E. Tex. Baptist Univ. v. Burwell

• Decision Date: 22 June 2015
• Docket Number: 14–10241,Nos. 14–20112,14–40212.,14–10661,s. 14–20112
• Citation: 793 F.3d 449
• Parties: EAST TEXAS BAPTIST UNIVERSITY; Houston Baptist University, Plaintiffs–Appellees, Westminster Theological Seminary, Intervenor Plaintiff–Appellee, v. Sylvia Mathews BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services; Thomas Perez, in his official capacity as Secretary of the United States Department of Labor; Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury; United States Department of Health and Human Services; United States Department of Labor; United States Department of Treasury, Defendants–Appellants. University of Dallas, Plaintiff–Appellee, v. Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services; Thomas Perez, in his official capacity as Secretary of the United States Department of Labor; Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury; United States Department of Health And Human Services; United States Department of Labor; United States Department of Treasury, Defendants–Appellants. Catholic Diocese of Beaumont';' Catholic Charities of Southeast Texas, Incorporated, Plaintiffs–Appellees, v. Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services; Thomas Perez, in his official capacity as Secretary of the United States Department of Labor; Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury; United States Department of Health and Human Services; United States Department of Labor, Defendants–Appellants. Catholic Charities, Diocese Of Fort Worth, Incorporated, Plaintiff–Appellee, v. Sylvia Mathews Burwell, in her official capacity as Secretary of the U.S. Department of Health and Human Services; Thomas Perez, in his official capacity as Secretary of the U.S. Department of Labor; Jacob J. Lew, in his official capacity as Secretary, U.S. Department of Treasury; Secretary, U.S. Department of Treasury; United States Department of Health and Human Services; United States Department of Labor; United States Department of Treasury, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

793 F.3d 449

EAST TEXAS BAPTIST UNIVERSITY;

Houston Baptist University, Plaintiffs–Appellees
Westminster Theological Seminary, Intervenor Plaintiff–Appellee
v.
Sylvia Mathews BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services;

Thomas Perez, in his official capacity as Secretary of the United States Department of Labor;

Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury;

United States Department of Health and Human Services;

United States Department of Labor;

United States Department of Treasury, Defendants–Appellants.

University of Dallas, Plaintiff–Appellee
v.
Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services;

Thomas Perez, in his official capacity as Secretary of the United States Department of Labor;

Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury;

United States Department of Health And Human Services;

United States Department of Labor;

United States Department of Treasury, Defendants–Appellants.

Catholic Diocese of Beaumont';

' Catholic Charities of Southeast Texas, Incorporated, Plaintiffs–Appellees
v.
Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services;

Thomas Perez, in his official capacity as Secretary of the United States Department of Labor;

Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury;

United States Department of Health and Human Services;

United States Department of Labor, Defendants–Appellants.

Catholic Charities, Diocese Of Fort Worth, Incorporated, Plaintiff–Appellee
v.
Sylvia Mathews Burwell, in her official capacity as Secretary of the U.S. Department of Health and Human Services;

Thomas Perez, in his official capacity as Secretary of the U.S. Department of Labor;

Jacob J. Lew, in his official capacity as Secretary, U.S. Department of Treasury;

Secretary, U.S. Department of Treasury;

United States Department of Health and Human Services;

United States Department of Labor;

United States Department of Treasury, Defendants–Appellants.

Nos. 14–20112
14–10661
14–10241
14–40212.

United States Court of Appeals, Fifth Circuit.

June 22, 2015.

Eric C. Rassbach (argued), Diana Marie Verm, Washington, DC, Scott A. keller, Solicitor, Austin, TX, Basheer Youssef Ghorayeb, Thomas F. Allen, Jr. (argued), John Walter Crumley, Esq., Natalia Oehninger Delaune, Tamara Marinkovic, Terence M. Murphy, Randal G. Cashiola, Dallas, TX, Fort Worth, TX, for Plaintiff–Appellee.

Kenneth Reed Wynne, Esq. (argued), Wynne & Wynne, L.L.P., Houston, TX, for Intervenor Plaintiff–Appellee.

Adam Craig Jed (argued), Megan Barbero, Esq., Alisa Beth Klein, Esq., Jacek Pruski, Bradley Philip Humphreys, Patrick George Nemeroff, Washington, DC, Joshua Marc Salzman, U.S. Department of Justice, Washington, DC, Daniel David Hu, Asst. U.S. Atty., Houston, TX, for Defendant–Appellant.

Ayesha N. Khan, Esq., Mailee Rebecca Smith, Esq., Washington, DC, Deborah Jane Dewart, Attorney, Swansboro, NC, for Amicus Curiae.

Appeal from the United States District Court for the Southern District of Texas.

Appeal from the United States District Court for the Southern District of Texas.

