Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 19–431 and 19–454

															_________________

															LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME, PETITIONER

															19–431 v. PENNSYLVANIA, et al.

															DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al., PETITIONERS

															19–454 v. PENNSYLVANIA, et al.

															on writs of certiorari to the united states
court of appeals for the third circuit

															[July 8, 2020]

															Justice Thomas delivered the opinion of the
Court.

															In these consolidated cases, we decide whether
the Government created lawful exemptions from a regulatory
requirement implementing the Patient Protection and Affordable Care
Act of 2010 (ACA), 124Stat. 119. The requirement at issue obligates
certain employers to provide contraceptive coverage to their
employees through their group health plans. Though contraceptive
coverage is not required by (or even mentioned in) the ACA
provision at issue, the Government mandated such coverage by
promulgating interim final rules (IFRs) shortly after the ACA’s
passage. This requirement is known as the contraceptive
mandate.

															After six years of protracted litigation, the
Departments of Health and Human Services, Labor, and the Treasury
(Departments)—which jointly administer the relevant ACA
provision[ 1 ]—exempted certain
employers who have religious and conscientious objections from this
agency-created mandate. The Third Circuit concluded that the
Departments lacked statutory authority to promulgate these
exemptions and affirmed the District Court’s nationwide preliminary
injunction. This decision was erroneous. We hold that the
Departments had the authority to provide exemptions from the
regulatory contraceptive requirements for employers with religious
and conscientious objections. We accordingly reverse the Third
Circuit’s judgment and remand with instructions to dissolve the
nationwide preliminary injunction.

															I

															The ACA’s contraceptive mandate—a product of
agency regulation—has existed for approximately nine years.
Litigation surrounding that requirement has lasted nearly as long.
In light of this extensive history, we begin by summarizing the
relevant background.

															A

															The ACA requires covered employers to offer “a
group health plan or group health insurance coverage” that provides
certain “minimum essential coverage.” 26 U. S. C.
§5000A(f )(2); §§4980H(a), (c)(2). Employers who do not comply
face hefty penalties, including potential fines of $100 per day for
each affected employee. §§4980D(a)–(b); see also Burwell v. Hobby Lobby Stores , Inc. , 573
U.S. 682 , 696–697 (2014). These cases concern regulations
promulgated under a provision of the ACA that requires covered
employers to provide women with “preventive care and screenings”
without “any cost sharing requirements.” 42 U. S. C.
§300gg–13(a)(4).[ 2 ]

															The statute does not define “preventive care and
screenings,” nor does it include an exhaustive or illustrative list
of such services. Thus, the statute itself does not explicitly
require coverage for any specific form of “preventive care.” Hobby Lobby , 573 U. S., at 697. Instead, Congress
stated that coverage must include “such additional preventive care
and screenings . . . as provided for in comprehensive
guidelines supported by the Health Resources and Services
Administration” (HRSA), an agency of the Department of Health and
Human Services (HHS). §300gg–13(a)(4). At the time of the ACA’s
enactment, these guidelines were not yet written. As a result, no
specific forms of preventive care or screenings were (or could be)
referred to or incorporated by reference.

															Soon after the ACA’s passage, the Departments
began promulgating rules related to §300gg–13(a)(4). But in doing
so, the Departments did not proceed through the notice and comment
rulemaking process, which the Administrative Procedure Act (APA)
often requires before an agency’s regulation can “have the force
and effect of law.” Perez v. Mortgage Bankers Assn. ,
575 U.S. 92, 96 (2015) (internal quotation marks omitted); see also
5 U. S. C. §553. Instead, the Departments invoked the
APA’s good cause exception, which permits an agency to dispense
with notice and comment and promulgate an IFR that carries
immediate legal force. §553(b)(3)(B).

															The first relevant IFR, promulgated in July
2010, primarily focused on implementing other aspects of §300gg–13.
75 Fed. Reg. 41728. The IFR indicated that HRSA planned to develop
its Preventive Care Guidelines (Guidelines) by August 2011. Ibid. However, it did not mention religious exemptions or
accommodations of any kind.

															As anticipated, HRSA released its first set of
Guidelines in August 2011. The Guidelines were based on
recommendations compiled by the Institute of Medicine (now called
the National Academy of Medicine), “a nonprofit group of volunteer
advisers.” Hobby Lobby , 573 U. S., at 697. The
Guidelines included the contraceptive mandate, which required
health plans to provide coverage for all contraceptive methods and
sterilization procedures approved by the Food and Drug
Administration as well as related education and counseling. 77 Fed.
Reg. 8725 (2012).

															The same day the Guidelines were issued, the
Departments amended the 2010 IFR. 76 Fed. Reg. 46621 (2011). When
the 2010 IFR was originally published, the Departments began
receiving comments from numerous religious employers expressing
concern that the Guidelines would “impinge upon their religious
freedom” if they included contraception. Id. , at 46623. As
just stated, the Guidelines ultimately did contain contraceptive
coverage, thus making the potential impact on religious freedom a
reality. In the amended IFR, the Departments determined that “it
[was] appropriate that HRSA . . . tak[e] into account the
[mandate’s] effect on certain religious employers” and concluded
that HRSA had the discretion to do so through the creation of an
exemption. Ibid. The Departments then determined that the
exemption should cover religious employers, and they set out a
four-part test to identify which employers qualified. The last
criterion required the entity to be a church, an integrated
auxiliary, a convention or association of churches, or “the
exclusively religious activities of any religious order.” Ibid. HRSA created an exemption for these employers the same
day. 78 Fed. Reg. 39871 (2013). Because of the narrow focus on
churches, this first exemption is known as the church
exemption.

															The Guidelines were scheduled to go into effect
for plan years beginning on August 1, 2012. 77 Fed. Reg. 8725–8726.
But in February 2012, before the Guidelines took effect, the
Departments promulgated a final rule that temporarily prevented the
Guidelines from applying to certain religious nonprofits.
Specifically, the Departments stated their intent to promulgate
additional rules to “accommodat[e] non-exempted, non-profit
organizations’ religious objections to covering contraceptive
services.” Id. , at 8727. Until that rulemaking occurred, the
2012 rule also provided a temporary safe harbor to protect such
employers. Ibid. The safe harbor covered nonprofits “whose
plans have consistently not covered all or the same subset of
contraceptive services for religious reasons.”[ 3 ] Thus, the nonprofits who availed themselves of
this safe harbor were not subject to the contraceptive mandate when
it first became effective. The Departments promulgated another
final rule in 2013 that is relevant to these cases in two ways.
First, after reiterating that §300gg–13(a)(4) authorizes HRSA “to
issue guidelines in a manner that exempts group health plans
established or maintained by religious employers,” the Departments
“simplif[ied]” and “clarif[ied]” the definition of a religious
employer. 78 Fed. Reg. 39873.[ 4 ] Second, pursuant to that same authority, the
Departments provided the anticipated accommodation for eligible
religious organizations, which the regulation defined as
organizations that “(1) [o]ppos[e] providing coverage for some or
all of the contraceptive services . . . on account of
religious objections; (2) [are] organized and operat[e] as
. . . nonprofit entit[ies]; (3) hol[d] [themselves] out
as . . . religious organization[s]; and (4)
self-certif[y] that [they] satisf[y] the first three criteria.” Id. , at 39874. The accommodation required an eligible
organization to provide a copy of the self-certification form to
its health insurance issuer, which in turn would exclude
contraceptive coverage from the group health plan and provide
payments to beneficiaries for contraceptive services separate from
the health plan. Id. , at 39878. The Departments stated that
the accommodation aimed to “protec[t]” religious organizations
“from having to contract, arrange, pay, or refer for
[contraceptive] coverage” in a way that was consistent with and did
not violate the Religious Freedom Restoration Act of 1993 (RFRA),
107Stat. 1488, 42 U. S. C. §2000bb et seq. 78 Fed.
Reg. 39871, 39886–39887. This accommodation is referred to as the
self-certification accommodation.

															B

															Shortly after the Departments promulgated the
2013 final rule, two religious nonprofits run by the Little Sisters
of the Poor (Little Sisters) challenged the self-certification
accommodation. The Little Sisters “are an international
congregation of Roman Catholic women religious” who have operated
homes for the elderly poor in the United States since 1868. See
Mission Statement: Little Sisters of the Poor,
http://www.littlesistersofthepoor.org/mission-statement. They feel
called by their faith to care for their elderly residents
regardless of “faith, finances, or frailty.” Brief for Residents
and Families of Residents at Homes of the Little Sisters of the
Poor as Amici Curiae 14. The Little Sisters endeavor to
treat all residents “as if they were Jesus [Christ] himself, cared
for as family, and treated with dignity until God calls them to his
home.” Complaint ¶14 in Little Sisters of the Poor Home for the
Aged , Denver , Colo. v. Sebelius , No.
1:13–cv–02611 (D Colo.), p. 5 (Complaint).

															Consistent with their Catholic faith, the Little
Sisters hold the religious conviction “that deliberately avoiding
reproduction through medical means is immoral.” Little Sisters
of the Poor Home for the Aged , Denver , Colo. v. Burwell , 794 F.3d 1151, 1167 (CA10 2015). They challenged
the self-certification accommodation, claiming that completing the
certification form would force them to violate their religious
beliefs by “tak[ing] actions that directly cause others to provide
contraception or appear to participate in the Departments’ delivery
scheme.” Id. , at 1168. As a result, they alleged that the
self-certification accommodation violated RFRA. Under RFRA, a law
that substantially burdens the exercise of religion must serve “a
compelling governmental interest” and be “the least restrictive
means of furthering that compelling governmental interest.”
§§2000bb–1(a)–(b). The Court of Appeals disagreed that the
self-certification accommodation substantially burdened the Little
Sisters’ free exercise rights and thus rejected their RFRA claim. Little Sisters , 794 F. 3d, at 1160.

															The Little Sisters were far from alone in
raising RFRA challenges to the self-certification accommodation.
Religious nonprofit organizations and educational institutions
across the country filed a spate of similar lawsuits, most
resulting in rulings that the accommodation did not violate RFRA.
See, e.g. , East Texas Baptist Univ. v. Burwell , 793 F.3d 449 (CA5 2015); Geneva College v. Secretary , U. S. Dept. of Health and Human
Servs. , 778 F.3d 422 (CA3 2015); Priests for Life v. United States Dept. of Health and Human Servs. , 772 F.3d 229
(CADC 2014); Michigan Catholic Conference v. Burwell ,
755 F.3d 372 (CA6 2014); University of Notre Dame v. Sebelius , 743 F.3d 547 (CA7 2014); but see Sharpe
Holdings , Inc. v. United States Dept. of Health and
Human Servs. , 801 F.3d 927 (CA8 2015); Dordt College v. Burwell , 801 F.3d 946 (CA8 2015). We granted certiorari in
cases from four Courts of Appeals to decide the RFRA question. Zubik v. Burwell , 578 U. S. ___, ___ (2016)
( per curiam ). Ultimately, however, we opted to remand the
cases without deciding that question. In supplemental briefing, the
Government had “confirm[ed]” that “ ‘contraceptive coverage
could be provided to petitioners’ employees, through petitioners’
insurance companies, without any . . . notice from
petitioners.’ ” Id. , at ___ (slip op., at 3).
Petitioners, for their part, had agreed that such an approach would
not violate their free exercise rights. Ibid. Accordingly,
because all parties had accepted that an alternative approach was
“feasible,” ibid. , we directed the Government to
“accommodat[e] petitioners’ religious exercise while at the same
time ensuring that women covered by petitioners’ health plans
receive full and equal health coverage, including contraceptive
coverage,” id. , at ___ (slip op., at 4) (internal quotation
marks omitted).

															C Zubik was not the only relevant ruling
from this Court about the contraceptive mandate. As the Little
Sisters and numerous others mounted their challenges to the
self-certification accommodation, a host of other entities
challenged the contraceptive mandate itself as a violation of RFRA.
See, e.g. , Hobby Lobby Stores , Inc. v. Sebelius , 723 F.3d 1114 (CA10 2013) (en banc); Korte v. Sebelius , 735 F.3d 654 (CA7 2013); Gilardi v. United States Dept. of Health and Human Servs. , 733 F.3d
1208 (CADC 2013); Conestoga Wood Specialties Corp. v. Secretary of U. S. Dept. of Health and Human
Servs. , 724 F.3d 377 (CA3 2013); Autocam Corp. v. Sebelius , 730 F.3d 618 (CA6 2013). This Court granted
certiorari in two cases involving three closely held corporations
to decide whether the mandate violated RFRA. Hobby Lobby , 573 U.S.
682 .

															The individual respondents in Hobby
Lobby opposed four methods of contraception covered by the
mandate. They sincerely believed that human life begins at
conception and that, because the challenged methods of
contraception risked causing the death of a human embryo, providing
those methods of contraception to employees would make the
employers complicit in abortion. Id. , at 691, 720. We held
that the mandate substantially burdened respondents’ free exercise,
explaining that “[if] the owners comply with the HHS mandate, they
believe they will be facilitating abortions, and if they do not
comply, they will pay a very heavy price.” Id. , at 691. “If
these consequences do not amount to a substantial burden,” we
stated, “it is hard to see what would.” Ibid. We also held
that the mandate did not utilize the least restrictive means,
citing the self-certification accommodation as a less burdensome
alternative. Id. , at 730–731.

															Thus, as the Departments began the task of
reformulating rules related to the contraceptive mandate, they did
so not only under Zubik ’s direction to accommodate religious
exercise, but also against the backdrop of Hobby Lobby ’s
pronouncement that the mandate, standing alone, violated RFRA as
applied to religious entities with complicity-based objections.

															D

															In 2016, the Departments attempted to strike
the proper balance a third time, publishing a request for
information on ways to comply with Zubik . 81 Fed. Reg.
47741. This attempt proved futile, as the Departments ultimately
concluded that “no feasible approach” had been identified. Dept. of
Labor, FAQs About Affordable Care Act Implementation Part 36,
p. 4 (2017). The Departments maintained their position that
the self-certification accommodation was consistent with RFRA
because it did not impose a substantial burden and, even if it did,
it utilized the least restrictive means of achieving the
Government’s interests. Id. , at 4–5.

															In 2017, the Departments tried yet again to
comply with Zubik , this time by promulgating the two IFRs
that served as the impetus for this litigation. The first IFR
significantly broadened the definition of an exempt religious
employer to encompass an employer that “objects . . .
based on its sincerely held religious beliefs,” “to its
establishing, maintaining, providing, offering, or arranging [for]
coverage or payments for some or all contraceptive services.” 82
Fed. Reg. 47812 (2017). Among other things, this definition
included for-profit and publicly traded entities. Because they were
exempt, these employers did not need to participate in the
accommodation process, which nevertheless remained available under
the IFR. Id. , at 47806.

															As with their previous regulations, the
Departments once again invoked §300gg–13(a)(4) as authority to
promulgate this “religious exemption,” stating that it “include[d]
the ability to exempt entities from coverage requirements announced
in HRSA’s Guidelines.” Id. , at 47794. Additionally, the
Departments announced for the first time that RFRA compelled the
creation of, or at least provided the discretion to create, the
religious exemption. Id. , at 47800–47806. As the Departments
explained: “We know from Hobby Lobby that, in the absence of
any accommodation, the contraceptive-coverage requirement imposes a
substantial burden on certain objecting employers. We know from
other lawsuits and public comments that many religious entities
have objections to complying with the [self-certification]
accommodation based on their sincerely held religious beliefs.” Id. , at 47806. The Departments “believe[d] that the Court’s
analysis in Hobby Lobby extends, for the purposes of
analyzing a substantial burden, to the burdens that an entity faces
when it religiously opposes participating in the
[self-certification] accommodation process.” Id. , at 47800.
They thus “conclude[d] that it [was] appropriate to expand the
exemption to other . . . organizations with sincerely
held religious beliefs opposed to contraceptive coverage.” Id. , at 47802; see also id. , at 47810–47811.

