2016 04 12 non profits response to zubik order 4-12-16

8/16/2019 2016 04 12 Non Profits Response to Zubik Order 4-12-16

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

In the Supreme Court of the United States ________________

D AVID A. ZUBIK , et al. v.

S YLVIA BURWELL, et al. ________________

PRIESTS FOR LIFE, et al. v.

DEPARTMENT OF HEALTH & HUMAN SERVICES, et al. ________________

ROMAN C ATHOLIC ARCHBISHOP OF W ASHINGTON, et al. v.S YLVIA BURWELL, et al.

________________E AST TEXAS B APTIST UNIVERSITY , et al.

v.S YLVIA BURWELL, et al.

________________LITTLE SISTERS OF THE POOR HOME FOR THE AGED,

DENVER, COLORADO, et al. v.

S YLVIA BURWELL, et al. ________________

SOUTHERN N AZARENE UNIVERSITY , et al. v.

S YLVIA BURWELL, et al. ________________GENEVA COLLEGE

v.S YLVIA BURWELL, et al.

________________ On Writs of Certiorari to the

United States Courts of Appeals

for the Third, Fifth, Tenth, and D.C. Circuits ________________

SUPPLEMENTAL BRIEF FOR PETITIONERS ________________

April 12, 2016 (Counsel Listed on Inside Cover)


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NOEL J. FRANCISCO Counsel of Record D AVID T. R AIMER ANTHONY J. DICK JONES DAY 51 Louisiana Ave., NW Washington, DC 20001 (202) 879-3939 [email protected]

P AUL M. POHLJOHN D. GOETZ

LEON F. DEJULIUS, JR. IRA M. K AROLL JONES DAY 500 Grant St.Suite 4500 Pittsburgh, PA 15219

M ATTHEW A. K AIRIS JONES DAY 325 John H. McConnell Blvd.Suite 600 Columbus, OH 43215

Counsel for petitioners in

Nos. 14-1418 and 14-1505

P AUL D. CLEMENT Counsel of Record

ERIN E. MURPHY ROBERT M. BERNSTEIN BANCROFT PLLC500 New Jersey Ave., NWSeventh FloorWashington, DC 20001(202) [email protected]

D AVID A. CORTMAN

GREGORY S. B AYLOR JORDAN W. LORENCE K EVIN H. THERIOT M ATTHEW S. BOWMAN RORY T. GRAY ALLIANCEDEFENDING FREEDOM 440 First St., NW Suite 600 Washington, DC 20001


Nos. 15-119 and 15-191


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ROBERT J. MUISE D AVID Y ERUSHALMI AMERICAN FREEDOM LAW CENTER P.O. Box 131098 Ann Arbor, MI 48113

Counsel for petitioner

in Nos. 14-1453

BRADLEY S. TUPI 1500 One PPG Place Pittsburgh, PA 15222

Counsel for

Geneva College

C ARL C. SCHERZ L AURENCE A. H ANSEN LOCKE LORD LLP 2200 Ross Ave.Suite 2800 Dallas, TX 75201

K EVIN C. W ALSH

28 Westhampton Way Richmond, VA 23173

Counsel for petitioners

in No. 15-105

M ARK RIENZI ERIC C. R ASSBACH H ANNAH C. SMITH DIANA M. VERM ADÈLE AUXIER K EIMD ANIEL H. BLOMBERG THE BECKET FUND FOR RELIGIOUS LIBERTY

1200 New Hampshire Ave., NWSuite 700 Washington, DC 20036

Counsel for East Texas

Baptist University,Houston Baptist

University, and

petitioners in No. 15-105

K ENNETH R. W YNNE WYNNE & WYNNE LLP 1021 Main St.Suite 1275 One City Centre Houston, TX 77002

Counsel for WestminsterTheological Seminary


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TABLE OF CONTENTSTABLE OF AUTHORITIES ....................................... ii

SUPPLEMENTAL BRIEF FOR PETITIONERS ...... 1

ARGUMENT ............................................................... 3

I. The Employees Of A Petitioner With AnInsured Plan Can Receive ContraceptiveCoverage From The Same InsuranceCompany Without Involving The PetitionerOr Threatening The Petitioner With MassiveFines ..................................................................... 3

II. Employees Of Petitioners With Self-InsuredPlans Can Receive Contraceptive CoverageThrough The Insurance Companies ProvidingContraceptive-Only Coverage To PetitionersWith Insured Plans ........................................... 16

CONCLUSION ......................................................... 25


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TABLE OF AUTHORITIESCase

Holt v. Hobbs,135 S. Ct. 853 (2015) .............................................. 12

Statutes

26 U.S.C. §414(e)(1) .................................................. 17

42 U.S.C. §2000bb-1(b)(2)......................... 2, 12, 13, 24

Haw. Rev. Stat. §431:10A-116.7 (1999) ..................... 9

Mo. Rev. Stat. §376.1199 (2001) ................................ 8

N.Y. Ins. Law §3221(l)(16)(B)(i) (2015) ...................... 9

W. Va. Code §33-16E-7(c) (2005) ................................ 9

Regulations

26 C.F.R. §1.6055-1 .................................................. 22

26 C.F.R. §54.9815-2713A(c)(2)(ii) ........................... 11

26 C.F.R. §54.9815-2713AT(b)(3) ............................. 11

45 C.F.R. §147.131(c)(1) ............................................. 4

45 C.F.R. §156.50(d) ................................................. 21

45 C.F.R. §164.501 ...................................................... 745 C.F.R. §164.504(e) ............................................... 19

