In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

DAVID A. ZUBIK, et al.,Petitioners,

v.

SYLVIA BURWELL, et al., Respondents.

On Writs of Certiorari to the United States Courts ofAppeals for the Third, Fifth, Tenth and D.C. Circuits

BRIEF OF THE THOMAS MORE LAW CENTER ASAMICUS CURIAE IN SUPPORT OF PETITIONERS

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

Erin Elizabeth Mersino Counsel of RecordKate OliveriTHOMAS MORE LAW CENTER24 Frank Lloyd Wright DriveP.O. Box 393Ann Arbor, Michigan 48106(734) 827-2001emersino@thomasmore.org

Counsel for Amicus Curiae

NOS. 14-1418, -1453, -1505, 15-35, -105, -119, & -191

i

QUESTION PRESENTED

Whether the Government violates the ReligiousFreedom Restoration Act (“RFRA”) by forcing objectingreligious non-profit organizations to comply with theHHS Mandate under an alternative regulatory scheme(hereinafter the “accommodation”) that requires theseorganizations to act in violation of their sincerely heldreligious beliefs.

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TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

STATEMENT OF IDENTITY AND INTERESTSOF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. THE HHS MANDATE SUBSTANTIALLYBURDENS PETITIONERS’ RELIGIOUSEXERCISE BY REQUIRING THEM TOPARTICIPATE IN, FACILITATE, ANDTRIGGER THE DISTRIBUTION OFCONTRACEPTIVES AND ABORTIFACIENTSIN VIOLATION OF PETITIONERS’SINCERELY HELD RELIGIOUS BELIEFS . . . 8

II. THE “ACCOMMODATION” FAILS TO USETHE LEAST RESTRICTIVE MEANS OFFURTHERING A COMPELLING INTERESTAS THE HHS MANDATE ITSELFCONTEMPLATES LESS RESTRICTIVEALTERNATIVES AND EXEMPTS MILLIONSOF HEALTH PLANS FROM ITS PURPORTEDCOMPELLING INTEREST . . . . . . . . . . . . . . . . 13

A. The “Accommodation” is Not the LeastRestrictive Means of Providing FreeContraceptives and Abortion Causing Drugsand Devices . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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B. Providing Free Contraceptives andAbortifacients is Not a CompellingGovernment Interest . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iv

TABLE OF AUTHORITIES

CASES

Anderson v. Celebrezze, 460 U.S. 780 (1983) . . . . . . . . . . . . . . . . . . . . . . 16

Ave Maria Found. v. Burwell, No. 14-1310 (6th Cir.) . . . . . . . . . . . . . . . . . . . . . 2

Bowen v. Roy, 476 U.S. 693 (1986) . . . . . . . . . . . . . . . . . . . . 9, 10

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) . . . . . . . . . . . . . . . . passim

Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . 19

City of Boerne v. Flores, 521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . . . 13

E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir. 2015) . . . . . . . . . . . . . . . 11

Geneva Coll. v. Sec’y United States HHS, 778 F.3d 422 (3d Cir. 2015) . . . . . . . . . . . . . . . . 11

Griswold v. Connecticut, 381 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . 17

Legatus v. Burwell, No. 14-1183 (6th Cir.) . . . . . . . . . . . . . . . . . . . . . 2

Little Sisters of the Poor Home for the Aged v.Burwell, 794 F.3d 1151 (10th Cir. 2015) . . . . . . . . . . . 4, 11

Lyng v. Northwest Indian Cemetery Protective Ass’n,485 U.S. 439 (1988) . . . . . . . . . . . . . . . . . 9, 10, 18

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Priests for Life v. United States HHS, 772 F.3d 229 (D.C. Cir. 2014) . . . . . . . . . . . . . . 11

Riley v. Nat’l Fed’n of Blind, 487 U.S. 781 (1988) . . . . . . . . . . . . . . . . . . . . . . 14

Thomas v. Review Bd. of Indian EmploymentSecurity Div., 450 U.S. 707 (1981) . . . . . . . . . . . . . . . . 6, 8, 9, 10

