-Conference-6th-Cir.-[Link];
Gov’t Br. at 21, Grace Schs. v. Burwell, Nos. 14-1430, 14-1431,
801 F.3d 788 (7th Cir. 2015), available at
[Link]
Schools-7th-Cir.-[Link].
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 22 of 49 PageID #: 1

13
The Courts of Appeals took the government’s word
for this, finding that the accommodation imposed no
burden on ministries’ religious exercise.
The errors began, and persisted, in the Seventh
Circuit with its first three decisions on the
accommodation, all authored by Judge Posner.9
Judge Posner’s Notre Dame decisions were the first
appellate opinions and became the template for
others. Every subsequent appellate decision that
sided with the government looked to Notre Dame for
guidance. It was in these decisions that Judge
Posner accepted the government’s characterization of
the accommodation and dubbed it an “opt out.” Notre
Dame I, 743 F.3d at 550; Notre Dame II, 786 F.3d at
609. That phrase went judicially viral and was
invoked over 200 times by five other circuits.10
Judge Posner called the accommodation an “opt
out” because he thought the government could
compel a TPA to provide CASC coverage
independently of the objecting employer’s group
health plan. In Judge Posner’s view, the
accommodation did not make Notre Dame a
“conduit” of CASC coverage because “under the
[Affordable Care] Act the government . . . uses

9 Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014)
(“Notre Dame I”), vacated and remanded, 135 S. Ct. 1528
(2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir.
2015) (“Notre Dame II”); Wheaton College, 791 F.3d 792.
10Little Sisters of the Poor v. Burwell, 794 F.3d 1151 (10th Cir.
2015) (123 times); Priests For Life v. U.S. Dep’t of Health &
Human Servs., 772 F.3d 229 (D.C. Cir. 2014) (44 times); Geneva
College v. Sec’y, U.S. Dep’t of Health & Human Servs., 778 F.3d
422 (3d Cir. 2015) (5 times); Catholic Health Care Sys. v.
Burwell, 796 F.3d 207 (2d Cir. 2015) (25 times); Mich. Catholic
Conference v. Burwell, 807 F.3d 738 (6th Cir. 2015) (8 times).
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 23 of 49 PageID #: 1

14
private . . . health plan administrators as its agents
to provide medical services.” Notre Dame II, 786
F.3d at 615 (emphasis added). It is “the federal
government” that “determines (enlists, drafts,
conscripts) substitute providers.” Id. at 614. “This
coverage is separate from Notre Dame,” Judge Posner
said, and “the university has stepped aside.” Id. at
612.
Judge Posner went further in his Wheaton College
decision, writing: “What had been Wheaton’s plan, so
far as emergency contraception was concerned, the
Affordable Care Act made the government’s plan
when Wheaton refused to comply with the Act’s
provision on contraception coverage.” 791 F.3d at
800. Under the accommodation, Judge Posner
ventured, “new contracts are created,” through
“governmental plan instrument[s],” “to which
[objecting employers are] not a party.” Id. at 796,
800. Judge Posner insisted that “the government
isn’t using the college’s plans” because CASC
coverage was being provided through the
“government’s plan.” Id. at 800–01. These
pronouncements came with no citation to legal
authority because there is none. In fact, there is no
such thing as a “governmental plan instrument.”
The phrase does not appear in any federal statute or
regulation, and has never before appeared in a
published opinion.
The four circuits represented in this consolidated
appeal followed the Seventh Circuit’s lead, accepting
the notion that the government can enforce the
CASC Mandate outside of an objecting ministry’s
group health plans. The D.C. Circuit said that
“contraceptive services are not provided to women
because of Plaintiffs’ contracts with insurance
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 24 of 49 PageID #: 1

15
companies.” Priests for Life, 772 F.3d at 253. The
Third Circuit held that the provision of contraceptive
coverage under the accommodation “is not dependent
upon Geneva [College]’s contract with its insurance
company.” Geneva College, 778 F.3d at 438 n.13.
The Fifth Circuit insisted that the government “is
requiring . . . third-party administrators to offer
[CASC coverage] separately from the plans.” E. Tex.
Baptist Univ. v. Burwell, 793 F.3d 449, 461 (5th Cir.
2015) (emphasis added). Finally, the Tenth Circuit
found that the Little Sisters of the Poor’s “only
involvement in the [accommodation] scheme is the
act of opting out”; that the accommodation “shift[s]
responsibility to non-objecting entities”; and that
“[o]pting out ensures they will play no part in the
provision of contraceptive coverage.” Little Sisters of
the Poor, 794 F.3d at 1183, 1192.
Other circuits likewise accepted the government’s
account. “[T]he eligible organization’s health plan
does not host the coverage,” the Sixth Circuit
concluded. Mich. Catholic Conf., 807 F.3d at 751. In
the only Seventh Circuit opinion on the
accommodation not authored by Judge Posner, the
panel agreed that “the government does not use the
health plans or contracts at all, much less alter any
terms.” Grace Schs. v. Burwell, 801 F.3d 788, 806
(7th Cir. 2015). “[N]othing in the ACA or regulations
makes the plaintiffs complicit or allows their
contracts with insurers or third party administrators
to act as conduits for the provision of contraceptive
services.” Id. at 802.
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 25 of 49 PageID #: 1

16
C. Contrary to the government’s account,
the accommodation can work only by
commandeering ministries’ existing
health plans.
The federal law that undergirds the
accommodation is not as the government represented
it below, and is not as the Courts of Appeals
perceived it. No federal agency has authority—
under the ACA, ERISA, or otherwise—to force the
TPA of an objecting ministry to deliver CASC
services outside of the ministry’s existing plan. The
accommodation does not create separate plans. If
there were such a law, the government could by fiat
order TPAs to deliver CASC services not only to
employees of accommodated employers but also to
those of exempt ones. If the accommodation works at
all, it is only because it co-opts ministries’ existing
health plans and turns them into conduits for
delivering CASC services.
The government and the courts below erred by
ignoring the plan-centric character of the ACA and
ERISA. At the most basic level, the ACA imposes
the CASC Mandate on “group health plans.” 42
U.S.C. § 300gg-13(a).11 The HHS, DOL, and
Treasury regulations do so as well. See 45 C.F.R. §
147.130(a)(1)(iv); 29 C.F.R. § 2590.715-2713(b)(1); 26
C.F.R. § 54.9815-2713T(a)(1)(iv).

11 The statute refers to “preventive care and screening [for

women] . . . provided for in the comprehensive guidelines
supported by the Health Resources and Services
Administration.” 42 U.S.C. § 300gg-13(a)(4). HRSA later
defined such preventive care to include CASC services.
Although the ACA also imposes the CASC Mandate on “health
insurance issuer[s],” id. § 300gg-13(a), that aspect of the
Mandate is not addressed in this brief, see supra note 6.
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 26 of 49 PageID #: 1

17
Only employers can establish and maintain group
health plans. The Public Health Service Act defines
a “‘group health plan’ as an employee welfare benefit
plan [as defined in ERISA § 3(1), codified at 29
U.S.C. § 1002(1)] to the extent that the plan provides
medical care . . . to employees or their
dependents.” 42 U.S.C. § 300gg-91(a)(1) (emphases
added). ERISA likewise governs “employee welfare
benefit plans,” which it defines as “any plan, fund or
program . . . established or maintained by an
employer . . . for the purpose of providing for its
participants or their beneficiaries . . . medical . . .
care or benefits.” 29 U.S.C. § 1002(1) (emphases
added). Finally, the Internal Revenue Code defines a
group health plan as “a plan (including a self-insured
plan) of, or contributed to by, an employer . . . to
provide health care (directly or otherwise) to the
employees, former employees, . . . or others associated
or formerly associated with the employer.” 26 U.S.C.
§ 5000(b)(1) (emphases added).
Because only employers have group health plans,
the penalty for failing to comply with the CASC
Mandate—$36,500 per covered employee per year—
is imposed on the employer that maintains a CASC-
free “group health plan.” 26 U.S.C. § 4980D(a),
(b)(1), (e)(1). It is not imposed on TPAs defying the
government’s fiat. Because delivery of CASC
services can be accomplished only through an
employer’s plan, the accommodation regulation
requires self-insured employers to “contract[] with
one or more third party administrators” that will
serve as the employer’s surrogate in providing the
services the employer considers morally
objectionable. See 26 C.F.R. § 54.9815-
2713A(b)(1)(i). Absent an employer in continuing
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 27 of 49 PageID #: 1