45 C.F.R. §164.508(a)(3) ............................................. 7

45 C.F.R. §164.520 .................................................... 22

78 Fed. Reg. 8,456 (Feb. 6, 2013) ............................... 7

78 Fed. Reg. 39,870 (July 2, 2013) ............... 6, 8, 9, 11

80 Fed. Reg. 41,318(July 14, 2015) .......................... 10


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Other Authorities

“Health Information Privacy: Marketing,”HHS.gov, http://1.usa.gov/1MmPvCk ..................... 8

Alina Salganicoff et al., Henry J. KaiserFamily Foundation, “Coverage for AbortionServices in Medicaid, Marketplace Plansand Private Plans” (Jan. 20, 2016),http://kaiserf.am/1nAYh4v ...................................... 9

Adam Sonfield & Rachel Benson Gold,Guttmacher Institute, “Medicaid Family

Planning Expansions: Lessons Learnedand Implications for the Future” (2011),http://bit.ly/22mgO1o ............................................. 23


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SUPPLEMENTAL BRIEF FOR PETITIONERSIn its supplemental briefing order, this Court has

asked the parties to address whether “contraceptivecoverage may be obtained by petitioners’ employeesthrough petitioners’ insurance companies, but in away that does not require any involvement ofpetitioners beyond their own decision to providehealth insurance without contraceptive coverage totheir employees.” The answer to that question is clearand simple: Yes. There are many ways in which the

employees of a petitioner with an insured plan couldreceive cost-free contraceptive coverage through thesame insurance company that would not requirefurther involvement by the petitioner, including theway described in the Court’s order. And each one ofthose ways is a less restrictive alternative that doomsthe government’s ongoing effort to use the threat ofmassive penalties to compel petitioners to forsaketheir sincerely held religious beliefs. Moreover, solong as the coverage provided through thesealternatives is truly independent of petitioners and

their plans— i.e., provided through a separate policy,with a separate enrollment process, a separateinsurance card, and a separate payment source, andoffered to individuals through a separatecommunication—petitioners’ RFRA objections wouldbe fully addressed.

This Court’s supplemental briefing order focusedon “[p]etitioners with insured plans.” Of course, notevery petitioner purchases insurance from acommercial insurance company, as many petitioners

self-insure or use a self-insured church plan. But lessrestrictive alternatives involving commercial


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insurance companies are available for thosepetitioners as well. If commercial insurancecompanies were to offer truly separate contraceptive-only policies along the lines envisioned in this Court’sorder, then the employees of petitioners who self-insure or use self-insured church plans could enroll inthose separate contraceptive-only insurance policiesas well. Those policies would obviously be separatefrom the coverage provided by the self-insuredemployers or the church plans, and petitioners’employees would be free to enroll in those policies ifthey choose. Accordingly, among the many lessrestrictive alternatives available to the government isto require or incentivize commercial insurancecompanies to make separate contraceptive coverageplans (of the kind contemplated by the Court’s orderfor petitioners with insured plans) available to theemployees of petitioners that self-insure or use self-insured church plans, without requiring petitioners tofacilitate that process or threatening them withruinous fines unless they do so.

All of these less restrictive alternatives—inaddition to those outlined in petitioners’ earlierbriefing—underscore that the government’s currentscheme violates RFRA. There is no reason for thegovernment to insist, on pain of massive penalties,that petitioners abandon their sincerely held religiousbeliefs when the government can achieve its endsthrough other means. The substantial burden thatthe government’s current arrangement undoubtedlyplaces on petitioners’ religious exercise thus is simplynot the “least restrictive means of furthering [a]compelling governmental interest.” 42 U.S.C.§2000bb-1(b)(2).


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ARGUMENTI. The Employees Of A Petitioner With An

Insured Plan Can Receive Contraceptive

Coverage From The Same Insurance

Company Without Involving The Petitioner

Or Threatening The Petitioner With Massive

Fines.

Under the current regulatory scheme, theinsurance company with which a petitioner contractsto provide benefits under an insured plan will provide

contraceptive coverage to the petitioner’s employeesonly if the petitioner complies with the contraceptivemandate via the regulatory mechanism of executingand delivering EBSA Form 700 or the equivalentnotice. If the petitioner complies via that regulatorymechanism, its insurance company will providepayments for the contraceptives in connection withthe petitioner’s plan. The current regulatory scheme,therefore, requires petitioners to take affirmativesteps that enable their health plans to be “hijacked”for the delivery of contraceptive coverage. But there

is no reason that the government needs to demandthose affirmative acts from petitioners—let alonedemand them on pain of massive penalties—toeffectuate a scheme in which the same insurancecompany makes contraceptive coverage available toany of petitioners’ employees who may want it. Thereare several ways in which contraceptive coveragecould “be obtained by petitioners’ employees throughpetitioners’ insurance companies” that “do[] notrequire any involvement of petitioners beyond their

own decision to provide health insurance withoutcontraceptive coverage to their employees.”