CONSTITUTION

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . 10

STATUTES AND REGULATIONS

4 C.F.R. § 59.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14

26 U.S.C. § 4980D(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3

26 U.S.C. § 4980D(a)-(b) . . . . . . . . . . . . . . . . . . . . . . 3

26 U.S.C. § 4980D(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5

26 U.S.C. § 4980H(a) . . . . . . . . . . . . . . . . . . . . . . . 3, 5

26 U.S.C. § 4980H(c)(1) . . . . . . . . . . . . . . . . . . . . . 3, 5

26 U.S.C. § 4980H(c)(2) . . . . . . . . . . . . . . . . . . . . . 3, 7

26 U.S.C. § 4980H(c)(2)(A) . . . . . . . . . . . . . . . . . . . . 3

26 U.S.C. § 6033(a)(3)(A)(i) . . . . . . . . . . . 4, 15, 17, 18

26 U.S.C. § 6033(a)(3)(A)(iii) . . . . . . . . . . 4, 15, 17, 18

42 U.S.C. § 300gg-13(a) . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. § 300gg-13(a)(4) . . . . . . . . . . . . . . . . . 3, 17

42 U.S.C. § 2000bb et seq. . . . . . . . . . . . . . . . passim

vi

42 U.S.C. § 2000bb-1 . . . . . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. § 2000bb-1(a) . . . . . . . . . . . . . . . . . . . . . . 10

42 U.S.C. § 2000bb-1(b) . . . . . . . . . . . . . . . . . . . . . . 14

42 U.S.C. § 2000cc-5(7)(A) . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. § 18011(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7

42 U.S.C. § 18011(a)(2) . . . . . . . . . . . . . . . . . . 3, 4, 17

42 U.S.C. § 18011(e) . . . . . . . . . . . . . . . . . . . . . . . . . 7

45 C.F.R. § 147.131(a) . . . . . . . . . . . . . . . . . . . . . . . . 7

45 C.F.R. § 147.131(b) . . . . . . . . . . . . . . . . . . . . . . . . 7

45 C.F.R. § 147.140 . . . . . . . . . . . . . . . . . . . . . . . 4, 17

75 Fed. Reg. 34540 . . . . . . . . . . . . . . . . . . . . . 7, 8, 17

77 Fed. Reg. 8725 . . . . . . . . . . . . . . . . . . . . . . passim

78 Fed. Reg. 37874 . . . . . . . . . . . . . . . . . . . . . . . . . . 4

78 Fed. Reg. 39877 . . . . . . . . . . . . . . . . . . . . . . . . . 12

79 Fed. Reg. 51092 . . . . . . . . . . . . . . . . . . . . . . . . . . 5

RULES

Sup. Ct. R. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 37(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

Family Planning Annual Report: 2011 NationalSummary, available at http://www.hhs.gov/opa/pdfs/fpar-2011-national-summary.pdf . . . . . 7, 15

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F.D.A. Birth Control: Medicines to Help You,available at http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm#EC . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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STATEMENT OF IDENTITYAND INTERESTS OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, AmicusCuriae, the Thomas More Law Center, respectfullysubmits this brief requesting that the Court defend andprotect the free exercise of religion as required byRFRA.1

The Thomas More Law Center (“TMLC”) has asignificant interest in the protection of religiousfreedom. TMLC is a national, public interest law firmthat defends and promotes America’s Christianheritage and moral values, including the religiousfreedom of Christians, time-honored family values, andthe sanctity of all human life from the moment ofconception to natural death. TMLC accomplishes itsmission through litigation, education, and relatedactivities.

TMLC has over 60,000 members nationwide. TMLCand its members support the preservation andprotection of all human life, in part because of religiousbeliefs. TMLC, therefore, opposes the HHS Mandatethat forces religious entities and individuals to provide,facilitate, trigger, and participate in a scheme that

1 Petitioners and Respondents have granted blanket consent forthe filing of amicus curiae briefs in this matter. Pursuant to Rule37(a), Amicus gave 10-days notice of its intent to file this amicuscuriae brief to all counsel. Amicus further states that no counselfor any party authored this brief in whole or in part, and nocounsel or party made a monetary contribution intended to fundthe preparation or submission of this brief. No person other thanAmicus, its members, or its counsel made a monetary contributionto the preparation or submission of this amicus brief.

