1
`
`Cite as: 573 U. S. ____ (2014)
`
`
`SOTOMAYOR, J., dissenting
` Order in Pending Case
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 13A1284
`_________________
`
` WHEATON COLLEGE v. SYLVIA BURWELL,
`
` SECRETARY OF HEALTH AND HUMAN
`
`
`SERVICES, ET AL.
`
`
`
`ON APPLICATION FOR INJUNCTION
`[July 3, 2014]
`The application for an injunction having been submitted
`
`to JUSTICE KAGAN and by her referred to the Court, the
`Court orders: If the applicant informs the Secretary of
`
`Health and Human Services in writing that it is a non-
`
`profit organization that holds itself out as religious and
`has religious objections to providing coverage for contra-
`ceptive services, the respondents are enjoined from enforc-
`ing against the applicant the challenged provisions of the
`Patient Protection and Affordable Care Act and related
`
`regulations pending final disposition of appellate review.
`To meet the condition for injunction pending appeal, the
`applicant need not use the form prescribed by the Gov-
`ernment, EBSA Form 700, and need not send copies to
`health insurance issuers or third-party administrators.
`The Circuit Courts have divided on whether to enjoin
`
`the requirement that religious nonprofit organizations use
`EBSA Form 700. Such division is a traditional ground for
`certiorari. See S. Ct. Rule 10(a).
`
`Nothing in this interim order affects the ability of the
`
`applicant’s employees and students to obtain, without cost,
`the full range of FDA approved contraceptives. The Gov-
`ernment contends that the applicant’s health insurance
`issuer and third-party administrator are required by
`federal law to provide full contraceptive coverage regard-
`less whether the applicant completes EBSA Form 700.
`
`
`
`
`
`
`
`

`
`2
`
`
`
`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`The applicant contends, by contrast, that the obligations of
`its health insurance issuer and third-party administrator
`are dependent on their receipt of notice that the applicant
`objects to the contraceptive coverage requirement. But
`the applicant has already notified the Government—
`without using EBSA Form 700—that it meets the re-
`quirements for exemption from the contraceptive coverage
`requirement on religious grounds. Nothing in this order
`precludes the Government from relying on this notice, to
`the extent it considers it necessary, to facilitate the provi-
`sion of full contraceptive coverage under the Act.
`
`In light of the foregoing, this order should not be con-
`
`strued as an expression of the Court’s views on the merits.
`JUSTICE SCALIA concurs in the result.
` JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
`
`and JUSTICE KAGAN join, dissenting.
`
`The Patient Protection and Affordable Care Act, 124
`
`Stat. 119, through its implementing regulations, requires
`employer group health insurance plans to cover contracep-
`tive services without cost sharing. Recognizing that peo-
`ple of religious faith may sincerely oppose the provision of
`contraceptives, the Government has created certain excep-
`tions to this requirement. Churches are categorically
`exempt. Any religious nonprofit is also exempt, as long as
`it signs a form certifying that it is a religious nonprofit
`that objects to the provision of contraceptive services, and
`provides a copy of that form to its insurance issuer or
`third-party administrator. The form is simple. The front
`asks the applicant to attest to the foregoing representa-
`tions; the back notifies third-party administrators of their
`
`regulatory obligations.
`
`The matter before us is an application for an emergency
`
`injunction filed by Wheaton College, a nonprofit liberal
`arts college in Illinois. There is no dispute that Wheaton
`is entitled to the religious-nonprofit exemption from the
`
`
`
`
`
`

`
`3
`
`
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
`contraceptive coverage requirement. Wheaton nonethe-
`less asserts that the exemption itself impermissibly bur-
`dens Wheaton’s free exercise of its religion in violation of
`the Religious Freedom Restoration Act of 1993 (RFRA),
`107 Stat. 1488, 42 U. S. C. §2000bb et seq., on the theory
`that its filing of a self-certification form will make it com-
`
`plicit in the provision of contraceptives by triggering the
`obligation for someone else to provide the services to
`
`
`which it objects. Wheaton has not stated a viable claim
`under RFRA. Its claim ignores that the provision of con-
`traceptive coverage is triggered not by its completion of
`the self-certification form, but by federal law.