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1. To take the hypothetical set forth in the Court’sorder, the government could simply impose aregulatory requirement directly on insurancecompanies that, to the extent they contract with aneligible organization that does not include some or allcontraceptive coverage in its plan, the insurancecompany must make available to plan beneficiaries aseparate plan providing the excluded contraceptivecoverage, and must separately contact beneficiaries toinform them of the availability of that plan and how toenroll. These separate plans could take the form ofindividual insurance policies or of group health planssponsored by the government. Under this regime, thegovernment would not need to require the petitionerto supply the identity of its insurer; nor would thegovernment or the insurer need any form orauthorization from the petitioner to make thatseparate coverage available. Petitioners with insuredplans thus would need to do nothing more thancontract for a plan that does not include coverage forsome or all forms of contraception, free from the threat

of massive penalties for failure to comply with thecontraceptive mandate.

Of course, under RFRA, any such scheme wouldhave to truly require no “involvement of petitionersbeyond their own decision to provide health insurancewithout contraceptive coverage to their employees.”Thus, it could not be enforced by a requirement,backed by draconian penalties, that the employer takesteps to “comply” with the contraceptive mandate.See 45 C.F.R. §147.131(c)(1). To the contrary, under atruly independent scheme, such employers would notbe complying with that mandate at all. They would beexempt from that mandate, and the commercial


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insurer would be complying with a separate mandateimposed by the federal government.

Indeed, if petitioners were to “have no legalobligation to provide … contraceptive coverage” “towhich they object on religious grounds,” then therewould be no rational reason to threaten them withmassive penalties (for violating such a legalobligation) or require them to take steps or furnishinformation or authorization (to comply with such alegal obligation). Accordingly, as petitioners

understand the scenario that the Court’s ordercontemplates, it is not a scenario in which petitionerswould be offered yet another way to comply with thecontraceptive mandate, and continue to face massivepenalties should they fail to do so. It is a scenario inwhich petitioners would have no obligation to complywith that mandate at all, and would not need to takeany affirmative step to avoid the threat of penaltiesunder 26 U.S.C. §4980D or any other form of liabilityas a consequence of their decision not to include someor all contraceptive coverage from their plans.

This is not just a matter of semantics. Under thecurrent regulatory scheme, the government is correctto treat the provision of an EBSA Form 700 or itsequivalent as a mode of “complying” with thecontraceptive mandate because the employer itself isforced to take steps that the government deemsnecessary to make contraceptive coverage available tothe employer’s employees. Petitioners have neverraised RFRA objections to truly independent efforts toprovide contraceptive coverage to their employees,

whether that coverage is provided via the Exchanges,Title X, or an omnibus agreement with a single


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insurer. See, e.g., Oral Argument Tr.13. In a similarfashion, the independent provision of contraceptivecoverage by the same insurance company thatprovides the employer’s conscience-compliant planwould not run afoul of RFRA if it were genuinelyindependent of petitioners and their plans. But if thecoverage that is provided is truly separate, no oneshould be able to conclude that petitioners are, in fact,complying with the mandate. To the contrary, theywould be excused from the mandate under RFRA, byvirtue of their sincerely held religious beliefs.

Not only can the government effectuate such ascheme without involving petitioners; it can—andunder RFRA must—do so without involvingpetitioners’ plans. Under the current regulatoryscheme, there is just a single plan that automaticallycomes with payments for contraceptive services.Petitioners’ employees, therefore, automaticallyreceive free contraceptive coverage solely by virtue oftheir enrollment in petitioners’ plans. There is noreason why this must be so. Instead, to truly separate

petitioners from the contraceptive coverage, thereshould, at a minimum, be “two separate healthinsurance policies (that is, the group health insurancepolicy and the individual contraceptive coveragepolicy),” 78 Fed. Reg. 39,870, 39,876 (July 2, 2013),with separate enrollment processes, insurance cards,payment sources, and communication streams. Again,these separate plans could take the form of individualinsurance policies or group health plans sponsored bythe government. But either way, the insurancecompanies could separately contact petitioners’employees and give them the option of enrolling in theseparate, contraceptive-only policy.


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The agencies have already taken the position thatfederal law poses no obstacle to having an insurancecompany provide a contraceptive-only plan that isdistinct from the employer’s plan. See 78 Fed. Reg.8,456, 8,467-68 (Feb. 6, 2013). During the rulemakingprocess, they concluded that they have statutoryauthority to treat a contraceptive-only plan as an“excepted benefit” that need not comply with all therequirements of the Affordable Care Act, such as theminimum essential coverage and guaranteed issuerequirements. See id. And they identified no otheraspects of the ACA that might pose an obstacle toallowing insurance companies to offer contraceptive-only plans to beneficiaries of any of the plans theyprovide that do not cover some or all forms ofcontraception.

Nor do federal privacy laws pose an obstacle toallowing an insurance company to contactbeneficiaries of an employer-sponsored plan withinformation about the availability of and how to enrollin a separate contraceptive-only plan that the

insurance company offers. Although HIPAA restrictsan insurance company’s use of plan beneficiaryinformation for marketing purposes, see 45 C.F.R.§164.508(a)(3), HHS has defined “marketing” toexclude “a communication” regarding “health-relatedproducts or services available only to a health planenrollee that add value to, but are not part of, a planof benefits,” id. §164.501. HHS has advised that thisexception “permits communications by a coveredentity about its own products or services,” such as “amailing to subscribers approaching Medicare eligibleage with materials describing its Medicaresupplemental plan and an application form.” “Health


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Information Privacy: Marketing,” HHS.gov,http://1.usa.gov/1MmPvCk. That exception thuswould readily encompass providing plan beneficiarieswith information about separate contraceptive-onlyplans that the insurance company offers.

