of RFRA tends not to be in dispute in nonprofit challenges.
The substantial burden question arises in the non-profit cases, but the
analysis differs. As noted, federal regulations provide an accommodation
for certain non-profit religious organizations. However, some organizations
claim that the very act of completing the self-certification form violates
their religious beliefs by facilitating the subsequent provision of contraceptive coverage by a third party. Some district courts agree.
75 Roman Catholic
Archbishop of Washington v. Sebelius,
76 while deciding that the self-certification requirement did not burden a fully-insured plaintiff, concluded
that it did impose a substantial burden on self-insured plaintiffs, forcing
them to choose between incurring monetary fines or facilitating access to
contraception devices which the institution considered sinful and immoral.
By contrast, in Michigan Catholic Conference v. Burwell, the Sixth Circuit explained that “[t]he obligation to cover contraception will not be triggered by the act of self-certification—it already was triggered the enactment
of the ACA.”
78 The court accordingly concluded that the “inability to ‘
restrain the behavior of a third party that conflicts with [one’s] religious beliefs, dot not impose a burden on the . . . exercise of religion.”
in Wheaton College v. Burwell, the district court refused to enter an injunction, and Wheaton College appealed.
80 The Seventh Circuit denied Wheaton
College’s motion for an injunction pending appeal and, just after issuing
Hobby Lobby, the Court granted the College’s application for an injunction
36 (Ginsburg, J., dissenting).
75. See e.g., E. Tex. Baptist Univ. v. Sebelius, No. 4:12-cv-3009, 2013 WL 6838893
(S. D. Tex. Dec. 27, 2013); Geneva Coll. v. Sebelius, No. 12-0207, 2013 WL 6835094 (W. D.
Pa. Dec. 23, 2013); S. Nazarene Univ. v. Sebelius, No. CIV-13-1015-F, 2013 WL 6804265
(W. D. Okla. Dec. 23, 2013); Legatus v. Sebelius, No. 12-12061, 2013 WL 6768607 (E. D.
Mich. Dec. 20, 2013); Roman Catholic Archdiocese of N. Y. v. Sebelius, No. 1:12-cv-02542-
BMC, 2013 WL 6579764 (E. D.N. Y. Dec. 16, 2013).
76. Roman Catholic Archbishop of Wash. v. Sebelius, No. 13-1441 (ABJ), 2013 WL
6729515, at 2 ( D. D. C. Dec. 20, 2013), emergency motion for injunction pending appeal
granted, No. 13-5371 ( D. C. Cir. Dec. 31, 2013).
77. Id. at 20, 22 (holding that self-certification requirement did not impose substantial
burden on university offering health insurance through insured group plan and finding “
obligation to take affirmative steps to identify and contract with a willing third-party administrator if the existing third-party administrator declines, forces the religious organization to do
something to accomplish an end that is inimical to its beliefs” and it does so “upon pain of
substantial financial penalties”).
78. Mich. Catholic Conference & Catholic Family Servs. v. Burwell, Nos. 13-2723 &
13-6640, 2014 WL 2596753, at 9 (6th Cir. June 11, 2014); see also Univ. of Notre Dame v.
Sebelius, 743 F.3d 547, 555-56 (7th Cir. 2014) (affirming district court’s denial of preliminary relief and reasoning that ACA, not self-certification form, requires health plan to cover
79. Mich. Catholic Conference, 2014 WL 2596753, at 9-10.
80. Wheaton Coll. v. Burwell, No. 1:13-cv-08910, 2014 WL 2826336, at 5 (N. D. Ill.
June 23, 2014), injunction pending appeal granted No. 13A1284, 2014 WL 3020426, 1-2
(U.S. July 3, 2014).