`
`Even assuming that the accommodation somehow bur-
`dens Wheaton’s religious exercise, the accommodation is
`permissible under RFRA because it is the least restrictive
`means of furthering the Government’s compelling inter-
`ests in public health and women’s well-being. Indeed, just
`earlier this week in Burwell v. Hobby Lobby Stores, Inc.,
`
`ante, at ___, the Court described the accommodation as “a
`system that seeks to respect the religious liberty of reli-
`gious nonprofit corporations while ensuring that the em-
`ployees of these entities have precisely the same access to
`all [Food and Drug Administration (FDA)]-approved con-
`traceptives as employees of companies whose owners have
`
`no religious objections to providing such coverage.” Ante,
`at 3. And the Court concluded that the accommodation
`“constitutes an alternative that achieves all of the Gov-
`
`ernment’s aims while providing greater respect for reli-
`
`gious liberty.” Ibid. Those who are bound by our decisions
`usually believe they can take us at our word. Not so to-
`day. After expressly relying on the availability of the
`religious-nonprofit accommodation to hold that the contra-
`ceptive coverage requirement violates RFRA as applied to
`closely held for-profit corporations, the Court now, as the
`dissent in Hobby Lobby feared it might, see ante, at 29–30
`(GINSBURG, J., dissenting), retreats from that position.
`
`
`
`
`
`
`
`

`
`
`
`4
`
`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`That action evinces disregard for even the newest of this
`Court’s precedents and undermines confidence in this
`institution.
`Even if one accepts Wheaton’s view that the self-
`
`certification procedure violates RFRA, that would not
`justify the Court’s action today. The Court grants
`Wheaton a form of relief as rare as it is extreme: an inter-
`locutory injunction under the All Writs Act, 28 U. S. C.
`§1651, blocking the operation of a duly enacted law and
`regulations, in a case in which the courts below have not
`yet adjudicated the merits of the applicant’s claims and in
`which those courts have declined requests for similar
`
`Injunctions of this nature are proper
`injunctive relief.
`only where “the legal rights at issue are indisputably
`clear.” Turner Broadcasting System, Inc. v. FCC, 507
`
`U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers)
`(internal quotation marks omitted). Yet the Court today
`orders this extraordinary relief even though no one could
`credibly claim Wheaton’s right to relief is indisputably
`clear.
`The sincerity of Wheaton’s deeply held religious beliefs
`
`is beyond refute. But as a legal matter, Wheaton’s appli-
`cation comes nowhere near the high bar necessary to
`warrant an emergency injunction from this Court. For
`that reason, I respectfully dissent.
`I
`
`A
`
`
`The Affordable Care Act requires certain employer
`group health insurance plans to cover a number of preven-
`tative-health services without cost sharing. These services
`include “[a]ll Food and Drug Administration . . . approved
`contraceptive methods, sterilization procedures, and pa-
`tient education and counseling for all women with repro-
`ductive capacity, as prescribed by a provider.” 77 Fed.
`Reg. 8725 (2012) (brackets and internal quotation marks
`
`
`
`
`
`
`
`

`
`
`
`5
`
`
`Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
`omitted). As a practical matter, the provision ensures that
`
`women have access to contraception at no cost beyond
`their insurance premiums. Employers that do not comply
`with the mandate are subject to civil penalties.
`Recognizing that some religions disapprove of contra-
`
`ceptives, the Government has sought to implement the
`mandate in a manner consistent with the freedom of
`conscience.
`It has categorically exempted any group
`health plan of a “religious employer,” as defined by refer-
`ence to the Tax Code provision governing churches. See
`45 CFR §147.131(a); http://hrsa.gov/womensguidelines (as
`visited July 2, 2014, and available in Clerk of Court’s case
`file). And it has extended a further accommodation to
`religious nonprofits that do not satisfy the categorical
`exemption. All agree that Wheaton qualifies as a religious
`nonprofit.
`To invoke the accommodation and avoid civil penalties,
`
`a religious nonprofit need only file a self-certification form
`stating (1) that it “opposes providing coverage for some or
`all of any contraceptive services required to be covered
`under [the regulation] on account of religious objections,”
`(2) that it “is organized and operates as a nonprofit en-
`
`
` tity,” and (3) that it “holds itself out as a religious organiza-
`tion.” §147.131(b). The form is reprinted in an appendix
`to this opinion. Any organization that completes the form
`
`and provides a copy to its insurance issuer or third-party
` administrator1 need not “contract, arrange, pay, or refer
`
`for contraceptive coverage” to which it objects. 78 Fed.