18
contractual relationship with a TPA, no
accommodation is possible because there is no one to
receive the Form 700 or the notice from DOL and no
one to provide CASC coverage.12
CASC coverage begins and ends with an
employee’s employment relationship. The employer
has no obligation to provide CASC coverage to
employees or their dependents who do not enroll or
sign up in the plan. The employer’s only obligation
runs to those on its plan. Meanwhile, the TPA has
duties only to those on the plan it administers. This
obligation is entirely derivative of the plan and
employment relationships. Thus, in order for the
accommodation to accomplish its basic purpose, the
employer must amend its own plan and thereby
command its own TPA to provide its own employees
with CASC services under its own plan. Under the
accommodation, it is the employer’s plan, and not a
government plan, that provides CASC coverage.
Congress through the ACA, and the executive
branch through regulations issued by HHS, DOL,
and Treasury, impose the CASC Mandate on

12 One of the oddest provisions in the ACA regulations suggests

the government’s solicitude for the conscience of TPAs. The
regulations permit a TPA to walk away from its contractual
obligation to an employer upon learning that it must provide
CASC services. See 26 C.F.R. § 54.9815-2713A (TPA has option
“to remain in a contractual relationship with an eligible
organization” after receiving the accommodation notice). This
means that if a TPA abandons its contract, the employer must,
to avoid huge fines, recruit a replacement TPA that is willing to
arrange CASC services. The new TPA does this under the
employer’s plan that is co-opted under the accommodation. The
requirement that the employer recruit a TPA with different
religious values than the employer is itself another burden on
the employer’s religious exercise.
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 28 of 49 PageID #: 1

19
employers with respect to their group health plans.
Nothing in the statutes or regulations grants
individuals the right to obtain ACA-mandated CASC
services other than through their employers’ plans,
and none of these laws gives the government
authority to require CASC coverage other than
through an employer’s plan.
In sum, under the ACA and ERISA, the CASC
Mandate simply does not apply outside of a plan
established by, contributed to by, and associated with
an employer. And the fines that the government
uses to enforce the CASC Mandate can be levied only
against the employer that sponsors the plan. 26
U.S.C. § 4980D(e)(1). Unless Congress amends the
relevant statutes, HHS, DOL, and Treasury do not
have authority to obligate a ministry’s TPA to deliver
CASC services outside of a ministry’s existing plan.
D. The government has now abandoned its
argument, admitting that the
accommodation piggybacks on an
objecting ministry’s plan infrastructure.
Recent statements from the government confirm
this reading of the law. In October, after briefing
twenty-six cases at the Courts of Appeals and filing two
of its four briefs opposing certiorari, the government
made a critical concession to this Court: “If the
objecting employer has a self-insured plan, the
contraceptive coverage provided by its TPA is, as
an ERISA matter, part of the same ERISA plan as
the coverage provided by the employer.” Gov’t
ETBU Br. in Opp. at 19 (emphasis added).
Similarly candid statements by the government are
found in the Federal Register. Whereas the
government’s litigating position convinced the Courts of
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 29 of 49 PageID #: 1

20
Appeals that a TPA’s obligations under the
accommodation arise out of “new contracts” “to which
[objecting employers are] not a party,” Wheaton
College, 791 F.3d at 796, the government explained in
the Federal Register that the accommodation does not
require “plan participants and beneficiaries (and their
health care providers) . . . to have two separate health
insurance policies (that is, the group health insurance
policy and the individual contraceptive coverage
policy),” 78 Fed. Reg. 39,870, 39,876 (July 2, 2013). To
the contrary, the government designed the
accommodation to work from inside the objecting
employer’s “insurance coverage network,” taking
advantage of the employer’s existing “coverage
administration infrastructure” to make the coverage
flow. 80 Fed. Reg. 41,318, 41,328 (July 14, 2015).
II. The accommodation burdens employers’
religious exercise by requiring the employer
to submit a form or notice that triggers the
delivery of morally objectionable CASC
services by the employer’s TPA.
A. The government wrongly told lower
courts that it can unilaterally require a
TPA to provide CASC services to
participants in a ministry’s group health
plan.
In addition to arguing that it did not need
ministry employers’ plans to make the
accommodation work, the government insisted it did
not need the employers at all. The government
maintained that it could unilaterally require TPAs to
deliver CASC services, without involving employers
in the process. This idea actually originated in the
government’s representations to this Court: “The
Government contends,” this Court noted in its
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 30 of 49 PageID #: 1

21
Wheaton College order, “that the applicant’s health
insurance issuer and third-party administrator are
required by federal law to provide full contraceptive
coverage regardless whether the applicant completes
EBSA Form 700.” Wheaton College v. Burwell, 134
S. Ct. 2806, 2807 (2014).
The government made similar statements to the
Courts of Appeals, flatly denying the ministries’
argument that the accommodation works only by
involving them and forcing them to trigger CASC
coverage. Again and again, the government
characterized the accommodation as an “opt out” and
an “exemption process.” E.g., Gov’t ETBU Br. at 32-
33, supra note 4 (quotation omitted). To opt out, the
government argued below, a ministry “need only step
aside from contraception coverage, as it has always
done.” Gov’t Br. at 23, Notre Dame v. Sebelius, No.
13-3853, 743 F.3d 547 (7th Cir. 2014) (quotation
omitted).13
To maintain that argument, the government had
to grapple with ERISA section 3(16), which says that
a TPA has obligations as a plan administrator only if
it is “specifically so designated by the terms of the
instrument under which the plan is operated.” 29
U.S.C. § 1002(16)(A). The government assured the
Courts of Appeals that the Secretary of Labor’s
“broad rulemaking authority” under ERISA includes
the power to unilaterally designate a ministry’s TPA

13 The government’s brief in Notre Dame I is available at

[Link]
Dame-7th-Cir.-[Link]. See also Gov’t Mich.
Catholic Conf. Br. at 11, supra note 8; Gov’t Priests for Life Br.
at 21, supra note 3; Gov’t Little Sisters of the Poor Br. at 16,
supra note 5; Gov’t Geneva College at 16, supra note 8.
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 31 of 49 PageID #: 1

22
as a “plan administrator” under section 3(16) and
thereby make the TPA a fiduciary with the legal duty
to provide CASC services. Gov’t Br. at 53 n.20,
Wheaton College v. Burwell, 791 F.3d 792 (7th Cir.
2015);14 see also 80 Fed. Reg. at 41,323 (claiming
that DOL’s “broad rulemaking authority under Title
I of ERISA . . . includes the ability to interpret and
apply the definition of a plan administrator under
ERISA section 3(16)(A)”).
B. The Courts of Appeals uncritically
accepted the government’s argument,
erroneously concluding that the
accommodation does not force ministries
to trigger the delivery of CASC services
to plan participants.
The Courts of Appeal sided with the government
on this argument, too. Accepting the notion that the
government could unilaterally force TPAs to deliver
CASC services to plan participants, the courts
thought the ministries were mistaken in believing
that the accommodation forced them to act as
triggers of CASC coverage.
The courts’ rejection of the ministries’ “trigger”
arguments took two forms. First, the Courts of
Appeals erroneously accepted the government’s claim
that a TPA’s legal obligation to deliver CASC
services to a ministry’s plan beneficiaries exists
before the ministry invokes the accommodation. In
the words of the D.C. Circuit, “Plaintiffs’ ‘permission
slip’ argument misstates how the regulations
operate. As the Sixth and Seventh Circuits have also

14Available at [Link]
2015/05/[Link].
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 32 of 49 PageID #: 1