2. Although the agencies previously identifiedvarious state law questions that such an arrangementmight raise, see 78 Fed. Reg. at 39,876, those are easilyaddressed. At the outset, there is certainly noinsurmountable state law barrier to contraceptive-

only policies, as some states already require insurancecompanies to make such policies available toindividuals whose employers object to providing thatcoverage for religious reasons. Before the federalcontraceptive mandate came into being, Missouri hadits own law requiring contraceptive coverage, subjectto an exception “if the use or provision of suchcontraceptives is contrary to the moral, ethical orreligious beliefs or tenets” of the “person or entitypurchasing” the plan. Mo. Rev. Stat. §376.1199.4(1)(2001) (amended 2012) (2001 Mo. Legis. Serv. H.B.

762). To ensure that individuals whose plans excludedcontraceptive coverage due to religious objections hadaccess to such coverage should they want it, Missourilaw also provided that “a health carrier shall allowenrollees in a health benefit plan that excludescoverage for contraceptives ... to purchase a healthbenefit plan that includes coverage forcontraceptives.” Id. §376.1199.5. Until the federalmandate came along, this system had existed for morethan a decade without challenge on religious freedomgrounds.


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Other states also have devised means of allowingindividuals to contract directly with their insurancecompanies to obtain contraceptive coverage shouldtheir employer-sponsored plan exclude it for religiousreasons. See, e.g ., Haw. Rev. Stat. §431:10A-116.7(b)-(e) (1999); N.Y. Ins. Law §3221(l)(16)(B)(i) (2015);W. Va. Code §33-16E-7(c) (2005). And still more statesallow insurance companies to market separateabortion coverage to individuals whose health plansdo not provide it. See Alina Salganicoff et al., HenryJ. Kaiser Family Foundation, “Coverage for AbortionServices in Medicaid, Marketplace Plans and PrivatePlans” (Jan. 20, 2016), http://kaiserf.am/1nAYh4v.While some of these arrangements do not involve theprecise modes of separation discussed above, they(along with separate plans for vision and dental)demonstrate the workability of scenarios in whichindividuals separately contract with insurancecompanies to obtain forms of coverage that areexcluded from their principal health plans.

To the extent the agencies identified aspects of the

particular contraceptive-only policy approach thatthey previously considered that might pose state lawquestions, those aspects can readily be addressed. Forexample, the agencies noted comments questioningwhether a contraceptive-only policy would beconsidered an enforceable contract under state law ifthe individual neither enrolls in that policy nor hasthe ability to opt out. See 78 Fed. Reg. at 39,876. Butthat concern can be eliminated through the simpleexpedient of giving individuals a say in whether toenroll, which they have as to all other forms ofcoverage and under all the state law schemes thatprovide separate contraceptive coverage. Indeed, as


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noted, if the contraceptive coverage is to be trulyseparate, not just an automatic and unavoidablecomponent of the petitioner’s plan, then it must havean enrollment process that is distinct from (and not anautomatic consequence of) enrolling in the employer’splan. Otherwise, it is not independent of theemployer’s plan. That process certainly need not becomplex. Like activating a credit card, it could be assimple as having the insurance company send eacheligible employee a contraceptive coverage card with asticker attached providing a telephone number to callor website portal to use should she wish to activate thecoverage. That would be much less burdensome thanthe process through which individuals enroll inseparate dental or vision care plans—or in theemployer-sponsored plan itself, as that, too, typicallyrequires some affirmative act on the employee’s part.

Nor should using a separate insurance card forthe contraceptive coverage plan raise any materialconcerns from the government’s perspective, as thegovernment has already conceded that supplying

employees with “two insurance cards, one forcontraceptive benefits, and one for other benefits …would [not] constitute a barrier to accessing …contraceptive services.” 80 Fed. Reg. 41,318, 41,328(July 14, 2015). That concession reflects the realitythat individuals routinely use separate insurancecards to access dental, vision, or prescription drugplans, and the government has never suggested thatthis arrangement discourages individuals from usingthose benefits. Accordingly, to the extent there arestate law concerns about arrangements in which thecontraceptive-only plan is an automatic andundifferentiated component of the employer’s plan,


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those concerns are easy to avoid—and are in all eventsessential to avoid moral complicity and ensure trueseparation between the contraceptive coverage andthe petitioner’s religiously compliant health plan.

Finally, a truly separate scheme would also needto incorporate certain features of the current schemethat are designed to provide some degree ofseparation. See 26 C.F.R. §54.9815-2713A(c)(2)(ii).The insurance company must, for example, continueto separate any communications relating to the

contraceptive coverage from communications relatingto the employer coverage. Those communicationsmust, moreover, make clear that the contraceptive-only plan is separate and distinct from petitioners’plans. The insurance company also must continue topay separately for the contraceptive coverage withoutany cost to the employer or the plan. Id. To the extentthere are any concerns about the financial stability ofa contraceptive-only plan that charges no premiumsand cannot pass on any of its costs, that too is aconcern that the government has the ability to

address. The agencies have already concluded thatthey have statutory authority to use adjustments touser fees on the federal Exchanges to reimburseinsurance companies for providing contraceptivecoverage. See, e.g., 78 Fed. Reg. at 39,882-83. Indeed,they are already doing so in the self-insured context.26 C.F.R. §54.9815-2713AT(b)(3). Thus, if there is anyneed to financially incentivize insurance companies tooffer separate, contraceptive-only plans in the insuredcontext, the government can use the same financialmechanism to subsidize them there as well.