															The second IFR created a similar “moral
exemption” for employers—including nonprofits and for-profits with
no publicly traded components—with “sincerely held moral”
objections to providing some or all forms of contraceptive
coverage. Id. , at 47850, 47861–47862. Citing congressional
enactments, precedents from this Court, agency practice, and state
laws that provided for conscience protections, id. , at
47844–47847, the Departments invoked their authority under the ACA
to create this exemption, id. , at 47844. The Departments
requested post-promulgation comments on both IFRs. Id. , at
47813, 47854.

															E

															Within a week of the 2017 IFRs’ promulgation,
the Commonwealth of Pennsylvania filed an action seeking
declaratory and injunctive relief. Among other claims, it alleged
that the IFRs were procedurally and substantively invalid under the
APA. The District Court held that the Commonwealth was likely to
succeed on both claims and granted a preliminary nationwide
injunction against the IFRs. The Federal Government appealed.

															While that appeal was pending, the Departments
issued rules finalizing the 2017 IFRs. See 83 Fed. Reg. 57536
(2018); 83 Fed. Reg. 57592, codified at 45 CFR pt. 147 (2018).
Though the final rules left the exemptions largely intact, they
also responded to post-promulgation comments, explaining their
reasons for neither narrowing nor expanding the exemptions beyond
what was provided for in the IFRs. See 83 Fed. Reg. 57542–57545,
57598–57603. The final rule creating the religious exemption also
contained a lengthy analysis of the Departments’ changed position
regarding whether the self-certification process violated RFRA. Id. , at 57544–57549. And the Departments explained that, in
the wake of the numerous lawsuits challenging the
self-certification accommodation and the failed attempt to identify
alternative accommodations after the 2016 request for information,
“an expanded exemption rather than the existing accommodation is
the most appropriate administrative response to the substantial
burden identified by the Supreme Court in Hobby Lobby .” Id. , at 57544–57545.

															After the final rules were promulgated, the
State of New Jersey joined Pennsylvania’s suit and, together, they
filed an amended complaint. As relevant, the States—respondents
here—once again challenged the rules as substantively and
procedurally invalid under the APA. They alleged that the rules
were substantively unlawful because the Departments lacked
statutory authority under either the ACA or RFRA to promulgate the
exemptions. Respondents also asserted that the IFRs were not
adequately justified by good cause, meaning that the Departments
impermissibly used the IFR procedure to bypass the APA’s notice and
comment procedures. Finally, respondents argued that the purported
procedural defects of the IFRs likewise infected the final
rules.

															The District Court issued a nationwide
preliminary injunction against the implementation of the final
rules the same day the rules were scheduled to take effect. The
Federal Government appealed, as did one of the homes operated by
the Little Sisters, which had in the meantime intervened in the
suit to defend the religious exemption.[ 5 ] The appeals were consolidated with the previous appeal,
which had been stayed.

															The Third Circuit affirmed. In its view, the
Departments lacked authority to craft the exemptions under either
statute. The Third Circuit read 42 U. S. C.
§300gg–13(a)(4) as empowering HRSA to determine which services
should be included as preventive care and screenings, but not to
carve out exemptions from those requirements. It also concluded
that RFRA did not compel or permit the religious exemption because,
under Third Circuit precedent that was vacated and remanded in Zubik , the Third Circuit had concluded that the
self-certification accommodation did not impose a substantial
burden on free exercise. As for respondents’ procedural claim, the
court held that the Departments lacked good cause to bypass notice
and comment when promulgating the 2017 IFRs. In addition, the court
determined that, because the IFRs and final rules were “virtually
identical,” “[t]he notice and comment exercise surrounding the
Final Rules [did] not reflect any real open-mindedness.” Pennsylvania v. President of United States , 930 F.3d
543, 568–569 (2019). Though it rebuked the Departments for their
purported attitudinal deficiencies, the Third Circuit did not
identify any specific public comments to which the agency did not
appropriately respond. Id. , at 569, n. 24.[ 6 ] We granted certiorari. 589
U. S. ___ (2020).

															II

															Respondents contend that the 2018 final rules
providing religious and moral exemptions to the contraceptive
mandate are both substantively and procedurally invalid. We begin
with their substantive argument that the Departments lacked
statutory authority to promulgate the rules.

															A

															The Departments invoke 42 U. S. C.
§300gg–13(a)(4) as legal authority for both exemptions. This
provision of the ACA states that, “with respect to women,” “[a]
group health plan and a health insurance issuer offering group or
individual health insurance coverage shall, at a minimum provide
. . . such additional preventive care and screenings not
described in paragraph (1) as provided for in comprehensive
guidelines supported by [HRSA].” The Departments maintain, as they
have since 2011, that the phrase “as provided for” allows HRSA both
to identify what preventive care and screenings must be covered and
to exempt or accommodate certain employers’ religious objections.
See 83 Fed. Reg. 57540–57541; see also post , at 3 (Kagan,
J., concurring in judgment). They also argue that, as with the
church exemption, their role as the administering agencies permits
them to guide HRSA in its discretion by “defining the scope of
permissible exemptions and accommodations for such guidelines.” 82
Fed. Reg. 47794. Respondents, on the other hand, contend that
§300gg–13(a)(4) permits HRSA to only list the preventive care and
screenings that health plans “shall . . . provide,” not
to exempt entities from covering those identified services. Because
that asserted limitation is found nowhere in the statute, we agree
with the Departments.

															“Our analysis begins and ends with the text.” Octane Fitness , LLC v. ICON Health &
Fitness , Inc. , 572 U.S.
545 , 553 (2014). Here, the pivotal phrase is “as provided for.”
To “provide” means to supply, furnish, or make available. See
Webster’s Third New International Dictionary 1827 (2002) (Webster’s
Third); American Heritage Dictionary 1411 (4th ed. 2000); 12 Oxford
English Dictionary 713 (2d ed. 1989). And, as the Departments
explained, the word “as” functions as an adverb modifying
“provided,” indicating “the manner in which” something is done. 83
Fed. Reg. 57540. See also Webster’s Third 125; 1 Oxford English
Dictionary, at 673; American Heritage Dictionary 102 (5th ed.
2011).

															On its face, then, the provision grants sweeping
authority to HRSA to craft a set of standards defining the
preventive care that applicable health plans must cover. But the
statute is completely silent as to what those “comprehensive
guidelines” must contain, or how HRSA must go about creating them.
The statute does not, as Congress has done in other statutes,
provide an exhaustive or illustrative list of the preventive care
and screenings that must be included. See, e.g. , 18
U. S. C. §1961(1); 28 U. S. C. §1603(a). It
does not, as Congress did elsewhere in the same section of the ACA,
set forth any criteria or standards to guide HRSA’s selections.
See, e.g. , 42 U. S. C. §300gg–13(a)(3) (requiring
“ evidence-informed preventive care and screenings” (emphasis
added)); §300gg–13(a)(1) (“evidence-based items or services”). It
does not, as Congress has done in other contexts, require that HRSA
consult with or refrain from consulting with any party in the
formulation of the Guidelines. See, e.g. , 16
U. S. C. §1536(a)(1); 23 U. S. C. §138. This
means that HRSA has virtually unbridled discretion to decide what
counts as preventive care and screenings. But the same capacious
grant of authority that empowers HRSA to make these determinations
leaves its discretion equally unchecked in other areas, including
the ability to identify and create exemptions from its own
Guidelines.

															Congress could have limited HRSA’s discretion in
any number of ways, but it chose not to do so. See Ali v. Federal Bureau of Prisons , 552 U.S.
214 , 227 (2008); see also Rotkiske v. Klemm , 589
U. S. ___, ___ (2019) (slip op., at 6); Husted v. A.
Philip Randolph Institute , 584 U. S. ___, ___ (2018) (slip
op., at 16). Instead, it enacted “ ‘expansive language
offer[ing] no indication whatever’ ” that the statute limits
what HRSA can designate as preventive care and screenings or who
must provide that coverage. Ali , 552 U. S., at 219–220
(quoting Harrison v. PPG Industries , Inc. , 446 U.S.
578 , 589 (1980)). “It is a fundamental principle of statutory
interpretation that ‘absent provision[s] cannot be supplied by the
courts.’ ” Rotkiske , 589 U. S., at ___ (slip op.,
at 5) (quoting A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 94 (2012)); Nichols v. United States , 578 U. S. ___, ___ (2016) (slip op., at
6). This principle applies not only to adding terms not found in
the statute, but also to imposing limits on an agency’s discretion
that are not supported by the text. See Watt v. Energy
Action Ed. Foundation , 454 U.S.
151 , 168 (1981). By introducing a limitation not found in the
statute, respondents ask us to alter, rather than to interpret, the
ACA. See Nichols , 578 U. S., at ___ (slip op., at
6).

															By its terms, the ACA leaves the Guidelines’
content to the exclusive discretion of HRSA. Under a plain reading
of the statute, then, we conclude that the ACA gives HRSA broad
discretion to define preventive care and screenings and to create
the religious and moral exemptions.[ 7 ]

															The dissent resists this conclusion, asserting
that the Departments’ interpretation thwarts Congress’ intent to
provide contraceptive coverage to the women who are interested in
receiving such coverage. See post , at 1, 21 (opinion of
Ginsburg, J.). It also argues that the exemptions will make it
significantly harder for interested women to obtain seamless access
to contraception without cost sharing, post , at 15–17, which
we have previously “assume[d]” is a compelling governmental
interest, Hobby Lobby , 573 U. S., at 728; but see post , at 10–12 (Alito, J., concurring). The Departments
dispute that women will be adversely impacted by the 2018
exemptions. 82 Fed. Reg. 47805. Though we express no view on this
disagreement, it bears noting that such a policy concern cannot
justify supplanting the text’s plain meaning. See Gitlitz v. Commissioner , 531 U.S.
206 , 220 (2001). “It is not for us to rewrite the statute so
that it covers only what we think is necessary to achieve what we
think Congress really intended.” Lewis v. Chicago , 560 U.S.
205 , 215 (2010).

															Moreover, even assuming that the dissent is
correct as an empirical matter, its concerns are more properly
directed at the regulatory mechanism that Congress put in place to
protect this assumed governmental interest. As even the dissent
recognizes, contraceptive coverage is mentioned nowhere in
§300gg–13(a)(4), and no language in the statute itself even hints
that Congress intended that contraception should or must be
covered. See post , at 4–5 (citing legislative history and amicus briefs). Thus, contrary to the dissent’s
protestations, it was Congress, not the Departments, that declined
to expressly require contraceptive coverage in the ACA itself. See
83 Fed. Reg. 57540. And, it was Congress’ deliberate choice to
issue an extraordinarily “broad general directiv[e]” to HRSA to
craft the Guidelines, without any qualifications as to the
substance of the Guidelines or whether exemptions were permissible. Mistretta v. United States , 488
U.S. 361 , 372 (1989). Thus, it is Congress, not the
Departments, that has failed to provide the protection for
contraceptive coverage that the dissent seeks.[ 8 ]

															No party has pressed a constitutional challenge
to the breadth of the delegation involved here. Cf. Gundy v. United States , 588 U. S. ___ (2019). The only question
we face today is what the plain language of the statute authorizes.
And the plain language of the statute clearly allows the
Departments to create the preventive care standards as well as the
religious and moral exemptions.[ 9 ]

															B

															The Departments also contend, consistent with
the reasoning in the 2017 IFR and the 2018 final rule establishing
the religious exemption, that RFRA independently compelled the
Departments’ solution or that it at least authorized it.[ 10 ] In light of our holding that the
ACA provided a basis for both exemptions, we need not reach these
arguments.[ 11 ] We do,
however, address respondents’ argument that the Departments could
not even consider RFRA as they formulated the religious exemption
from the contraceptive mandate. Particularly in the context of
these cases, it was appropriate for the Departments to consider
RFRA.

															As we have explained, RFRA “provide[s] very
broad protection for religious liberty.” Hobby Lobby , 573
U. S., at 693. In RFRA’s congressional findings, Congress
stated that “governments should not substantially burden religious
exercise,” a right described by RFRA as “unalienable.” 42
U. S. C. §§2000bb(a)(1), (3). To protect this right,
Congress provided that the “[g]overnment shall not substantially
burden a person’s exercise of religion even if the burden results
from a rule of general applicability” unless “it demonstrates that
application of the burden . . . is in furtherance of a
compelling governmental interest; and . . . is the least
restrictive means of furthering that compelling governmental
interest.” §§2000bb–1(a)–(b). Placing Congress’ intent beyond
dispute, RFRA specifies that it “applies to all Federal law, and
the implementation of that law, whether statutory or otherwise.”
§2000bb–3(a). RFRA also permits Congress to exclude statutes from
RFRA’s protections. §2000bb–3(b).

															It is clear from the face of the statute that
the contraceptive mandate is capable of violating RFRA. The ACA
does not explicitly exempt RFRA, and the regulations implementing
the contraceptive mandate qualify as “Federal law” or “the
implementation of [Federal] law.” §2000bb–3(a); cf. Chrysler
Corp. v. Brown , 441 U.S.
281 , 297–298 (1979). Additionally, we expressly stated in Hobby Lobby that the contraceptive mandate violated RFRA as
applied to entities with complicity-based objections. 573
U. S., at 736. Thus, the potential for conflict between the
contraceptive mandate and RFRA is well settled. Against this
backdrop, it is unsurprising that RFRA would feature prominently in
the Departments’ discussion of exemptions that would not pose
similar legal problems.

															Moreover, our decisions all but instructed the
Departments to consider RFRA going forward. For instance, though we
held that the mandate violated RFRA in Hobby Lobby , we left
it to the Federal Government to develop and implement a solution.
At the same time, we made it abundantly clear that, under RFRA, the
Departments must accept the sincerely held complicity-based
objections of religious entities. That is, they could not “tell the
plaintiffs that their beliefs are flawed” because, in the
Departments’ view, “the connection between what the objecting
parties must do . . . and the end that they find to be
morally wrong . . . is simply too attenuated.” Hobby
Lobby , 573 U. S., at 723–724. Likewise, though we did not
decide whether the self-certification accommodation ran afoul of
RFRA in Zubik , we directed the parties on remand to
“accommodat[e]” the free exercise rights of those with
complicity-based objections to the self-certification
accommodation. 578 U. S., at ___ (slip op., at 4). It is hard
to see how the Departments could promulgate rules consistent with
these decisions if they did not overtly consider these entities’
rights under RFRA.

															This is especially true in light of the basic
requirements of the rulemaking process. Our precedents require
final rules to “articulate a satisfactory explanation for [the]
action including a rational connection between the facts found and
the choice made.” Motor Vehicle Mfrs. Assn. of United
States , Inc. v. State Farm Mut. Automobile Ins.
Co. , 463 U.S.
29 , 43 (1983) (internal quotation marks omitted). This
requirement allows courts to assess whether the agency has
promulgated an arbitrary and capricious rule by “entirely fail[ing]
to consider an important aspect of the problem [or] offer[ing] an
explanation for its decision that runs counter to the evidence
before [it].” Ibid. ; see also Department of Commerce v. New York , 588 U. S. ___, ___–___ (2019) (Breyer, J.,
concurring in part and dissenting in part) (slip op., at 3–4); Genuine Parts Co. v. EPA , 890 F.3d 304, 307 (CADC
2018); Pacific Coast Federation of Fishermen’s Assns. v. United States Bur. of Reclamation , 426 F.3d 1082 , 1094 (CA9 2005). Here, the Departments were
aware that Hobby Lobby held the mandate unlawful as applied
to religious entities with complicity-based objections. 82 Fed.
Reg. 47799; 83 Fed. Reg. 57544–57545. They were also aware of Zubik ’s instructions. 82 Fed. Reg. 47799. And, aside from
our own decisions, the Departments were mindful of the RFRA
concerns raised in “public comments and . . . court
filings in dozens of cases—encompassing hundreds of organizations.” Id. , at 47802; see also id. , at 47806. If the
Departments did not look to RFRA’s requirements or discuss RFRA at
all when formulating their solution, they would certainly be
susceptible to claims that the rules were arbitrary and capricious
for failing to consider an important aspect of the
problem.[ 12 ] Thus,
respondents’ argument that the Departments erred by looking to RFRA
as a guide when framing the religious exemption is without
merit.