23
concluded, the insurers’ or TPAs’ obligation to
provide contraceptive coverage originates from the
ACA and its attendant regulations, not from
Plaintiffs’ self-certification or alternative notice.”
Priests for Life, 772 F.3d at 252. As such, the TPA’s
“obligation” to deliver CASC services “exists apart
from any action that Plaintiffs take.” Id. The Fifth
Circuit advanced this theory even more clearly: “the
plaintiffs’ completion of Form 700 or submission of a
notice to HHS does not authorize or trigger payments
for contraceptives, because the plaintiffs cannot
authorize or trigger what others are already required
by law to do.” ETBU, 793 F.3d at 459 & n.38; see
also Notre Dame II, 786 F.3d at 612–15 (concluding
that federal law, not the completion of Form 700 or
submission of a notice to HHS, triggers payments for
contraceptives); Geneva College, 778 F.3d at 435–42
(same).
Second, the Courts of Appeals mistakenly
concluded that even if a TPA’s duty to deliver CASC
services arose only after a ministry invokes the
accommodation, it was the government, not the
employer, that created this contractual obligation.
The Seventh Circuit said that the government had
the unilateral power to “[t]rea[t] and designat[e]”
Notre Dame’s TPA “as the plan administrator under
section 3(16) of ERISA for any contraceptive services
to be required.” 743 F.3d at 555. The D.C. Circuit
specifically endorsed the idea that the government
has the legal authority to create plan instruments.
The accommodation “does not, contrary to Plaintiffs’
contention, amend or alter Plaintiffs’ own plan
instruments.” Priests for Life, 772 F.3d at 255.
Instead, the court held that the government has the
“authority to author a plan instrument or designate a
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 33 of 49 PageID #: 1

24
particular writing as a plan instrument.” Id. The
Third Circuit likewise claimed that “the regulations
specific to . . . self-insured plan[s] . . . in no way cause
the appellees to facilitate or trigger the provision of
contraceptive coverage. . . . The eligible organization
has no effect on the designation of the plan
administrator; instead, it is the government that
treats and designates the third-party administrator
as the plan administrator under ERISA.” Geneva
College, 778 F.3d at 438 (citing Notre Dame I, 743
F.3d at 555).
C. Contrary to the government’s
representation, only employers (not the
government) can execute plan
instruments and bestow on TPAs the
legal responsibility to deliver CASC
services.
Justices Sotomayor, Ginsburg, and Kagan were
correct: an objecting ministry’s TPA “bears the legal
obligation to provide contraceptive coverage only
upon receipt of a valid self-certification.” Wheaton
College, 134 S. Ct. at 2814 n.6 (Sotomayor, J.,
dissenting). That is because, under ERISA, a TPA’s
obligation to deliver CASC services arises only upon
its appointment as plan administrator. That
appointment, in turn, can occur only in a written
instrument executed by the employer. See 29 U.S.C.
§ 1002(16)(A)(i). Contrary to what the government
argued and the lower courts accepted, the
government cannot unilaterally force TPAs to
become plan administrators. Only the employer can
bestow this responsibility on a TPA. This is precisely
why the government forces ministries to execute
Form 700 or the HHS notice.
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 34 of 49 PageID #: 1

25
Under ERISA, the employer controls a plan’s
basic terms. It is the exclusive role of the employer,
as plan sponsor, to create an employee benefit plan
by establishing a written instrument that sets out a
plan’s “basic terms and conditions.” Cigna Corp. v.
Amara 131 S. Ct. 1866, 1877 (2011) (citing 29 U.S.C.
§§ 402, 1102); see also US Airways, Inc. v.
McCutchen, 133 S. Ct. 1537, 1548 (2013) (“[ERISA] is
built around reliance on the face of written plan
documents.”). Under ERISA, the employer must
explain in this document how it will amend its plan.
Cigna Corp., 131 S. Ct. at 1877. These amendment
procedures “must be followed for the valid adoption
of an amendment.” Overby v. Nat’l Ass’n of Letter
Carriers, 595 F.3d 1290, 1295 (D.C. Cir. 2010) (citing
Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73,
85 (1995)). Statements in documents not issued by
the plan sponsor “do not themselves constitute the
terms of the plan.” Cigna Corp., 131 S. Ct. at 1878
(emphasis omitted).
ERISA is equally clear that only the employer has
authority to designate a plan administrator. 29
U.S.C. § 1002(16). The plan administrator is the
person “so designated” in the plan instrument
described above. Id. § (16)(A)(i).15 Congress has
specified that the Secretary of Labor may overrule
this designation only if the plan sponsor “cannot be
identified.” Id. § (16)(A)(iii).16

15 If the plan instrument is silent on this matter, the plan

sponsor (employer) holds this responsibility by default. 29
U.S.C. § 1002(16)(A)(ii).
16 If a plan sponsor cannot be identified, the plan is called an
“orphan plan.” See DOL, Report of the Working Group on
Orphan Plans (Nov. 8, 2002), [Link]
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 35 of 49 PageID #: 1

26
For government regulators beholden to their
Mandate but faced with the chorus of religious
objections from self-insured ministries, ERISA’s
statutory limitations created a dilemma. The
ministries’ plans did not cover CASC services, and
the TPAs for those plans were not legally obligated to
provide those services. To make this accommodation
work, regulators needed to make TPAs legally
responsible for delivering CASC services to plan
participants. But, as earlier noted, TPAs cannot be
forced to do this outside of the ministries’ existing
plans. Because ERISA forced regulators to work
through the ministries’ own plans, they had to find
some way to make the ministries themselves both
amend their plans to cover CASC services and
designate their TPAs as “plan administrators” with
respect to those services.
So the government devised Form 700. This form
is a plan-amending instrument masquerading as an
opt-out. DOL’s regulation acknowledges that the
self-certification form “is one of the instruments
under which the plan is operated under ERISA
section 3(16)(A)(i).” 29 C.F.R. § 2510.3-16 (emphasis
added). The last line on the back of the form says the
same thing: “This form is an instrument under which
the plan is operated.” See infra, Appendices at 3a
(emphasis added).
“[T]he plan” here, of course, is the ministry’s
plan. By executing Form 700, the ministry is
amending its own plan and commanding its own
TPA to provide its own employees with CASC

publications/AC_110802_report.html. The government has

never sought to justify any aspect of the accommodation based
on the orphan-plan provision.
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 36 of 49 PageID #: 1

27
services under the plan. This is how the
accommodation actually operates. And given
ERISA’s constraints, it is the only way the
government could make it work.17
Contrary to the government’s litigating position,
nothing about the accommodation works
independently of the ministry employer and its self-
insured plan. What the accommodation does is
alarmingly simple: it forces the ministry to amend its
own plan to cover CASC services and requires the
ministry to appoint a third party (the TPA) to deliver
those services through the plan. It is simple because,
when the underlying law is understood, the
accommodation—and particularly the government’s
insistence that ministries execute Form 700 or the
HHS notice—makes sense. It is alarming, though,
because the government has never been forthright
about it. The government never adequately

17 The augmented accommodation is no different. It operates

under the same law and is subject to the same constraints.
Like the original accommodation, the augmented
accommodation makes the TPA a plan administrator under
ERISA section 3(16)(A). 80 Fed. Reg. at 41,323. The
government equivocates on whether it is the employer’s notice
to HHS or DOL’s subsequent notice to the TPA that serves as
the plan instrument that ERISA section 3(16)(A)(i) requires.
Compare EBSA Form 700 (rev. Aug. 2014), infra, Appendices at
7a (“[A] notice to the Secretary is an instrument under which the
plan is operated.” (emphasis added)), with 80 Fed. Reg. at
41,323 (“The DOL notification will be an instrument under
which the plan is operated. . . .” (emphasis added)). But even as
DOL claims its “broad rulemaking authority” includes the
ability to interpret ERISA section 3(16) contrary to its express
terms, it never asserts power to compel a TPA to act outside the
employer’s plan. In the end, it still acknowledges that the
notice is “an instrument under which the plan is operated.” Id.
(emphasis added).
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 37 of 49 PageID #: 1