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results in the use of contraceptives and abortifacients.TMLC is a non-profit that believes its exercise ofreligion is substantially burdened by the requirementsof the HHS Mandate even with the non-profit“accommodation.” TMLC believes that participation inthe “accommodation” requires its cooperation in ascheme that directly violates its sincerely held religiousbeliefs. Furthermore, failure to abide by the HHSMandate results in the assessment of crippling IRSpenalties—forcing TMLC and other religious non-profitentities to either close their doors or kneel at the altarof the government’s “accommodation” and violate theirreligious beliefs by being complicit in the government’sscheme to provide contraceptives and abortion causingdrugs and devices.

TMLC has filed twelve lawsuits against the illegalaims of the HHS Mandate, representing thirty-sixplaintiffs. TMLC currently represents six religiousnon-profit employers and is a named plaintiffchallenging the “accommodation” as an unlawfuloverreach of federal authority under the ReligiousFreedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.§ 2000bb et seq. Legatus v. Burwell, No. 14-1183 (6thCir.); Ave Maria Found. v. Burwell, No. 14-1310 (6thCir.). These cases have been consolidated and arecurrently stayed in the Sixth Circuit Court of Appealspending the outcome here.

BACKGROUND

The Patient Protection Affordable Care Act (“ACA”)requires non-exempt companies, including religiousnon-profit organizations, with over 50 employees toprovide coverage for women’s “preventative care andscreenings” without cost sharing. 42 U.S.C. § 300gg-

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13(a). While an employer with fewer than 50employees is not required to provide insurancecoverage, should one choose to do so, the employer isrequired to include “preventative care.” Congress itselfdid not define what was included in “preventativecare,” instead transferring the authority to define“preventative care” to the Health Resources andServices Administration (“HRSA”), a component of theHealth and Human Services Department (“HHS”). See42 U.S.C. § 300gg-13(a)(4). HRSA included all Foodand Drug Administration (“FDA”) approved“contraceptive methods, sterilization procedures, andpatient education and counseling for all women withreproductive capacity” in its definition of “preventativecare,” thereby mandating that employers provide theseservices without cost sharing. 77 Fed. Reg. 8725 (“HHSMandate”). These FDA approved contraceptivesinclude abortion causing drugs (“abortifacients”). SeeF.D.A. Birth Control: Medicines to Help You, availableat http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm#EC(describing how IUDs and “emergency contraception”stop a fertilized egg from implanting in the mother’suterus). Failure to comply with the HHS Mandateexposes employers to fines of $100 a day perbeneficiary. See 26 U.S.C. § 4980H(a), (c)(2)(A); 26U.S.C. § 4980D(a)-(b). Removing all health coveragesubjects employers to substantial annual penalties of$2,000 per employee. 26 U.S.C. § 4980H(a), (c)(1). These monumental fines would necessitate closing thedoors of most, if not all, non-profits.

Companies with “grandfathered plans”—plans withat least one person continuously enrolled in the plansince March 23, 2010 with no changes to the plan—are

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exempt from the HHS Mandate. 42 U.S.C.§ 18011(a)(2), 45 C.F.R. § 147.140. There is also anextremely limited exemption for religious employers,which includes only “churches, their integratedauxiliaries, and conventions or associations ofchurches,” as well as “the exclusively religious activityof any order.” 26 U.S.C. § 6033(a)(3)(A)(i), (iii).

In a failed effort to avoid substantially burdeningthe religious exercise of non-profits that fall outside thenarrow “religious employer” exemption, a non-profitorganization receives an “accommodation” from directlyproviding contraceptives and abortifacients if it:

(1) Opposes providing coverage for some or all ofthe contraceptive services required to becovered . . . on account of religious objections;(2) is organized and operates as a nonprofitentity; (3) holds itself out as a religiousorganization; and (4) self-certifies that itsatisfies the first three criteria.

78 Fed. Reg. 37874. The self-certification requires theemployer to inform its third-party administrator(“TPA”) of the TPA’s obligation to provide contraceptiveand abortifacient coverage. See Little Sisters of thePoor Home for the Aged v. Burwell, 794 F.3d 1151, 1163(10th Cir. 2015). Alternatively, the objecting non-profitcan submit a written notice to HHS that contains:

(1) the name of the eligible organization and thebasis on which it qualifies for anaccommodation; (2) its objection based onsincerely held religious beliefs to coverage ofsome or all contraceptive services . . . (3) theplan name and type . . . and (4) the name and

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contact information for any of the plan’s thirdparty administrators and health insuranceissuers.