`
`Reg. 39874 (2013); see 29 CFR §2590.715–2713A(b)(1) and
`(c)(1). Instead, the insurance issuer or third-party admin-
`——————
`1Typically, an employer contracts to pay a health insurer to provide
`
` coverage; the insurer both covers the cost of medical claims and man-
` ages the process for administering those claims. Employers who
`
`maintain self-insured plans cover the cost of claims for medical treat-
`ment directly. Such employers often contract with third-party adminis-
`
` trators to administer the claims process.
`
`
`
`
`
`
`
`

`
`6
`
`
`
`WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`istrator must provide contraceptive coverage for the organ-
`ization’s employees and may not charge the organization
`any premium or other fee related to those services. The
`back of the self-certification form reminds third-party
`administrators that receipt of the form constitutes notice
`
`that they must comply with their regulatory obligations.
`See Appendix, infra.
`
`
`
`B
`
`Rather than availing itself of this simple accommoda-
`tion, Wheaton filed suit, asserting that completing the
`form and submitting it to its third-party administrator
`would make it complicit in the provision of contraceptive
`coverage, in violation of its religious beliefs. On that
`basis, it sought a preliminary injunction, claiming that the
`law and regulations at issue violate RFRA, which provides
`that the Government may not “substantially burden a
`person’s exercise of religion” unless the application of that
`burden “is the least restrictive means of furthering [a]
`compelling governmental interest.” 42 U. S. C. §§2000bb–
`
`1(a) and (b).2
`The District Court denied a preliminary injunction on
`
`the ground that the regulations exempting Wheaton from
`the contraceptive coverage requirement do not substan-
`tially burden its exercise of religion. App. to Emergency
`Application for Injunction Pending Appellate Review 1–20.
`
`Under Circuit precedent, the court reasoned, Wheaton’s
`act of “filling out the form and sending it to the [third-
`party administrator]” in no way “triggers” coverage of
`contraception costs. Id., at 9 (internal quotation marks
`omitted). The Seventh Circuit in turn denied Wheaton’s
`motion for an injunction pending appeal. See Order in No.
`14–2396 (CA7, June 30, 2014). In doing so, it relied on
`——————
`2Wheaton also raised claims under the First Amendment and the
`Administrative Procedure Act. Because it does not press those claims
`
` in this Court as a basis for injunctive relief, I do not discuss them.
`
`
`
`
`
`
`
`

`
`7
`
`
`
`
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
`this Court’s pronouncement in Hobby Lobby “that the
`accommodation provision (applicable in this case) ‘consti-
`tutes an alternative that achieves all of the Government’s
`aims while providing greater respect for religious liberty.’”
`
`Ibid.
`Wheaton applied to JUSTICE KAGAN, in her capacity as
`
`Circuit Justice for the Seventh Circuit, for an emergency
`injunction against enforcement of the law and regulations
`pending resolution of its legal challenge. She referred the
`matter to the Conference, which entered a temporary
`injunction and called for a response from the Government.
`See ante, at ___. After receipt of the Government’s re-
`sponse, the Court today enters an order granting injunc-
`tive relief.
`
`
`
`II
`
`
`A
`
`I disagree strongly with what the Court has done.
`
`Wheaton asks us to enjoin the enforcement of a duly en-
`acted law and duly promulgated regulations before the
`courts below have passed on the merits of its legal chal-
`lenge. Relief of this nature is extraordinary and reserved
`for the rarest of cases. With good reason. The only source
`of authority for this Court to issue an injunction pending
`review in the lower courts is the All Writs Act, which
`provides that this Court “may issue all writs necessary or
`appropriate in aid of [its] . . . jurisdictio[n] and agreeable
`to the usages and principles of law.” 28 U. S. C. §1651(a).
`This grant of equitable power is a failsafe, “to be used
`‘sparingly and only in the most critical and exigent cir-
`cumstances.’” Ohio Citizens for Responsible Energy,
`
`
` Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (SCALIA, J., in
`
`chambers).