															III

															Because we hold that the Departments had
authority to promulgate the exemptions, we must next decide whether
the 2018 final rules are procedurally invalid. Respondents present
two arguments on this score. Neither is persuasive.

															A

															Unless a statutory exception applies, the APA
requires agencies to publish a notice of proposed rulemaking in the
Federal Register before promulgating a rule that has legal force.
See 5 U. S. C. §553(b). Respondents point to the fact
that the 2018 final rules were preceded by a document entitled
“Interim Final Rules with Request for Comments,” not a document
entitled “General Notice of Proposed Rulemaking.” They claim that
since this was insufficient to satisfy §553(b)’s requirement, the
final rules were procedurally invalid. Respondents are incorrect.
Formal labels aside, the rules contained all of the elements of a
notice of proposed rulemaking as required by the APA.

															The APA requires that the notice of proposed
rulemaking contain “reference to the legal authority under which
the rule is proposed” and “either the terms or substance of the
proposed rule or a description of the subjects and issues
involved.” §§553(b)(2)–(3). The request for comments in the 2017
IFRs readily satisfies these requirements. That request detailed
the Departments’ view that they had legal authority under the ACA
to promulgate both exemptions, 82 Fed. Reg. 47794, 47844, as well
as authority under RFRA to promulgate the religious exemption, id. , at 47800–47806. And respondents do not—and cannot—argue
that the IFRs failed to air the relevant issues with sufficient
detail for respondents to understand the Departments’ position. See supra , at 10–11. Thus, the APA notice requirements were
satisfied.

															Even assuming that the APA requires an agency to
publish a document entitled “notice of proposed rulemaking” when
the agency moves from an IFR to a final rule, there was no
“prejudicial error” here. §706. We have previously noted that the
rule of prejudicial error is treated as an “administrative law
. . . harmless error rule,” National Assn. of Home
Builders v. Defenders of Wildlife , 551 U.S.
644 , 659–660 (2007) (internal quotation marks omitted). Here,
the Departments issued an IFR that explained its position in
fulsome detail and “provide[d] the public with an opportunity to
comment on whether [the] regulations . . . should be made
permanent or subject to modification.” 82 Fed. Reg. 47815; see also id. , at 47852, 47855. Respondents thus do not come close to
demonstrating that they experienced any harm from the title of the
document, let alone that they have satisfied this harmless error
rule. “The object [of notice and comment], in short, is one of fair
notice,” Long Island Care at Home , Ltd. v. Coke , 551 U.S.
158 , 174 (2007), and respondents certainly had such notice
here. Because the IFR complied with the APA’s requirements, this
claim fails.[ 13 ]

															B

															Next, respondents contend that the 2018 final
rules are procedurally invalid because “nothing in the record
signal[s]” that the Departments “maintained an open mind throughout
the [post-promulgation] process.” Brief for Respondents 27. As
evidence for this claim, respondents point to the fact that the
final rules made only minor alterations to the IFRs, leaving their
substance unchanged. The Third Circuit applied this
“open-mindedness” test, concluding that because the final rules
were “virtually identical” to the IFRs, the Departments lacked the
requisite “flexible and open-minded attitude” when they promulgated
the final rules. 930 F. 3d, at 569 (internal quotation marks
omitted).

															We decline to evaluate the final rules under the
open-mindedness test. We have repeatedly stated that the text of
the APA provides the “ ‘maximum procedural
requirements’ ” that an agency must follow in order to
promulgate a rule. Perez , 575 U. S., at 100 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council , Inc. , 435 U.S.
519 , 524 (1978)). Because the APA “sets forth the full extent
of judicial authority to review executive agency action for
procedural correctness,” FCC v. Fox Television
Stations , Inc. , 556 U.S.
502 , 513 (2009), we have repeatedly rejected courts’ attempts
to impose “judge-made procedur[es]” in addition to the APA’s
mandates, Perez , 575 U. S., at 102; see also Pension
Benefit Guaranty Corporation v. LTV Corp. , 496 U.S.
633 , 654–655 (1990); Vermont Yankee , 435 U. S., at
549. And like the procedures that we have held invalid, the
open-mindedness test violates the “general proposition that courts
are not free to impose upon agencies specific procedural
requirements that have no basis in the APA.” LTV Corp. , 496
U. S., at 654. Rather than adopting this test, we focus our
inquiry on whether the Departments satisfied the APA’s objective
criteria, just as we have in previous cases. We conclude that they
did.

															Section 553(b) obligated the Departments to
provide adequate notice before promulgating a rule that has legal
force. As explained supra , at 22–23, the IFRs provided
sufficient notice. Aside from these notice requirements, the APA
mandates that agencies “give interested persons an opportunity to
participate in the rule making through submission of written data,
views, or arguments,” §553(c); states that the final rules must
include “a concise general statement of their basis and purpose,” ibid. ; and requires that final rules must be published 30
days before they become effective, §553(d).

															The Departments complied with each of these
statutory procedures. They “request[ed] and encourag[ed] public
comments on all matters addressed” in the rules— i.e. , the
basis for the Departments’ legal authority, the rationales for the
exemptions, and the detailed discussion of the exemptions’ scope.
82 Fed. Reg. 47813, 47854. They also gave interested parties 60
days to submit comments. Id. , at 47792, 47838. The final
rules included a concise statement of their basis and purpose,
explaining that the rules were “necessary to protect sincerely
held” moral and religious objections and summarizing the legal
analysis supporting the exemptions. 83 Fed. Reg. 57592; see also id. , at 57537–57538. Lastly, the final rules were published
on November 15, 2018, but did not become effective until January
14, 2019—more than 30 days after being published. Id. , at
57536, 57592. In sum, the rules fully complied with “ ‘the
maximum procedural requirements [that] Congress was willing to have
the courts impose upon agencies in conducting rulemaking
procedures.’ ” Perez , 575 U. S., at 102 (quoting Vermont Yankee , 435 U. S., at 524). Accordingly,
respondents’ second procedural challenge also fails.[ 14 ]

															*  *  *

															For over 150 years, the Little Sisters have
engaged in faithful service and sacrifice, motivated by a religious
calling to surrender all for the sake of their brother. “[T]hey
commit to constantly living out a witness that proclaims the
unique, inviolable dignity of every person, particularly those whom
others regard as weak or worthless.” Complaint ¶14. But for the
past seven years, they—like many other religious objectors who have
participated in the litigation and rulemakings leading up to
today’s decision—have had to fight for the ability to continue in
their noble work without violating their sincerely held religious
beliefs. After two decisions from this Court and multiple failed
regulatory attempts, the Federal Government has arrived at a
solution that exempts the Little Sisters from the source of their
complicity-based concerns—the administratively imposed
contraceptive mandate.

															We hold today that the Departments had the
statutory authority to craft that exemption, as well as the
contemporaneously issued moral exemption. We further hold that the
rules promulgating these exemptions are free from procedural
defects. Therefore, we reverse the judgment of the Court of Appeals
and remand the cases for further proceedings consistent with this
opinion.

															It is so ordered. Notes 1 See 42 U. S. C.
§300gg–92; 29 U. S. C. §1191c; 26 U. S. C.
§9833. 2 The ACA exempts
“grandfathered” plans from 42 U. S. C.
§300gg–13(a)(4)— i.e. , “those [plans] that existed prior to
March 23, 2010, and that have not made specified changes after that
date.” Burwell v. Hobby Lobby Stores , Inc. , 573
U.S. 682 , 699 (2014). See §§18011(a), (e); 29 CFR
§2590.715–1251 (2019). As of 2018, an estimated 16 percent of
employees “with employer-sponsored coverage were enrolled in a
grandfathered group health plan.” 84 Fed. Reg. 5971
(2019). 3 Dept. of Health and Human
Servs., Center for Consumer Information and Insurance Oversight,
Centers for Medicare & Medicaid Services, Guidance on the
Temporary Enforcement Safe Harbor for Certain Employers, Group
Health Plans and Group Health Insurance Issuers With Respect to the
Requirement To Cover Contraceptive Services Without Cost Sharing
Under Section 2713 of the Public Health Service Act, Section
715(a)(1) of the Employee Retirement Income Security Act, and
Section 9815(a)(1) of the Internal Revenue Code, p. 2
(2013). 4 The Departments took this
action to prevent an unduly narrow interpretation of the church
exemption, in which “an otherwise exempt plan [was] disqualified
because the employer’s purposes extend[ed] beyond the inculcation
of religious values or because the employer . . .
serve[d] people of different religious faiths.” 78 Fed. Reg. 39874.
But see post , at 12–13 (Ginsburg, J., dissenting) (arguing
that the church exemption only covered houses of
worship). 5 The Little Sisters moved
to intervene in the District Court to defend the 2017
religious-exemption IFR, but the District Court denied that motion.
The Third Circuit reversed. After that reversal, the Little Sisters
appealed the District Court’s preliminary injunction of the 2017
IFRs, and that appeal was consolidated with the Federal
Government’s appeal. 6 The Third Circuit also
determined sua spont e that the Little Sisters
lacked appellate standing to intervene because a District Court in
Colorado had permanently enjoined the contraceptive mandate as
applied to plans in which the Little Sisters participate. This was
error. Under our precedents, at least one party must demonstrate
Article III standing for each claim for relief. An intervenor of
right must independently demonstrate Article III standing if it
pursues relief that is broader than or different from the party
invoking a court’s jurisdiction. See Town of Chester v. Laroe Estates , Inc. , 581 U. S. ___, ___ (2017)
(slip op., at 6). Here, the Federal Government clearly had standing
to invoke the Third Circuit’s appellate jurisdiction, and both the
Federal Government and the Little Sisters asked the court to
dissolve the injunction against the religious exemption. The Third
Circuit accordingly erred by inquiring into the Little Sisters’
independent Article III standing. 7 Though not necessary for
this analysis, our decisions in Zubik v. Burwell , 578
U. S. ___ (2016) ( per curiam ), and Hobby Lobby , 573
U.S. 682 , implicitly support the conclusion that
§300gg–13(a)(4) empowered HRSA to create the exemptions. As
respondents acknowledged at oral argument, accepting their
interpretation of the ACA would require us to conclude that the
Departments had no authority under the ACA to promulgate the
initial church exemption, see Tr. of Oral Arg. 69–71, 91, which by
extension would mean that the Departments lacked authority for the
2013 self-certification accommodation. That reading of the ACA
would create serious tension with Hobby Lobby , which pointed
to the self-certification accommodation as an example of a less
restrictive means available to the Government, 573 U. S., at
730–731, and Zubik , which expressly directed the Departments
to “accommodat[e]” petitioners’ religious exercise, 578 U. S.,
at ___ (slip op., at 4). It would be passing strange for this Court
to direct the Departments to make such an accommodation if it
thought the ACA did not authorize one. In addition, we are not
aware of, and the dissent does not point to, a single case
predating Hobby Lobby or Zubik in which the
Departments took the position that they could not adopt a different
approach because they lacked the statutory authority under the ACA
to do so. 8 HRSA has altered its
Guidelines multiple times since 2011, always proceeding without
notice and comment. See 82 Fed. Reg. 47813–47814; 83 Fed. Reg.
8487; 85 Fed. Reg. 722–723 (2020). Accordingly, if HRSA chose to
exercise that discretion to remove contraception coverage from the
next iteration of its Guidelines, it would arguably nullify the
contraceptive mandate altogether without proceeding through notice
and comment. The combination of the agency practice of proceeding
without notice and comment and HRSA’s discretion to alter the
Guidelines, though not necessary for our analysis, provides yet
another indication of Congress’ failure to provide strong
protections for contraceptive coverage. 9 The dissent does not
attempt to argue that the self-certification accommodation can
coexist with its interpretation of the ACA. As for the church
exemption, the dissent claims that it is rooted in the First
Amendment’s respect for church autonomy. See post , at 12–13.
But the dissent points to no case, brief, or rule in the nine years
since the church exemption’s implementation in which the
Departments defended its validity on that ground. The most the
dissent can point to is a stray comment in the rule that expanded
the self-certification accommodation to closely held corporations
in the wake of Hobby Lobby . See post , at 13 (quoting
80 Fed. Reg. 41325 (2015)). 10 The
dissent claims that “all agree” that the exemption is not supported
by the Free Exercise Clause. Post , at 2. A constitutional
claim is not presented in these cases, and we express no view on
the merits of that question. 11 The
dissent appears to agree that the Departments had authority under
RFRA to “cure” any RFRA violations caused by its regulations. See post , at 14, n. 16 (disclaiming the view that agencies
must wait for courts to determine a RFRA violation); see also supra , at 5 (explaining that the safe harbor and commitment
to developing an accommodation occurred prior to the Guidelines
going into effect). The dissent also does not—as it cannot—dispute
our directive in Zubik . 12 Here,
too, the Departments have consistently taken the position that
their rules had to account for RFRA in response to comments that
the rules would violate that statute. See Dept. of Labor, FAQs
About Affordable Care Act Implementation Part 36, pp. 4–5
(2017) (2016 Request for Information); 78 Fed. Reg. 39886–39887
(2013 rule); 77 Fed. Reg. 8729 (2012 final rule). As the 2017 IFR
explained, the Departments simply reached a different conclusion on
whether the accommodation satisfied RFRA. See 82 Fed. Reg.
47800–40806 (summarizing the previous ways in which the Departments
accounted for RFRA and providing a lengthy explanation for the
changed position). 13 We
note as well that the Departments promulgated many other IFRs in
addition to the three related to the contraceptive mandate. See, e.g. , 75 Fed. Reg. 27122 (dependent coverage); id. ,
at 34538 (grandfathered health plans); id. , at 37188
(pre-existing conditions). 14 Because we conclude that the IFRs’
request for comment satisfiesthe APA’s rulemaking requirements, we
need not reach respondents’ additional argument that the
Departments lacked good cause to promulgate the 2017
IFRs. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 19–431 and 19–454

															_________________

															LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME, PETITIONER

															19–431 v. PENNSYLVANIA, et al.

															DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al., PETITIONERS

															19–454 v. PENNSYLVANIA, et al.

															on writs of certiorari to the united states
court of appeals for the third circuit

															[July 8, 2020]

															Justice Alito, with whom Justice Gorsuch
joins, concurring.

															In these cases, the Court of Appeals held, among
other things, (1) that the Little Sisters of the Poor lacked
standing to appeal, (2) that the Affordable Care Act (ACA) does not
permit any exemptions from the so-called contraceptive mandate, (3)
that the Departments responsible for issuing the challenged
rule[ 1 ] violated the
Administrative Procedure Act (APA) by failing to provide notice of
proposed rulemaking, and (4) that the final rule creating the
current exemptions is invalid because the Departments did not have
an open mind when they considered comments to the rule. Based on
this analysis, the Court of Appeals affirmed the nationwide
injunction issued by the District Court.

															This Court now concludes that all the holdings
listed above were erroneous, and I join the opinion of the Court in
full. We now send these cases back to the lower courts, where the
Commonwealth of Pennsylvania and the State of New Jersey are all
but certain to pursue their argument that the current rule is
flawed on yet another ground, namely, that it is arbitrary and
capricious and thus violates the APA. This will prolong the legal
battle in which the Little Sisters have now been engaged for seven
years—even though during all this time no employee of the Little
Sisters has come forward with an objection to the Little Sisters’
conduct.