79 Fed. Reg. 51092.

Respondents’ regulations require non-profitorganizations to notify either their insurer or TPA oftheir belief on the immorality of contraceptives andabortifacients. This thereby triggers the insurer orTPA to send written notice to all employees thatcontraceptives and abortifacients are available to themwithout cost sharing and triggers the insurer or TPA’sobligation to provide those services without costsharing. If the organization instead chooses to notifyHHS, it must provide it with all of the requiredinformation to notify the insurer or TPA of theirobligation now to provide services Petitioners believeare morally reprehensible. These options areconsidered an “accommodation” for non-profits’religious beliefs.

Petitioners and countless other non-profitemployers sincerely believe that contraceptives andabortifacients are immoral. Despite this sincere belief,Respondents’ regulations compel Petitioners toparticipate in the distribution of contraceptives andabortifacients, face substantial fines, or cease providinghealth coverage altogether, which, in addition toviolating their sincere religious beliefs, also potentiallyimposes substantial fines. See 26 U.S.C. §§ 4980D(b),4980H(a), (c)(1). This Court has already determinedthat the fines for noncompliance with the HHSMandate impose a substantial burden on employers. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,2776 (2014). The ultimate question, therefore, is

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whether compliance is actually against the Petitioners’religion. This is something that is for Petitioners todetermine, not the Court.

SUMMARY OF THE ARGUMENT

Petitioners sincerely believe that contraceptives andabortifacients, i.e., abortion causing drugs and devices,are morally wrong. Thus, Petitioners’ faith disallowsthem from being complicit in the distribution of theseproducts because it is a sin. Despite Petitioners’sincerely held religious beliefs, Respondents’regulations require Petitioners to either violate theirsincere religious beliefs by participating in thedistribution of contraceptives and abortifacients or paycrippling fines. The Court is not the arbiter of sacredscripture and cannot determine whether thenotification form and letter are attenuated enough fromthe provision of contraceptives that they do notsubstantially burden Petitioners’ religion. Delving intothis inquiry requires the Court to interpret Petitioners’religious beliefs on the morality of the different levelsof complicity with sin. Thomas v. Review Bd. of IndianEmployment Security Div., 450 U.S. 707, 718 (1981).Therefore, the Court can only determine whetherPetitioners are being compelled to do something thatviolates their faith—here, filling out the notificationform or writing a notification letter to HHS, both ofwhich trigger the dissemination of contraceptives andabortifacients to their employees in connection withtheir employee health plans. This Court has alreadydetermined that the fines Petitioners will face if theydo not violate their beliefs by filling out thenotifications constitute a substantial burden. HobbyLobby, 134 S. Ct. at 2776.

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Since the HHS Mandate places a substantialburden on the Petitioners’ religious exercise,Respondents must prove that the HHS Mandate usesthe least restrictive means of furthering a compellinggovernmental interest. Respondents fail on bothaccounts. First, the HHS Mandate does not use theleast restrictive means of providing free contraceptivesand abortifacients. As this Court already determined,the government could easily just provide freecontraceptives and abortifacients without involvingPetitioners or their health plans at all. See HobbyLobby, 134 S. Ct. at 2780. Indeed, the governmentalready subsidizes contraceptives and abortifacientsthrough its programs and could find ways to expand orincrease the efficacy of those existing programs. See,e.g., 4 C.F.R. § 59.5; Family Planning Annual Report:2011 National Summary, available at http://www.hhs.gov/opa/pdfs/fpar-2011-national-summary.pdf.

Second, Respondents cannot argue that providingfree contraceptives and abortifacients is a compellinggovernmental interest when their regulations leave somany women without these services. The regulationsalready provide exemptions for narrowly construedreligious employers, employers of fewer than fiftyemployees, and employers with grandfathered plans. See 45 C.F.R. § 147.131(a), (b) (exempting somereligious employers but not others); 26 U.S.C.§ 4980H(c)(2) (exempting employers with fewer thanfifty employees from providing health insurancealtogether); 42 U.S.C. § 18011(a), (e) (exemptinggrandfathered plans). Grandfathered plans arerequired to comply with provisions of the ACA theregulations describe as “particularly significant.” 75Fed. Reg. 34540. Notably, Congress did not deem the

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HHS Mandate one of the particularly significantprovisions of the ACA. Id.