`Under our precedents, “[a]n injunction is appropriate
`
`only if (1) it is necessary or appropriate in aid of our juris-
`diction, and (2) the legal rights at issue are indisputably
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`8
`
`
`
`WHEATON COLLEGE v. BURWELL
`
`
` SOTOMAYOR, J., dissenting
`
` clear.” Turner Broadcasting System, 507 U. S., at 1303
`
`(brackets, internal quotation marks, and citations omit-
`ted).3 To understand how high a bar that second prong is,
`consider that this Court has previously pointed to differ-
`ences of opinion among lower courts as proof positive that
`the standard has not been met. See Lux v. Rodrigues, 561
`U. S. 1306, 1308 (2010) (ROBERTS, C. J., in chambers)
`
`(observing that “the courts of appeals appear to be reach-
`ing divergent results” respecting the applicant’s claim, and
`that, “[a]ccordingly, . . . it cannot be said that his right to
`relief is ‘indisputably clear’”). Neutral application of this
`
`principle would compel the denial of Wheaton’s application
`without any need to examine the merits, for two Courts of
`Appeals that have addressed similar claims have rejected
`them. See Notre Dame v. Sebelius, 743 F. 3d 547 (CA7
`2014); Michigan Catholic Conference and Catholic Family
`
`Services v. Burwell, ___ F. 3d ___, 2014 WL 2596753 (CA6,
`June 11, 2014).4 Remarkably, the Court uses division
`——————
`3Indeed, some of my colleagues who act to grant relief in this case
`
`have themselves emphasized the exceedingly high burden that an
`
` applicant must surmount to obtain an interlocutory injunction under
`the All Writs Act. See Lux v. Rodrigues, 561 U. S. 1306, 1307 (2010)
`(ROBERTS, C. J., in chambers) (an applicant must demonstrate that “the
`legal rights at issue are indisputably clear” in order to obtain such
`injunctive relief) (internal quotation marks omitted); Respect Maine
`PAC v. McKee, 562 U. S. ___, ___ (2010) (unlike a stay of a lower court’s
`order, a request for an injunction against the enforcement of a law
`“ ‘does not simply suspend judicial alteration of the status quo but
`
`
`grants judicial intervention that has been withheld by lower courts’ ”)
`
`
`
`(quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S.
`1312, 1313 (1986) (SCALIA, J., in chambers)).
`4To be sure, two other Courts of Appeals have recently granted tem-
`porary injunctions similar to the one Wheaton seeks here. See Order in
`Eternal Word Television Network, Inc. v. Secretary, U. S. Dept. of
`Health and Human Services, No. 14–12696–CC (CA11, June 30, 2014)
`(granting injunction pending appeal); Order in Diocese of Cheyenne v.
`Burwell, No. 14–8040 (CA10, June 30, 2014) (same). Although denying
`the injunction in this case would produce a different outcome, the
`Government could of course move to vacate those injunctions were we
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
`
` among the Circuits as a justification for the issuance of its
`order, noting that “division is a traditional ground for
`certiorari.” Supra, at 1. But a petition for writ of certio-
`rari is not before us. Rather, given the posture of this appli-
`cation—for an emergency injunction under the All Writs
`Act—division of authority is reason not to grant relief.
`B
`Wheaton’s RFRA claim plainly does not satisfy our
`
`demanding standard for the extraordinary relief it seeks.
`
`For one thing, the merits of this case are not before this
`
`Court for full review; adjudication of the merits is still
`pending in the District Court. So nothing necessitates
`intervention in order to “‘aid . . . our jurisdiction,’” Turner
`Broadcasting System, 507 U. S., at 1301 (alterations omit-
`
`ted), over any eventual certiorari petition from a decision
`rendered below. If the Government is allowed to enforce
`the law, either Wheaton will file the self-certification form,
`or it will not. Either way, there will remain a live contro-
`versy that this Court could adjudicate after the case is
`decided on the merits below. And either way, if Wheaton
`is correct in its challenge to the law, its rights will be
`vindicated and it will obtain the relief it seeks.
`
`
`As to the merits, Wheaton’s claim is likely to fail under
`any standard, let alone the standard that its entitlement
`to relief be “‘indisputably clear,’” ibid. Wheaton asserts
`that filing the self-certification form might ultimately
`result in the provision of contraceptive services to its
`employees, thereby burdening its religious exercise. And
`it points out that if it does not file the form, it will face
`civil penalties. But it is difficult to understand how these
`arguments make out a viable RFRA claim.