															I understand the Court’s desire to decide no
more than is strictly necessary, but under the circumstances here,
I would decide one additional question: whether the Court of
Appeals erred in holding that the Religious Freedom Restoration Act
(RFRA), 42 U. S. C. §§2000bb–2000bb–4, does not compel
the religious exemption granted by the current rule. If RFRA
requires this exemption, the Departments did not act in an
arbitrary and capricious manner in granting it. And in my judgment,
RFRA compels an exemption for the Little Sisters and any other
employer with a similar objection to what has been called the
accommodation to the contraceptive mandate.

															I

															Because the contraceptive mandate has been
repeatedly modified, a brief recapitulation of this history may be
helpful. The ACA itself did not require that insurance plans
include coverage for contraceptives. Instead, the Act provided that
plans must cover those preventive services found to be appropriate
by the Health Resources and Services Administration (HRSA), an
agency of the Department of Health and Human Services. 42
U. S. C. §300gg–13(a)(4). In 2011, HRSA recommended that
plans be required to cover “ ‘[a]ll . . .
contraceptive methods’ ” approved by the Food and Drug
Administration. 77 Fed. Reg. 8725 (2012). (I will use the term
“contraceptive mandate” or simply “mandate” to refer to the
obligation to provide coverage for contraceptives under any of the
various regimes that have existed since the promulgation of this
original rule.) At the direction of the relevant Departments, HRSA
simultaneously created an exemption from the mandate for “churches,
their integrated auxiliaries, and conventions or associations of
churches,” as well as “the exclusively religious activities of any
religious order.” 76 Fed. Reg. 46623 (2011); see 77 Fed. Reg. 8726.
(I will call this the “church exemption.”) This narrow exemption
was met with strong objections on the ground that it furnished
insufficient protection for religious groups opposed to the use of
some or all of the listed contraceptives.

															The Departments responded by issuing a new
regulation that created an accommodation for certain religious
non-profit employers. See 78 Fed. Reg. 39892–39898 (2013). (I will
call this the “accommodation.”) Under this accommodation, a covered
employer could certify its objection to its insurer (or, if its
plan was self-funded, to its third-party plan administrator), and
the insurer or third-party administrator would then proceed to
provide contraceptive coverage to the objecting entity’s employees.
Unlike the earlier church exemption, the accommodation did not
exempt these religious employers from the contraceptive mandate,
but the Departments construed invocation of the accommodation as
compliance with the mandate.

															Meanwhile, the contraceptive mandate was
challenged by various employers who had religious objections to
providing coverage for at least some of the listed contraceptives
but were not covered by the church exemption or the accommodation.
In Burwell v. Hobby Lobby Stores, Inc. , 573 U.S.
682 (2014), we held that RFRA prohibited the application of the
regulation to closely held, for-profit corporations that fell into
this category. The Departments responded by issuing a new
regulation that attempted to codify our holding by allowing
closely-held corporations to utilize the accommodation. See 80 Fed.
Reg. 41343–41347 (2015).[ 2 ]

															Although this modification solved one RFRA
problem, the contraceptive mandate was still objectionable to some
religious employers, including the Little Sisters. We considered
those objections in Zubik v. Burwell , 578 U. S.
___ (2016) ( per curiam ), but instead of resolving the
legal dispute, we vacated the decisions below and remanded,
instructing the parties to attempt to come to an agreement.
Unfortunately, after strenuous efforts, the outgoing administration
reported on January 9, 2017, that no reconciliation could be
reached.[ 3 ] The Little Sisters
and other employers objected to engaging in any conduct that had
the effect of making contraceptives available to their employees
under their insurance plans, and no way of providing such coverage
to their employees without using their plans could be found.

															In 2017, the new administration took up the task
of attempting to find a solution. After receiving more than 56,000
comments, it issued the rule now before us, which made the church
exemption available to non-governmental employers who object to the
provision of some or all contraceptive services based on sincerely
held religious beliefs.[ 4 ] 45
CFR §147.132 (2019); see 83 Fed. Reg. 57540, 57590. (The “religious
exemption.”) The Court of Appeals, as noted, held that RFRA did not
require this new rule.

															II

															A

															RFRA broadly prohibits the Federal Government
from violating religious liberty. See 42 U. S. C.
§2000bb–1(a). It applies to every “branch, department, agency,
[and] instrumentality” of the Federal Government, as well as any
“person acting under the color of ” federal law. §2000bb–2(1).
And this prohibition applies to the “implementation” of federal
law. §2000bb–3(a). Thus, unless the ACA or some other subsequently
enacted statute made RFRA inapplicable to the contraceptive
mandate, the Departments responsible for administering that mandate
are obligated to do so in a manner that complies with RFRA.

															No provision of the ACA abrogates RFRA, and our
decision in Hobby Lobby , 573 U. S., at 736, established
that application of the contraceptive mandate must conform to
RFRA’s demands. Thus, it was incumbent on the Departments to ensure
that the rules implementing the mandate were consistent with RFRA,
as interpreted in our decision.

															B

															Under RFRA, the Federal Government may not
“substantially burden a person’s exercise of religion even if the
burden results from a rule of general applicability,” unless it
“demonstrates that application of the burden to the person—(1) is
in furtherance of a compelling governmental interest; and (2) is
the least restrictive means of furthering that compelling
governmental interest.” §§2000bb–1(a)–(b). Applying RFRA to the
contraceptive mandate thus presents three questions. First, would
the mandate substantially burden an employer’s exercise of
religion? Second, if the mandate would impose such a burden, would
it nevertheless serve a “compelling interest”? And third, if it
serves such an interest, would it represent “the least restrictive
means of furthering” that interest? Substantial burden . Under our decision in Hobby Lobby , requiring the Little Sisters or any other
employer with a similar religious objection to comply with the
mandate would impose a substantial burden. Our analysis of this
question in Hobby Lobby can be separated into two parts.
First, would non-compliance have substantial adverse practical
consequences? 573 U. S., at 720–723. Second, would compliance
cause the objecting party to violate its religious beliefs, as
it sincerely understands them ? Id. , at 723–726.

															The answer to the first question is
indisputable. If a covered employer does not comply with the
mandate (by providing contraceptive coverage or invoking the
accommodation), it faces penalties of $100 per day for each of its
employees. 26 U. S. C. §4980D(b)(1). “And if the employer
decides to stop providing health insurance altogether and at least
one full-time employee enrolls in a health plan and qualifies for a
subsidy on one of the government-run ACA exchanges, the employer
must pay $2,000 per year for each of its full-time employees.
§§4980H(a), (c)(1).” 573 U. S., at 697. In Hobby Lobby ,
we found these “severe” financial consequences sufficient to show
that the practical effect of non-compliance would be
“substantial.”[ 5 ] Id. ,
at 720.

															Our answer to the second question was also
perfectly clear. If an employer has a religious objection to the
use of a covered contraceptive, and if the employer has a sincere
religious belief that compliance with the mandate makes it
complicit in that conduct, then RFRA requires that the belief be
honored. Id. , at 724–725. We noted that the objection raised
by the employers in Hobby Lobby “implicate[d] a difficult
and important question of religion and moral philosophy, namely,
the circumstances under which it is wrong for a person to perform
an act that is innocent in itself but that has the effect of
enabling or facilitating the commission of an immoral act by
another.” Id. , at 724. We noted that different individuals
have different beliefs on this question, but we were clear that
“federal courts have no business addressing . . . whether
the religious belief asserted in a RFRA case is reasonable.” Ibid. Instead, the “function” of a court is
“ ‘narrow’ ”: “ ‘to determine’ whether the line
drawn reflects ‘an honest conviction.’ ” Id. , at 725
(quoting Thomas v. Review Bd. of Ind. Employment Security
Div. , 450 U.S.
707 , 716 (1981)).

															Applying this holding to the Little Sisters
yields an obvious answer. It is undisputed that the Little Sisters
have a sincere religious objection to the use of contraceptives and
that they also have a sincere religious belief that utilizing the
accommodation would make them complicit in this conduct. As in Hobby Lobby , “it is not for us to say that their religious
beliefs are mistaken or insubstantial.” 573 U. S., at 725.

															In reaching a contrary conclusion, the Court of
Appeals adopted the reasoning of a prior Third Circuit decision
holding that “ ‘the submission of the self-certification
form’ ” required by the mandate would not “ ‘trigger or
facilitate the provision of contraceptive coverage’ ” and
would not make the Little Sisters “ ‘ “complicit” in the
provision’ ” of objected-to services. 930 F.3d 543, 573 (2019)
(quoting Geneva College v. Secretary of U. S. Dept.
of Health and Human Servs ., 778 F.3d 422, 437–438 (CA3 2015),
vacated and remanded sub nom. Zubik , 578
U. S. ___).

															The position taken by the Third Circuit was
similar to that of the Government when Zubik was before us.
Opposing the position taken by the Little Sisters and others, the
Government argued that what the accommodation required was not
materially different from simply asking that an objecting party opt
out of providing contraceptive coverage with the knowledge that by
doing so it would cause a third party to provide that coverage.
According to the Government, everything that occurred following the
opt-out was a result of governmental action.[ 6 ]

															Petitioners disagreed. Their concern was not
with notifying the Government that they wished to be exempted from
complying with the mandate per se ,[ 7 ] but they objected to two requirements that they
sincerely believe would make them complicit in conduct they find
immoral. First, they took strong exception to the requirement that
they maintain and pay for a plan under which coverage for
contraceptives would be provided. As they explained, if they “were
willing to incur ruinous penalties by dropping their health plans,
their insurance companies would have no authority or obligation to
provide or procure the objectionable coverage for [their] plan
beneficiaries.”[ 8 ] Second, they
also objected to submission of the self-certification form required
by the accommodation because without that certification their plan
could not be used to provide contraceptive coverage.[ 9 ] At bottom, then, the Government and the
religious objectors disagreed about the relationship between what
the accommodation demanded and the provision of contraceptive
coverage.

															Our remand in Zubik put these two
conflicting interpretations to the test. In response to our request
for supplemental briefing, petitioners explained their position in
the following terms. “[T]heir religious exercise” would not be
“infringed” if they did not have to do anything “ ‘more than
contract for a plan that does not include coverage for some or all
forms of contraception,’ even if their employees receive[d]
cost-free contraceptive coverage from the same insurance company.”
578 U. S., at ___ (slip op., at 3). At the time, the
Government thought that it might be possible to achieve this result
under the ACA, ibid ., but subsequent attempts to find a way
to do this failed. After great effort, the Government was forced to
conclude that it was “not aware of the authority, or of a practical
mechanism,” for providing contraceptive coverage “specifically to
persons covered by an objecting employer, other than by using the
employer’s plan, issuer, or third party administrator.” 83 Fed.
Reg. 57545–57546.

															The inescapable bottom line is that the
accommodation demanded that parties like the Little Sisters engage
in conduct that was a necessary cause of the ultimate conduct to
which they had strong religious objections. Their situation was the
same as that of the conscientious objector in Thomas , 450
U. S., at 715, who refused to participate in the manufacture
of tanks but did not object to assisting in the production of steel
used to make the tanks. Where to draw the line in a chain of
causation that leads to objectionable conduct is a difficult moral
question, and our cases have made it clear that courts cannot
override the sincere religious beliefs of an objecting party on
that question. See Hobby Lobby , 573 U. S., at 723–726; Thomas , 450 U. S., at 715–716.

															For these reasons, the contraceptive mandate
imposes a substantial burden on any employer who, like the Little
Sisters, has a sincere religious objection to the use of a listed
contraceptive and a sincere religious belief that compliance with
the mandate (through the accommodation or otherwise) makes it
complicit in the provision to the employer’s workers of a
contraceptive to which the employer has a religious objection. Compelling interest . In Hobby
Lobby , the Government asserted and we assumed for the sake of
argument that the Government had a compelling interest in “ensuring
that all women have access to all FDA-approved contraceptives
without cost sharing.” 573 U. S., at 727. Now, the Government
concedes that it lacks a compelling interest in providing such
access, Reply Brief in No. 19–454, p. 10, and this time, the
Government is correct.

															In order to show that it has a “compelling
interest” within the meaning of RFRA, the Government must clear a
high bar. In Sherbert v. Verner , 374 U.S.
398 (1963), the decision that provides the foundation for the
rule codified in RFRA, we said that “ ‘[o]nly the gravest
abuses, endangering paramount interest’ ” could “ ‘give
occasion for [a] permissible limitation’ ” on the free
exercise of religion. Id. , at 406. Thus, in order to
establish that it has a “compelling interest” in providing free
contraceptives to all women, the Government would have to show that
it would commit one of “the gravest abuses” of its responsibilities
if it did not furnish free contraceptives to all women.

															If we were required to exercise our own judgment
on the question whether the Government has an obligation to provide
free contraceptives to all women, we would have to take sides in
the great national debate about whether the Government should
provide free and comprehensive medical care for all. Entering that
policy debate would be inconsistent with our proper role, and RFRA
does not call on us to express a view on that issue. We can answer
the compelling interest question simply by asking whether Congress has treated the provision of free contraceptives to
all women as a compelling interest.

															“ ‘[A] law cannot be regarded as protecting
an interest “of the highest order” . . . when it leaves
appreciable damage to that supposedly vital interest
unprohibited.’ ” Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S.
520 , 547 (1993). Thus, in considering whether Congress has
manifested the view that it has a compelling interest in providing
free contraceptives to all women, we must take into account
“exceptions” to this asserted “ ‘rule of general
applicability.’ ” Gonzales v. O Centro
Espírita Beneficente União do Vegetal , 546
U.S. 418 , 436 (2006) (quoting §2000bb–1(a)). And here, there
are exceptions aplenty. The ACA—which fails to ensure that millions
of women have access to free contraceptives—unmistakably shows that
Congress, at least to date, has not regarded this interest as
compelling.

															First, the ACA does not provide contraceptive
coverage for women who do not work outside the home. If Congress
thought that there was a compelling need to make free
contraceptives available for all women, why did it make no
provision for women who do not receive a paycheck? Some of these
women may have a greater need for free contraceptives than do women
in the work force.

															Second, if Congress thought that there was a
compelling need to provide cost-free contraceptives for all working
women, why didn’t Congress mandate that coverage in the ACA itself?
Why did it leave it to HRSA to decide whether to require such
coverage at all ?

															Third, the ACA’s very incomplete coverage speaks
volumes. The ACA “exempts a great many employers from most of its
coverage requirements.” Hobby Lobby , 573 U. S., at 699.
“[E]mployers with fewer than 50 employees are not required to
provide” any form of health insurance, and a number of large
employers with “ ‘grandfathered’ ” plans need not comply
with the contraceptive mandate. Ibid. ; see 26
U. S. C. §4980H(c)(2); 42 U. S. C. §18011.
According to a recent survey, 13% of the 153 million Americans with
employer-sponsored health insurance are enrolled in a grandfathered
plan, while only 56% of small firms provide health insurance.
Kaiser Family Foundation, Employer Health Benefits: 2019 Annual
Survey 7, 44, 209 (2019). In Hobby Lobby , we wrote that “the
contraceptive mandate ‘presently does not apply to tens of millions
of people,’ ” 573 U. S., at 700, and it appears that this
is still true apart from the religious exemption.[ 10 ]

															Fourth, the Court’s recognition in today’s
decision that the ACA authorizes the creation of exemptions that go
beyond anything required by the Constitution provides further
evidence that Congress did not regard the provision of cost-free
contraceptives to all women as a compelling interest.

															Moreover, the regulatory exemptions created by
the Departments and HRSA undermine any claim that the agencies
themselves viewed the provision of contraceptive coverage as
sufficiently compelling. From the outset, the church exemption has
applied to churches, their integrated auxiliaries, and
associations. 76 Fed. Reg. 46623. And because of the way the
accommodation operates under the Employee Retirement Income
Security Act of 1974, the Departments treated a number of
self-insured non-profit organizations established by churches or
associations of churches, including religious universities and
hospitals, as “effectively exempted” from the contraceptive mandate
as well. Brief for Petitioners in No. 19–454, p. 4. The result
was a complex and sometimes irrational pattern of exemptions.