ARGUMENT

I. THE HHS MANDATE SUBSTANTIALLYBURDENS PETITIONERS’ RELIGIOUSEXERCISE BY REQUIRING THEM TOPARTICIPATE IN, FACILITATE, ANDTRIGGER THE DISTRIBUTION OFCONTRACEPTIVES AND ABORTIFACIENTSIN VIOLATION OF PETITIONERS’SINCERELY HELD RELIGIOUS BELIEFS

Under RFRA, the government cannot “substantiallyburden a person’s exercise of religion even if the burdenresults from a rule of general applicability” unless “itdemonstrates that application of the burden to theperson—(1) is in furtherance of a compellinggovernmental interest; and (2) is the least restrictivemeans of furthering that compelling governmentalinterest.” 42 U.S.C. § 2000bb-1. RFRA protects “anyexercise of religion,” including providing healthcoverage to employees, “whether compelled by, orcentral to, a system of religious belief.” 42 U.S.C.§ 2000cc-5(7)(A); see also Hobby Lobby, 134 S. Ct. at2775.

When determining that a law burdens religion, thatdetermination cannot “turn upon judicial perception ofthe particular belief” and the “religious beliefs need notbe acceptable, logical, consistent, or comprehensible toothers in order to merit [] protection.” Thomas, 450U.S. at 714. The Court cannot delve into the complexreligious analysis of the morality of complicity with sin. Id. at 716 (“Courts are not the arbiters of scriptural

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interpretation.”). Instead, the Court must undertakethe narrow function to determine whether Petitionershave an “honest conviction” that cooperation with theHHS Mandate and the so-called accommodation issinful. See id.

In Thomas, this Court held that courts cannot makedeterminations on the reasonableness of a person’s linefor moral complicity where a Jehovah’s Witness quithis job after being transferred to a position thatrequired him to produce weapons. Id. at 715. Hisinitial position was in the production of sheet steel,some of which was used to make weapons. Id. at 713n. 3. Thomas found this position “sufficiently insulatedfrom producing weapons of war . . . and it is not for [theCourt] to say that the line he drew was anunreasonable one.” Id. at 715. The Court could notdetermine whether an act by Thomas was sufficientlyremoved from the act he found objectionable. Id.

Distinguishably, in Lyng v. Northwest IndianCemetery Protective Ass’n, 485 U.S. 439 (1988), NativeAmericans claimed that a government road near sacredplaces substantially burdened their exercise of religion.Id. at 441-42. The Court held that this did not burdenreligion because it involved only government conducton publically owned land. Id. at 448-49. Notably, theCourt stressed that the individuals were not “coercedby the Government’s action into violating theirbeliefs.” Id. at 449 (emphasis added).

Likewise, in Bowen v. Roy, 476 U.S. 693 (1986), aperson refused to include the social security number(“SSN”) of his daughter on an application forgovernment benefits because of his religious beliefs.Id. at 698. His religious objections were twofold: (1) he

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objected to the government’s use of the SSN; and (2) heobjected to being required to put the SSN on theapplication for benefits. Id. at 699. The Court heldthat his first objection did not violate free exercisebecause he objected to exclusively governmentalconduct which did not require him to do or prohibit himfrom doing anything proscribed by his beliefs. Id. Thesecond objection, which required the man to place hisdaughter’s SSN on the form, did not violate the freeexercise of religion under the First Amendment becauseit was “wholly neutral in religious terms and uniformlyapplicable.” Id. at 703. However, this reasoning wasprohibited by Congress seven years later when itenacted RFRA. RFRA prohibits the government fromcompelling a person to engage in conduct that hisreligion prohibits “even if the burden results from arule of general applicability.” 42 U.S.C. § 2000bb-1(a) (emphasis added).

This case is like Thomas because both Petitionersand Thomas drew a line of demarcation as to whatconduct violates their religion. Thomas, 450 U.S. at715. Like in Thomas, the Court cannot decide whetherthe act the government is compelling Petitioners tocomplete is attenuated enough from the conduct theyfind sinful. Id. Petitioners believe that filling out the“accommodation” form or notifying HHS of theirobjection violates their religion. It is not for the Courtto say otherwise.