28
explained to the Courts of Appeals how the
accommodation really works. Worse, the government
actually picked up on the lower courts’
misconceptions, citing and quoting them in
subsequent briefs before other Circuits.
Undoubtedly, the government acted this way because
it understands what ministries have long known:
that the accommodation, like the CASC Mandate,
makes ministries morally complicit in the provision
of services that violate their consciences. See Hobby
Lobby Stores, 134 S. Ct. at 2778-79.
D. The government now admits that it is the
employer’s act that triggers CASC
coverage.
In its briefing to this Court, the government has
walked back its early representation that it has the
authority, without involving the employer, to turn a
TPA into a plan administrator for CASC services.
The government now admits that “[i]n the self-
insured context, the accommodation regulations
designate an objecting employer’s TPA as the entity
legally responsible for complying with the
contraceptive-coverage requirement only after the
organization itself opts out.” Gov’t Priests for Life
Br. in Opp. at 21 n.11 (emphasis added). The
government’s briefing has finally acknowledged what
black-letter ERISA law makes clear: the government
cannot designate a plan administrator unilaterally.
To make the accommodation work, the government
needs the employer to affirmatively act—to execute
Form 700 or the HHS notice.
Still, the government’s litigating position has not
fully caught up with legal reality. Even as it makes
the above concession, the next sentence of the
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 38 of 49 PageID #: 1

29
government’s brief continues to obfuscate: “But the
obligation [i.e., the TPA’s obligation] is still imposed
by the government, not by the objecting employer.”
Id. While it is true that a TPA, once appointed as
plan administrator, has obligations imposed by law
to deliver CASC services to plan participants,
government regulators cannot bestow this obligation
on the TPA in the first instance. Under ERISA, only
the employer can do that. The government’s
accommodation is objectionable because it forces the
employer to do that. It forces the employer to
designate the TPA as the party responsible for
delivering CASC services through the plan. Again,
that is the hidden purpose and actual legal effect of
Form 700 and the HHS notice. What else accounts
for the government’s dogged insistence that
ministries execute these instruments?
III. The First Amendment precludes the
courts from second-guessing the
ministries’ moral judgment.
Imagine a law that requires a property owner,
in time of war, to unlock his gate so soldiers can
enter the property to launch artillery at the
enemy. One landowner is a religious pacifist who,
for religious reasons, objects to the law because it
conscripts his property in service of the war
effort. The landowner believes that unlocking his
gate for soldiers makes him complicit in actions to
which he conscientiously objects. See Thomas, 450
U.S. 707.
In response, the government offers an
“accommodation” to the landowner: instead of
unlocking the gate himself, the landowner may
bestow this legal responsibility on his current
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 39 of 49 PageID #: 1

30
groundskeeper by handing over the key. We doubt
this accommodation would satisfy the landowner’s
conscience. First, it does not relieve the original
moral-complicity problem: the conscription of the
landowner’s own property as a killing field. Second,
the government’s accommodation still requires the
landowner to act to cause the conscription to occur:
either he must unlock the gate himself or he must
turn over the key and make his groundskeeper the
responsible party. Either way, the landowner is still
complicit in what he considers immoral acts of war
that deliberately harm human beings.
Properly understood, this is essentially how the
CASC Mandate and the regulatory accommodation
work with respect to religious ministries. And
properly grasped, these ministries’ objections to the
accommodation “implicat[e] a difficult and important
question of religion and moral philosophy, namely,
the circumstances under which it is wrong for a
person to perform an act that is innocent in itself but
that has the effect of enabling or facilitating the
commission of an immoral act by another.” Hobby
Lobby, 134 S. Ct. at 2778. It is not for the
government, the Courts of Appeals, or this Court to
second-guess these ministries’ conscientious answer
to that question. Like the landowner in the
metaphor, the ministries here “drew a line, and it is
not for [the government or the courts] to say that the
line [they] drew was an unreasonable one.” Thomas,
450 U.S. at 715.
CONCLUSION
For these reasons, the Catholic Benefits
Association and the Catholic Insurance Company
pray that this Court reverse the judgment of the
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 40 of 49 PageID #: 1

31
Court of Appeals and hold that the accommodation
substantially burdens religious exercise.

Respectfully submitted,
L. MARTIN NUSSBAUM
Counsel of Record
ERIC N. KNIFFIN
IAN S. SPEIR
Lewis Roca Rothgerber Christie LLP
90 S. Cascade Ave.
Suite 1100
Colorado Springs, CO 80903

Counsel for Amici Curiae

January 11, 2016

sdg
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 41 of 49 PageID #: 1

APPENDICES
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 42 of 49 PageID #: 1

1a
EBSA FORM 700—CERTIFICATION
(To be used for plan years beginning on or after
January 1, 2014)

This form is to be used to certify that the health

coverage established or maintained or arranged by
the organization listed below qualifies for an
accommodation with respect to the federal
requirement to cover certain contraceptive
services without cost sharing, pursuant to 26
CFR 54.9815-2713A, 29 CFR 2590.715-2713A,
and 45 CFR 147.131.

Please fill out this form completely. This form

must be completed by each eligible organization
by the first day of the first plan year beginning on
or after January 1, 2014, with respect to which the
accommodation is to apply, and be made available
for examination upon request. This form must be
maintained on file for at least 6 years following
the end of the last applicable plan year.
Name of the objecting
organization

Name and title of the individual

who is authorized to make, and
makes, this certification on
behalf of the organization

Mailing and email addresses and

phone number for the individual
listed above
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 43 of 49 PageID #: 1

2a
I certify that on account of religious objections, the
organization opposes providing coverage for some
or all of any contraceptive services that would
otherwise be required to be covered; the
organization is organized and operates as a
nonprofit entity; and the organization holds itself
out as a religious organization.

Note: An organization that offers coverage

through the same group health plan as a religious
employer (as defined in 45 CFR 147.131(a)) and/or
an eligible organization (as defined in 26 CFR
54.9815-2713A(a); 29 CFR 2590.715-2713A(a); 45
CFR 147.131(b)), and that is part of the same
controlled group of corporations as, or under
common control with, such employer and/or
organization (each within the meaning of section
52(a) or (b) of the Internal Revenue Code), may
certify that it holds itself out as a religious
organization.

I declare that I have made this certification, and

that, to the best of my knowledge and belief, it is
true and correct. I also declare that this
certification is complete.

______________________________________

Signature of the individual listed above

______________________________________

Date
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 44 of 49 PageID #: 1

3a
The organization or its plan using this form must
provide a copy of this certification to the plan’s
health insurance issuer(s) (for insured health
plans) or a third party administrator(s) (for self-
insured health plans) in order for the plan to be
accommodated with respect to the contraceptive
coverage requirement.

Notice to Third Party Administrators of Self-

Insured Health Plans

In the case of a group health plan that provides

benefits on a self-insured basis, the provision of
this certification to a plan’s third party
administrator that will process claims for
contraceptive coverage required under 26 CFR
54.9815-2713(a)(1)(iv) or 29 CFR 2590.715-
2713(a)(1)(iv) constitutes notice to the third
party administrator that:
(1) The eligible organization will not act as the
plan administrator or claims administrator
with respect to claims for contraceptive
services, or contribute to the funding of
contraceptive services; and
(2) The obligations of the third party
administrator are set forth in 26 CFR
54.9815-2713A, 29 CFR 2510.3-16, and 29
CFR 2590.715-2713A.

This form is an instrument under which the plan

is operated.
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 45 of 49 PageID #: 1

4a
PRA Disclosure Statement

According to the Paperwork Reduction Act of 1995,

no persons are required to respond to a collection of
information unless it displays a valid OMB control
number. The valid OMB control number for this
information collection is 0938-XXXX. The time
required to complete this information collection is
estimated to average 50 minutes per response,
including the time to review instructions, search
existing data resources, gather the data needed, and
complete and review the information collection. If
you have comments concerning the accuracy of the
time estimate(s) or suggestions for improving this
form, please write to: CMS, 7500 Security Boulevard,
Attn: PRA Reports Clearance Officer, Mail Stop C4-
26-05, Baltimore, Maryland 21244-1850.
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 46 of 49 PageID #: 1

5a
EBSA FORM 700—CERTIFICATION
(revised August 2014)

This form may be used to certify that the health

coverage established or maintained or arranged by
the organization listed below qualifies for an
accommodation with respect to the federal
requirement to cover certain contraceptive
services without cost sharing, pursuant to 26
CFR 54.9815-2713A, 29 CFR 2590.715-2713A,
and 45 CFR 147.131. Alternatively, an eligible
organization may also provide notice to the
Secretary of Health and Human Services.