															The dissent frames the allegedly compelling
interest served by the mandate in different terms—as an interest in
providing “seamless” cost-free coverage, post , at 1, 14, 21
(opinion of Ginsburg, J.)––but this is an even weaker argument.
What “seamless” coverage apparently means is coverage under the
insurance plan furnished by a woman’s employer. So as applied to
the Little Sisters, the dissent thinks that it would be a grave
abuse if an employee wishing to obtain contraceptives had to take
any step that would not be necessary if she wanted to obtain any
other medical service. See post , at 16–17. Apparently, it
would not be enough if the Government sent her a special card that
could be presented at a pharmacy to fill a prescription for
contraceptives without any out-of-pocket expense. Nor would it be
enough if she were informed that she could obtain free
contraceptives by going to a conveniently located government
clinic. Neither of those alternatives would provide “seamless
coverage,” and thus, according to the dissent, both would be
insufficient. Nothing short of capitulation on the part of the
Little Sisters would suffice.

															This argument is inconsistent with any
reasonable understanding of the concept of a “compelling interest.”
It is undoubtedly convenient for employees to obtain all types of
medical care and all pharmaceuticals under their general health
insurance plans, and perhaps there are women whose personal
situation is such that taking any additional steps to secure
contraceptives would be a notable burden. But can it be said that
all women or all working women have a compelling need for this
convenience?

															The ACA does not provide “seamless” coverage for
all forms of medical care. Take the example of dental care.
Although lack of dental care can cause great pain and may lead to
serious health problems, the ACA does not require that a plan cover
dental services. Millions of employees must secure separate dental
insurance or pay dentist bills out of their own pockets.

															In short, it is undoubtedly true that the
contraceptive mandate provides a benefit that many women may find
highly desirable, but Congress’s enactments show that it has not
regarded the provision of free contraceptives or the furnishing of
“seamless” coverage as “compelling.” Least restrictive means . Even if the
mandate served a compelling interest, the accommodation still would
not satisfy the “exceptionally demanding” least-restrictive-means
standard. Hobby Lobby , 573 U. S., at 728. To meet this
standard, the Government must “sho[w] that it lacks other means of
achieving its desired goal without imposing a substantial burden on
the exercise of religion.” Ibid. ; see also Holt v. Hobbs , 574 U.S.
352 , 365 (2015) (“ ‘[I]f a less restrictive means is
available for the Government to achieve its goals, the Government
must use it’ ”).

															In Hobby Lobby , we observed that the
Government has “other means” of providing cost-free contraceptives
to women “without imposing a substantial burden on the exercise of
religion by the objecting parties.” 573 U. S., at 728. “The
most straightforward way,” we noted, “would be for the Government
to assume the cost of providing the . . . contraceptives
. . . to any women who are unable to obtain them under
their health-insurance policies.” Ibid. In the context of
federal funding for health insurance, the cost of such a program
would be “minor.” Id. , at 729.[ 11 ]

															The Government argued that we should not take
this option into account because it lacked statutory authority to
create such a program, see ibid. , but we rejected that
argument, id. , at 729–730. Certainly, Congress could create
such a program if it thought that providing cost-free
contraceptives to all women was a matter of “paramount”
concern.

															As the Government now points out, Congress has
taken steps in this direction. “[E]xisting federal, state, and
local programs,” including Medicaid, Title X, and Temporary
Assistance for Needy Families, already “provide free or subsidized
contraceptives to low-income women.” Brief for Petitioners in No.
19–454, at 27; see also 83 Fed. Reg. 57548, 57551 (discussing
programs).[ 12 ] And many
women who work for employers who have religious objections to the
contraceptive mandate may be able to receive contraceptive coverage
through a family member’s health insurance plan.

															In sum, the Departments were right to conclude
that applying the accommodation to sincere religious objectors
violates RFRA. See id. , at 57546. All three prongs of the
RFRA analysis—substantial burden, compelling interest, and least
restrictive means—necessitate this answer.

															III

															Once it was apparent that the accommodation
ran afoul of RFRA, the Government was required to eliminate the
violation. RFRA does not specify the precise manner in which a
violation must be remedied; it simply instructs the Government to
avoid “substantially burden[ing]” the “exercise of
religion”— i.e. , to eliminate the violation. §2000bb–1(a);
see also §2000bb–1(c) (providing for “appropriate relief ” in
judicial suit). Thus, in Hobby Lobby , once we held that
application of the mandate to the objecting parties violated RFRA,
we left it to the Departments to decide how best to rectify this
problem. See 573 U. S., at 736; 79 Fed. Reg. 51118 (2014)
(proposing to modify the accommodation to extend it to closely held
corporations in light of Hobby Lobby ); 80 Fed. Reg. 41324
(final rule explaining that “[t]he Departments believe that the
definition adopted in these regulations complies with and goes
beyond what is required by RFRA and Hobby Lobby ”).

															The same principle applies here. Once it is
recognized that the prior accommodation violated RFRA in some of
its applications, it was incumbent on the Departments to eliminate
those violations, and they had discretion in crafting what they
regarded as the best solution.

															The solution they devised cures the problem, and
it is not clear that any narrower exemption would have been
sufficient with respect to parties with religious objections to the
accommodation. As noted, after great effort, the Government
concluded that it was not possible to solve the problem without
using an “employer’s plan, issuer, or third party administrator.”
83 Fed. Reg. 57546. As a result, the Departments turned to the
current rule, under which an objecting party must certify that it
“objects, based on its sincerely held religious beliefs, to its
establishing, maintaining, providing, offering, or arranging for
(as applicable)” either “[c]overage or payments for some or all
contraceptive services” or “[a] plan, issuer, or third party
administrator that provides or arranges such coverage or payments.”
45 CFR §§147.132(a)(2)(i)–(ii).

															The States take exception to the new religious
rule on several grounds. First, they complain that it grants an
exemption to some employers who were satisfied with the prior
accommodation, but there is little basis for this argument. An
employer who is satisfied with the accommodation may continue to
operate under that regime. See §§147.131(c)–(d); 83 Fed. Reg.
57569–57571. And unless an employer has a religious objection to
the accommodation, it is unclear why an employer would give it up.
The accommodation does not impose any cost on an employer, and it
provides an added benefit for the employer’s work force.

															The States also object to the new rule because
it makes exemptions available to publicly traded corporations, but
the Government is “not aware” of any publicly traded corporations
that object to compliance with the mandate. Id. , at 57562.
For all practical purposes, therefore, it is not clear that the new
rule’s provisions concerning entities that object to the mandate on
religious grounds go any further than necessary to bring the
mandate into compliance with RFRA.

															In any event, while RFRA requires the Government
to employ the least restrictive means of furthering a compelling
interest that burdens religious belief, it does not require the
converse—that an accommodation of religious belief be narrowly
tailored to further a compelling interest. The latter approach,
which is advocated by the States, gets RFRA entirely backwards. See
Brief for Respondents 45 (“RFRA could require the religious
exemption only if it was the least restrictive means of furthering
[the Government’s compelling interest]”). Nothing in RFRA requires
that a violation be remedied by the narrowest permissible
corrective.

															Needless to say, the remedy for a RFRA problem
cannot violate the Constitution, but the new rule does not have
that effect. The Court has held that there is a constitutional
right to purchase and use contraceptives. Griswold v. Connecticut , 381 U.S.
479 (1965); Carey v. Population Services Int’l , 431 U.S.
678 (1977). But the Court has never held that there is a
constitutional right to free contraceptives.

															The dissent and the court below suggest that the
new rule is improper because it imposes burdens on the employees of
entities that the rule exempts, see post , at 14–17; 930
F. 3d, at 573–574,[ 13 ]
but the rule imposes no such burden. A woman who does not have the
benefit of contraceptive coverage under her employer’s plan is not
the victim of a burden imposed by the rule or her employer. She is
simply not the beneficiary of something that federal law does not
provide. She is in the same position as a woman who does not work
outside the home or a woman whose health insurance is provided by a
grandfathered plan that does not pay for contraceptives or a woman
who works for a small business that may not provide any health
insurance at all.

															*  *  *

															I would hold not only that it was appropriate
for the Departments to consider RFRA, but also that the Departments
were required by RFRA to create the religious exemption (or
something very close to it). I would bring the Little Sisters’
legal odyssey to an end. Notes 1 The Health Resources and
Services Administration (HRSA), a division of the Department of
Health and Human Services, creates the “comprehensive guidelines”
on “coverage” for “additional preventive care and screenings” for
women, 42 U. S. C. §300gg–13(a)(4), but the statute is
jointly administered and enforced by the Departments of Health and
Human Services, Labor, and Treasury (collectively Departments), see
§300gg–92; 29 U. S. C. §1191c; 26 U. S. C.
§9833. The Departments promulgated the exemptions at issue here,
which were subsequently incorporated into the guidelines by HRSA.
See 83 Fed. Reg. 57536 (2018); id. , at 57592. 2 In the regulation, the
Departments also responded to our holding in Wheaton College v. Burwell , 573 U.S. 958 (2014), by allowing employers who
invoked the accommodation to notify the Government of their
objection, rather than filing the objection with their insurer or
third-party administrator. See 80 Fed. Reg. 41337. 3 Dept. of Labor, FAQs
About Affordable Care Act Implementation Part 36 (Jan. 9, 2017),
https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-36.pdf. 4 A similar exemption was
provided for employers with moral objections. See 45 CFR
§147.33. 5 This is one of the
differences between these cases and Bowen v. Roy , 476 U.S.
693 (1986). See post , at 18–19 (opinion of Ginsburg, J.)
(relying on Bowen to conclude that accommodation was
unnecessary). In Bowen , the objecting individuals were not
faced with penalties or “coerced by the Governmen[t] into violating
their religious beliefs.” Lyng v. Northwest Indian
Cemetery Protective Assn. , 485 U.S.
439 , 449 (1988). 6 See Brief for Respondents
in Zubik v. Burwell , O. T. 2015, Nos. 14–1418,
14–1453, 14–1505, 15–35, 15–105, 15–119, 15–191, pp.
35–41. 7 See Brief for Petitioners
in Zubik v. Burwell , O. T. 2015, Nos. 15–35, 15–105,
15–119, 15–191, p. 45. 8 Brief for Petitioners in Zubik v. Burwell , O. T. 2015, Nos. 14–1418, 14–1453,
14–1505, p. 49. 9 Brief for Petitioners in Zubik , O. T. 2015, Nos. 15–35, 15–105, 15–119, 15–191, at
44. 10 In
contrast, the Departments estimated that plans covering 727,000
people would take advantage of the religious exemption, and thus
that between 70,500 and 126,400 women of childbearing age would be
affected by the religious exemption. 83 Fed. Reg. 57578,
57581. 11 In
2019, the Government is estimated to have spent $737 billion
subsidizing health insurance for individuals under the age of 65;
$287 billion of that went to employment-related coverage. CBO,
Federal Subsidies for Health Insurance for People Under Age 65:
2019 to 2029, pp. 15–16 (2019). While the cost of
contraceptive methods varies, even assuming the most expensive
options, which range around $1,000 a year, the cost of providing
this coverage to the 126,400 women who are estimated to be impacted
by the religious exemption would be $126.4 million. See Kosova,
National Women’s Health Network, How Much Do Different Kinds of
Birth Control Cost Without Insurance? (Nov. 17, 2017),
http://nwhn.org /much-different-kinds-birth-control-cost-without-insurance/
(discussing contraceptive methods ranging from $240 to $1,000 per
year); 83 Fed. Reg. 57581 (estimating that up to 126,400 women will
be affected by the religious exemption). 12 The
Government recently amended the definitions for Title X’s family
planning program to help facilitate access to contraceptives for
women who work for an employer invoking the religious and moral
exemptions. See 84 Fed. Reg. 7734 (2019). These definitions now
provide that “for the purpose of considering payment for
contraceptive services only,” a “low income family” “includes
members of families whose annual income” would otherwise exceed the
threshold “where a woman has health insurance coverage through an
employer . . . [with] a sincerely held religious or moral
objection to providing such [contraceptive] coverage.” 42 CFR
§59.2(2). 13 Both
the dissent and the court below refer to the statement in Cutter v. Wilkinson , 544 U.S.
709 , 720 (2005), that “courts must take adequate account of the
burdens a requested accommodation may impose on nonbeneficiaries,”
but that statement was made in response to the argument that RFRA’s
twin, the Religious Land Use and Institutionalized Persons Act, 42
U. S. C. §2000cc et seq. , violated the
Establishment Clause. The only case cited by Cutter in
connection with this statement, Estate of Thornton v. Caldor,
Inc., 472 U.S.
703 (1985) , involved a religious accommodation that the
Court held violated the Establishment Clause. Before this Court,
the States do not argue––and there is no basis for an argument—that
the new rule violates that Clause. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 19–431 and 19–454

															_________________

															LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME, PETITIONER

															19–431 v. PENNSYLVANIA, et al.

															DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al., PETITIONERS

															19–454 v. PENNSYLVANIA, et al.

															on writs of certiorari to the united states
court of appeals for the third circuit

															[July 8, 2020]

															Justice Kagan, with whom Justice Breyer joins,
concurring in the judgment.

															I would uphold HRSA’s statutory authority to
exempt certain employers from the contraceptive-coverage mandate,
but for different reasons than the Court gives. I also write
separately because I question whether the exemptions can survive
administrative law’s demand for reasoned decisionmaking. That issue
remains open for the lower courts to address.

															The majority and dissent dispute the breadth of
the delegation in the Women’s Health Amendment to the ACA. The
Amendment states that a health plan or insurer must offer coverage
for “preventive care and screenings . . . as provided for
in comprehensive guidelines supported by [HRSA] for purposes of
this paragraph.” 42 U. S. C. §300gg–13(a)(4). The
disputed question is just what HRSA can “provide for.” Both the
majority and the dissent agree that HRSA’s guidelines can
differentiate among preventive services, mandating coverage of some
but not others. The opinions disagree about whether those
guidelines can also differentiate among health plans, exempting
some but not others from the contraceptive-coverage requirement. On
that question, all the two opinions have in common is equal
certainty they are right. Compare ante, at 16 (majority
opinion) (Congress “enacted expansive language offer[ing] no
indication whatever that the statute limits what HRSA can designate
as preventive care and screenings or who must provide that
coverage” (internal quotation marks omitted)), with post, at
9 (Ginsburg, J., dissenting) (“Nothing in [the statute] accord[s]
HRSA authority” to decide “ who must provide coverage”
(internal quotation marks omitted; emphasis in original)).

															Try as I might, I do not find that kind of
clarity in the statute. Sometimes when I squint, I read the law as
giving HRSA discretion over all coverage issues: The agency gets to
decide who needs to provide what services to women. At other times,
I see the statute as putting the agency in charge of only the
“what” question, and not the “who.” If I had to, I would of course
decide which is the marginally better reading. But Chevron deference was built for cases like these. See Chevron
U. S. A. Inc. v. Natural Resources Defense
Council, Inc. , 467 U.S.
837 , 842–843 (1984); see also Arlington v. FCC , 569 U.S.
290 , 301 (2013) (holding that Chevron applies to
questions about the scope of an agency’s statutory authority). Chevron instructs that a court facing statutory ambiguity
should accede to a reasonable interpretation by the implementing
agency. The court should do so because the agency is the more
politically accountable actor. See 467 U. S., at 865–866. And
it should do so because the agency’s expertise often enables a
sounder assessment of which reading best fits the statutory scheme.
See id., at 865.