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In this regard, it bears emphasis that thefinancial and practical burdens of offering trulyseparate contraceptive coverage to petitioners’employees are likely to be minimal, as there are goodreasons to suspect that relatively few of thoseemployees will opt for contraceptive coverage. Asnoted in the principal briefing, see, e.g., ETBU Opening Br.66-67; Zubik Reply Br.19, petitioners allqualify for the exemption Congress provided in Title

VII that allows religious nonprofits to hire co-religionists. And as petitioners have explained, Zubik Opening Br.63-65; Zubik Reply Br.32-33; ETBU Opening Br.66-67; ETBU Reply Br.19-20, employersentitled to that exemption are more likely to hireindividuals who share their religious beliefs and arethus less likely to opt for coverage that violates thoseshared religious beliefs. Of course, if the governmentactually offered the kind of truly separatecontraceptive coverage envisioned by the Court’sorder, it could develop data to test whether employersentitled to the Title VII exemption are less likely to

have employees that opt for that coverage even ifoffered. In all events, the salient point for presentpurposes is that the Court should discount anyasserted concerns about financial or practicaldifficulties that might ensue should large numbers ofpetitioners’ employees opt for separate coverage.1

1 Although the law is clear that the government has the burdenof proving that the substantial burden it has placed on religion isthe “least restrictive means” of furthering a “compellinggovernmental interest,” 42 U.S.C. §2000bb-1(b)(2); see also Holt

v. Hobbs, 135 S. Ct. 853, 864 (2015), the records in these casesconfirm that the government has never seriously attempted to


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3. In sum, there is no need to demand anyseparate certification or notice from the petitioner inorder to effectuate a scheme in which any of thepetitioner’s employees who want contraceptivecoverage can get it from the same insurance companywith which the petitioner contracts. The governmentcan obligate, incentivize, or contract with theinsurance company to offer separate contraceptivecoverage to employees who do not receive any coveragefrom their employer without any involvement by thepetitioner “beyond [its] own decision to provide healthinsurance without contraceptive coverage to [its]employees.” That coverage would become available tothe petitioner’s employees because of the obligationimposed on the insurance company, and not becausethe petitioner provided any form surrenderinginformation, authorization, its plan, or its planinfrastructure on pain of massive penalties. Andunlike under the current regulatory scheme, thatcoverage would be truly separate from the petitioner’splan.

Because the government can operate such anarrangement without requiring petitioners to takesteps to put themselves in compliance with thecontraceptive mandate, the government’s currentregulatory scheme necessarily runs afoul of RFRA, asit substantially burdens religious exercise and is notthe “least restrictive means of furthering [a]compelling governmental interest.” 42 U.S.C.§2000bb-1(b)(2). Even accepting the dubious premisethat the government not only has a compelling

substantiate any of the suppositions on which its claim that thereare no less restrictive means available rests.


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interest in ensuring that petitioners’ employees canreceive contraceptive coverage, but has a compellinginterest in furnishing the coverage through the sameinsurance company that provides their employer-sponsored plans,2 the government can achieve thatend without involving the petitioner or its plan. Andif the government can achieve that end through meansin which that coverage is truly separate from thepetitioner and its plan— i.e., provided through aseparate plan, with a separate enrollment process, aseparate insurance card, and a separate paymentsource, and offered to eligible individuals through aseparate communication—then the government must do so to avoid running afoul of RFRA. It cannot insiston imposing massive penalties on petitioners unlessthey take steps that are not actually necessary for thegovernment to achieve its interests.

2 The government’s contention that it has a compelling interestin providing coverage “seamlessly”—an argument that emergedlate in this litigation—essentially collapses the separatecompelling interest and least restrictive means analyses. Tokeep those analytical steps distinct, and to protect the coherenceof the test Congress fashioned in RFRA, the government cannotinsist that it has a compelling interest in utilizing specific means.

And, of course, the government cannot simultaneously insist thatemployers must provide coverage seamlessly and that petitionersare mistaken to perceive that their plans are being used toprovide the service. If the seams are absent for their employees,then they are absent for the employer. That said, as the Court’sorder and this brief indicate, it is possible to utilize the sameinsurer but provide truly separate policies, and such policies are

a less restrictive alternative even assuming there is a compellinginterest in providing contraceptive coverage through the sameinsurance company.