Please fill out this form completely. This form

should be made available for examination upon
request and maintained on file for at least 6 years
following the end of the last applicable plan year.
Name of the objecting
organization

Name and title of the individual

who is authorized to make, and
makes, this certification on
behalf of the organization

Mailing and email addresses and

phone number for the individual
listed above

I certify the organization is an eligible

organization (as described in 26 CFR 54.9815-
2713A(a), 29 CFR 2590.715-2713A(a); 45 CFR
147.131(a)) and/or an eligible organization (as
defined in 26 CFR 54.9815-2713A(a); 29 CFR
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 47 of 49 PageID #: 1

6a
2590.715-2713A(a); 45 CFR 147.131(b)), and that
is part of the same controlled group of
corporations as, or under common control with,
such employer and/or organization (within the
meaning of section 52(a) or (b) of the Internal
Revenue Code), is considered to meet the
requirements of 26 CFR 54.9815-2713A(a)(3), 29
CFR 2590.715-2713A(a)(3), and 45 CFR
147.131(b)(3).

I declare that I have made this certification, and

that, to the best of my knowledge and belief, it is
true and correct. I also declare that this
certification is complete.

______________________________________

Signature of the individual listed above

______________________________________

Date
The organization or its plan using this form must
provide a copy of this certification to the plan’s
health insurance issuer (for insured health plans)
or a third party administrator (for self-insured
health plans) in order for the plan to be
accommodated with respect to the contraceptive
coverage requirement.

Notice to Third Party Administrators of Self-

Insured Health Plans

In the case of a group health plan that provides

benefits on a self-insured basis, the provision of
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 48 of 49 PageID #: 1

7a
this certification to a third party administrator
for the plan that will process claims for
contraceptive coverage required under 26 CFR
54.9815-2713(a)(1)(iv) or 29 CFR 2590.715-
2713(a)(1)(iv) constitutes notice to the third
party administrator that the eligible
organization:
(1) Will not act as the plan administrator or
claims administrator with respect to claims
for contraceptive services, or contribute to
the funding of contraceptive services; and
(2) The obligations of the third party
administrator are set forth in 26 CFR
54.9815-2713A, 29 CFR 2510.3-16, and 29
CFR 2590.715-2713A.

As an alternative to using this form, an eligible

organization may provide notice to the Secretary
of Health and Human Services that the eligible
organization has a religious objection to providing
coverage for all or a subset of contraceptive
services, pursuant to 26 CFR 54.9815-
2713A(b)(1)(ii)(B) and (c)(1)(ii), 29 CFR 2590.715-
2713A(b)(1)(ii)(B) and (c)(1)(ii), and 45 CFR
147.131(c)(1)(ii). A model notice is available at:
[Link]
d-Guidance/[Link]#Prevention.

This form or a notice to the Secretary is an

instrument under which the plan is operated.
e: 2:12-cv-00092-DDN Doc. #: 139-1 Filed: 11/17/17 Page: 49 of 49 PageID #: 1

8a
PRA Disclosure Statement

According to the Paperwork Reduction Act of 1995,

no persons are required to respond to a collection of
information unless it displays a valid OMB control
number. The valid OMB control number for this
information collection is 1210-0150. An organization
that seeks to be recognized as an eligible
organization that qualifies for an accommodation
with respect to the federal requirement to cover
certain contraceptive services without cost sharing
may complete this self-certification form, or provide
notice to the Secretary of Health and Human
Services, in order to obtain or retain the benefit of
the exemption from covering certain contraceptive
services. The self-certification form or notice to the
Secretary of Health and Human Services must be
maintained in a manner consistent with the record
retention requirements under section 107 of the
Employee Retirement Income Security Act of 1974,
which generally requires records to be retained for
six years. The time required to complete this
information collection is estimated to average 50
minutes per response, including the time to review
instructions, gather the necessary data, and
complete and review the information collection. If
you have comments concerning the accuracy of the
time estimate(s) or suggestions for improving this
form, please write to: U.S. Department of Labor,
Employee Benefits Security Administration, Office of
Policy and Research, 200 Constitution Avenue, N.W.,
Room N-5718, Washington, DC 20210 or email
[Link]@[Link] and reference the OMB Control
Number 1210-0150.
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 1 of 24 PageID #: 1762

Nos. 14-1418, 14-1453, 14-1505,

15-35, 15-105, 15-119, & 15-191
================================================================

In The
Supreme Court of the United States
--------------------------------- ---------------------------------
DAVID A. ZUBIK, ET AL.,
Petitioners,
v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.,
Respondents.
--------------------------------- ---------------------------------
On Writs Of Certiorari To The
United States Courts Of Appeals
For The Third, Fifth, Tenth, And
District Of Columbia Circuits
--------------------------------- ---------------------------------
BRIEF OF CNS INTERNATIONAL MINISTRIES,
INC. AND HEARTLAND CHRISTIAN COLLEGE
AS AMICI CURIAE IN SUPPORT OF PETITIONERS
--------------------------------- ---------------------------------
TIMOTHY BELZ
Counsel of Record
J. MATTHEW BELZ
OTTSEN, LEGGAT & BELZ, L.C.
112 S. Hanley Road, Suite 200
St. Louis, Missouri 63105
(314) 726-2800
tbelz@[Link]
jmbelz@[Link]
DAVID R. MELTON
General Counsel for CNS
International Ministries, Inc.
and Heartland Christian College
500 E. Ninth Street
Kansas City, Missouri 64106
(816) 842-6300
Counsel for Amici Curiae
================================================================

Exhibit B
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 2 of 24 PageID #: 1763
i

CORPORATE DISCLOSURE STATEMENT

Both CNS International Ministries, Inc. and

Heartland Christian College are religious nonprofit
corporations that have no parent corporations. Nei-
ther is subject to ownership of any kind by any other
corporation.
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 3 of 24 PageID #: 1764
ii

TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ....... i
TABLE OF AUTHORITIES ................................. iii
INTEREST OF THE AMICI CURIAE ................. 1
SUMMARY OF THE ARGUMENT...................... 2
ARGUMENT ........................................................ 4
THE GOVERNMENT HAS EIGHT TIMES
CLAIMED THAT ITS THEN-CURRENT
VERSION OF THE MANDATE WAS THE
LEAST RESTRICTIVE MEANS AND EACH
TIME THEREAFTER ADMITTED THAT
LESS RESTRICTIVE MEANS EXIST ............. 4
I. The Religious Employer (Church) Ex-
emption and Its Revisions ......................... 4
II. The Temporary Enforcement Safe Harbor ... 7
III. The “Accommodation” ................................ 11
IV. The Augmented “Accommodation” ............ 14
V. The “Accommodation” for For-Profit En-
tities ........................................................... 15
CONCLUSION..................................................... 16
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 4 of 24 PageID #: 1765
iii

TABLE OF AUTHORITIES
Page
CASES:
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751 (2014) ...................................... 11, 13, 15, 16, 17
Little Sisters of the Poor v. Sebelius, 134 S. Ct.
1022 (2014) ..............................................................13
Sharpe Holdings, Inc. v. U.S. Dept. of Health &
Human Services, 2:12 CV 92 DDN, 2013 WL
6858588 (E.D. Mo. Dec. 30, 2013), aff ’d, 801
F.3d 927 (8th Cir. 2015) ........................................1, 2
Wheaton Coll. v. Burwell, 134 S. Ct. 2806
(2014) .......................................................................13

STATUTES AND REGULATIONS:

Health Care and Education Reconciliation Act
of 2010, Public Law 111-152 .....................................2
Patient Protection and Affordable Care Act,
Public Law 111-148 ...................................................2
26 C.F.R. 54.9815-2713A ......................................12, 14
26 U.S.C. 6033 ......................................................5, 6, 7
29 C.F.R. 2590.715-2713A ..........................................12
42 U.S.C. 2000bb-1 .......................................................2
42 U.S.C. 2000bb-3 .......................................................4
45 C.F.R. 147.131 ....................................................7, 12
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 5 of 24 PageID #: 1766
iv

TABLE OF AUTHORITIES – Continued

Page
MISCELLANEOUS:
75 Fed. Reg. 41726 (July 19, 2010) ..............................5
76 Fed. Reg. 46621 (Aug. 3, 2011) ................................5
77 Fed. Reg. 8725 (Feb. 15, 2012) ............................6, 8
78 Fed. Reg. 39870 (July 2, 2013) .................... 7, 11, 12
79 Fed. Reg. 51092 (Aug. 27, 2014) ...........................14
79 Fed. Reg. 51118 (Aug. 27, 2014) ............................15
Advance Notice Of Proposed Rulemaking
(Anprm) (March, 21, 2012), [Link]
[Link]/articles/2012/03/21/2012-
6689/certain-preventive-services-under-the-
affordable-care-act ....................................................9
Alden J. Bianchi, “HHS/CCIIO Revises Tem-
porary Enforcement Safe Harbor on Con-
traceptive Coverage Offered by Religiously
Affiliated Tax-Exempt Entities,” [Link]
[Link]/newsletter/2012/Advisories/2194-
0812-NAT-ELB/[Link] ............................... 10, 11
Guidance on the Temporary Enforcement Safe
Harbor, Feb. 10, 2012, [Link]
documents/HHS_HealthInsurance_Guidance.
pdf ..............................................................................9
Guidance on the Temporary Enforcement Safe
Harbor, June 28, 2013, [Link]
CCIIO/Resources/Regulations-and-Guidance/
Downloads/preventive-services-guidance-6-28-
[Link] ................................................................... 11
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 6 of 24 PageID #: 1767
v

TABLE OF AUTHORITIES – Continued

Page
[Link], “Why bother with health
insurance?” [Link]
adults/ready-to-apply/ .............................................17
Edward Whelan, The HHS Contraception Man-
date vs. The Religious Freedom Restoration
Act, 87 Notre Dame L. Rev. 2179 (2012) ..................6
Women’s Preventive Services Coverage and
Non-Profit Religious Organizations, https://
[Link]/cciio/resources/fact-sheets-and-
faqs/[Link] ......................15
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 7 of 24 PageID #: 1768
1

INTEREST OF THE AMICI CURIAE1

CNS International Ministries, Inc. (CNS Minis-
tries) and Heartland Christian College (HCC) are
nonprofit religious organizations that offer healthcare
coverage to employees through a self-insured plan.
CNS Ministries and HCC, in accordance with their
sincerely held religious beliefs, oppose the use, fund-
ing, provision, or support of abortion on demand, and
they believe that certain contraceptives required
under the contraceptive mandate – Plan B, ella,
and copper IUDs – can and do cause abortions on
demand.
CNS Ministries and HCC challenged the man-
date and the so-called “accommodation” for religious
nonprofits in the District Court for the Eastern
District of Missouri, and obtained an injunction
against enforcement of the mandate against them.
Sharpe Holdings, Inc. v. U.S. Dept. of Health &
Human Services, 2:12 CV 92 DDN, 2013 WL 6858588,
at *3 (E.D. Mo. Dec. 30, 2013), aff ’d, 801 F.3d 927
(8th Cir. 2015). The Government appealed to the
Eighth Circuit Court of Appeals, which affirmed the
district court’s decision, including ruling in favor of
CNS Ministries and HCC as to the “accommodation”

1
The parties consented to this filing. Their letters of
consent are on file with the Clerk. In accordance with Rule 37.6,
amici state that no counsel for any party authored this brief in
whole or in part, and that no person or entity, other than the
amici and their counsel, has contributed monetarily to the
brief ’s preparation or submission.
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 8 of 24 PageID #: 1769
2

as it had been augmented in 2014. Id. The Govern-

ment filed a petition for a writ of certiorari in the
Supreme Court, No. 15-775 (Dec. 15, 2014), and
asked the Court to hold it pending the Court’s deci-
sion in Zubik v. Burwell and the consolidated cases.
The Government’s delay in filing its petition until 89
days after the decision of the Court of Appeals made
consolidation with the existing cases unlikely and
effectively thwarted any possibility that CNS Minis-
tries and HCC would be able to defend the Eighth
Circuit’s decision in their favor before this Court.
The interest of the amici curiae is in the preser-
vation of their injunction as affirmed by the Court of
Appeals.
--------------------------------- ---------------------------------

SUMMARY OF THE ARGUMENT

The Religious Freedom Restoration Act (RFRA)
requires the Government to show that the contracep-
tive mandate is “the least restrictive means of fur-
thering [its] compelling governmental interest.” 42
U.S.C. 2000bb-1(b)(2).
Since the Patient Protection and Affordable Care
Act (ACA)2 was enacted in March of 2010, the means
by which the Government enforces its regulatory

2
The ACA consists of the Patient Protection and Affordable
Care Act, Public Law 111-148, and the Health Care and Educa-
tion Reconciliation Act of 2010, Public Law 111-152.
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 9 of 24 PageID #: 1770
3

contraceptive mandate has been altered at least eight

times. Each time, prior to amendment, the Govern-
ment had insisted that it was already employing the
least restrictive means of furthering its interests.
At first, opposition from individual and corporate
religious objectors forced the Government to back off.
At each of the remaining stages of the Government’s
regulatory retreat, courts, high and low, have found
the Government’s least-restrictive-means iterations
to come up short.
Each time the contraceptive mandate has been
altered to address religious concerns, detailed infra,
the Government’s prior claim that it was employing
the least restrictive means has been proven wrong.
The Government has again and again backed off, but
only as little as possible each time. The Government
has not taken RFRA’s least restrictive means re-
quirement seriously but instead has repeatedly tried
to use the most restrictive means it can get away
with.
The Government now claims that, after eight
stingy, parsimonius backward steps, it has again
identified the absolutely irreducible least restrictive
means of enforcing its regulatory contraceptive
mandate. Given the panoply of alternative means still
available to and untried by the Government, its
current version is no more credible than those reject-
ed in the past.
--------------------------------- ---------------------------------
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 10 of 24 PageID #: 1771
4

ARGUMENT
THE GOVERNMENT HAS EIGHT TIMES
CLAIMED THAT ITS THEN-CURRENT VER-
SION OF THE MANDATE WAS THE LEAST
RESTRICTIVE MEANS AND EACH TIME
THEREAFTER ADMITTED THAT LESS RE-
STRICTIVE MEANS EXIST.
Since 2010, the Government has successively
claimed, at least eight times, that the then-current
version of the contraceptive mandate was the least
restrictive means of furthering governmental inter-
ests. These claims have been followed by public
outcries and court cases, which in turn have been
followed by the Government successively admitting
that less restrictive means indeed exist and would be
utilized. This history, detailed infra, undermines any
claim by the Government today that it has presented
objecting religious claimants or the Court with the
least restrictive means.