															Here, the Departments have adopted the
majority’s reading of the statutory delegation ever since its
enactment. Over the course of two administrations, the Departments
have shifted positions on many questions involving the Women’s
Health Amendment and the ACA more broadly. But not on whether the
Amendment gives HRSA the ability to create exemptions to the
contraceptive-coverage mandate. HRSA adopted the original church
exemption on the same capacious understanding of its statutory
authority as the Departments endorse today. See 76 Fed. Reg. 46623
(2011) (“In the Departments’ view, it is appropriate that HRSA, in
issuing these Guidelines, takes into account the effect on the
religious beliefs of certain religious employers if coverage of
contraceptive services were required”).[ 1 ] While the exemption itself has expanded, the
Departments’ reading of the statutory delegation—that the law gives
HRSA discretion over the “who” question—has remained the same. I
would defer to that longstanding and reasonable interpretation.

															But that does not mean the Departments should
prevail when these cases return to the lower courts. The States
challenged the exemptions not only as outside HRSA’s statutory
authority, but also as “arbitrary [and] capricious.” 5
U. S. C. §706(2)(A). Because the courts below found for
the States on the first question, they declined to reach the
second. That issue is now ready for resolution, unaffected by
today’s decision. An agency acting within its sphere of delegated
authority can of course flunk the test of “reasoned
decisionmaking.” Michigan v. EPA , 576 U.S. 743, 750
(2015). The agency does so when it has not given “a satisfactory
explanation for its action”—when it has failed to draw a “rational
connection” between the problem it has identified and the solution
it has chosen, or when its thought process reveals “a clear error
of judgment.” Motor Vehicle Mfrs. Assn. of United States,
Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S.
29 , 43 (1983) (internal quotation marks omitted). Assessed
against that standard of reasonableness, the exemptions HRSA and
the Departments issued give every appearance of coming up
short.[ 2 ]

															Most striking is a mismatch between the scope of
the religious exemption and the problem the agencies set out to
address. In the Departments’ view, the exemption was “necessary to
expand the protections” for “certain entities and individuals” with
“religious objections” to contraception. 83 Fed. Reg. 57537 (2018).
Recall that under the old system, an employer objecting to the
contraceptive mandate for religious reasons could avail itself of
the “self-certification accommodation.” Ante, at 6. Upon
making the certification, the employer no longer had “to contract,
arrange, [or] pay” for contraceptive coverage; instead, its insurer
would bear the services’ cost. 78 Fed. Reg. 39874 (2013). That
device dispelled some employers’ objections—but not all. The Little
Sisters, among others, maintained that the accommodation itself
made them complicit in providing contraception. The measure thus
failed to “assuage[ ]” their “sincere religious objections.”
82 Fed. Reg. 47799 (2017). Given that fact, the Departments might
have chosen to exempt the Little Sisters and other still-objecting
groups from the mandate. But the Departments went further still.
Their rule exempted all employers with objections to the mandate,
even if the accommodation met their religious needs. In other
words, the Departments exempted employers who had no religious
objection to the status quo (because they did not share the Little
Sisters’ views about complicity). The rule thus went beyond what
the Departments’ justification supported—raising doubts about
whether the solution lacks a “rational connection” to the problem
described. State Farm , 463 U. S., at 43.[ 3 ]

															And the rule’s overbreadth causes serious harm,
by the Departments’ own lights. In issuing the rule, the
Departments chose to retain the contraceptive mandate itself. See
83 Fed. Reg. 57537. Rather than dispute HRSA’s prior finding that
the mandate is “necessary for women’s health and well-being,” the
Departments left that determination in place. HRSA, Women’s
Preventive Services Guidelines (Dec. 2019),
www.hrsa.gov/womens-guidelines-2019; see 83 Fed. Reg. 57537. The
Departments thus committed themselves to minimizing the impact on
contraceptive coverage, even as they sought to protect employers
with continuing religious objections. But they failed to fulfill
that commitment to women. Remember that the accommodation preserves
employees’ access to cost-free contraceptive coverage, while the
exemption does not. See ante, at 5–6. So the Departments
(again, according to their own priorities) should have exempted
only employers who had religious objections to the
accommodation—not those who viewed it as a religiously acceptable
device for complying with the mandate. The Departments’ contrary
decision to extend the exemption to those without any religious
need for it yielded all costs and no benefits. Once again, that
outcome is hard to see as consistent with reasoned judgment. See State Farm , 463 U. S., at 43.[ 4 ]

															Other aspects of the Departments’ handiwork may
also prove arbitrary and capricious. For example, the Departments
allow even publicly traded corporations to claim a religious
exemption. See 83 Fed. Reg. 57562–57563. That option is unusual
enough to raise a serious question about whether the Departments
adequately supported their choice. Cf. Burwell v. Hobby
Lobby Stores, Inc. , 573 U.S.
682 , 717 (2014) (noting the oddity of “a publicly traded
corporation asserting RFRA rights”). Similarly, the Departments
offer an exemption to employers who have moral, rather than
religious, objections to the contraceptive mandate. Perhaps there
are sufficient reasons for that decision—for example, a desire to
stay neutral between religion and non-religion. See 83 Fed. Reg.
57603–57604. But RFRA cast a long shadow over the Departments’
rulemaking, see ante, at 19–22, and that statute does not
apply to those with only moral scruples. So a careful agency would
have weighed anew, in this different context, the benefits of
exempting more employers from the mandate against the harms of
depriving more women of contraceptive coverage. In the absence of
such a reassessment, it seems a close call whether the moral
exemption can survive.

															None of this is to say that the Departments
could not issue a valid rule expanding exemptions from the
contraceptive mandate. As noted earlier, I would defer to the
Departments’ view of the scope of Congress’s delegation. See supra, at 3. That means the Departments (assuming they act
hand-in-hand with HRSA) have wide latitude over exemptions, so long
as they satisfy the requirements of reasoned decisionmaking. But
that “so long as” is hardly nothing. Even in an area of broad
statutory authority—maybe especially there—agencies must rationally
account for their judgments. Notes 1 The First Amendment
cannot have separately justified the church exemption, as the
dissent suggests. See post , at 12–13 (opinion of Ginsburg,
J.). That exemption enables a religious institution to decline to
provide contraceptive coverage to all its employees, from a
minister to a building custodian. By contrast, the so-called
ministerial exception of the First Amendment (which the dissent
cites, see post , at 13) extends only to select employees, having ministerial status. See Our Lady of Guadalupe
School v. Morrissey-Berru , 591 U. S. ___, ___
(2020) (slip op., at 14–16); Hosanna-Tabor Evangelical Lutheran
Church and School v. EEOC , 565 U.S.
171 , 190 (2012). (Too, this Court has applied the ministerial
exception only to protect religious institutions from employment
discrimination suits, expressly reserving whether the exception
excuses their non-compliance with other laws. See id. , at
196.) And there is no general constitutional immunity, over and
above the ministerial exception, that can protect a religious
institution from the law’s operation. 2 I speak here only of the
substantive validity of the exemptions. I agree with the Court that
the final rules issuing the exemptions were procedurally
valid. 3 At oral argument, the
Solicitor General argued that the rule’s overinclusion is harmless
because the accommodation remains available to all employers who
qualify for the exemption. See Tr. of Oral Arg. 20–23. But in their
final rule, the Departments themselves acknowledged the prospect
that some employers without a religious objection to the
accommodation would switch to the exemption. See 83 Fed. Reg.
57576–57577 (“Of course, some of the[ ] religious”
institutions that “do not conscientiously oppose participating” in
the accommodation “may opt for the expanded exemption[,] but others
might not”); id., at 57561 (“[I]t is not clear to the
Departments” how many of the religious employers who had used the
accommodation without objection “will choose to use the expanded
exemption instead”). And the Solicitor General, when pressed at
argument, could offer no evidence that, since the rule took effect,
employers without the Little Sisters’ complicity beliefs had
declined to avail themselves of the new exemption. Tr. of Oral Arg.
22. 4 In a brief passage in the
interim final rule, the Departments suggested that an exemption is
“more workable” than the accommodation in addressing religious
objections to the mandate. 82 Fed. Reg. 47806. But the Departments
continue to provide the accommodation to any religious employers
who request that option, thus maintaining a two-track system. See ante, at 10; n. 3, supra . So ease of
administration cannot support, at least without more explanation,
the Departments’ decision to offer the exemption more broadly than
needed. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 19–431 and 19–454

															_________________

															LITTLE SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME, PETITIONER

															19–431 v. PENNSYLVANIA, et al.

															DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al., PETITIONERS

															19–454 v. PENNSYLVANIA, et al.

															on writs of certiorari to the united states
court of appeals for the third circuit

															[July 8, 2020]

															Justice Ginsburg, with whom Justice Sotomayor
joins, dissenting.

															In accommodating claims of religious freedom,
this Court has taken a balanced approach, one that does not allow
the religious beliefs of some to overwhelm the rights and interests
of others who do not share those beliefs. See, e.g. , Estate of Thornton v. Caldor, Inc ., 472 U.S.
703 , 708–710 (1985); United States v. Lee , 455 U.S.
252 , 258–260 (1982). Today, for the first time, the Court casts
totally aside countervailing rights and interests in its zeal to
secure religious rights to the n th degree. Specifically, in
the Women’s Health Amendment to the Patient Protection and
Affordable Care Act (ACA), 124Stat. 119; 155 Cong. Rec. 28841
(2009), Congress undertook to afford gainfully employed women
comprehensive, seamless, no-cost insurance coverage for preventive
care protective of their health and well-being. Congress delegated
to a particular agency, the Health Resources and Services
Administration (HRSA), authority to designate the preventive care
insurance should cover. HRSA included in its designation all
contraceptives approved by the Food and Drug Administration
(FDA).

															Destructive of the Women’s Health Amendment,
this Court leaves women workers to fend for themselves, to seek
contraceptive coverage from sources other than their employer’s
insurer, and, absent another available source of funding, to pay
for contraceptive services out of their own pockets. The
Constitution’s Free Exercise Clause, all agree, does not call for
that imbalanced result.[ 1 ] Nor
does the Religious Freedom Restoration Act of 1993 (RFRA), 42
U. S. C. §2000bb et seq. , condone harm to
third parties occasioned by entire disregard of their needs. I
therefore dissent from the Court’s judgment, under which, as the
Government estimates, between 70,500 and 126,400 women would
immediately lose access to no-cost contraceptive services. On the
merits, I would affirm the judgment of the U. S. Court of
Appeals for the Third Circuit.

															I

															A

															Under the ACA, an employer-sponsored “group
health plan” must cover specified “preventive health services”
without “cost sharing,” 42 U. S. C. §300gg–13, i.e. , without such out-of-pocket costs as copays or
deductibles.[ 2 ] Those
enumerated services did not, in the original draft bill, include
preventive care specific to women. “To correct this oversight,
Senator Barbara Mikulski introduced the Women’s Health Amendment,”
now codified at §300gg–13(a)(4). Burwell v. Hobby Lobby
Stores, Inc ., 573 U.S.
682 , 741 (2014) (Ginsburg, J., dissenting); see also 155 Cong.
Rec. 28841. This provision was designed “to promote equality in
women’s access to health care,” countering gender-based
discrimination and disparities in such access. Brief for 186
Members of the United States Congress as Amici Curiae 6
(hereinafter Brief for 186 Members of Congress). Its proponents
noted, inter alia , that “[w]omen paid significantly more
than men for preventive care,” and that “cost barriers operated to
block many women from obtaining needed care at all.” Hobby
Lobby , 573 U. S., at 742 (Ginsburg, J., dissenting); see, e.g. , 155 Cong. Rec. 28844 (statement of Sen. Hagan) (“When
. . . women had to choose between feeding their children,
paying the rent, and meeting other financial obligations, they
skipped important preventive screenings and took a chance with
their personal health.”).

															Due to the Women’s Health Amendment, the
preventive health services that group health plans must cover
include, “with respect to women,” “preventive care and screenings
. . . provided for in comprehensive guidelines supported
by [HRSA].” §300gg–13(a)(4). Pursuant to this instruction, HRSA
undertook, after consulting the Institute of Medicine,[ 3 ] to state “what preventive services
are necessary for women’s health and well-being and therefore
should be considered in the development of comprehensive guidelines
for preventive services for women.”[ 4 ] The resulting “Women’s Preventive Services Guidelines”
issued in August 2011.[ 5 ] Under
these guidelines, millions of women who previously had no, or poor
quality, health insurance gained cost-free access, not only to
contraceptive services but as well to, inter alia, annual
checkups and screenings for breast cancer, cervical cancer,
postpartum depression, and gestational diabetes.[ 6 ] As to contraceptive services, HRSA
directed that, to implement §300gg–13(a)(4), women’s preventive
services encompass “all [FDA] approved contraceptive methods,
sterilization procedures, and patient education and counseling for
all women with reproductive capacity.”[ 7 ]

															Ready access to contraceptives and other
preventive measures for which Congress set the stage in
§300gg–13(a)(4) both safeguards women’s health and enables women to
chart their own life’s course. Effective contraception, it bears
particular emphasis, “improves health outcomes for women and
[their] children,” as “women with unintended pregnancies are more
likely to receive delayed or no prenatal care” than women with
planned pregnancies. Brief for 186 Members of Congress 5 (internal
quotation marks omitted); Brief for American College of
Obstetricians and Gynecologists et al. as Amici Curiae 10 (hereinafter ACOG Brief ) (similar). Contraception is also
“critical for individuals with underlying medical conditions that
would be further complicated by pregnancy,” “has . . .
health benefits unrelated to preventing pregnancy,” ( e.g. ,
it can reduce the risk of endometrial and ovarian cancer), Brief
for National Women’s Law Center et al. as Amici Curiae 23–24, 26 (hereinafter NWLC Brief ), and “improves women’s
social and economic status,” by “allow[ing] [them] to invest in
higher education and a career with far less risk of an unplanned
pregnancy,” Brief for 186 Members of Congress 5–6 (internal
quotation marks omitted).

															B

															For six years, the Government took care to
protect women employees’ access to critical preventive health
services while accommodating the diversity of religious opinion on
contraception. The Internal Revenue Service (IRS), the Employee
Benefits Security Administration (EBSA), and the Center for
Medicare and Medicaid Services (CMS) crafted a narrow exemption
relieving houses of worship, “their integrated auxiliaries,”
“conventions or associations of churches,” and “religious order[s]”
from the contraceptive- coverage requirement. 76 Fed. Reg. 46623
(2011). For other nonprofit and closely held for-profit
organizations opposed to contraception on religious grounds, the
agencies made available an accommodation rather than an exemption.
See 78 Fed. Reg. 39874 (2013); Hobby Lobby , 573 U. S.,
at 730–731.

															“Under th[e] accommodation, [an employer]
can self-certify that it opposes providing coverage for particular
contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1)
[(2013)]; 26 CFR §§54.9815–2713A(a)(4), (b). If [an employer] makes
such a certification, the [employer’s] insurance issuer or
third-party administrator must ‘[e]xpressly exclude contraceptive
coverage from the group health insurance coverage provided in
connection with the group health plan’ and ‘[p]rovide separate
payments for any contraceptive services required to be covered’
without imposing ‘any cost-sharing requirements . . . on
the [employer], the group health plan, or plan participants or
beneficiaries.’ 45 CFR §147.131(c)(2); 26 CFR
§54.9815–2713A(c)(2).” Id. , at 731 (some alterations in
original).[ 8 ]

															The self-certification accommodation, the Court
observed in Hobby Lobby , “does not impinge on [an
employer’s] belief that providing insurance coverage for
. . . contraceptives . . . violates [its]
religion.” Ibid . It serves “a Government interest of the
highest order,” i.e. , providing women employees “with
cost-free access to all FDA-approved methods of contraception.” Id. , at 729. And “it serves [that] stated interes[t]
. . . well.” Id. , at 731; see id., at 693
(Government properly accommodated employer’s religion-based
objection to covering contraceptives under employer’s health
insurance plan when the harm to women of doing so “would be
precisely zero”). Since the ACA’s passage, “[gainfully employed]
[w]omen, particularly in lower-income groups, have reported greater
affordability of coverage, access to health care, and receipt of
preventive services.” Brief for 186 Members of Congress 21.