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To be clear, that is not to say that petitionersendorse such an approach as a policy matter. Many ofthem most emphatically do not, as they sincerelybelieve that the use of some or all forms ofcontraception is immoral, and they are hardlyindifferent to efforts to encourage or facilitate thatuse. For that reason, petitioners may disagree as apolicy matter with government programs, such asTitle X, that make contraceptives or abortifacientsmore widely available to their own employees oranyone else. And petitioners certainly have the right,protected by the First Amendment, to make thatdisagreement known. At the same time, however,petitioners do not object under RFRA to everyregulatory scheme in which the employees of apetitioner with an insured plan can obtaincontraceptive coverage from the same insurancecompany with which the employer has contracted toprovide a health plan. Petitioners simply object tohaving to play a morally impermissible role in theprocess through which those insurance companies (or

anyone else) might provide contraceptive coverage totheir employees. If the coverage can be provided in away that eliminates that role, then it can be providedin a way that satisfies RFRA.

That said, there are certainly additional and evenmore separate (and thus even more preferable) waysfor the government to achieve its ends. For instance,instead of having the offer of separate contraceptivecoverage come directly from the insurance company,the government itself could inform petitioners’employees about the availability of that coverage, orask healthcare providers to provide that informationto any individual who lacks contraceptive


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coverage. See infra pp.21-23. That would moreclearly avoid the appearance that the coverage isavailable only as a result of the employmentrelationship with the employer. The contraceptive-only plans also could be offered not just directly fromthe insurer, but on the Exchanges as well, which onceagain would help underscore that they are a distinctproduct, obtained through a distinct contractualrelationship. The government also could contract withone or more commercial insurance companies toprovide coverage to all of petitioners’ employees andnot insist on a one-to-one correspondence between theemployee’s contraceptive insurer and the employer’sinsurer. The government also could use means thatdo not involve the insurance companies with whichpetitioners contract, such as using Title X to make freecontraceptives available to any women whose plans donot include them.

None of these options would necessitate anyinvolvement by petitioners “beyond their own decisionto provide health insurance without contraceptive

coverage to their employees.” Accordingly, theavailability of these manifold less restrictive meansdooms the government’s effort to defend its currentscheme under RFRA.

II. Employees Of Petitioners With Self-Insured

Plans Can Receive Contraceptive Coverage

Through The Insurance Companies

Providing Contraceptive-Only Coverage To

Petitioners With Insured Plans.

This Court’s order focused on “[p]etitioners with

insured plans.” That focus presumably recognizesthat the dynamic is quite different for employers that


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self-insure or utilize self-insured church plans. Inthose contexts, it is the insurer itself that holds theconcededly sincere religious objection to providingcontraceptive coverage, so there is no scenario inwhich such coverage could be obtained by thepetitioner’s employees through the petitioner’s owninsurer without directly involving a religious objector.When an employer self-insures, the employer itself isthe insurer; the only third parties involved arewhatever third party administrator(s) the employermay use to process claims and perform otheradministrative tasks. While those TPAs aresometimes affiliated with commercial insurers, theircontract with the self-insured employer is solely as aclaims administrator, not as an insurer. They bear norisk and have no fiduciary duties—those are left to theself-insured employer—and they can act only inaccordance with the directions that they are given bythe self-insurer. Accordingly, in the self-insuredcontext, to require the “petitioner’s insurer” to providethe coverage would be to require the petitioner itself

to do so, which presumably even the governmentwould concede (at least after Hobby Lobby) violatesRFRA.

The situation is slightly, but not meaningfully,different as to employers that utilize multiple-employer self-insured church plans. In that context,the “insurer” is either the employer— i.e., a church ora convention or association of churches, 26 U.S.C.§414(e)(1)—or an entity that shares the religiousbeliefs of the church with which the employer isaffiliated and has crafted a plan specifically designedto be consistent with those beliefs. The ChristianBrothers Employee Benefit Trust, for example,


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sponsors a church plan that is open only to nonprofitsthat are in good standing with the Roman CatholicChurch and listed or approved for listing in TheOfficial Catholic Directory. JA993-94. The LittleSisters and the hundreds of other Catholic employersin the class that they represent use that plan toprovide health benefits to their employees. JA979.Consistent with the teachings of the Catholic Church,the Trust does not include contraceptive coverage inits plan, and it holds sincere religious objections todoing so. JA998-99.3 Accordingly, any requirementthat the employees of a petitioner that uses the Trust’splan receive contraceptive coverage through thepetitioner’s “insurer” would substantially burden thereligious exercise of one of the petitioners here— viz.,the Trust.

The situation is the same for petitioners who usethe church plan provided by petitioner GuideStoneFinancial Resources. GuideStone is an agency of theSouthern Baptist Convention and provides a churchplan that is available to organizations controlled by or

associated with the Southern Baptist Convention.JA1173. Consistent with its religious beliefs,GuideStone excludes from its church plan coveragethe four forms of contraception that violate itsreligious beliefs about abortion, while providing theother FDA-approved contraceptives addressed by themandate. And it is not just the employers who useGuideStone, but GuideStone itself, that sincerely

3 The Trust’s plan and other plans used by Catholic petitioners

do, however, provide coverage for contraceptives when they areprescribed for a non-contraceptive purpose. See Zubik OpeningBr.17 n.6; JA86, 122-23, 362, 403, 409, 999.


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objects to providing coverage for those four forms ofcontraception. JA1175-77. Accordingly, once again,there is no way for the employees of petitioners thatuse GuideStone’s plan to receive contraceptivecoverage through the petitioners’ “insurer” withoutdemanding something from petitioners beyond thedecision to provide a health plan that does not includesome forms of contraceptive coverage.