I. The Religious Employer (Church) Exemp-

tion and Its Revisions
Presumably, the contraceptive mandate, as orig-
inally promulgated in 2010, was considered by the
Government to be the least restrictive means of
achieving its interests. RFRA and its least restric-
tive means test, “appl[y] to all Federal law, and
the implementation of that law, whether statutory or
otherwise . . . ” 42 U.S.C. 2000bb-3. Accordingly, the
Government was obligated to employ the least restric-
tive means in its enforcement of the contraceptive
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 11 of 24 PageID #: 1772
5

mandate from the beginning, and citizens have had a

right since the interim final rules establishing the
mandate were published, in July 2010 (75 Fed. Reg.
41726), to expect the Government to do so.
In August 2011, however, the Government ac-
knowledged that the contraceptive mandate burdens
religious exercise, and it announced a narrow exemp-
tion for houses of worship. This appears to be the
result of “considerable feedback” from commenters,
including from “religious employers.” 76 Fed. Reg.
46621, 46623 (Aug. 3, 2011). “In the Departments’
view, it is appropriate that HRSA [Health Resources
and Services Administration], in issuing these Guide-
lines, takes into account the effect on the religious
beliefs of certain religious employers if coverage of
contraceptive services were required in the group
health plans in which employees in certain religious
positions participate.” Id.
The amended interim final regulations specified
that, for purposes of this exemption, a religious
employer is one that: (1) Has the inculcation of reli-
gious values as its purpose; (2) primarily employs
persons who share its religious tenets; (3) primarily
serves persons who share its religious tenets; and
(4) is a nonprofit organization described in section
6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the
U.S. Code. Section 6033(a)(3)(A)(i) and (iii) of the
Code refer to churches, their integrated auxiliaries,
and conventions or associations of churches, as well
as to the exclusively religious activities of any
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 12 of 24 PageID #: 1773
6

religious order. 26 U.S.C. 6033(a)(3)(A)(i), (iii); 77

Fed. Reg. 8725, 8726 (Feb. 15, 2012).
The Government specifically stated that RFRA
and the least restrictive means test were satisfied by
the religious employer exemption:
Likewise, this approach complies with the
Religious Freedom Restoration Act, which
generally requires a federal law to not sub-
stantially burden religious exercise, or, if it
does substantially burden religious exercise,
to be the least restrictive means to further a
compelling government interest.
Id. at 8729. The Government assumed the religious
exemption would take care of any religious concerns.
The Government claimed, after its false start in 2010,
to have determined the least restrictive means for
furthering its interests.
But the exemption was soon shown to be far too
narrow. As the head of Catholic Charities USA ob-
served, “the ministry of Jesus Christ himself ” would
not qualify for the exemption given that he did not
confine his ministry to co-religionists.3
In response to complaints such as these, the
Government found in July 2013 that it did have a
less restrictive means for accomplishing its interest,

3
Edward Whelan, The HHS Contraception Mandate vs. The
Religious Freedom Restoration Act, 87 Notre Dame L. Rev. 2179,
2180 (2012).
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 13 of 24 PageID #: 1774
7

and it broadened the religious exemption to include,

essentially, just the fourth prong of the original test:
“a ‘religious employer’ is an organization that is
organized and operates as a nonprofit entity and is
referred to in section 6033(a)(3)(A)(i) or (iii) of the
Internal Revenue Code of 1986, as amended.” 45
C.F.R. 147.131. This means the exemption applied to
churches and their integrated auxiliaries, without
further inquiry.
Previously, churches that ran schools and soup
kitchens would not have qualified for the exemption,
as their charity was not limited to serving people of
their own faith. “Specifically,” the Government states
in the Federal Registry, “[these changes] were intend-
ed to ensure that an otherwise exempt plan is not
disqualified because the employer’s purposes extend
beyond the inculcation of religious values or because
the employer hires or serves people of different reli-
gious faiths.” 78 Fed. Reg. 39870, 39874 (July 2,
2013).

II. The Temporary Enforcement Safe Harbor

The religious exemption, even as broadened, left
the vast majority of religious nonprofits unprotected
against the mandate. A religiously-oriented food
bank, for instance, was not a church and therefore
was subject to the mandate unless another exemption
applied.
Before broadening the religious employer (church)
exemption in 2013 (see Section I supra), the Gov-
ernment had altered its course another way and
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 14 of 24 PageID #: 1775
8

instituted a “temporary enforcement safe harbor” for

certain religious nonprofits. 77 Fed. Reg. 8725, 8729
(Feb. 15, 2012). With the “temporary safe harbor,” the
Government promised not to enforce the mandate
against religious nonprofits for at least 18 months.
The safe harbor was made available to entities that
satisfied all of the following criteria:
1. The organization is organized and oper-
ates as a nonprofit entity.
2. From February 10, 2012 onward, contra-
ceptive coverage has not been provided
at any point by the group health plan es-
tablished or maintained by the organiza-
tion, consistent with any applicable
State law, because of the religious beliefs
of the organization.
3. The group health plan established or
maintained by the organization (or an-
other entity on behalf of the plan, such
as a health insurance issuer or third-
party administrator) must provide to
participants a notice which states that
contraceptive coverage will not be pro-
vided under the plan for the first plan
year beginning on or after August 1,
2012.
4. The organization self-certifies that it sat-
isfies criteria 1-3 above, and documents
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 15 of 24 PageID #: 1776
9

its self-certification in accordance with

the procedures detailed herein.4
During this safe harbor period, on March 21,
2012, the Government proposed a permanent “ac-
5
commodation” for certain religious nonprofits. The
proposed accommodation would require health insur-
ance issuers of objecting nonprofits to provide contra-
ceptive coverage directly to the participants and
beneficiaries covered under the organization’s plan
with no cost sharing.6
On August 15, 2012, the Government admitted,
in response to lawsuits, that the safe harbor was too
narrow, and so it again found less restrictive means
for achieving its interests and broadened the safe
harbor to include additional organizations. The
Government “clarified” three points:
1. That the “safe harbor is also available to
nonprofit organizations with religious
objections to some but not all contracep-
tive coverage . . . ”
2. That “group health plans that took
some action to try to exclude or limit

4
Guidance on the Temporary Enforcement Safe Harbor,
Feb. 10, 2012, [Link]
[Link] (last visited Jan. 3, 2016).
5
Advance Notice Of Proposed Rulemaking (Anprm) (March
21, 2012), [Link]
6689/certain-preventive-services-under-the-affordable-care-act (last
visited Jan. 4, 2016).
6
Id.
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 16 of 24 PageID #: 1777
10

contraceptive coverage that was not suc-

cessful as of February 10, 2012, are not
for that reason precluded from eligibility
for the safe harbor . . . ”
3. That the “safe harbor may be invoked
without prejudice by nonprofit organ-
izations that are uncertain whether
they qualify for the religious employer
[church] exemption . . . ”7
Although billed as a clarification, the changes were
significant. The first bullet point expanded the safe
harbor to entities that did not object to all “contracep-
tives,” such as the many Protestant organizations
that do not religiously oppose birth control pills but
do oppose the morning after pill. The change offered
in the second bullet point is also important, as the
clarification to which it refers reads as follows:
With respect to the second criterion above,
the following exception applies. A group
health plan will be considered not to have
provided all or the same subset of the contra-
ceptive coverage otherwise required if it took
some action to try to exclude or limit such
coverage that was not successful as of
February 10, 2012. Accordingly, such cover-
age will not disqualify an employer, a group

7
Alden J. Bianchi, “HHS/CCIIO Revises Temporary En-
forcement Safe Harbor on Contraceptive Coverage Offered by
Religiously Affiliated Tax-Exempt Entities,” [Link]
com/newsletter/2012/Advisories/2194-0812-NAT-ELB/[Link] (last
visited Jan. 3, 2015).
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 17 of 24 PageID #: 1778
11

health plan, or a group health insurance is-

suer from eligibility for the safe harbor.”8
On June 28, 2013, with the safe harbor about to
expire, the Government admitted that the mandate
was still burdening nonprofit religious organizations,
so it extended the safe harbor for another six months
(now totaling two years).9

III. The “Accommodation”

The same rules that extended the temporary
enforcement safe harbor also created the “accommo-
dation” for religious nonprofits, first officially pro-
posed in March 2012 (discussed supra).10 Under the
“accommodation,” an insurance issuer was required
to exclude contraceptive coverage from the employer’s
plan and provide plan participants with coverage for
contraceptive services separately without imposing
any cost-sharing requirements on the employer, its
insurance plan, or its employee beneficiaries. Burwell
v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2755
(2014).
To take advantage of the accommodation, the
religious nonprofit would have to self-certify, using a