`
`RFRA requires Wheaton to show that the accommoda-
`
`
`
`
`
`
`
`
`
`
`
`9
`
`
`
`
`
`——————
`
`to deny this one. Moreover, while uniformity certainly is important,
`
`uniform error is not.
`
`
`
`
`
`

`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`tion process “substantially burden[s] [its] exercise of reli-
`gion.” §2000bb–1(a). “Congress no doubt meant the modi-
`
`fier ‘substantially’ to carry weight.” Hobby Lobby, 573
`U. S., at ___ (GINSBURG, J., dissenting) (slip op., at 20).
`
`
`
`Wheaton, for religious reasons, categorically opposes the
`provision of contraceptive services. The Government has
`given it a simple means to opt out of the contraceptive
`coverage mandate—and thus avoid any civil penalties for
`failing to provide contraceptive services—and a simple
`means to tell its third-party administrator of its claimed
`exemption.
`Yet Wheaton maintains that taking these steps to avail
`
`itself of the accommodation would substantially burden its
`religious exercise. Wheaton is “religiously opposed to
`emergency contraceptives because they may act by killing
`a human embryo.” Emergency Application for Injunction
`Pending Appellate Review 11. And it “believes that au-
`thorizing its [third-party administrator] to provide these
`
`drugs in [its] place makes it complicit in grave moral evil.”
`Ibid. Wheaton is mistaken—not as a matter of religious
`faith, in which it is undoubtedly sincere, but as a matter of
`law: Not every sincerely felt “burden” is a “substantial”
`
`one, and it is for courts, not litigants, to identify which
`are. See Hobby Lobby, 573 U. S., at ___ (GINSBURG, J.,
`
`
`dissenting) (slip op., at 21–22). Any provision of contra-
`
`ceptive coverage by Wheaton’s third-party administrator
`would not result from any action by Wheaton; rather, in
`every meaningful sense, it would result from the relevant
`law and regulations. The law and regulations require, in
`
`essence, that some entity provide contraceptive coverage.
`A religious nonprofit’s choice not to be that entity may
`leave someone else obligated to provide coverage instead—
`but the obligation is created by the contraceptive coverage
`mandate imposed by law, not by the religious nonprofit’s
`
`
`
`
`
`
`
`
`
`10
`
`
`

`
`
`
`
`11
`
`
`
`
`Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
` choice to opt out of it.5
`Let me be absolutely clear: I do not doubt that Wheaton
`
`genuinely believes that signing the self-certification form
`is contrary to its religious beliefs. But thinking one’s
`religious beliefs are substantially burdened—no matter
`how sincere or genuine that belief may be—does not make
`it so.
`
`An analogy used by the Seventh Circuit may help to
`
`explain why Wheaton’s complicity theory cannot be legally
`sound:
`“Suppose it is wartime, there is a draft, and a Quaker
`is called up. Many Quakers are pacifists, and their
`pacifism is a tenet of their religion. Suppose the
`Quaker who’s been called up tells the selective service
`system that he’s a conscientious objector. The selec-
`tive service officer to whom he makes this pitch ac-
`cepts the sincerity of his refusal to bear arms and ex-
`cuses him. But as the Quaker leaves the selective
`service office, he’s told: ‘you know this means we’ll
`have to draft someone in place of you’—and the Quaker
`replies indignantly that if the government does
`that, it will be violating his religious beliefs. Because
`his religion teaches that no one should bear arms,
`drafting another person in his place would make him
`responsible for the military activities of his replace-
`ment, and by doing so would substantially burden his
`own sincere religious beliefs. Would this mean that
`by exempting him the government had forced him to
`——————
`5Wheaton notes that the back of the self-certification form provides
`
`
`third-party administrators with notice of their regulatory obligations.
`
`See Emergency Application for Injunction Pending Appellate Review 8;
`see also Appendix, infra. That notice is merely an instruction to third-
`
`
`party administrators; it is not a part of any of the representations
`
`required on the front of the form. No statement to which Wheaton
`must assent in any way reflects agreement with or endorsement of the
`
`notice.
`
`
`
`
`
`
`
`
`
`

`
`12
`
`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`‘trigger’ the drafting of a replacement who was not a
`conscientious objector, and that the Religious Free-
`dom Restoration Act would require a draft exemption
`
`for both the Quaker and his non‐Quaker replace-
`
`
`
`ment?” Notre Dame, 743 F. 3d, at 556.