Appeal from the United States District Court for the Southern District of Texas.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, SMITH, and GRAVES, Circuit Judges.

Opinion

JERRY E. SMITH, Circuit Judge:

In these consolidated appeals, religious organizations challenge, under the Religious Freedom Restoration Act (“RFRA”),¹ a requirement that they either offer their employees health insurance that covers certain contraceptive services or submit a form or notification declaring their religious opposition to that coverage. The district courts held that the requirement violates RFRA or, in one case, that the plaintiffs had demonstrated a substantial likelihood of establishing that it does, so they enjoined the government from enforcing it. Because the plaintiffs have not shown and are not likely to show that the requirement substantially burdens their religious exercise under established law, we reverse.

I.

A.

Under the Affordable Care Act (“ACA”),² employers with fifty or more full-time employees generally must offer their employees a group health plan³ that

793 F.3d 453

provides “minimum essential coverage.” See 26 U.S.C. §§ 4980H(a), (c)(2), 5000A(f)(2). Plans typically must cover all FDA-approved contraceptive methods and sterilization procedures for women⁴ without copayments or deductibles.⁵ Two types of plans are automatically exempt from the so-called contraceptive mandate: grandfathered plans, meaning those that have not made certain specified changes since March 2010, see 42 U.S.C. § 18011(a), and plans offered by religious employers, defined by reference to the Tax Code to include mostly churches themselves, as distinguished from associated educational or charitable institutions.⁶ An employer that does not comply with these requirements faces draconian penalties: $2,000 per full-time employee per year for not offering a plan at all⁷ and $100 per affected individual per day for offering a plan that provides insufficient coverage, 26 U.S.C. § 4980D(a), (b)(1).

An “accommodation” is available to religious entities that do not qualify as religious employers but seek exemption from the mandate. To avail itself of that option, (1) an organization must oppose, on religious grounds, providing coverage for some or all contraceptives; (2) it must be organized as a nonprofit; (3) it must hold itself out as religious; and (4) it must certify that it satisfies the foregoing criteria.⁸ It can certify in two ways.

The first way is to complete EBSA⁹ Form 700 and send it to its insurer or third-party administrator.¹⁰ The person signing the form must certify that the organization meets the requirements and that the form is believed to be correct.¹¹ The form requires the name of the organization, the name and title of the person signing it, and contact information. Dep't of Labor,supra note 11, at 1. The second way in which an organization can certify is to submit a notice to the Department of Health and Human Services (“HHS”).¹² The notice need not take a particular form but must include the name of the organization; a statement that it opposes, on religious grounds, providing coverage for some or all contraceptives; the name and type of the plan; and the name and contact information of the plan's insurer or third-party administrator, if applicable.¹³

The effect of applying for the accommodation depends on the type of plan and

793 F.3d 454

method of certification. If an employer with an insured plan uses Form 700, the insurer must exclude the objectionable coverage from the plan and provide “separate payments” for contraceptives for plan participants.¹⁴ The insurer may not impose any direct or indirect costs for contraceptives on the employer or participants.¹⁵ In addition, it must send a notice to participants, separately from plan materials, explaining that the employer does not administer or fund contraceptives but that, instead, the insurer provides separate payments.¹⁶ If an employer with an insured plan submits a notice to HHS, then HHS notifies the insurer of its obligations, which are the same as if the employer had used Form 700.¹⁷

The process for self-insured plans is somewhat different. If an employer with a self-insured plan uses Form 700, the third-party administrator, if there is one, must either provide separate payments (as an insurer would) or arrange for an insurer or other entity to do so. See 29 C.F.R. § 2590.715–2713A(b)(2). Third-party administrators and insurers that pay for contraceptives in this circumstance are eligible for government reimbursement of 115% of their expenses.¹⁸ The prohibition on imposing costs and the notice requirement are the same as for insured plans.¹⁹ Moreover, the form “shall be an instrument under which the plan is operated, shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for [contraceptives], and shall supersede any earlier designation.” Id. § 2510.3–16(b).

If an employer with a self-insured plan submits a notice to HHS, then HHS notifies the Department of Labor, which in turn notifies the third-party administrator of its obligations. See id. § 2590.715–2713A(b)(1)(ii)(B). The result is the same as if the employer had used Form 700, id. § 2590.715–2713A(b)(1)(ii)(B), (2), except that it is the notice from the Department of Labor, instead of Form 700, that is treated as an instrument under which the plan is operated and as designation of the plan administrator, id. § 2510.3–16(b).

B.

The plaintiffs are religious organizations that oppose the use of some or all contraceptives. The sincerity of their beliefs is undisputed. The Dioceses of Fort Worth and Beaumont are automatically exempt from the mandate as religious employers, and the other plaintiffs are eligible for the accommodation.

The plaintiffs in East Texas Baptist University are East Texas...