Indeed, the government itself seems to recognizethese problems, as even the current regulatory scheme

does not require the insurer to provide contraceptivecoverage when the employer utilizes a self-insuredplan. Instead, the government seeks to use a TPA toeither provide that coverage or make arrangementswith an insurance company to do so. But, as thecurrent scheme reflects, that too cannot be donewithout involving the petitioner. Zubik Reply Br.5-6.Because the government seeks to make the TPA a“plan administrator” of the petitioner’s own plan forthe limited purpose of ensuring the provision ofcontraceptive coverage, it needs some sort of written

document from the petitioner that it can deemsufficient to empower the TPA to provide or arrangefor the provision of contraceptive coverage tobeneficiaries of the petitioner’s plan. See Resp.Br.16n.4. Moreover, a TPA does not have the sameauthority as an insurer to use plan beneficiaryinformation; as a “business associate,” not a “coveredentity,” under HIPAA, a TPA generally is limited tousing that information in ways that its contractualrelationship with the covered entity permits— i.e., inways that the objecting self-insured petitioner or theobjecting church plan authorizes. See 45 C.F.R.§164.504(e). Accordingly, in the context of self-insured


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plans, requiring either the “insurer” or the petitioner’sTPA to provide or arrange for the contraceptivecoverage necessarily would require something aboveand beyond the petitioner’s decision not to includecontraceptive coverage in its plan.

That said, the truly separate contraceptive-onlypolicies envisioned by the Court’s supplemental orderoffer a ready, less restrictive alternative to providecontraceptive coverage for individuals who want suchcoverage and work for petitioners that self-insure or

utilize self-insured church plans. If commercialinsurance companies begin making truly separatecontraceptive coverage available to the employees ofpetitioners with insured plans as contemplated by thisCourt’s order, then there should be no legal obstacle toallowing additional individuals to enroll in thoseplans, whether directly through the insurer orthrough the Exchanges. Indeed, making suchcontraceptive-only plans available to employees ofpetitioners with self-insured plans would underscorethat such coverage is truly separate from the coverage

provided by petitioners that use commercial insurers,as employees of other employers would be receivingessentially the same contraceptive-only policies. Andthe government could not raise any financial objectionto such an arrangement, as it has already agreedunder its current regulatory scheme to pay at least110% of the cost of using a commercial insurer toprovide contraceptive coverage to the employees of


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objecting religious organizations with self-insuredplans. See 45 C.F.R. §156.50(d)(1)-(3).4

The only question, then, would be how employeesof employers with self-insured plans would learn of theavailability of those contraceptive-only policies.

Asking the objecting employer or the objecting churchplan to provide employees with that informationwould go well beyond what this Court’s ordercontemplates and what RFRA can tolerate. But thereare other means through which individuals could

learn about the availability of such contraceptive-onlypolicies and how to enroll. For instance, thegovernment itself could provide that information andassist individuals in enrollment. The governmentalready has the identity and contact information ofpetitioners’ employees through mandatory IRS filings,so it could simply provide information about how toenroll in a contraceptive-only plan to petitioners’employees. The government also has the “name,address, and [taxpayer identification number], or date

4 Of course, if the government is unwilling to accept anyscenario in which the contraceptive coverage does not come fromthe same insurer as the employer coverage, the government stillhas the option that it proposed in the courts below: allowing anyof petitioners’ employees who want contraceptive coverage toobtain subsidized health plans on the Exchanges. See, e.g.,Gov’t.Resp.Br.21 n.4, Little Sisters v. Burwell (10th Cir. 2014)(No. 13-1540). Having itself once proposed sending all ofpetitioners’ employees to the Exchanges, and having nowconceded that the Exchanges suffice for other individuals whocannot get contraceptive coverage through an employer,see Resp.Br.65, the government cannot credibly argue that those

Exchanges are somehow unacceptable or not a less restrictivemeans when it comes to petitioners who self-insure or use self-insured church plans.


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of birth” of each primary policy holder on a minimumessential coverage plan, as well as the name andtaxpayer identification number or birthdate of eachindividual covered under the plan. 26 C.F.R. §1.6055-1(c), (e). Accordingly, the government alternativelycould target its informational and enrollment effortsat individuals who are enrolled in petitioners’ plans(thereby bypassing employees who obtain theircoverage elsewhere, such as through a spouse’semployer that may provide coverage that includescontraceptives, cf. Resp.Br.65 (suggesting mandate-compliant spousal coverage would suffice foremployees of exempt employers)).

The government also could require doctors andother healthcare providers who have no religiousobjections to contraception to provide individuals withinformation about how to enroll in a contraceptive-only plan if their employer’s plan does not include suchcoverage, and to help them complete that processshould they choose to do so.5 Medical professionals arealready required to provide HIPAA privacy

information to patients, see 45 C.F.R. §164.520, sosuch an arrangement clearly would be feasible as apractical matter. And studies suggest that such an

5 The fact that petitioners have religious objections to providingcontraceptive coverage and may opt to not provide such coverageby no means suggests that healthcare providers in theirhealthcare networks necessarily have any objection torecommending or prescribing such coverage. Nor is there anymerit to the government’s suggestions that the exclusion ofcontraceptive coverage from petitioners’ plans would somehow

preclude those healthcare providers from informing enrollees inpetitioners’ plans of their ability to obtain contraceptive coveragethrough other means. Cf. Oral Argument Tr.52-53, 79-80.