															C

															Religious employers, including petitioner
Little Sisters of the Poor Saints Peter and Paul Home (Little
Sisters), nonetheless urge that the self-certification
accommodation renders them “complicit in providing [contraceptive]
coverage to which they sincerely object.” Brief for Little Sisters
35. In 2017, responsive to the pleas of such employers, the
Government abandoned its effort to both end discrimination against
employed women in access to preventive services and accommodate
religious exercise. Under new rules drafted not by HRSA, but by the
IRS, EBSA, and CMS, any “non-governmental employer”—even a
publicly traded for-profit company—can avail itself of the
religious exemption previously reserved for houses of worship. 82
Fed. Reg. 47792 (2017) (interim final rule); 45 CFR
§147.132(a)(1)(i)(E) (2018).[ 9 ]
More than 2.9 million Americans—including approximately 580,000
women of childbearing age—receive insurance through organizations
newly eligible for this blanket exemption. 83 Fed. Reg. 57577–57578
(2018). Of cardinal significance, the exemption contains no
alternative mechanism to ensure affected women’s continued access
to contraceptive coverage. See 45 CFR §147.132.

															Pennsylvania and New Jersey, respondents here,
sued to enjoin the exemption. Their lawsuit posed this core
question: May the Government jettison an arrangement that promotes
women workers’ well-being while accommodating employers’ religious
tenets and, instead, defer entirely to employers’ religious
beliefs, although that course harms women who do not share those
beliefs? The District Court answered “no,” and preliminarily
enjoined the blanket exemption nationwide. 281 F. Supp. 3d
553, 585 (ED Pa. 2017). The Court of Appeals affirmed. 930 F.3d
543, 576 (CA3 2019). The same question is now presented for
ultimate decision by this Court.

															II

															Despite Congress’ endeavor, in the Women’s
Health Amendment to the ACA, to redress discrimination against
women in the provision of healthcare, the exemption the Court today
approves would leave many employed women just where they were
before insurance issuers were obliged to cover preventive services
for them, cost free. The Government urges that the ACA itself
authorizes this result, by delegating to HRSA authority to exempt
employers from the contraceptive-coverage requirement. This
argument gains the Court’s approbation. It should not.

															A

															I begin with the statute’s text. But see ante , at 17 (opinion of the Court) (overlooking my starting
place). The ACA’s preventive-care provision, 42 U. S. C.
§300gg–13(a), reads in full:

															“A group health plan and a health insurance
issuer offering group or individual health insurance coverage
shall, at a minimum provide coverage for and shall not impose any
cost sharing requirements for—

															“(1) evidence-based items or services that have
in effect a rating of ‘A’ or ‘B’ in the current recommendations of
the United States Preventive Services Task Force;

															“(2) immunizations that have in effect a
recommendation from the Advisory Committee on Immunization
Practices of the Centers for Disease Control and Prevention with
respect to the individual involved; . . .

															“(3) with respect to infants, children, and
adolescents, evidence-informed preventive care and screenings
provided for in the comprehensive guidelines supported by [HRSA;
and]

															“(4) with respect to women, such additional
preventive care and screenings not described in paragraph (1) as
provided for in comprehensive guidelines supported by [HRSA] for
purposes of this paragraph.”

															At the start of this provision, Congress
instructed who is to “provide coverage for” the specified
preventive health services: “group health plan[s]” and “health
insurance issuer[s].” §300gg–13(a). As the Court of Appeals
explained, paragraph (a)(4), added by the Women’s Health Amendment,
granted HRSA “authority to issue ‘comprehensive guidelines’
concern[ing] the type of services” group health plans and
health insurance issuers must cover with respect to women. 930
F. 3d, at 570 (emphasis added). Nothing in paragraph (a)(4)
accorded HRSA “authority to undermine Congress’s [initial]
directive,” stated in subsection (a), “concerning who must
provide coverage for these services.” Ibid. (emphasis
added).

															The Government argues otherwise, asserting that
“[t]he sweeping authorization for HRSA to ‘provide[ ] for’ and
‘support[ ]’ guidelines ‘for purposes of ’ the women’s
preventive-services mandate clearly grants HRSA the power not just
to specify what services should be covered, but also to provide
appropriate exemptions.” Brief for HHS et al. 15.[ 10 ] This terse statement—the
entirety of the Government’s textual case—slights the language
Congress employed. Most visibly, the Government does not endeavor
to explain how any language in paragraph (a)(4) counteracts
Congress’ opening instruction in §300gg–13(a) that group health
plans “shall . . . provide” specified services. See supra , at 8–9.

															The Court embraces, and the opinion concurring
in the judgment adopts, the Government’s argument. The Court
correctly acknowledges that HRSA has broad discretion to determine what preventive services insurers should provide for women. Ante , at 15. But it restates that HRSA’s “discretion [is]
equally unchecked in other areas, including the ability to identify
and create exemptions from its own Guidelines.” Ante , at 16.
See also ante , at 2–3 (Kagan, J., concurring in judgment)
(agreeing with this interpretation). Like the Government, the Court
and the opinion concurring in the judgment shut from sight
§300gg–13(a)’s overarching direction that group health plans and
health insurance issuers “shall” cover the specified services. See supra , at 8–9. That “ ‘absent provision[s] cannot be
supplied by the courts,’ ” ante , at 16 (quoting Rotkiske v. Klemm , 589 U. S. ___, ___ (2019)
(slip op., at 5), militates against the Court’s conclusion,
not in favor of it. Where Congress wanted to exempt certain
employers from the ACA’s requirements, it said so expressly. See, e.g. , supra, at 3, n. 2. Section 300gg–13(a)(4)
includes no such exemption. See supra , at 8–9.[ 11 ]

															B

															The position advocated by the Government and
endorsed by the Court and the opinion concurring in the judgment
encounters further obstacles.

															Most saliently, the language in §300gg–13(a)(4)
mirrors that in §300gg–13(a)(3), the provision addressing children’s preventive health services. Not contesting here
that HRSA lacks authority to exempt group health plans from the
children’s preventive-care guidelines, the Government attempts to
distinguish paragraph (a)(3) from paragraph (a)(4). Brief for HHS
et al. 16–17. The attempt does not withstand inspection.

															The Government first observes that (a)(4),
unlike (a)(3), contemplates guidelines created “ for purposes of
this paragraph .” (Emphasis added.) This language does not speak
to the scope of the guidelines HRSA is charged to create. Moreover,
the Government itself accounts for this textual difference: The
children’s preventive-care guidelines described in paragraph (a)(3)
were “preexisting guidelines . . . developed for purposes
unrelated to the ACA.” Brief for HHS et al. 16. The guidelines
on women’s preventive care, by contrast, did not exist before the
ACA; they had to be created “for purposes of ” the
preventive-care mandate. §300gg–13(a)(4). The Government next
points to the modifier “evidence-informed” placed in (a)(3), but
absent in (a)(4). This omission, however it may bear on the kind of
preventive services for women HRSA can require group health
insurance to cover, does not touch or concern who is
required to cover those services.[ 12 ]

															HRSA’s role within HHS also tugs against the
Government’s, the Court’s, and the opinion concurring in the
judgment’s construction of §300gg–13(a)(4). That agency was a
logical choice to determine what women’s preventive services
should be covered, as its mission is to “improve health care
access” and “eliminate health disparities.”[ 13 ] First and foremost, §300gg–13(a)(4) is
directed at eradicating gender-based disparities in access to
preventive care. See supra , at 3. Overlooked by the Court,
see ante, at 14–18, and the opinion concurring in the
judgment, see ante , at 2–3 (opinion of Kagan, J.), HRSA’s
expertise does not include any proficiency in delineating religious
and moral exemptions. One would not, therefore, expect Congress to
delegate to HRSA the task of crafting such exemptions. See King v. Burwell , 576 U.S. 473, 486 (2015) (“It is
especially unlikely that Congress would have delegated this
decision to [an agency] which has no expertise in . . .
policy of this sort.”).[ 14 ]

															In fact, HRSA did not craft the blanket
exemption. As earlier observed, see supra , at 7, that task
was undertaken by the IRS, EBSA, and CMS. See also 45 CFR
§147.132(a)(1), 147.133(a)(1) (direction by the IRS, EBSA, and CMS
that HRSA’s guidelines “ must not provide for” contraceptive
coverage in the circumstances described in the blanket exemption
(emphasis added)). Nowhere in 42 U. S. C. §300gg–13(a)(4)
are those agencies named, as earlier observed, see supra, at
8–9, an absence the Government, the Court, and the opinion
concurring in the judgment do not deign to acknowledge. See Brief
for HHS et al. 15–20; ante , at 14–18 (opinion of the
Court); ante , at 2–3 (opinion of Kagan, J.).

															C

															If the ACA does not authorize the blanket
exemption, the Government urges, then the exemption granted to
houses of worship in 2011 must also be invalid. Brief for HHS
et al. 19–20. As the Court of Appeals explained, however, see
930 F. 3d, at 570, n. 26, the latter exemption is not attributable
to the ACA’s text; it was justified on First Amendment grounds. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S.
171 , 188 (2012) (the First Amendment’s “ministerial exception”
protects “the internal governance of [a] church”); 80 Fed. Reg.
41325 (2015) (the exemption “recogni[zes] [the] particular sphere
of autonomy [afforded to] houses of worship . . .
consistent with their special status under longstanding tradition
in our society”).[ 15 ] Even
if the house-of-worship exemption extends beyond what the First
Amendment would require, see ante , at 3, n. 1 (opinion
of Kagan, J.), that extension, as just explained, cannot be
extracted from the ACA’s text.[ 16 ]

															III

															Because I conclude that the blanket exemption
gains no aid from the ACA, I turn to the Government’s alternative
argument. The religious exemption, if not the moral
exemption, the Government urges, is necessary to protect religious
freedom. The Government does not press a free exercise argument,
see supra , at 2, and n. 1, instead invoking RFRA. Brief
for HHS et al. 20–31. That statute instructs that the
“Government shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general
applicability,” unless doing so “is the least restrictive means of
furthering [a] compelling governmental interest.” 42
U. S. C. §2000bb–1(a), (b).

															A

															1

															The parties here agree that federal agencies
may craft accommodations and exemptions to cure violations of RFRA.
See, e.g ., Brief for Respondents 36.[ 17 ] But that authority is not unbounded. Cutter v. Wilkinson , 544 U.S.
709 , 720 (2005) (construing Religious Land Use and
Institutionalized Persons Act of 2000, the Court cautioned that
“adequate account” must be taken of “the burdens a requested
accommodation may impose on nonbeneficiaries” of the Act); Caldor , 472 U. S., at 708–710 (invalidating state
statute requiring employers to accommodate an employee’s religious
observance for failure to take into account the burden such an
accommodation would impose on the employer and other employees).
“[O]ne person’s right to free exercise must be kept in harmony with
the rights of her fellow citizens.” Hobby Lobby, 573
U. S., at 765, n. 25 (Ginsburg, J., dissenting). See also id. , at 746 (“[Y]our right to swing your arms ends just
where the other man’s nose begins.” (quoting Chafee, Freedom of
Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919))).

															In this light, the Court has repeatedly assumed
that any religious accommodation to the contraceptive-coverage
requirement would preserve women’s continued access to seamless,
no-cost contraceptive coverage. See Zubik v. Burwell ,
578 U. S. ___, ___ (2016) ( per curiam ) (slip op.,
at 4) (“[T]he parties on remand should be afforded an opportunity
to arrive at an approach . . . that accommodates
petitioners’ religious exercise while . . . ensuring that
women covered by petitioners’ health plans receive full and equal
health coverage, including contraceptive coverage.” (internal
quotation marks omitted)); Wheaton College v. Burwell , 573 U.S. 958, 959 (2014) (“Nothing in this interim
order affects the ability of applicant’s employees and students to
obtain, without cost, the full range of [FDA] approved
contraceptives.”); Hobby Lobby , 573 U. S., at 692
(“There are other ways in which Congress or HHS could equally
ensure that every woman has cost-free access to . . . all
[FDA]-approved contraceptives. In fact, HHS has already devised and
implemented a system that seeks to respect the religious liberty of
religious nonprofit corporations while ensuring that the employees
of these entities have precisely the same access to all
FDA-approved contraceptives as employees of [other]
companies.”).

															The assumption made in the above-cited cases
rests on the basic principle just stated, one on which this dissent
relies: While the Government may “accommodate religion beyond free
exercise requirements,” Cutter , 544 U. S., at 713, when
it does so, it may not benefit religious adherents at the expense
of the rights of third parties. See, e.g. , id. , at
722 (“[A]n accommodation must be measured so that it does not
override other significant interests.”); Caldor , 472
U. S., at 710 (religious exemption was invalid for its
“unyielding weighting in favor of ” interests of religious
adherents “over all other interests”). Holding otherwise would
endorse “the regulatory equivalent of taxing non-adherents to
support the faithful.” Brief for Church-State Scholars as Amici
Curiae 3.

															2

															The expansive religious exemption at issue
here imposes significant burdens on women employees. Between 70,500
and 126,400 women of childbearing age, the Government estimates,
will experience the disappearance of the contraceptive coverage
formerly available to them, 83 Fed. Reg. 57578–57580; indeed, the
numbers may be even higher.[ 18 ] Lacking any alternative insurance coverage mechanism,
see supra , at 7, the exemption leaves women two options,
neither satisfactory.

															The first option—the one suggested by the
Government in its most recent rulemaking, 82 Fed. Reg. 47803—is for
women to seek contraceptive care from existing government-funded
programs. Such programs, serving primarily low-income individuals,
are not designed to handle an influx of tens of thousands of
previously insured women.[ 19 ] Moreover, as the Government has acknowledged,
requiring women “to take steps to learn about, and to sign up for,
a new health benefit” imposes “additional barriers,” “mak[ing] that
coverage accessible to fewer women.” 78 Fed. Reg. 39888. Finally,
obtaining care from a government-funded program instead of one’s
regular care provider creates a continuity-of-care problem,
“forc[ing those] who lose coverage away from trusted providers who
know their medical histories.” NWLC Brief 18.

															The second option for women losing insurance
coverage for contraceptives is to pay for contraceptive counseling
and devices out of their own pockets. Notably, however, “the most
effective contraception is also the most expensive.” ACOG Brief
14–15. “[T]he cost of an IUD [intrauterine device],” for example,
“is nearly equivalent to a month’s full-time pay for workers
earning the minimum wage.” Hobby Lobby , 573 U. S., at
762 (Ginsburg, J., dissenting). Faced with high out-of-pocket
costs, many women will forgo contraception, Brief for 186 Members
of Congress 11, or resort to less effective contraceptive methods,
930 F. 3d, at 563.

															As the foregoing indicates, the religious
exemption “reintroduce[s] the very health inequities and barriers
to care that Congress intended to eliminate when it enacted the
women’s preventive services provision of the ACA.” NWLC Brief 5.
“No tradition, and no prior decision under RFRA, allows a
religion-based exemption when [it] would be harmful to others—here,
the very persons the contraceptive coverage requirement was
designed to protect.” Hobby Lobby , 573 U. S., at 764
(Ginsburg, J., dissenting).[ 20 ] I would therefore hold the religious exemption
neither required nor permitted by RFRA.[ 21 ]

															B

															Pennsylvania and New Jersey advance an
additional argument: The exemption is not authorized by RFRA, they
maintain, because the self-certification accommodation it replaced
was sufficient to alleviate any substantial burden on religious
exercise. Brief for Respondents 36–42. That accommodation, I agree,
further indicates the religious exemption’s flaws.

