KAREN NELSON MOORE, Circuit Judge.
ON BRIEF: Matthew A. Kairis, Jones Day, Columbus, Ohio, for Appellants. Adam C. Jed, Mark B. Stern, Alisa B. Klein, United States Department of Justice, Washington, D.C., for Appellees.
OPINION
KAREN NELSON MOORE, Circuit Judge.
The Patient Protection and Affordable Care Act (“ACA”) requires health insurance plans to provide coverage for contraception—a requirement commonly known as the contraceptive mandate. Religious employers, employers with fewer than fifty employees, and grandfathered plans are exempt from this mandate. Non-profit entities and closely held corporations who object to the mandate on religious grounds may seek an accommodation. That accommodation effectively insulates these entities from the contraception-provision process: they no longer have to pay for contraceptive coverage, and all individuals under their plans are notified of the entity's religious objections. The insurance issuers and third party administrators for these entities, however, must continue to provide coverage for contraceptives to individuals insured under these plans.
Plaintiffs in this case include both religious employers eligible for the exemption and non-profit entities eligible for the accommodation. In the first instance, Plaintiffs challenged both the exemption and the accommodation. They sought a preliminary injunction, arguing that these provisions were being enforced in violation of their rights under the Religious Freedom Restoration Act (“RFRA”), the First Amendment, and the Administrative Procedure Act (“APA”). We rejected this challenge, holding that the district courts
did not abuse their discretion in denying Plaintiffs preliminary injunctive relief.
Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372 (6th Cir.2014). Plaintiffs then filed a petition for a writ of certiorari; that petition made clear that Plaintiffs were not challenging our decision with respect to the exemption. Nor did the petition make reference to any of the First Amendment or APA arguments that Plaintiffs had previously raised. Rather, the petition focused entirely on whether the accommodation violated Plaintiffs' rights under RFRA. The Supreme Court granted this petition, vacated our judgment, and remanded the case back to us “for further consideration in light of
Burwell v. Hobby Lobby Stores, Inc.”
Mich. Catholic Conference v. Burwell, ––– U.S. ––––,
135 S.Ct. 1914,
191 L.Ed.2d 760 (2015).
In Hobby Lobby, ––– U.S. ––––, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), the Supreme Court determined that closely held, for-profit companies with sincerely held religious beliefs could not be compelled to provide contraceptive coverage to their employees. In reaching this decision, the Court discussed the accommodation favorably, noting for instance that the accommodation served the government's interests in providing access to contraception while at the same time not impinging on the religious beliefs of objecting non-profits. The Court did not suggest that the accommodation violated RFRA.
After carefully reviewing the Hobby Lobby opinion, we adhere to our original disposition. This opinion now addresses the impact of Hobby Lobby and the relevant circuit court decisions that have been published since Hobby Lobby. We join our sister circuits in holding (1) that the accommodation provision does not violate RFRA and (2) that nothing in Hobby Lobby changes this conclusion. Accordingly, we AFFIRM the district courts' judgments denying Plaintiffs preliminary injunctive relief on all of their claims. We also RE–ISSUE and RE–AFFIRM our prior opinion in order to address all remaining issues, including Plaintiffs' First Amendment and APA challenges to both the exemption and the accommodation.
I. BACKGROUND
A. Factual Background
There are nine Plaintiffs in this case, listed below:
• Michigan Catholic Conference (“MCC”)
• Catholic Charities Diocese of Kalamazoo (“Catholic Charities of Kalamazoo”)
• Catholic Diocese of Nashville (“CDN”)
• Catholic Charities of Tennessee, Inc. (“Catholic Charities of Tennessee”)
• Camp Marymount, Inc. (“Camp Marymount”)
• Mary, Queen of Angels, Inc. (“MQA”)
• St. Mary Villa, Inc. (“St. Mary Villa”)
• Aquinas College
• Dominican Sisters of St. Cecilia Congregation (“St. Cecilia Congregation”)
Some of these Plaintiffs are eligible for the exemption, others for the accommodation. These provisions work slightly differently from one another. See Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1161–66, 2015 WL 4232096, at *5–*8 (10th Cir. July 14, 2015).
1. The Exemption
Under the exemption, religious employers (as defined by federal law
See Mich. Catholic Conference, 755 F.3d at 385.