This case is dissimilar to Lyng and Roy becausethose cases involved only government conduct and theplaintiffs were not compelled to any actions by thegovernment. See Lyng, 485 U.S. at 448-49; Roy, 476U.S. at 699. Here, the government is compelling

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Petitioners to fill out a form or provide a detailednotification to HHS in direct contradiction to theirreligious beliefs. This is not exclusively governmentconduct. It is compulsion to actively violate theirreligious beliefs.

Furthermore, Respondents’ argument that the HHSMandate does not require Petitioners to be complicitwith the distribution of contraceptives andabortifacients is faulty and disingenuous. The lowercourts erred by finding that the insurers and TPAswere solely responsible for the distribution ofcontraceptives and abortifacients because of federallaw, rather than any act of Petitioners. See GenevaColl. v. Sec’y United States HHS, 778 F.3d 422, 437 (3dCir. 2015); E. Tex. Baptist Univ. v. Burwell, 793 F.3d449, 459 (5th Cir. 2015); Priests for Life v. UnitedStates HHS, 772 F.3d 229, 252 (D.C. Cir. 2014); LittleSisters of the Poor, 794 F.3d at 1173. First, it is onlybecause of Petitioners’ health plans that the insurershave the obligation to provide contraceptives andabortifacients to the specific persons on Petitioners’health plans. Federal law does not independentlyrequire that women receive free contraceptives andabortifacients; it is only required when those womenare in a health plan. It is the federal law inconjunction with Petitioners’ health plans that requirethe insurers to provide contraceptives andabortifacients to women in Petitioners’ health plans. IfPetitioners’ actions were not triggering, complicitywith, facilitating, or contributing to providingcontraceptives and abortifacients, insurers would haveto provide free contraceptives and abortifacients to allwomen, regardless of whether they are in a health planor not and regardless of whether Petitioners fill out a

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form. Without Petitioners’ health plans, these womenwould not have free contraceptives and abortifacients.Without the notification to the insurers or HHS, thewomen would not have free contraceptives andabortifacients. Petitioners are a vital link in the causalchain of providing free contraceptives andabortifacients. This act by Petitioners is thenundoubtedly complicity and undoubtedly againstPetitioners’ sincere religious beliefs, leaving Petitionerswith the choice to either violate their beliefs or facefines this Court has already determined aresubstantially burdensome. Hobby Lobby, 134 S. Ct. at2776.

Second, the justification for requiring insurers toprovide free contraceptives and abortifacients towomen clearly demonstrates the tight, dependantrelationship between Petitioners’ health plans and theprovision of contraceptives and abortifacients. Respondents justify requiring insurers to pay forcontraceptives and abortion causing drugs and devices,stating:

[insurers] would find that providingcontraceptive coverage is at least cost neutralbecause they would be insuring the same set ofindividuals under both the group healthinsurance policies and the separate individualcontraceptive coverage policies and, as a result,would experience lower costs fromimprovements in women’s health, healthiertiming and spacing of pregnancies, and fewerunplanned pregnancies.

78 Fed. Reg. 39877. All of the “savings” insurersreceive to justify requiring them to pay for

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contraceptives and abortifacients are costs thatPetitioners are willing to pay for and do insure for intheir health plans. The regulations justify requiringinsurers to pay for abortifacients and contraceptives by“saving” under Petitioners’ health plans. Thecontraceptive and abortifacient coverage andPetitioners’ health plans are inextricably intertwined.Petitioners’ health plans necessarily cause, facilitate,and trigger contraceptive and abortifacient coverage,even under the “accommodation.” Otherwise, womenwould receive the contraceptive and abortifacientcoverage regardless of whether or not they have ahealth plan with a specific insurer. The relationshipbetween Petitioners’ health plans and the contraceptiveand abortifacient coverage requires Petitioners toeither violate their sincere, honest religious beliefs orface substantial fines. This is unquestionably asubstantial burden on their religious exercise. SeeHobby Lobby, 134 S. Ct. at 2776.