8
Id.
9
Guidance on the Temporary Enforcement Safe Harbor,
June 28, 2013, [Link]
and-Guidance/Downloads/[Link]
(last visited Jan. 3, 2015); 78 Fed. Reg. 39870 (July 2, 2013).
10
Id.
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 18 of 24 PageID #: 1779
12

form provided by the Government, that it was eligible

for the accommodation and inform its insurance
issuers and third-party administrator (TPA) about
the objection. 45 C.F.R. 147.131(b); see 29 C.F.R.
2590.715-2713A(a); 26 C.F.R. 54.9815-2713A(a); 78
Fed. Reg. at 39874-75. According to the Government,
“the accommodations for eligible organizations under
these final regulations do not violate RFRA because
they do not substantially burden religious exercise,
and they serve compelling government interests and
moreover are the least restrictive means to achieve
those interests.” 78 Fed. Reg. at 39886-87.
Nonprofits who opposed the mandate found no
comfort in the “accommodation”:
[T]he government has fundamentally mis-
construed the plaintiffs’ religious objections:
“Plaintiffs’ religious objection is not only to
the use of contraceptives, but also being re-
quired to actively participate in a scheme to
provide such services.” Roman Catholic
Archdiocese of N.Y., 2013 WL 6579764, at
*14. The accommodation requires objectors
themselves to sign a form that is, “in effect, a
permission slip.” S. Nazarene Univ., 2013 WL
6804265, at *8. . . . [B]ecause Wheaton views
completing the self-certification itself as for-
bidden complicity with the government’s
scheme, “regardless of the effect of plaintiffs’
TPAs, the regulations still require plaintiffs
to take actions they believe are contrary to
their religion.”
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 19 of 24 PageID #: 1780
13

Wheaton v. Burwell, Emergency Application for

Injunction, 13A1284 (U.S. June 29, 2014) at 31.
The Government responded that the accommoda-
tion, as effected by using the self-certification form
and providing it to the insurance issuer or third-party
administrator, was the least restrictive means of
serving its interests. Wheaton v. Burwell, Memoran-
dum in Opposition, 13A1284 (U.S. July 2, 2014) at 31.
On July 3, 2014, the Supreme Court entered its
order regarding Wheaton College’s application for an
emergency injunction against enforcement of the
mandate, including the accommodation. Wheaton
Coll. v. Burwell, 134 S. Ct. 2806, 2807 (2014). “The
Circuit Courts,” the Court said, “have divided on
whether to enjoin the requirement that religious
nonprofit organizations use EBSA Form 700.” The
Court ruled that Wheaton College did not have to use
the form, but could merely “inform[ ] the Secretary of
Health and Human Services in writing that it is a
nonprofit organization that holds itself out as reli-
gious and has religious objections to providing cover-
age for contraceptive services” and it would be
entitled to an injunction against enforcement of the
mandate, pending appeal. Id. at 2807.
After the Supreme Court order in Wheaton
College, as well as those in Little Sisters of the Poor
v. Sebelius, 134 S. Ct. 1022 (2014) and Hobby Lobby,
134 S. Ct. 2751 (2014), the Government admitted
that the then-current accommodation needed to be
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 20 of 24 PageID #: 1781
14

changed, and that it would issue new regulations to

“augment” it.11

IV. The Augmented “Accommodation”

Under the augmented rules, published August
27, 2014, a religious objector whom the Government
has chosen not to exempt need not notify its health
insurer or TPA of its objection to the mandate; in-
stead, if it does not follow that procedure, it “must”
submit to the Government a form or notice identify-
ing its religious objection, the name and type of its
health plan, and – for the first time – “the name and
contact information for any of the plan’s [TPAs].” 79
Fed. Reg. 51092, 51094-95 (Aug. 27, 2014). The rules
dictate that then the Government “will send a sepa-
rate notification to” the religious organization’s TPA
creating the TPA’s obligation to deliver emergency
contraceptives to participants in the religious organi-
zation’s health plan. Id. at 51095, 51098; see 26 C.F.R.
54.9815-2713A(b)(1)(ii)(B).
So Form 700, the centerpiece of the Government’s
previous attempt at satisfying the least restrictive
means test, was now paired with an alternative –
instead of sending the form to a health insurer or TPA
and knowing that it would initiate contraceptive
coverage, an objector could identify its insurer or TPA

11
Little Sisters of the Poor v. Burwell, Supplemental Gov’t
Brief, Nos. 13-1540, 14-6026, 14-6028 (10th Cir. July 22, 2014)
at 11.
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 21 of 24 PageID #: 1782
15

to the Government knowing that the insurer or TPA

would then be directed to initiate contraceptive cov-
erage. The Government calls this an “additional noti-
fication option.”12
This augmented accommodation is the latest
offering by the Government to convince objectors and
the courts that it is satisfying its obligations under
the least restrictive means test.

V. The “Accommodation” for For-Profit Enti-

ties
The augmented accommodation has also been
made available to closely-held for-profit entities that
object to the mandate on religious grounds. 79 Fed.
Reg. 51118, 51121 (Aug. 27, 2014). This accommoda-
tion was offered in the wake of the Supreme Court
holding that the mandate did not pass the least
restrictive means test. Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751, 2780-83 (2014). The
Government had argued for two years that the man-
date as originally applied to for-profit entities was the
least restrictive means of furthering governmental
interests. See, e.g., Sharpe Holdings v. U.S. Dept. of
Health & Human Services, Gov’t brief, Doc. 14 at 24-
25 (E.D. Mo. Dec. 28, 2012); Burwell v. Hobby Lobby

12
Women’s Preventive Services Coverage and Non-Profit
Religious Organizations, [Link]
sheets-and-faqs/[Link] (last visited Jan.
6, 2015).
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 22 of 24 PageID #: 1783
16

Stores, Inc., Govt. Cert. Pet. at 17 (U.S. Sept. 2013);

Burwell v. Hobby Lobby Stores, Inc., 13-354, Govt.
Brief at 57-58 (U.S. Sept. 2013); Conestoga Wood
Specialties v. Burwell, Petitioners’ Brief, No. 13-356,
at 55-57 (U.S. Feb. 2014).
--------------------------------- ---------------------------------

CONCLUSION
The Government continues its retreat from the
original means by which it sought to further its
interests. After at least eight modifications, it now
claims that the least restrictive means is the aug-
mented accommodation. This results from the Gov-
ernment’s clinging to language in Hobby Lobby that
the accommodation was a less restrictive means than
the mandate in effect at the time against for-profit
businesses. But “less” is not “least.” Indeed, the Court
found that the “most straightforward way of doing
this would be for the Government to assume the cost
of providing the four contraceptives at issue to any
women who are unable to obtain them under their
health-insurance policies due to their employers’
religious objections.” Burwell v. Hobby Lobby Stores,
Inc., 134 S. Ct. 2751, 2780 (2014).
This “most straightforward way” could easily be
implemented by using the “established framework”
(Id. at 2786 (Kennedy, J., concurring)) of ACA health
insurance exchanges. This would not impose a “whole
new program” on the Government. Id. The Government
has assured the Nation’s young adults that using the
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 23 of 24 PageID #: 1784
17

exchanges “can be easy and fast” and “[doesn’t] take

much time at all.”13
The Government has eschewed this option,14
without any explanation, establishing instead a
stubborn and persistent record of avoiding the least
restrictive means and instead employing the most
restrictive means it can get away with.
The decisions of the courts below in favor of the
Government should be reversed.
Respectfully submitted.
TIMOTHY BELZ
Counsel of Record
J. MATTHEW BELZ
OTTSEN, LEGGAT & BELZ, L.C.
112 S. Hanley Road, Suite 200
St. Louis, Missouri 63105
(314) 726-2800
tbelz@[Link]
jmbelz@[Link]

13
[Link], “Why bother with health insurance?”
[Link] (last vis-
ited Jan. 6, 2015).
14
Other options that would not require the Government to
go outside an “established framework” or start a “whole new
program” (134 S. Ct. at 2786 (Kennedy, J., concurring)) include,
for instance, expansion of Title X, Medicaid or tax incentives.
 Case: 2:12-cv-00092-DDN Doc. #: 139-2 Filed: 11/17/17 Page: 24 of 24 PageID #: 1785
18

DAVID R. MELTON
General Counsel for CNS
International Ministries, Inc.
and Heartland Christian College
500 E. Ninth Street
Kansas City, Missouri 64106
(816) 842-6300
Counsel for Amici Curiae
JANUARY 2016