`Here, similarly, the filing of the self-certification form
`
`
` merely indicates to the third-party administrator that a
`religious nonprofit has chosen to invoke the religious
`accommodation. If a religious nonprofit chooses not to pay
`for contraceptive services, it is true that someone else may
`have a legal obligation to pay for them, just as someone
`may have to go to war in place of the conscientious objec-
`tor. But the obligation to provide contraceptive services,
`like the obligation to serve in the Armed Forces, arises not
`from the filing of the form but from the underlying law
`
`and regulations.
`
`It may be that what troubles Wheaton is that it must
`participate in any process the end result of which might be
`the provision of contraceptives to its employees. But that
`is far from a substantial burden on its free exercise of
`
`religion.
`
`Even if one were to conclude that Wheaton meets the
`substantial burden requirement, the Government has
`shown that application of the burden is “the least restric-
`tive means” to further a “compelling governmental inter-
`est,” §2000bb–1(b)(2). The contraceptive coverage re-
`
`quirement plainly furthers compelling interests in public
`health and women’s well-being. See Hobby Lobby, ante, at
`2 (KENNEDY, J. concurring). And it is the “least restrictive
`
`
`means” of furthering those interests. Indeed, as justifica-
`tion for its decision in Hobby Lobby—issued just this
`week—the very Members of the Court that now vote to
`
`grant injunctive relief concluded that the accommodation
`“constitutes an alternative that achieves all of the Gov-
`ernment’s aims while providing greater respect for reli-
`
`
`
`
`

`
`
`
` 13
`
`
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
` gious liberty.” Ante, at 3 (majority opinion); see also ante,
`
`at 4 (“The effect of the [Dept. of Health and Human Ser-
`vices (HHS)]-created accommodation on the women em-
`ployed by Hobby Lobby and the other companies involved
`in these cases would be precisely zero. Under that ac-
`commodation, these women would still be entitled to all
`FDA-approved contraceptives without cost sharing”); ante,
`at 44 (“At a minimum . . . [the accommodation] does not
`impinge on the plaintiffs’ religious belief that providing
`insurance coverage for the contraceptives at issue here
`violates their religion, and it serves HHS’s stated interests
`equally well”); see also ante, at 4 (KENNEDY, J., concur-
`
`
`ring) (“[I]t is the Court’s understanding that an accommo-
`dation may be made to the employers without imposition
`of a whole new program or burden on the Government. As
`the Court makes clear, this is not a case where it can be
`
`established that it is difficult to accommodate the govern-
`ment’s interest, and in fact the mechanism for doing so is
`already in place”). Today’s grant of injunctive relief sim-
`ply does not square with the Court’s reasoning in Hobby
`Lobby.
`It should by now be clear just how far the Court has
`
`strayed in granting Wheaton an interlocutory injunction
`against the enforcement of the law and regulations before
`the courts below have adjudicated Wheaton’s RFRA claim.
`
`To warrant an injunction under the All Writs Act, the
`Court must have more than a bare desire to suspend the
`existing state of affairs; Wheaton’s entitlement to relief
`
`must be indisputably clear. While Wheaton’s religious
`conviction is undoubtedly entitled to respect, it does not
`come close to affording a basis for relief under the law.
`C
`The Court’s approach imposes an unwarranted and
`
`unprecedented burden on the Government’s ability to
`administer an important regulatory scheme. The Execu-
`
`
`
`
`
`

`
`
`
`
`
`14
`
`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`
` tive is tasked with enforcing Congress’ mandate that
`preventative care be available to citizens at no cost beyond
`that of insurance. In providing the accommodation for
`which Wheaton is eligible, the Government has done a
`salutary thing: exempt religious organizations from a
`requirement that might otherwise burden them. Wheaton
`objects, however, to the minimally burdensome paperwork
`necessary for the Government to administer this ac-
`commodation.
`If the Government cannot require or-
`ganizations to attest to their views by way of a simple
`
`self-certification form and notify their third-party admin-
`istrators of their claimed exemption, how can it ever iden-
`tify the organizations eligible for the accommodation and
`perform the administrative tasks necessary to make the
`accommodation work? The self-certification form is the
`least intrusive way for the Government to administer the
`accommodation. All that a religious organization must do
`is attest to the views that it holds and notify its third-
`party administrator that it is exempt. The Government
`rightly accepts that attestation at face value; it does not
`question whether an organization’s views are sincere. It is
`not at all clear to me how the Government could adminis-
`ter the religious nonprofit accommodation if Wheaton
`were to prevail.