II. THE “ACCOMMODATION” FAILS TO USETHE LEAST RESTRICTIVE MEANS OFFURTHERING A COMPELLING INTERESTAS THE HHS MANDATE ITSELFCONTEMPLATES LESS RESTRICTIVEALTERNATIVES AND EXEMPTS MILLIONSOF HEALTH PLANS FROM ITS PURPORTEDCOMPELLING INTEREST

Because Petitioners have a sincere religious beliefthat even the so-called accommodation substantiallyburdens, the Court must determine whether the“accommodation” survives strict scrutiny, “the mostdemanding test known to constitutional law.” City ofBoerne v. Flores, 521 U.S. 507, 534 (1997).

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A. The “Accommodation” is Not the LeastRestrictive Means of Providing FreeContraceptives and Abortion CausingDrugs and Devices

Under RFRA, the government must show that the“accommodation” “is the least restrictive means.” 42U.S.C. § 2000bb-1(b). The government must usealternatives to achieve its desired end even when thosealternatives are more costly or less effective. See Rileyv. Nat’l Fed’n of Blind, 487 U.S. 781, 799-800 (1988).The requirement for Respondents to use the leastrestrictive means is “exceptionally demanding.” HobbyLobby, 134 S. Ct. at 2780.

In Hobby Lobby, the Supreme Court listed a numberof means far less restrictive than the so-calledaccommodation. The Court stated that the moststraightforward way of providing contraceptives andabortifacients is for the government to assume the costof providing them to any woman whose health plandoes not provide them. Id. This cost “would be minorwhen compared with the overall cost of ACA.” Id. at2781. In fact, the government already subsidizescontraceptives and abortifacients on a large scale. Since 1970, Title X of the Public Health Service Act hasprovided funding for contraception and “preventive”health services that involve family planning. See 4C.F.R. § 59.5. In 2011, $276 million of the $1.3 billionspent on delivering Title X-funded family planningservices came directly from Title X revenue sources. Certainly forcing religious, non-profit employers, likethe Little Sisters of the Poor and Priests for Life, tofacilitate and trigger the supply of abortion causingdrugs is more restrictive than finding a way to increase

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the efficacy of an already established program that hasa reported revenue stream of $1.3 billion. See FamilyPlanning Annual Report: 2011 National Summary,available at http://www.hhs.gov/opa/pdfs/fpar-2011-national-summary.pdf.

Additionally, this Court ultimately determined thatthe requirement at issue in Hobby Lobby—for-profitcorporations being required to provide contraceptivesand abortifacients without an “accommodation” orexemption—was not the least restrictive meansbecause HHS itself provided another way through thenon-profit “accommodation” at issue here. Id. at 2782.

Likewise, HHS itself provides another lessrestrictive means to the so-called accommodation—thereligious employer exemption. See Hobby Lobby, 134 S.Ct. at 2786 (“[T]he record in these cases shows thatthere is an existing, recognized, workable, and already-implemented framework to provide coverage. Thatframework is one that HHS has itself devised . . . thatis less restrictive than the means challenged by theplaintiffs in these cases.”) (Kennedy, J. concurring). Under the regulations, religious employers arecompletely exempt from the HHS Mandate withoutfilling out a form or providing a detailed notification toHHS. See 26 U.S.C. § 6033(a)(3)(A)(i), (iii) (providingan exemption for “churches, their integratedauxiliaries, and conventions or associations ofchurches” and “the exclusively religious activities ofany religious order.”). “RFRA is inconsistent with theinsistence of an agency such as HHS on distinguishingbetween different religious believers—burdening onewhile accommodating the other—when it may treat

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both equally by offering both of them the same[exemption].” Id. at 2786 (Kennedy, J. concurring).

The government could offer grants, go directly toinsurers, or engage in countless other options that donot involve the cooperation of Petitioners. Therefore,the so-called accommodation is not the least restrictivemeans of providing free contraceptives andabortifacients. When the government “has open to it aless drastic way of satisfying its legitimate interests, itmay not choose a [regulatory] scheme that broadlystifles the exercise of fundamental personal liberties.” Anderson v. Celebrezze, 460 U.S. 780, 806 (1983).

B. Providing Free Contraceptives andAbortifacients is Not a CompellingGovernment Interest

This Court already questioned HHS’s faultyassertion that providing free contraceptives andabortifacients is a compelling governmental interest.RFRA “requires the Government to demonstrate thatthe compelling interest test is satisfied throughapplication of the challenged law to the person—theparticular claimant whose sincere exercise of religionis being substantially burdened.” Hobby Lobby, 134 S.Ct. at 2779 (internal quotation marks omitted). To dothis, the government cannot just assert “broadlyformulated interests.” Id. The Court must “scrutinizethe asserted harm of granting specific exemptions toparticular religious claimants . . . [and] look to themarginal interest in enforcing the HHS Mandate inthese cases.” Id. (internal quotation marks andbrackets omitted).