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arrangement may actually make it more likely thatthe individual will understand and use contraceptivecoverage.

For instance, several states have developedprograms through which coverage for separate familyplanning services is made available through Medicaidto individuals who are not eligible for other Medicaidcoverage. See Adam Sonfield & Rachel Benson Gold,Guttmacher Institute, “Medicaid Family PlanningExpansions: Lessons Learned and Implications for

the Future” 3-4 (2011), http://bit.ly/22mgO1o. Whilemost of those states initially enrolled eligibleindividuals in those programs automatically, researchrevealed that, “[w]hen surveyed, many [auto-enrolledwomen] do not know or remember that they have beenenrolled, or they do not understand what benefits are(and are not) available to them.” Id. at 9. Some statesthus have shifted to a simple “opt-in” process that canbe completed at the doctor’s office. Accordingly, asystem in which individuals whose employers do notprovide contraceptive coverage can enroll in separate

contraceptive policies with the help of a medicalprofessional may actually more effectively further thegovernment’s ultimate policy objectives.

Again, that is not to say that petitioners endorseor agree with those policy objectives. But the relevantquestion is whether the government can achieve themin a less restrictive manner. It can. Like the optionsdiscussed as to petitioners with insured plans, theseoptions would not require any separate certification ornotification by the petitioner, or otherwise require the

petitioner to do anything to encourage or facilitateaccess to the contraceptive coverage. Instead, the only


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action the petitioner would take is to choose to providea plan that does not include some or all contraceptivecoverage. Once that happened, the petitioner’sinvolvement would be at an end. So, too, would theinvolvement of the petitioner’s plan, as these optionswould not require the contraceptive coverage to beprovided under the auspices of a single plan, with asingle insurance card and a single enrollment process,all connected back to the objecting employer. Thus,here too, the government can achieve its objectivesthrough means less restrictive than its currentregulatory scheme.

* * *

In sum, both in the insured context and in the self-insured context, the current scheme violates RFRA, asit substantially burdens religion and is not the “leastrestrictive means of furthering [a] compellinggovernmental interest.” 42 U.S.C. §2000bb-1(b)(2).The government can get contraceptive coverage topetitioners’ employees—and can even do so throughthe same insurance companies with which some

petitioners contract—without demanding, on pain ofmassive penalties, that petitioners take steps tocomply with the contraceptive mandate. And thegovernment can achieve that end without requiringpetitioners to surrender their health plans to serve asvehicles for the provision of contraceptive coverage.There is thus no reason to allow the government tocontinue to threaten petitioners with financial ruinunless and until they take steps that concededlyviolate their sincere religious beliefs.


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CONCLUSIONThe Court should reverse the judgments of the

Courts of Appeals.

Respectfully submitted,

NOEL J. FRANCISCO Counsel of Record

D AVID T. R AIMER ANTHONY J. DICK JONES DAY51 Louisiana Ave., NW

Washington, DC 20001(202) [email protected]

P AUL M. POHLJOHN D. GOETZ LEON F. DEJULIUS, JR.IRA M. K AROLL JONES DAY500 Grant St.Suite 4500

Pittsburgh, PA 15219

M ATTHEW A. K AIRIS JONES DAY325 John H. McConnell Blvd.Suite 600Columbus, OH 43215


Nos. 14-1418 and 14-1505

P AUL D. CLEMENT Counsel of Record

ERIN E. MURPHY ROBERT M. BERNSTEIN BANCROFT PLLC500 New Jersey Ave., NW

Seventh FloorWashington, DC 20001(202) [email protected]

D AVID A. CORTMAN GREGORY S. B AYLOR JORDAN W. LORENCE K EVIN H. THERIOT M ATTHEW S. BOWMAN RORY T. GRAY

ALLIANCEDEFENDING FREEDOM

440 First St., NWSuite 600Washington, DC 20001


Nos. 15-119 and 15-191


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ROBERT J. MUISE D AVID Y ERUSHALMI AMERICAN FREEDOM LAW CENTERP.O. Box 131098

Ann Arbor, MI 48113

Counsel for petitioner in

Nos. 14-1453

BRADLEY S. TUPI 1500 One PPG Place

Pittsburgh, PA 15222Counsel for

Geneva College

C ARL C. SCHERZ L AURENCE A. H ANSEN LOCKE LORD LLP2200 Ross Ave.Suite 2800Dallas, TX 75201

K EVIN C. W ALSH 28 Westhampton WayRichmond, VA 23173

Counsel for petitioners

in No. 15-105

M ARK RIENZI ERIC C. R ASSBACH H ANNAH C. SMITH DIANA M. VERM

ADÈLE AUXIER K EIMD ANIEL H. BLOMBERG THE BECKET FUND FORRELIGIOUS LIBERTY1200 New Hampshire Ave., NWSuite 700Washington, DC 20036

Counsel for East Texas Baptist University,

Houston Baptist

University, and

petitioners in No. 15-105

K ENNETH R. W YNNE WYNNE & WYNNE LLP1021 Main St., Suite 1275One City CentreHouston, TX 77002

Counsel for Westminster

Theological Seminary

April 12, 2016

2016 04 12 non profits response to zubik order 4-12-16

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