`
`The Court has different ideas, however. Stepping into
`the shoes of HHS, the Court sets out to craft a new admin-
`istrative regime. Its order grants injunctive relief so long
`as Wheaton “informs the Secretary of Health and Human
`Services in writing that it is a non-profit organization that
`holds itself out as religious and has religious objections to
`providing coverage for contraceptive services.” Supra, at
`1. And it goes further—“[t]o meet the condition for injunc-
`tion pending appeal,” the Court continues, Wheaton “need
`not use the [self-certification] form prescribed by the
`Government . . . and need not send copies to health insur-
`
`ance issuers or third-party administrators.” Ibid. This
`
`
`
`
`
`

`
`
`
`
`15
`
`
`Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
`Court has no business rewriting administrative regula-
`
`tions. Yet, without pause, the Court essentially does just
`
`that.6
`
`It is unclear why the Court goes to the lengths it does to
`rewrite HHS’s regulations. Presumably the Court intends
`to leave to the agency the task of forwarding whatever
`notification it receives to the respective insurer or third-
`party administrator. But the Court does not even require
`the religious nonprofit to identify its third-party adminis-
`trator, and it neglects to explain how HHS is to identify
`that entity. Of course, HHS is aware of Wheaton’s third-
`
`party administrator in this case. But what about other
`cases? Does the Court intend for HHS to rely on the filing
`of lawsuits by every entity claiming an exemption, such
`that the identity of the third-party administrator will
`emerge in the pleadings or in discovery? Is HHS to under-
`take the daunting—if not impossible—task of creating a
`database that tracks every employer’s insurer or third-
`
`
`
`
`
`——————
` 6This case is crucially unlike Little Sisters of the Poor v. Sebelius, 571
`
`
`U. S. ___ (2014). There, the Court issued a comparable order “based on
`all the circumstances of the case”—in particular, the fact that the
`applicants’ third-party administrator was a “church plan” that had no
`legal obligation or intention to provide contraceptive coverage. See
`
` Little Sisters of the Poor v. Sebelius, 2013 WL 6839900, *10–*11, *13 (D
`Colo., Dec. 27, 2013). As a consequence, whatever the merits of that
`
` unusual order, it did not affect any individual’s access to contraceptive
`coverage. Not so here. Wheaton’s third-party administrator bears the
`legal obligation to provide contraceptive coverage only upon receipt of a
`valid self-certification. See 26 CFR §54.9815–2713A(b)(2) (2013); 29
`CFR §2510.3–16(b) (2013). Today’s injunction thus risks depriving
`
`hundreds of Wheaton’s employees and students of their legal entitle-
`ment to contraceptive coverage. In addition, because Wheaton is
`materially indistinguishable from other nonprofits that object to the
`Government’s accommodation, the issuance of an injunction in this case
`will presumably entitle hundreds or thousands of other objectors to the
`same remedy. The Court has no reason to think that the administra-
`tive scheme it foists on the Government today is workable or effective
`on a national scale.
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`party administrator nationwide? And, putting that aside,
`
`why wouldn’t Wheaton’s claim be exactly the same under
`the Court’s newly-fashioned system? Either way, the end
`result will be that a third-party administrator will provide
`contraceptive coverage. Surely the Court and Wheaton
`are not just objecting to the use of one stamp instead of
`two in order to avail itself of the accommodation.
`The Court’s actions in this case create unnecessary costs
`
`and layers of bureaucracy, and they ignore a simple truth:
`The Government must be allowed to handle the basic
`tasks of public administration in a manner that comports
`with common sense. It is not the business of this Court to
`ensnare itself in the Government’s ministerial handling of
`its affairs in the manner it does here.
`
`
`*
`*
`*
`I have deep respect for religious faith, for the important
`
`
`and selfless work performed by religious organizations,
`and for the values of pluralism protected by RFRA and the
`Free Exercise Clause. But the Court’s grant of an injunc-
`tion in this case allows Wheaton’s beliefs about the effects
`of its actions to trump the democratic interest in allowing
`the Government to enforce the law. In granting an injunc-
`tion concerning this religious nonprofit accommodation,
`the availab