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While women have a right to obtain contraceptives,see Griswold v. Connecticut, 381 U.S. 479, 485-486(1965), this does not mean they have a right to freecontraceptives and abortifacients. Moreover, this rightcertainly does not mean that a person has the right toobtain contraceptives and abortifacients—eitherdirectly or indirectly—from their employer at theexpense of pillaging the employer’s religious liberty. Asthis Court noted, aspects of the HHS Mandate supportthe view that free contraceptives and abortifacients viaemployers are not compelling governmental interests.Hobby Lobby, 134 S. Ct. at 2780. For example, manyemployees, such as those in grandfathered plans, thosewho work for employers with fewer than 50 employees,and those who work for exempted religious employers,may have no contraceptive or abortifacient coverage atall. 42 U.S.C. § 300gg-13(a)(4), 42 U.S.C. § 18011(a)(2),45 C.F.R. § 147.140, 26 U.S.C. § 6033(a)(3)(A)(i), (iii);see also Hobby Lobby, 134 S. Ct. at 2780. The Courtexpressly called into doubt the “compelling interest” ofcontraceptive and abortifacient coverage in light of theexemption for grandfathered plans, stating:

the interest served by one of the biggestexceptions, the exception for grandfatheredplans, is simply the interest of employers inavoiding the inconvenience of amending anexisting plan. Grandfathered plans are required“to comply with a subset of the Affordable CareAct’s health reform provisions” that providewhat HHS has described as “particularlysignificant protections.” 75 Fed. Reg. 34540. But

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the contraceptive mandate is expressly excludedfrom this subset. Ibid.

Id.

Notably, through the religious employer exemption,HHS has also suggested that the exercise of religion isa more compelling interest than whatever the assertedinterest free contraceptive and abortifacient coveragemight promote. However, HHS limits its respect forreligion to only certain employers’ religious beliefs. The religious employer exemption sets the religiousbeliefs of whomever the government deems a religiousemployer above the same sincerely held beliefs ofreligious, non-profit organizations that cannot qualifyfor the religious employer exemption. 26 U.S.C.§ 6033(a)(3)(A)(i), (iii). The government cannotdetermine that the effect of the HHS Mandate is moreburdensome on churches than on other religious, non-profits. See Lyng, 485 U.S. at 449-50 (“This Court . . .cannot weigh the adverse effects on [a person] andcompare them with the adverse effects on [anotherperson]. Without the ability to make suchcomparisons, we cannot say that the one form ofincidental interference with an individual’s spiritualactivities should be subjected to a differentconstitutional analysis than the other.”). Thegovernment cannot selectively choose who warrantsRFRA protection; it “must apply to all citizens alike.” Id. at 452.

Respondents already exempt millions of employerhealth plans from the HHS Mandate. Hobby Lobby,134 S. Ct. at 2751. If free contraceptives andabortifacients are such a compelling interest,Respondents could provide these services themselves

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without substantially burdening Petitioners’ religiousfreedom. The many exemptions already provided forunder the regulations necessarily destroy anyargument that the HHS Mandate serves a compellinginterest. As this Court stated, “a law cannot beregarded as protecting an interest of the highest orderwhen it leaves appreciable damage to that supposedlyvital interest unprohibited.” Church of Lukumi BabaluAye v. City of Hialeah, 508 U.S. 520, 447 (1993)(internal citations omitted). Therefore, since the HHSMandate already does not apply to millions of healthplans, including some plans exempt based on religiousbeliefs, it does not serve a compelling governmentalinterest.

CONCLUSION

Therefore, this Honorable Court should reverse thedecisions below in order to protect and defend the freeexercise of religion guaranteed by RFRA.

Respectfully submitted,

Erin Elizabeth Mersino Counsel of RecordKate OliveriTHOMAS MORE LAW CENTER24 Frank Lloyd Wright DriveP.O. Box 393Ann Arbor, Michigan 48106(734) 827-2001emersino@thomasmore.org

Counsel for Amicus Curiae