															1

															For years, religious organizations have
challenged the self-certification accommodation as insufficiently
protective of their religious rights. See, e.g. , Zubik , 578 U. S., at ___ (slip op., at 3). While I do
not doubt the sincerity of these organizations’ opposition to that
accommodation, Hobby Lobby , 573 U. S., at 758–759
(Ginsburg. J., dissenting), I agree with Pennsylvania and New
Jersey that the accommodation does not substantially burden
objectors’ religious exercise.

															As Senator Hatch observed, “[RFRA] does not
require the Government to justify every action that has some effect
on religious exercise.” 139 Cong. Rec. 26180 (1993). Bowen v. Roy , 476 U.S.
693 (1986), is instructive in this regard. There, a Native
American father asserted a sincere religious belief that his
daughter’s spirit would be harmed by the Government’s use of her
social security number. Id. , at 697. The Court, while
casting no doubt on the sincerity of this religious belief,
explained:

															“Never to our knowledge has the Court
interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will
further his or her spiritual development or that of his or her
family. The Free Exercise Clause simply cannot be understood to
require the Government to conduct its own internal affairs in ways
that comport with the religious beliefs of particular citizens.” Id ., at 699.[ 22 ] Roy signals a critical distinction in the
Court’s religious exercise jurisprudence: A religious adherent may
be entitled to religious accommodation with regard to her own
conduct, but she is not entitled to “insist that . . . others must conform their conduct to [her] own
religious necessities.’ ” Caldor , 472 U. S., at
710 (quoting Otten v. Baltimore & Ohio
R. Co ., 205 F.2d 58, 61 (CA2 1953) (Hand, J.); (emphasis
added).[ 23 ] Counsel for the
Little Sisters acknowledged as much when he conceded that religious
“employers could [not] object at all” to a “government obligation”
to provide contraceptive coverage “imposed directly on the
insurers.” Tr. of Oral Arg. 41.[ 24 ]

															But that is precisely what the
self-certification accommodation does. As the Court recognized in Hobby Lobby : “When a group-health-insurance issuer receives
notice that [an employer opposes coverage for some or all
contraceptive services for religious reasons], the issuer must then
exclude [that] coverage from the employer’s plan and provide
separate payments for contraceptive services for plan
participants.” 573 U. S., at 698–699; see also id., at
738 (Kennedy, J., concurring) (“The accommodation works by
requiring insurance companies to cover . . .
contraceptive coverage for female employees who wish it.” (emphasis
added)). Under the self-certification accommodation, then, the
objecting employer is absolved of any obligation to provide the
contraceptive coverage to which it objects; that obligation is
transferred to the insurer. This arrangement “furthers the
Government’s interest [in women’s health] but does not impinge on
the [employer’s] religious beliefs.” Ibid .; see supra , at 18–19.

															2

															The Little Sisters, adopting the arguments
made by religious organizations in Zubik , resist this
conclusion in two ways. First, they urge that contraceptive
coverage provided by an insurer under the self-certification
accommodation forms “part of the same plan as the coverage provided
by the employer.” Brief for Little Sisters 12 (internal quotation
marks omitted). See also Tr. of Oral Arg. 29 (Little Sisters object
“to having their plan hijacked”); ante , at 8 (Alito, J.,
concurring) (Little Sisters object to “maintain[ing] and pay[ing]
for a plan under which coverage for contraceptives would be
provided”). This contention is contradicted by the plain terms of
the regulation establishing that accommodation: To repeat, an
insurance issuer “must . . . [e]xpressly exclude contraceptive coverage from the group health
insurance coverage provided in connection with the group health
plan.” 45 CFR §147.131(c)(2)(i)(A) (2013) (emphasis added); see supra, at 6.[ 25 ]

															Second, the Little Sisters assert that “tak[ing]
affirmative steps to execute paperwork . . . necessary
for the provision of ‘seamless’ contraceptive coverage to their
employees” implicates them in providing contraceptive services to
women in violation of their religious beliefs. Little Sisters Reply
Brief 7. At the same time, however, they have been adamant that
they do not oppose merely “register[ing] their objections” to the
contraceptive-coverage requirement. Ibid. See also Tr. of
Oral Arg. 29, 42–43 (Little Sisters have “no objection to
objecting”); ante , at 8 (Alito, J., concurring) (Little
Sisters’ “concern was not with notifying the Government that they
wished to be exempted from complying with the mandate per se ”). These statements, taken together, reveal that
the Little Sisters do not object to what the self-certification
accommodation asks of them , namely, attesting to their
religious objection to contraception. See supra , at 6. They
object, instead, to the particular use insurance issuers make of
that attestation. See supra , at 18–19.[ 26 ] But that use originated from the ACA and its
once-implementing regulation, not from religious employers’ self-
certification or alternative notice.

															*  *  *

															The blanket exemption for religious and moral
objectors to contraception formulated by the IRS, EBSA, and CMS is
inconsistent with the text of, and Congress’ intent for, both the
ACA and RFRA. Neither law authorizes it.[ 27 ] The original administrative regulation
accommodating religious objections to contraception appropriately
implemented the ACA and RFRA consistent with Congress’ staunch
determination to afford women employees equal access to preventive
services, thereby advancing public health and welfare and women’s
well-being. I would therefore affirm the judgment of the Court of
Appeals.[ 28 ] Notes 1 In Employment
Div. , Dept. of Human Resources of Ore . v. Smith , 494 U.S.
872 (1990), the Court explained that “the right of free
exercise does not relieve an individual of the obligation to comply
with a valid and neutral law of general applicability on the ground
that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).” Id., at 879 (internal quotation
marks omitted). The requirement that insurers cover FDA-approved
methods of contraception “applies generally, . . . trains
on women’s well-being, not on the exercise of religion, and any
effect it has on such exercise is incidental.” Burwell v. Hobby Lobby Stores , Inc ., 573
U.S. 682 , 745 (2014) (Ginsburg, J., dissenting). Smith forecloses “[a]ny First Amendment Free Exercise Clause claim [one]
might assert” in opposition to that requirement. 573
U. S . , at 744. 2 This requirement does not
apply to employers with fewer than 50 employees, 26
U. S. C. §4980H(c)(2), or “grandfathered health
plans”—plans in existence on March 23, 2010 that have not
thereafter made specified changes in coverage, 42
U. S. C. §18011(a), (e); 45 CFR §147.140(g) (2018).
“Federal statutes often include exemptions for small employers, and
such provisions have never been held to undermine the interests
served by these statutes.” Hobby Lobby , 573 U. S., at
763 (Ginsburg, J., dissenting). “[T]he grandfathering provision,”
“far from ranking as acategorical exemption, . . . is
temporary, intended to be a means for gradually transitioning
employers into mandatory coverage.” Id. , at 764(internal
quotation marks omitted). 3 “The [Institute of
Medicine] is an arm of the National Academy of Sciences, an
organization Congress established for the explicit purpose of
furnishing advice to the Government.” Id ., at 742, n. 3
(internal quotation marks omitted). 4 HRSA, U. S. Dept. of
Health and Human Services (HHS), Women’s Preventive Services
Guidelines, www.hrsa.gov/womens-guidelines/. 5 77 Fed. Reg. 8725
(2012). 6 HRSA, HHS, Women’s
Preventive Services Guidelines, supra . 7 77 Fed. Reg. 8725
(alterations and internal quotation marks omitted). Proponents of
the Women’s Health Amendment specifically anticipated that HRSA
would require coverage of family planning services. See, e.g. , 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer); id. , at 28843 (statement of Sen. Gillibrand); id. , at
28844 (statement of Sen. Mikulski); id. , at 28869 (statement
of Sen. Franken); id ., at 28876 (statement of Sen. Cardin); ibid . (statement of Sen. Feinstein); id. , at 29307
(statement of Sen. Murray). 8 This opinion refers to
the contraceptive-coverage accommodation made in 2013 as the
“self-certification accommodation.” See ante , at 6 (opinion
of the Court). Although this arrangement “requires the issuer to
bear the cost of [contraceptive] services, HHS has determined that
th[e] obligation will not impose any net expense on issuers because
its cost will be less than or equal to the cost savings resulting
from th[ose] services.” Hobby Lobby , 573 U. S., at
698–699. 9 Nonprofit and closely
held for-profit organizations with “sincerely held moral
convictions” against contraception also qualify for the exemption.
45 CFR §147.133(a)(1)(i), (a)(2). Unless otherwise noted, this
opinion refers to the religious and moral exemptions together as
“the exemption” or “the blanket exemption.” 10 This
opinion uses “Brief for HHS et al.” to refer to the Brief for
Petitioners in No. 19–454, filed on behalf of the Departments of
HHS, Treasury, and Labor, the Secretaries of those Departments, and
the President. 11 The
only language to which the Court points in support of its contrary
conclusion is the phrase “as provided for.” See ante , at 15.
This phrase modifies “additional preventive care and screenings.”
§300gg–13(a)(4). It therefore speaks to what services shall
be provided, not who must provide them. 12 The
Court does not say whether, in its view, the exemption authority it
claims for women’s preventive care exists as well for HRSA’s
children’s preventive-care guidelines. 13 HRSA,
HHS, Organization,
www.hrsa.gov/about/organization/. 14 A
more logical choice would have been HHS’s Office for CivilRights
(OCR), which “enforces . . . conscience and religious
freedomlaws” with respect to HHS programs. HHS, OCR, About Us,
www.hhs.gov/ocr/about-us/. Indeed, when the Senate
introduced an amendment to the ACA similar in character to the
blanket exemption, a measure that failed to pass, the Senate
instructed that OCR administer the exemption. 158 Cong. Rec. 1415
(2012) (proposed amendment); id ., at 2634 (vote tabling
amendment). 15 On
the broad scope the Court today attributes to the “ministerial
exception,” see Our Lady of Guadalupe School v. Morrissey-Berru , 591 U. S. ___ (2020). 16 The
Government does not argue that my view of the limited compass of
§300gg–13(a)(4) imperils the self-certification accommodation.
Brief for HHS et al. 19–20. But see ante , at 18,
n. 9 (opinion of the Court) . That accommodation aligns
with the Court’s decisions under the Religious Freedom Restoration
Act of 1993 (RFRA). See infra , at 14–15. It strikes a
balance between women’s health and religious opposition to
contraception, preserving women’s access to seamless, no-cost
contraceptive coverage, but imposing the obligation to provide such
coverage directly on insurers, rather than on the objecting
employer. See supra , at 6; infra , at 18–20. The
blanket exemption, in contrast, entirely disregards women
employees’ preventive care needs. 17 But
see, e.g. , Brief for Professors of Criminal Law et al.
as AmiciCuriae 8–11 (RFRA does not grant agencies
independent rulemaking authority; instead, laws allegedly violating
RFRA must be challenged in court). No party argues that agencies
can act to cure violations of RFRA only after a court has found a
RFRA violation, and this opinion does not adopt any such
view. 18 The
Government notes that 2.9 million people were covered by the 209
plans that previously utilized the self-certification
accommodation. 83 Fed. Reg. 57577. One hundred nine of those plans
covering 727,000 people, the Government estimates, will use the
religious exemption, while 100 plans covering more than 2.1 million
people will continue to use the self-certification accommodation. Id. , at 57578 . If more plans, or plans covering more
people, use the new exemption, more women than the Government
estimates will be affected. 19 Title
X “is the only federal grant program dedicated solely to providing
individuals with comprehensive family planning and related
preventive health services.” HHS, About Title X Grants,
www.hhs.gov/opa/title-x-family-planning/about-title-x-grants/.
A recent rule makes women who lose contraceptive coverage due to
the religious exemption eligible for Title X services. See 84 Fed.
Reg. 7734 (2019). Expanding eligibility , however, “does
nothing to ensure Title X providers actually have capacity to meet
the expanded client population.” Brief for National Women’s Law
Center et al. as Amici Curiae 22. Moreover, that same
rule forced 1,041 health providers, serving more than 41% of Title
X patients, out of the Title X provider network due to their
affiliation with abortion providers. 84 Fed. Reg. 7714; Brief for
Planned Parenthood Federation of America et al. as Amici
Curiae 18–19. 20 Remarkably, Justice Alito maintains
that stripping women of insurance coverage for contraceptive
services imposes no burden. See ante , at 18 (concurring
opinion). He reaches this conclusion because, in his view, federal
law does not require the contraceptive coverage denied to women
under the exemption. Ibid . Congress, however, called upon
HRSA to specify contraceptive and other preventive services for
women in order to ensure equality in women employees’ access to
healthcare, thus safeguarding their health and well-being. See supra, at 2–5. 21 As
above stated, the Government does not defend the moral exemption
under RFRA. See supra , at 13. 22 Justice Alito disputes the relevance
of Roy , asserting that the religious adherent in that case
faced no penalty for noncompliance with the legal requirement under
consideration. See ante , at 6, n. 5. As Justice Alito
acknowledges, however, the critical inquiry has two parts. See ante , at 6–7. It is not enough to ask whether noncompliance
entails “substantial adverse practical consequences.” One must also
ask whether compliance substantially burdens religious exercise.
Like Roy , my dissent homes in on the latter
question. 23 Even
if RFRA sweeps more broadly than the Court’s pre- Smith jurisprudence in some respects, see Hobby Lobby , 573
U. S., at 695, n. 3; but see id. , at 749–750
(Ginsburg, J., dissenting), there is no cause to believe that
Congress jettisoned this fundamental distinction. 24 Justice Alito ignores the distinction
between (1) a request for an accommodation with regard to one’s own
conduct, and (2) an attempt to require others to conform their
conduct to one’s own religious beliefs. This distinction is fatal
to Justice Alito’s argument that the self-certification
accommodation violates RFRA. See ante , at 6–10. 25 Religious organizations have observed
that, under the self-certification accommodation, insurers need
not, and do not, provide contraceptive coverage under a separate
policy number. Supp. Brief for Petitioners in Zubik v. Burwell , O. T. 2015, No. 14–1418, p. 1. This objection does
not relate to a religious employer’s own conduct; instead, it
concerns the insurer’s conduct. See supra , at
18–19. 26 Justice Alito asserts that the Little
Sisters’ “situation [is] the same as that of the conscientious
objector in Thomas [v. Review Bd. of Ind. Employment
Security Div ., 450 U.S.
707 , 715 (1981)].” Ante , at 9–10. I disagree . In Thomas , a Jehovah’s Witness objected to “work[ing] on
weapons,” 450 U. S., at 710, which is what his employer
required of him. As above stated, however, the Little Sisters have
no objection to objecting, the only other action the
self-certification accommodation requires of them. 27 Given
this conclusion, I need not address whether the exemption is
procedurally invalid. See ante , at 22–26 (opinion of the
Court). 28 Although the Court does not reach the
issue, the District Court did not abuse its discretion in issuing a
nationwide injunction. The Administrative Procedure Act
contemplates nationwide relief from invalid agency action. See 5
U. S. C. §706(2) (empowering courts to “hold unlawful and
set aside agency action”). Moreover, the nationwide reach of the
injunction “was ‘necessary to provide complete relief to the
plaintiffs.’ ” Trump v. Hawaii , 585 U. S.
___, ___, n. 15 (2018) (Sotomayor, J., dissenting) (slip op.,
at 25, n. 13) (quoting Madsen v. Women's Health
Center , Inc ., 512 U.S.
753 , 765 (1994)). Harm to Pennsylvania and New Jersey, the
Court of Appeals explained, occurs because women who lose benefits
under the exemption “will turn to state-funded services for their
contraceptive needs and for the unintended pregnancies that may
result from the loss of coverage.” 930 F. 3d, at 562. This
harm is not bounded by state lines. The Court of Appeals noted, for
example, that some 800,000 residents of Pennsylvania and New Jersey
work—and thus receive their health insurance—out of State. Id. , at 576. Similarly, many students who attend colleges
and universities in Pennsylvania and New Jersey receive their
health insurance from their parents’ out-of-state health plans. Ibid.