2. The Accommodation
The accommodation applies to objecting non-profit entities and—in the wake of Hobby Lobby—to closely held, for-profit corporations as well. None of the remaining Plaintiffs are closely held corporations; they fall within the accommodation because they are non-profits that object to the contraceptive mandate. Of these six Plaintiffs, five offer a “fully-insured group health plan[ ]”: Catholic Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, and Aquinas College. Id. at 379. Only one—Catholic Charities of Kalamazoo—offers a self-insured plan. Id. at 386 n. 10. Fully-insured group health plans operate somewhat differently from self-insured health plans—with different implications for the contraceptive mandate. See, e.g., Little Sisters of the Poor, 794 F.3d at 1164–68, 2015 WL 4232096, at *8–*10; E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449, 453–55, 2015 WL 3852811, at *2 (5th Cir.2015).
a. Fully–Insured Plans vs. Self–Insured Plans
Under a fully-insured group plan (also known as a fully-insured plan or an insured plan), “insurance [for the non-profit entity] is purchased from a regulated insurance company.” Mich. Catholic Conference, 755 F.3d at 379 n. 4 (quoting 1A Steven Plitt, et al., Couch on Insurance § 10.1 n. 1 (3d ed.2013)). Typically, “the employer pays a per-employee premium to an insurance company, and the insurance company assumes the risk of providing health coverage for insured events.” Health Plan Differences: Fully–Insured vs. Self–Insured, Emp. Benefit Research Inst., Fast Facts from EBRI (Feb. 11, 2009), http://www.ebri.org/pdf/FFE114.11Feb09.Final.pdf (“Fast Facts from EBRI”).
Under a self-insured health plan, “benefits are paid from contributions supplied by the employer without the assistance of outside insurance.”
Mich. Catholic Conference, 755 F.3d at 378 n. 2 (quoting 1A Steven Plitt, et al.,
Couch on Insurance § 10.1 n. 1). Thus, employers “bear [ ] the financial risk of paying claims.”
Id. (quoting Government Br. at 7 n. 1);
see also Fast Facts from EBRI (“In a self-insured plan, instead of purchasing health insurance from an insurance company and paying the insurer a per-employee premium, the employer acts as its own insurer.”). “Self-insured plans often contract with an insurance company or other third party to administer the plan, but the employer bears the risk associated with offering health benefits.” Fast Facts from EBRI.
b. Complying with the Contraceptive Mandate
For entities that offer a fully-insured plan, the contraceptive mandate works by requiring the insurance company to provide contraceptive coverage without cost-sharing to insured individuals. See 42 U.S.C. §§ 300gg–13. The process is straightforward for non-objecting entities: the insurance company provides contraceptive coverage to individuals under the plan, and the non-objecting entity pays for that coverage through the premium that it is charged.
If an eligible non-profit entity objects to such coverage, it must make its objections known, either through a self-certification procedure or by notifying the Secretary of Health and Human Services. See 45 C.F.R. § 147.131(c)(1). We describe these procedures in greater detail below. After the eligible non-profit entity objects, “the [insurance] issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 C.F.R. § 147.131(c)(2)(ii). Instead, “[t]he [insurance] issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” Id. In addition, the insurance company must send notice to plan participants, separately from regular plan materials, explaining that the employer does not administer or fund contraceptives but that the insurance company provides separate payments for these services. 45 C.F.R. § 147.131(d).
Under a fully-insured plan, the obligations of the insurance company remain the same, regardless of whether the non-profit entity that it works with objects to contraceptive coverage. If a non-profit entity does not object, the insurance company must, as a matter of federal law, provide contraceptive coverage to insured individuals without cost-sharing. If a non-profit entity does object, the insurance company must, as a matter of federal law, provide contraceptive coverage to insured individuals without cost-sharing. The sole point of difference between an entity that decides to exercise the accommodation and an entity that does not is who must pay for the coverage: the insurance company (if the entity objects) or the entity (if the entity does not object).
The contraceptive mandate works differently vis-à-vis self-insured plans. Under these plans, employers bear the risk associated with offering health benefits to their employees. “In [its] simplest form, the employer uses the money that it would have paid the insurance company and instead directly pays health care claims to providers.” Fast Facts from EBRI. Functionally, however, most companies work with a third-party administrator (“TPA”),
which “perform[s] functions such as developing networks of providers, negotiating payment rates, and processing claims.”
Mich. Catholic Conference, 755 F.3d at 378 n. 2 (quoting Government Br. at 7 n. 1). Here, Catholic Charities of Kalamazoo works with TPAs Blue Cross Blue Shield of Michigan and Express Scripts.
For non-objecting self-insured entities, compliance with the mandate is fairly straightforward. An insured individual seeks coverage, the TPA processes the claim, and the entity pays for that claim. Objecting self-insured entities, on the other hand, must make their concerns known, through the same procedures provided for fully-insured plans. After the objecting entity does so, responsibility shifts to the TPA: the TPA must now provide contraceptive coverage to insured individuals. The federal government will reimburse TPAs for their expenses for providing such coverage. See 45 C.F.R. § 156.50(d). As with fully-insured plans, the TPAs must give notice to plan participants explaining that the employer does not administer or fund contraceptives but that the services are nonetheless provided for and covered by the TPA. 29 C.F.R. § 2590.715–2713A(d). The table below makes clear where each Plaintiff in this case stands.